Terms & Conditions
PURCHASE AND SALE AGREEMENT
CAREFULLY READ THE FOLLOWING PURCHASE AND SALE AGREEMENT.
IT CONTAINS IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND EXCLUSIONS THAT MAY APPLY TO YOU. THIS AGREEMENT CONTAINS AN ARBITRATION CLAUSE.
BY CLICKING THE ACCEPTANCE BUTTON, SIGNING UP FOR AN ACCOUNT, OR PURCHASING, USING OR INSTALLING ANY PART OF COMPANY PRODUCTS OR SERVICES, CUSTOMER EXPRESSLY AGREES TO AND CONSENTS TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF CUSTOMER DOES NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT CLICK THE ACCEPTANCE BUTTON, COMPANY WILL PROMPTLY CANCEL THIS TRANSACTION AND CUSTOMER MAY NOT PURCHASE, ACCESS OR USE ANY PART OF THE SERVICE.
THIS PURCHASE AND SALE AGREEMENT (“Agreement”) is made between Superior Printing Inc., dba Superior Press, a corporation with offices at 9440 Norwalk Avenue, Santa Fe Springs, CA 90670, (“Company”) and any person or entity (“Customer”) who purchases or utilizes Company Products and/or Support Services.
- Definitions. Unless otherwise defined herein, all capitalized terms in this Agreement will be defined as provided below.
“Customers” means business or consumer customers of Company that purchase the Products and obtain licenses to use the Software for internal business purposes and not for resale or redistribution.
“Documentation” means the Company documentation for the Products made available by Company to Customer in hard copy or in electronic form with the Products or otherwise under this Agreement.
“Products” means the products described in Exhibit A of this Agreement, which is inclusive of the software in object code embedded therein or provided with the hardware (the “Software”).
“Purchase Order” means a written or electronic order issued by Customer and submitted to Company for Products and/or Support Services, delivered by an authorized Customer representative, specifying the quantity, model number and description of the Products, purchase price and any applicable discounts, billing address, destination (shipping address), designated carrier (if any), mode of shipment and requested delivery date.
“Support Services” means the support and maintenance services to be provided by Company’s Supplier to Customer pursuant to this Agreement and as are set forth in Exhibit B to this Agreement.
“Writing” or “Written” means any form of memorialization in tangible or electronic medium unless otherwise specified.
- Prices and Payment. Company’s prices do not include any foreign, federal, state or local sales, use or other similar taxes or duties or other fees (including any import or export fees), however designated or levied against the sale, licensing, delivery or use of the Products and Support Services. Customer is solely responsible for and shall pay all such taxes, duties and fees. If Customer is required to withhold or deduct any taxes from any payment to Company hereunder, Customer shall furnish to Company, without delay, a tax certificate showing the payment of such tax. Unless otherwise agreed by the parties in writing, the payment of fees by Customer, other than fees for Support Services (which shall be paid as set forth in Section 5 (Support Services)), shall be made as follows: Full payment due at time of the placement of a the order and all payments shall be made in U.S. dollars. Any invoiced amount which is not paid when due will bear interest at the rate of one and one-half percent (1½%) per month, or the maximum allowable rate by law, whichever is less. Customer agrees that outstanding balances remaining more than thirty (30) calendar days following the due date shall give rise to a material breach of this Agreement by Customer, justifying immediate termination of this Agreement by Company and suspension of any and all Support Services by Company and Company. Customer also agrees to pay or reimburse all fees and expenses reasonably incurred by Company in collecting any amounts due under this Agreement, including, but not limited to, all reasonable attorneys’ fees associated with the collection.
- Delivery. Company will use commercially reasonable efforts to deliver Products by the delivery date set forth in Company’s quote or order acknowledgement. Company will not be liable for any failure to ship complete orders or for any shipment delay. Company’s ability to deliver Support Services will depend on Customer’s reasonable and timely cooperation and the accuracy and completeness of any information from Customer needed to deliver the Support Services. All Products will be delivered to Customer F.O.B. by Company's Supplier’s facility in Carrollton, TX. Company will select the mode of delivery and the carrier. Title and all risk of loss of, or damage to Products, will pass to Customer upon delivery by Company to the carrier, freight forwarder or Customer, whichever occurs first. Customer will be responsible for and pay all freight charges, which charges Company requires Customer to pay in advance. All Products will be deemed accepted upon delivery. Notwithstanding the foregoing, if at any time Company receives notice that continued sale of the Products would require modification, testing, approval, clearance, exemption, licensure, registration, listing or other recording or recognition of the Products as a medical device with the Food and Drug Administration (“FDA”) or any other governmental authority or organization (collectively, “Approval”), or if Company determines that there is a reasonable basis for any such Approval, Company may suspend shipment of Products and require that Customer cease all use of the Products until Company receives such Approval or otherwise determines that such Approval is no longer required.
- If Customer elects to receive Support Services, Company shall provide the Support Services set forth in Exhibit B, subject to the terms and conditions of this Agreement.
- Support Services Term. The Support Services shall commence on the expiration of the Warranty Period (as defined in Section 8.1 (Limited Warranty)), and unless terminated in accordance with the terms of this Agreement, shall continue for one (1) year (the “Initial Support Term”). Thereafter, the Support Services shall automatically renew for additional one (1) year terms (each, a “Renewal Support Term”), unless either party provides the other party at least sixty (60) days’ prior written notice of its intent not to renew before the end of the Initial Support Term or then-current Renewal Support Term. The Initial Support Term and all Renewal Support Terms, if any, are collectively referred to as the “Support Period”.
- Support Services Fees. The fees for the Support Services shall be set forth in Exhibit B, shall be payable by Customer to Company pursuant to Section 2 (Prices and Payment) of this Agreement. With respect to Support Services, Company shall invoice Customer for the total Support Services fees for the Initial Support Term, or any Renewal Support Term, prior to the start of the Initial Support Term, or any Renewal Support Term, as applicable, with payment due within thirty (30) days of the date of the invoice. If Customer terminates Support Services but later desires to reinstate Support Services, Customer and Company will mutually agree on the cost of those reinstated Support Services, which may include, in Company’s discretion, a reinstatement fee.
- License Terms. Subject to Customer’s compliance with the terms and conditions of the Agreement, Company grants Customer a non-exclusive, terminable, limited, nontransferable license to use the Software and Documentation, solely as embedded in, executed on, or (where authorized in the applicable Documentation) for communication with products owned or leased by you and used for your internal business purposes. Such permitted use is for Customer’s internal purposes only (and not for further commercialization or the benefit of any third party), is subject to any specific Documentation provided with the software product. Any Software owned by a third party will be subject to such third party’s license terms and conditions. Company may monitor use/license restrictions remotely and, if Company makes a license management program available, Customer agrees to install and use it within a reasonable period of time.
- Customer shall not: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Software, except to the extent that such restriction is expressly prohibited by law; (b) modify, translate, or create derivative works based on any element of the Products or any related Documentation; (c) rent, lease, distribute, sell, resell, sublicense, assign, or otherwise transfer Customer’s rights to use the Products to any third party; (d) use the Products for timesharing purposes or otherwise for the benefit of any person or entity other than for Customer’s benefit; (e) make any copies of Software or Documentation; (f) market, promote, sell, provide, or use the Products for any medical purpose such as the diagnosis, cure, mitigation, treatment, or prevention of disease or other conditions in man or animals; (g) interfere with or disrupt the integrity or performance of the Software or the Products; (h) introduce any open source software into the Software or the Products; (i) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Product features that prevent or restrict use or copying of any content accessible through the Products, or features that enforce limitations on use of the Products; or (j) remove or delete any copyright, proprietary, or other notices in or on any Products.
- Customer Data; Compliance. As between Customer and Company, any data, images, personally identifiable information or other information collected from third parties (collectively “Third Party Data”) by Customer through Customer’s use of the Products (collectively, “Customer Data”) shall be owned by Customer. Customer and Company agree and acknowledge that: (i) Customer will not provide to Company any access or rights to use the Customer Data, and (ii) Company will not otherwise access or use the Customer Data. To the extent required by applicable law, Customer shall obtain each third party’s prior written consent to collect, store, transmit, process and use Third Party Data in connection with Customer’s use of the Products. Customer shall comply with all applicable laws in connection with Customer’s use of the Products, including without limitation all applicable privacy and security laws regarding the use, collection, storage, transmission or processing of such Third Party Data. Customer shall use the Products in compliance with the Documentation.
Limited Warranty; Disclaimer of Warranties.
- Limited Warranty. Company warrants to Customer that the Products will substantially conform to the functional specifications set forth in the Documentation for twelve (12) months following date of shipment to Customer (the “Warranty Period”) when used in accordance with this Agreement and any directions set forth in the Documentation. The foregoing warranty shall not apply: (i) if the Products are not used in accordance with the Documentation; (ii) to any modifications to any of the Products that are not made by Company or a third party authorized in writing by Company to make such modifications; (iii) if a failure to conform to the functional specifications set forth in the Documentation (a “Non-conformance”) is due to any third party hardware or software that is not provided as part of or included with the Products; (iv) if Products are damaged by factors or circumstances outside of Company’s control (including but not limited to accident, fire, electrical surges and water exposure) and acts of God, (v) malware, virus, worms introduced into the Product after delivery to the Customer, (vi) if the Product serial number has been altered or removed, or (vii) any Non-conformance in the Products that arise from negligence or abuse by Customer. Company’s sole obligation, and Customer’s exclusive remedy, for any breach of the foregoing warranty shall be to replace any Non-conforming Product with a new or refurbished Product as determined by Company (a “Replacement Product”) shipped to Customer at Company’s expense by overnight delivery, at no additional cost to Customer, provided that Customer returns the Non-conforming Product to Company within twenty-one (21) days of receiving the Replacement Product.
- Return of Non-Conforming Products. In the event that any Product fails to conform to the warranty set forth in Section 7.1 (Limited Warranty), Customer’s return of such Product is subject to Company’s then current return authorization process and procedures. Customer shall promptly notify Company in writing of any failure of the Products to conform to the warranty set forth in Section 7.1 (Limited Warranty), and provide Company a reasonable opportunity to inspect such Products. Customer will not return any Products to Company without first contacting Company to obtain a Return Material Authorization (RMA) number from Company. Once an RMA number is obtained, Customer shall return the non-conforming Products, transportation and insurance prepaid, in accordance with instructions issued by Company. Failure to follow Company’s return authorization procedures and instructions may result in lost Products, delays, additional service, restocking charges, warranty denial, or refusal of a return shipment. The RMA number must appear on the shipping label and all paperwork associated with the return. Customer shall include an explanation of the non-conformance of the Products with any Products returned to Company. Issuance of an RMA number by Company does not necessarily mean Company agrees that returned Products are covered under the warranty set forth in Section 8.1 (Limited Warranty), or that Products will be replaced at no cost to Customer. If any Products returned by Customer are found not to be non-conforming, Company shall notify Customer and such Products shall be replaced, or returned to Customer at Customer’s option and expense. In such event, any such replacement shall not be performed until and unless Customer issues a purchase order to Company authorizing such replacement at Company’s then-current replacement price. Products replaced or repaired under warranty shall be returned to Customer at Company’s expense.
- Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 7, COMPANY AND ITS LICENSORS AND SUPPLIERS MAKE NO OTHER WARRANTIES, WHETHER EXPRESS IMPLIED OR STATUTORY, AND TO THE EXTENT PERMITTED BY LAW, COMPANY AND ITS LICENSORS AND SUPPLIERS SPECIFICALLY DISCLAIM AND EXCLUDE ALL OTHER WARRANTIES, WHETHER STATUTORY, EXPRESS, OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES ARISING DUE TO COURSE OF CONDUCT OR USAGE OF TRADE. EXCEPT AS SET FORTH IN THIS SECTION 8, THE PRODUCTS AND ANY RELATED SERVICES ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, AND THEIR USE IS AT YOUR OWN RISK. NO ADVICE OR INFORMATION OBTAINED BY YOU, WRITTEN OR ORAL, FROM THE COMPANY OR ANY OTHER SOURCE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. COMPANY DOES NOT REPRESENT OR WARRANT THAT THE USE OF THE PRODUCTS WILL BE COMPLETELY SECURE, AVAILABLE AT ANY PARTICULAR TIME, CORRECT, UNINTERRUPTED OR ERROR-FREE OR THAT ANY ERRORS WILL BE CORRECTED. COMPANY DOES NOT MAKE ANY WARRANTY AS TO THE ACCURACY (OF DATA OR ANY OTHER INFORMATION OR CONTENT) OF THE PRODUCTS OR THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PRODUCTS, OR THAT THE PRODUCTS WILL MEET CUSTOMER’S NEEDS OR REQUIREMENTS. SOME STATES DO NOT PERMIT THE DISCLAIMER OF WARRANTIES IN CERTAIN CIRCUMSTANCES AND SO PORTIONS OF THE FOREGOING MAY NOT APPLY TO CUSTOMER.
CUSTOMER ACCEPTS FULL RESPONSIBILITY FOR ANY AND ALL DECISIONS (INCLUDING, WITHOUT LIMITATION, ANY DECISIONS TO PROVIDE ENTRY, ACCESS OR SERVICES TO ANY THIRD PARTY) MADE BY CUSTOMER AND ITS AUTHORIZED USERS IN USING THE PRODUCTS. CUSTOMER ACKNOWLEDGES AND AGREES THAT (A) USE OF THE PRODUCTS IS AT THE SOLE RISK OF CUSTOMER AND ITS AUTHORIZED USERS; AND (B) COMPANY SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY INTERRUPTION IN USE OF PRODUCTS, DELAYS OR ERRORS CAUSED BY ANY THIRD PARTY, INCLUDING WITHOUT LIMITATION CYBER ATTACKS, HACKING, MALWARE, RANSOMWARE, COMPUTER VIRUSES OR OTHER MALICIOUS CODE FROM THIRD PARTIES, OR BY CUSTOMER’S USE OF THE PRODUCTS, OR ANY PART THEREOF, OR FOR ANY RESULTS, INCLUDING WITHOUT LIMITATION ANY INACCURACY OF THE RESULTS, ISSUED BY THE PRODUCTS.
CUSTOMER UNDERSTANDS AND AGREES THAT THE PRODUCTS ARE NOT APPROVED, CLEARED, EXEMPTED, LICENSED, REGISTERED, LISTED, OR OTHERWISE RECORDED OR RECOGNIZED AS MEDICAL DEVICES BY OR WITH THE FDA, AND THE PRODUCTS ARE NOT INTENDED OR LABELED TO BE USED TO DIAGNOSE WHETHER OR NOT A GIVEN INDIVIDUAL HAS A FEVER OR IS SUFFERING FROM OR INFECTED BY ANY PARTICULAR TYPE OF ILLNESS, VIRUS, DISEASE, OR CONDITION. THE PRODUCTS MUST BE USED AND CONFIGURED IN STRICT ADHERENCE TO THE INSTRUCTIONS PROVIDED IN THE DOCUMENTATION. ONLY IF THE PRODUCTS ARE SO USED AND CONFIGURED WILL THEY BE CAPABLE OF DETERMINING WHETHER AN INDIVIDUAL MAY HAVE A HIGHER THAN AVERAGE SURFACE BODY TEMPERATURE. ANY DATA GENERATED BY THE PRODUCT SHOULD BE FOLLOWED UP AND CHECKED WITH A MEDICAL THERMOMETER BY A LICENSED HEALTH CARE PROVIDER.
- Company Indemnity. Company will, at its expense, defend Customer against and, subject to the limitations set forth in this Agreement, including Section 10 (Limitation of Liability), pay all costs and expenses, including attorneys’ fees, and damages whether by settlement or award by a final judicial judgment, paid to a third party resulting from any claim, actions (including enforcement actions), proceedings, investigations or demands brought by a third party (a “Third Party Claim”) alleging that a Product as supplied by Company hereunder infringes any third party copyrights, or misappropriates any third party trade secrets, provided that Customer (i) gives Company prompt written notice of any such claim, (ii) allows Company to solely direct the defense and settlement of the claims, and (iii) provides Company, at Company’s reasonable expense, with the information and assistance necessary for the defense and settlement of the claim. If a final injunction is obtained in an action based on any such claim against Customer’s use of a Product by reason of such infringement, or if in Company’ opinion such an injunction is likely to be obtained, Company may, at its sole option, either (a) use commercially reasonable efforts to obtain for Customer the right to continue using the Product, (b) use commercially reasonable efforts to replace or modify the Product so that it becomes non-infringing but functionally equivalent to the Product, or (c) provide a refund to Customer equal to the purchase price paid for the infringing Products depreciated over a reasonable period of time (as determined by Company). Company shall not be liable to Customer for any claim arising from or based upon (w) the combination, operation or use of any Products with any hardware, software or equipment not supplied by Company, (x) arising from any alteration or modification of a Product other than by Company, (y) Customer’s continued use of the Products after Company notifies Customer to discontinue use because of an infringement claim, or (z) Customer’s violation of applicable law (the foregoing exclusions (w) through (z), collectively, the “Exclusions”). In no event shall Customer settle any claim without Company’s prior written approval. Customer may, at its own expense, engage separate counsel to advise Customer regarding a Third Party Claim and to participate in the defense of the claim, subject to Company’s right to control the defense and settlement. THIS SECTION SETS FORTH THE ENTIRE LIABILITY OF COMPANY AND THE SOLE REMEDIES OF CUSTOMER WITH RESPECT TO INFRINGEMENT AND ALLEGATIONS OF INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHER PROPRIETARY RIGHTS OF ANY KIND IN CONNECTION WITH THE PRODUCTS.
- Customer Indemnity. Customer shall defend Company and its affiliates, suppliers, licensors and their respective officers, directors and employees (“Company Indemnified Parties”) from and against any and all Third Party Claims which arise out of or relate to: (i) Customer’s use or alleged use of the Products in breach of or other than as permitted under this Agreement (including but not limited to breach of Section 7 (Customer Data; Compliance)) or the Documentation, (ii) Customer’s failure to comply with any laws applicable to its use of the Products (including but not limited to any data privacy, data security or any other laws or regulations governing the collection or use of personal data, biometric data or health-related data or the use of any facial recognition technology), (iii) arising from the occurrence of any of the Exclusions set forth in Section 9.1 (Company Indemnity), or (iv) bodily injury or death, damage to personal or real property resulting from Customer’s use of the Products. Customer shall pay all costs and expenses, including attorneys’ fees, whether by settlement or award by a final judicial judgment, paid to the third party bringing any such Third Party Claim, provided that Company (a) gives Customer prompt written notice of any such claim, (b) allows Customer to solely direct the defense and settlement of the claims, and (c) provides Customer, at Customer’s reasonable expense, with the information and assistance necessary for the defense and settlement of the claim. In no event shall Company settle any claim without Customer’s prior written approval. Company may, at its own expense, engage separate counsel to advise Company regarding a Third Party Claim and to participate in the defense of the claim, subject to Customer’s right to control the defense and settlement.
Limitation of Liability.
- No Consequential Damages. NEITHER COMPANY NOR ITS SUPPLIERS OR LICENSORS SHALL BE LIABLE TO THE CUSTOMER FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR INDIRECT DAMAGES HOWEVER ARISING UNDER OR WITH RESPECT TO THIS AGREEMENT. WITHOUT LIMITATION OF THE FOREGOING, NEITHER COMPANY NOR ITS SUPPLIERS OR LICENSORS SHALL BE LIABLE TO CUSTOMER OR ANY OTHER THIRD PARTY FOR ANY (A) SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR INDIRECT DAMAGES, (B) LOST PROFITS, LOST BUSINESS OR LOST OR CORRUPTED DATA, OR (C) COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS, TECHNOLOGY, GOODS OR SERVICES, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, AND WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Limits on Liability. IN NO EVENT SHALL COMPANY’S NOR ITS LICENSORS’ OR SUPPLIERS’ LIABILITY TO CUSTOMER EXCEED THE AGGREGATE AMOUNTS PAID BY CUSTOMER TO COMPANY FOR THE PRODUCTS AND SUPPORT SERVICES THAT ARE THE SUBJECT OF THIS AGREEMENT.
- Essential Purpose. THE LIMITATIONS IN THIS SECTION 10 (LIMITATION OF LIABILITY) SHALL APPLY (A) NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, (B) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND (C) REGARDLESS OF THE FORM OF ACTION, WHETHER BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), INDEMNITY, PRODUCT LIABILITY OR OTHER THEORY. SOME STATES DO NOT PERMIT THE LIMITATION/EXCLUSION OF DAMAGES IN CERTAIN CIRCUMSTANCES AND SO PORTIONS OF THE FOREGOING MAY NOT APPLY TO CUSTOMER.
- Confidential Information. “Confidential Information” means any and all non-public technical and non-technical information disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) in any form or medium, whether oral, written, graphical or electronic, pursuant to this Agreement, that is marked confidential and proprietary, or that the Disclosing Party identifies as confidential and proprietary, or that by the nature of the circumstances surrounding the disclosure or receipt ought to be treated as confidential and proprietary information, including but not limited to: (a) know-how, processes, apparatus, formulae, equipment, algorithms, software programs, software source documents, APIs, and other creative works (whether or not copyrighted or copyrightable); (b) information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, business forecasts, sales and merchandising and marketing plans and information; (c) proprietary or confidential information of any third party who may disclose such information to Disclosing Party or Receiving Party in the course of Disclosing Party’s business; and (d) the terms of this Agreement. Confidential Information of Company shall include the Software, the Documentation, the pricing, and the terms and conditions of this Agreement.
- Non-Disclosure. Each party acknowledges that in the course of the performance of this Agreement, it may obtain the Confidential Information of the other party. The Receiving Party shall, at all times, both during the Term and thereafter, keep in confidence and trust all of the Disclosing Party’s Confidential Information received by it. The Receiving Party shall not use the Confidential Information of the Disclosing Party other than as necessary to fulfill the Receiving Party’s obligations or to exercise the Receiving Party’s rights under this Agreement. Each party agrees to secure and protect the other party’s Confidential Information with the same degree of care and in a manner consistent with the maintenance of such party’s own Confidential Information (but in no event less than reasonable care). The Receiving Party shall not disclose Confidential Information of the Disclosing Party to any person or entity other than its officers, employees, affiliates and agents who need access to such Confidential Information in order to effect the intent of this Agreement and who are subject to confidentiality obligations at least as stringent as the obligations set forth in this Agreement.
- Exceptions to Confidential Information. The obligations set forth in Section 11.2 (Non-Disclosure) shall not apply to the extent that Confidential Information includes information which: (a) was known by the Receiving Party prior to receipt from the Disclosing Party either itself or through receipt directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (b) was developed by the Receiving Party without use of the Disclosing Party’s Confidential Information; or (c) becomes publicly known or otherwise ceases to be secret or confidential, except as a result of a breach of this Agreement or any obligation of confidentiality by the Receiving Party. Nothing in this Agreement shall prevent the Receiving Party from disclosing Confidential Information to the extent the Receiving Party is legally compelled to do so by any governmental investigative or judicial agency pursuant to proceedings over which such agency has jurisdiction; provided, however, that prior to any such disclosure, the Receiving Party shall (x) assert the confidential nature of the Confidential Information to the agency; (y) immediately notify the Disclosing Party in writing of the agency’s order or request to disclose; and (z) cooperate fully with the Disclosing Party in protecting against any such disclosure and in obtaining a protective order narrowing the scope of the compelled disclosure and protecting its confidentiality.
- Injunctive Relief. The Parties agree that any unauthorized disclosure of Confidential Information may cause immediate and irreparable injury to the Disclosing Party and that, in the event of such breach, the Receiving Party will be entitled, in addition to any other available remedies, to seek immediate injunctive and other equitable relief, without bond and without the necessity of showing actual monetary damages.
- Term; and Termination. This Agreement shall continue until a party gives the other party at least sixty (60) days written notice of termination (the “Term”). Either party may terminate this Agreement for a material breach by the other party that remains uncured thirty (30) days after written notice of such alleged breach. Upon Company’s termination of this Agreement for Customer’s breach, all Purchasers Orders accepted by Company prior to the effective termination date will be fulfilled or deemed canceled as determined by Company in its sole discretion, and Company shall cease providing the Support Services, if applicable. Customer will be liable for full payment for all Purchase Orders fulfilled. Upon Customer’s termination of this Agreement for Company’s breach, all Purchase Orders accepted by Company prior to the effective termination date will be deemed canceled without further liability on Customer, and Company shall cease providing the Support Services, if applicable; provided, however, that Customer will remain responsible for full payment for all Products delivered on or prior to the effective termination date. The following sections will survive termination of this Agreement: 1 (Definitions), 2 (Prices; Payments), 5 (Proprietary Rights), 6 (Customer Data; Compliance), 7.3 (Disclaimer), 8 (Indemnification), 9 (Limitation of Liability), 10 (Confidentiality), 11 (Term and Termination) and 12 (General).
- Notices. Company may give notice to Customer by written communication sent by first class postage prepaid mail or nationally recognized overnight delivery service to Customer’s address on record with Company. Customer may give notice to Company by written communication sent by first class postage prepaid mail or nationally recognized overnight delivery service addressed to Company at the address set forth above and here: 9440 Norwalk Avenue, Santa Fe Springs, CA 90670. Notice shall be deemed to have been given upon receipt or, if earlier, two (2) business days after mailing, as applicable. All communications and notices to be made or given pursuant to this Agreement shall be in the English language.
- Arbitration. Any dispute arising out of or related to this Agreement shall be submitted to Arbitration in Orange County California, before an arbitrator selected from a panel made available by Judicial arbitration and Mediation Services, Inc. and shall be conducted in accordance with the provisions of California Code of Civil Procedure Sections 1280 et seq. as the exclusive remedy of such dispute; provided, however, that provisional injunctive relief may, but need not be, sought in a court of law while arbitration proceedings are pending and any provisional injunctive relief granted by such court shall remain effective until the matter is finally determined by the Arbitrator. Final resolution of such dispute may include any remedy or relief that the Arbitrator deems just and equitable, including permanent injunctive relief or specific performance, or both
- Governing Law, Jurisdiction and Venue. This Agreement and the rights and obligations of the parties to and under this agreement shall be governed by and construed under the laws of the United States and the State of Texas as applied to agreements entered into and to be performed in such State without giving effect to conflicts of laws rules or principles. Any suit permitted to enforce or interpret this Agreement may only be brought in the appropriate United States District Court in the Central District of California, or in a State Court of competent jurisdiction sitting in Orange County, California. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. The parties further agree to waive and opt-out of any application of the Uniform Computer Information Transactions Act (UCITA), or any version thereof, adopted by any state of the United States in any form.
- Publicity. Company has the right to reference and use Customer’s name and trademarks and disclose the Products provided hereunder in each case in Company business development and marketing efforts, including without limitation on Company’s web site.
- S. Government Customers. If Customer is a Federal Government entity, Company provides the Products, including related software and technology, for ultimate Federal Government end use solely in accordance with the following: Government technical data rights include only those rights customarily provided to the public with a commercial item or process and Government software rights related to the Software include only those rights customarily provided to the public, as defined in this Agreement. The technical data rights and customary commercial software license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If greater rights are needed, a mutually acceptable written addendum specifically conveying such rights must be included in this Agreement.
- Export. The Product utilizes software and technology that may be subject to United States and foreign export controls. Customer acknowledges and agrees that the Products shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Products, Customer represents and warrants that it is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Products may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000. Customer agrees to comply strictly with all applicable export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required. Company and its licensors make no representation that the Product is appropriate or available for use in other locations. Any diversion of the Customer Data contrary to law is prohibited. None of the Customer Data, nor any information acquired through the use of the Products, is or will be used for nuclear activities, chemical or biological weapons, or missile projects.
- Waiver. No term or provision of this Agreement shall be considered waived by either party, and no breach excused by either party, unless such waiver or consent is in writing signed on behalf of the party against whom the waiver is asserted. No consent by either party to, or waiver of, a breach by either party, whether express or implied, shall constitute consent to, waiver of, or excuse of any other, different, or subsequent breach by either party.
- Severability. If any provision of this Agreement is held invalid or unenforceable for any reason, the remainder of the provision shall be amended to achieve as closely as possible the economic effect of the original term and all other provisions shall continue in full force and effect.
- Assignment. Customer may not assign its rights or delegate its obligations under this Agreement to any third party, whether voluntarily or by operation of law or otherwise (including in connection with any merger or acquisition involving Customer), without the prior written consent of Company, such consent not to be unreasonably withheld, and subject to Customer paying any applicable transfer or set-up fees. Any purported assignment or transfer in violation of this section shall be void. Subject to the foregoing restrictions, this Agreement will bind and benefit the parties and their successors and permitted assigns. There are no third party beneficiaries to this Agreement.
- Relationship of the Parties. Company is an independent contractor to Customer. There is no relationship of agency, partnership, joint venture, employment, or franchise between the parties. Neither party has the authority to bind the other or to incur any obligation on its behalf.
- Attorneys’ Fees. In any action to enforce this Agreement, the prevailing party shall be awarded all court costs and reasonable attorneys’ fees incurred, including such costs and attorneys’ fees incurred in enforcing and collecting any judgment.
- Force Majeure. Except for Customer’s payment obligations, neither party shall be liable for any failure or delay in performance under this Agreement due to fire, explosion, earthquake, storm, flood or other weather; unavailability of necessary utilities or raw materials; Internet service provider failures or delays, or denial of service attacks; war, civil unrest, acts of terror, insurrection, riot, acts of God or the public enemy; strikes or other labor problems; diseases, epidemics, pandemics, or public health emergency whether or not a pandemic or public health emergency has actually been declared by any governmental body or pseudo governmental body; government mandated quarantines, shelter in place orders, bans on public gatherings, travel restrictions, lock-downs, or shut downs of public services; any law, act, order, proclamation, decree, regulation, ordinance, or instructions of government or other public authorities, or judgment or decree of a court of competent jurisdiction (not arising out of breach by such party of this Agreement); or any other event beyond the reasonable control of the party whose performance is to be excused.
- Entire Agreement. This Agreement supersedes, and its terms govern, any prior agreements (including without limitation any conflicting terms in any nondisclosure agreements or product evaluation agreement), proposals or other communications, oral or written, between the parties with respect to the Products (as defined below). This Agreement governs all documents, including without limitation all requests for proposal/requests for quote and purchase orders, issued by Customer with respect to the Products and any additional or conflicting terms and conditions contained in any such documents are of no force and effect and are hereby rejected unless separately accepted in writing by an authorized representative of Company.