These Senza Tech, LLC. Terms and Conditions for Use (these “Terms”) are the terms and conditions upon which Senza Tech, LLC. and its affiliates (collectively, “Senza Tech, LLC.”) grants to the Company the right to use Senza Tech, LLC.'s SenzaCaster® model (collectively, the “Product”) as set forth in the agreement between Purchaser and Senza Tech, LLC., and constitute an integral part of the agreement (and/or purchase order) (the "Agreement") between Senza Tech, LLC. and the entity entering into such agreement with Senza Tech, LLC. (the “Company” and collectively with Senza Tech, LLC., the “Parties”). Acceptance of all purchase orders is expressly made conditional upon the terms and conditions set forth herein without modification or addition. Senza Tech, LLC. expressly disclaims any other terms and conditions of the transaction and unless agreed otherwise in writing by the Parties, these Terms shall constitute the final, complete and exclusive agreement of the Parties with respect to the Product.
1. ORDERING. The Company shall order the Product by issuing an irrevocable purchase order in a form acceptable to Senza Tech, LLC. or by signing Senza Tech, LLC.’s purchase order. Such purchase order may not be cancelled or rescheduled by Company. Each purchase order shall include a description of the ordered Product, quantity, total cost in accordance with Senza Tech, LLC.’s applicable quotation, shipping location, requested shipping date (in accordance with the appropriate lead times), method of delivery, requested carrier, requested packaging if any, requested type of insurance if any and method of payment. Senza Tech, LLC.'s acceptance of purchase orders and shipments are subject to availability.
No order shall bind Senza Tech, LLC. until accepted by its authorized representative. Senza Tech, LLC. may accept or reject any order submitted by Company. Senza Tech, LLC. shall have no liability to Company as a result of such refusal of any such orders submitted. If the terms and conditions of Company’s purchase order conflict, in whole or in part, with the provisions of these Terms, such terms and conditions set forth in Company’s purchase orders shall be of no force or effect whatsoever. Senza Tech, LLC. will use reasonable commercial efforts to approve or reject purchase orders within fourteen (14) business days.
2. TITLE, DELIVERY AND LIMITATIONS OF USE. Title and the risk of loss or damageto the Product shall pass to Company upon delivery of the Product to a common carrier at Senza Tech, LLC.'s shipment facility, carrier acting as Company's agent. Senza Tech, LLC. may choose the method of shipment in its discretion unless Senza Tech, LLC. has received and approved specific shipping instructions from Company. If Company delays shipments, payments shall become due on the date when Senza Tech, LLC. is prepared to make shipment; Product held for the Company during any such delay shall be at the risk and expense of the Company. Senza Tech, LLC. shall make commercially reasonable efforts to meet the date(s) quoted or acknowledged; however, the Company understands that delivery is dependent on third parties outside Senza Tech, LLC.’s control and thus, in no event will Senza Tech, LLC. be liable for any delays. In the event of any such delay, the date of delivery shall automatically be extended for a period equal to the time lost by reason of such delay. In the event that Senza Tech, LLC., for any reason, has insufficient supplies of the Product to meet future demand or accepted offers, Senza Tech, LLC. reserves the right, in its sole discretion, to make partial deliveries of the Product and invoice for them separately, which shall not relieve the Company of the obligation to accept other parts of its order. THE COMPANY IRREVOCABLY AND UNCONDITIONALLY UNDERTAKES NOT TO DECOMPILE, ADAPT, REVERSE ENGINEER OR DISASSEMBLE THE PRODUCT, NOR ATTEMPT TO DO ANY OF SUCH THINGS. The Company agrees that it shall not copy, use or permit the use of the Products, except as expressly set forth herein. The Company shall not (i) prepare or use derivatives of the software that is part of the Product (the “Licensed Software”); (ii) attempt to dissemble or reverse engineer the Product and/or the Licensed Software; or (iii) the Company covenants and agrees that it cannot sublease the Product to any third party.
3. LIMITATION OF LIABILITY.
3.1. EXCEPT AS EXPRESSLY WARRANTED HEREIN, THE PRODUCTS, THE SERVICES (AS DEFINED BELOW) AND THE LICENSED SOFTWARE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND SENZA TECH, LLC. DOES NOT MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO OPERATION OF PRODUCTS, THE CONTENT BROADCASTED, CONTINUATION OR SUCCESS THEREOF, THE MATERIALS CONTAINED THEREIN, THE SERVERS USED OR THE GOODS OR SERVICES OFFERED BY SENZA TECH, LLC. AND SENZA TECH, LLC. EXPRESSLY DISCLAIMS ANY WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WITHOUT DEROGATING FROM THE ABOVE, COMPANY ACKNOWLEDGES AND AGREES THAT SENZA TECH, LLC. IS NOT RESPONSIBLE AND CANNOT CONTROL THE OPERATION OF ANY CELLULAR NETWORK(S) OR THE PASSING OF OR TRANSMISSION OF INFORMATION VIA ANY NETWORKS, AND AS SUCH DOES NOT WARRANT THE OPERATION OF THE PRODUCTS. ANYTHING TO THE CONTRARY CONTAINED HEREIN NOTWITHSTANDING, SENZA TECH, LLC. WARRANTS THAT THE PRODUCTS AND THE LICENSED SOFTWARE ARE PROVIDED TO THE COMPANY IN GOOD CONDITIONS AND FREE OF ANY MATERIAL DEFECTS.
3.2. UNDER NO CIRCUMSTANCES SHALL SENZA TECH, LLC. BE LIABLE TO COMPANY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF SUCH DAMAGES ARE FORESEEABLE OR THAT COMPANY HAS BEEN ADVISED OR HAS CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM SENZA TECH, LLC.'S PERFORMANCE OR NONPERFORMANCE PURSUANT TO ANY PROVISION OF THIS AGREEMENT (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES), SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS.
3.3. In addition, the limitation of Senza Tech, LLC.'s liability as set forth in the Agreement shall apply.
4. CANCELLATIONS OR RESCHEDULING OF ORDER. Senza Tech, LLC. reserves the right to cancel a purchase order if Company files for bankruptcy of assignment for the benefit of creditors by Company, or if a receiver is appointed for Company’s assets; or if there is a material breach by Company of the provisions of these Terms with respect to the purchase order in question or prior purchase orders.
5. PRODUCT INSPECTIONS AND PRODUCT RETURN. The Company will inspect the Product at its destination promptly upon arrival. The Company has up to [ten (10)] days following arrival to inspect the Product. If a Product is believed to be defective, the Company will return, at its cost, the allegedly defective Product to Senza Tech, LLC. accompanied by a full description of such alleged defect. If Senza Tech, LLC. determines that any returned Product is not defective, Senza Tech, LLC. will return the Product to the Company at the Company's expense, freight collect, along with a written statement setting forth Senza Tech, LLC.'s conclusion that the returned Product was not defective, and Company agrees to pay Senza Tech, LLC.'s reasonable cost of handling and testing. Upon determining that a returned Product is defective, Senza Tech, LLC., at its option may (i) repair or replace the Product and ship the repaired or replaced Product to Company at Senza Tech, LLC.'s expense, or (ii) refund the purchase price (if already paid).
6. INDEMNITY. Senza Tech, LLC. shall defend or settle any suit or proceeding brought against the Company based on a claim that a Product constitutes an infringement of any existing patent, copyright or trade secret provided that Senza Tech, LLC. is notified promptly in writing and is given complete authority to control the defense, as well as assistance and information required for the defense. Senza Tech, LLC. shall not be responsible for any cost, expense or compromise incurred or made by the Company without Senza Tech, LLC.'s prior written consent. If any Product is in the opinion of Senza Tech, LLC. likely to, or does, become the subject of a claim for patent infringement, Senza Tech, LLC. may, at its sole option, procure for the Company the right to continue using the Product or modify it to become non-infringing. If Senza Tech, LLC. is not reasonably able to modify or otherwise secure the Company the right to continue using the Product, Senza Tech, LLC. shall remove the Product and refund the Company the amounts paid. Senza Tech, LLC. shall not be liable for any infringement or claim based upon (i) the combination or incorporation of the Product with other products not supplied by Senza Tech, LLC., to the extent that the infringement results from such combination or incorporation of the Product; and (ii) the modification by the Company of the Product. In all of the above cases, and for claims by third parties related to use of the Product, the Company shall hold Senza Tech, LLC. harmless and indemnify Senza Tech, LLC. from any damage, loss, liability and/or expenses (including reasonable attorneys’ fees). THIS SECTION SETS FORTH THE COMPANY'S EXCLUSIVE REMEDY AND SENZA TECH, LLC.'S SOLE OBLIGATION IN THE EVENT THAT ANY PRODUCT FURNISHED HEREUNDER INFRINGES THE INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY.
7. LIMITATION OF REMEDIES AND DAMAGES. The Company’s sole remedies and Senza Tech, LLC.’s entire liability is as set forth above. In no event shall Senza Tech, LLC. or any of its suppliers, licensors, directors, officers, employees or affiliates be liable to the Company for: (a) any loss of data or damage thereto; (b) loss or damage caused by the combination or incorporation of the Product with other products or systems not supplied by Senza Tech, LLC.; (c) loss or damage caused by the modification by the Company of the Product; or (d) consequential, incidental, indirect, special or similar damages whatsoever (including, without limitation, damages for loss of business profits, business interruption and the like), whether foreseeable or unforeseeable, arising out of the use or inability to use the Product or accompanying written materials, regardless of the basis of the claim and even if Senza Tech, LLC. or its representative has been advised of the possibility of such damage. Senza Tech, LLC.'s liability to Company for direct damages for any cause whatsoever, and regardless of the basis of the form of the action, will be limited to the amount actually paid for the Product that caused the damages.
8. PRICE AND PAYMENT. Prices quoted shall be valid only for the period of time indicated in the quotation, and only if signed by an authorized representative of Senza Tech, LLC.. All prices are exclusive of transportation, insurance, taxes, duties and other charges related thereto. Such charges when applicable will appear as separate additional items on the invoice. No discounts whatsoever are authorized unless and until the Company and Senza Tech, LLC. have expressly agreed in writing to a discount and such writing has been approved by an authorized officer of Senza Tech, LLC.. Senza Tech, LLC., at its discretion, may require reasonable advance assurances of payment through irrevocable bank letters of credit or otherwise. Even after Senza Tech, LLC.'s acceptance of an order, shipments or deliveries will at all times be subject to Senza Tech, LLC.'s approval and Senza Tech, LLC. may at any time decline to make any shipments or deliveries until receipt of payment or upon additional terms and conditions or security satisfactory to Senza Tech, LLC.. All overdue amounts shall bear interest at a rate of 1% per month. The amount of interest shall be calculated from the payment due date to the date of electronic transfer. Payments due hereunder shall not be subject to any set-off for claims by Company. Senza Tech, LLC. reserves the right to declare all sums immediately due and payable hereunder for any breach of these Terms including, without limitation, failure to comply with credit terms.
9. TAXES. Except to the extent that the Company provides Senza Tech, LLC. with a tax-exempt certificate acceptable in the appropriate taxing jurisdiction prior to shipment of the Product, The Company shall pay any present or future excise, sales, use or similar tax and other governmental charges except for taxes based on Senza Tech, LLC.'s revenue, and the Company agrees to indemnify Senza Tech, LLC. against liability for payment of such taxes. Such taxes, when applicable, will appear as separate additional items on the invoice.
10. SERVICE AGREEMENT.
10.1. Deployment and Integration. Senza Tech, LLC. support service (the “Services”) include: 1) delivery of the Product; 2) hardware setup recommendation; and 3) training and user manual documentation.
10.2. Service Support. Senza Tech, LLC. shall exercise commercially reasonable efforts to provide Product support aimed at maximizing the Company’s benefits from Senza Tech, LLC.’s Product.
10.3. Systems Updates. Senza Tech, LLC. support services include periodic delivery of client and server software updates when Senza Tech, LLC. makes such updates commercially available to its customers.
10.4. Professional Services. If additional implementation services beyond the Services are required due to any incompatibility between the Company’s operating environment and a third party software or hardware or service and if Company requests Senza Tech, LLC. to perform, and Senza Tech, LLC. agrees to provide, professional services with respect to such issues, such services shall be provided by Senza Tech, LLC. for additional fees as mutually agreed upon by the Parties in writing. At the Company's request, Senza Tech, LLC. will provide a written quote for rates or fees for specific professional services.
10.5. Responsibilities. The Company is responsible for obtaining operating environments designated by Senza Tech, LLC. in the system documentation. The Company will allow Senza Tech, LLC.’s support team to access and remotely control the Product unit the server from time to time and as needed for periodical support and billing.
10.6. Exclusions. Senza Tech, LLC. shall have no obligation to support: 1) an altered, damaged or modified Product or any portion or part of the Product incorporated with or into other systems, except for modifications or alterations provided as a result of the Services or support provided by Senza Tech, LLC.; 2) Product problems caused by use of or changes to third party products with which the Product is used; 3) Product problems caused by Company’s negligence, abuse or misapplication in the use of the Product other than as specified in the system documentation or due to accidents, acts of nature or other causes beyond the control of the Company; 4) in addition to warranty disclaimers provided herein, Senza Tech, LLC. does not warrant or represent that every support request can or will be resolved to the satisfaction of the Company and does not warrant uninterrupted or error-free operation of the Product, the Services, or any other service provided by Senza Tech, LLC.; and 5) if Senza Tech, LLC. believes that a problem reported by the Company may not be due to an defect in the Product, Senza Tech, LLC. will notify the Company accordingly and will not be held responsible to addressing such problem.
11.1. Non-Disclosure. The Parties agree and acknowledge that, as a result of negotiating, entering into and performing these Terms, each Party has and will have access to certain of the other Party's Confidential Information (as defined below). Each Party also understands and agrees that misuse and/or disclosure of that Confidential Information can adversely affect the other Party's business. Accordingly, the Parties agree that, during the period of five (5) years from the earlier of the signing of a purchase order or the Agreement, each Party shall (a) use and reproduce the other Party's Confidential Information only for the purposes of these Terms and only to the extent necessary for such purpose; (b) restrict disclosure of the other Party's Confidential Information to its employees, consultants or independent contractors with a need to know; and (c) not disclose the other Party's Confidential Information to any third party without prior written approval of the other Party. Notwithstanding the foregoing, it shall not be a breach of these Terms for either Party to disclose Confidential Information of the other Party if, and to the extent, required to do so under law or in a judicial or other governmental investigation or proceeding, provided the other Party has been given prior notice and the disclosing party has sought all reasonably available safeguards against widespread dissemination of the Confidential Information prior to such disclosure.
11.2. Confidential Information Defined. As used in these Terms, the term “Confidential Information” refers to: (i) the business terms and conditions of these Terms and any purchase order or document related hereto or thereto; (ii) each Party's trade secrets, current or future business plans, strategies, opportunities, methods and/or practices; and (iii) other information relating to either Party that is not generally known to the public, including information about either Party's personnel, customers, designs, protocols, know-how, processes, costs, prices, finances and research and development. Each party agrees that the referred user data collected and aggregated by the other Party is Confidential Information of such other Party. In addition, each Party agrees that all processes and protocols provided by the other Party in connection with the Products are Confidential Information of such other Party. It is further understood and agreed that for purposes of these Terms, “Confidential Information” shall include the Licensed Software, all modifications, enhancements, upgrades and improvements thereto and all specifications, programs, source code, object code, documentation, diagrams and other materials of any type whatsoever (tangible or intangible and machine readable or human readable) contained or revealed in any of the foregoing. Notwithstanding the foregoing, the term “Confidential Information” specifically excludes:
(a) information that is now in the public domain or subsequently enters the public domain by publication or otherwise through no action or fault of the Party making use of such information; (b) information that is known to either Party without restriction, prior to receipt from the other Party under these Terms, from its own independent sources as evidenced by such Party's written records, and which was not acquired, directly or indirectly, from the other Party; (c) information that either Party receives from any third party reasonably known by such receiving Party to have a legal right to transmit such information, and not under any obligation to keep such information confidential; and (d) information independently developed by either Party's employees or agents provided that such developing party can show that those same employees or agents had no access to the Confidential Information received in connection with the Products.
12. GENERAL. These Terms shall constitute the final, complete and exclusive agreement of the Parties with respect to all transactions between Senza Tech, LLC. and the Company relating to the Product and shall supersede all prior offers, negotiations, understandings and agreements. No additional or different terms or conditions, whether material or immaterial, shall be incorporated into any
agreement unless expressly accepted in writing by an authorized officer of Senza Tech, LLC.. These Terms are not assignable by Company. These Terms are binding on the Parties and their respective successors and permitted assignees. Any waiver by Senza Tech, LLC. of one or more of these Terms or any default hereunder shall not constitute a waiver of the remaining terms and conditions or of any future default hereunder. No failure or delay on the part of Senza Tech, LLC. in exercising or enforcing any right hereunder shall operate as a waiver thereof or preclude any other exercise or enforcement of any right hereunder. Any provision of these Terms that is prohibited or unenforceable under applicable law
shall be ineffective to the extent of such prohibition or unenforceability, without impairing or invalidating the remaining provisions of these Terms. These Terms and all performance and disputes arising out of or related to goods in question, shall be governed by the laws of the State of New Jersey. The Company agrees to comply, at its sole expense, with all applicable laws in connection with the use of the Product, including, without limitation, laws governing export of products.