Applicable Conditions
Agreement Scope
These Terms and Conditions, together with any applicable Sales Quote, Order Acknowledgement, or Invoice, constitute the entire and exclusive agreement between the parties and supersede all prior or contemporaneous understandings, whether written or oral. They govern all sales of goods and services by Seller to Buyer. "Seller" means L&J Holding Company, LLC, a Delaware limited liability company doing business as Cognesense together with its brands and operating divisions, including: Shand & Jurs, L&J Technologies, Sonitus Systems, Varec, and any other brand, trade name, or division now or hereafter used by L&J Holding Company, LLC. "Buyer" means the customer identified in the Sales Quote, Order Acknowledgment, or Invoice. Buyer acknowledges it has not relied on any representation, promise, or statement not expressly set forth in this Agreement, and no course of dealing, course of performance, industry practice, or usage of trade shall modify these Terms.
Key Definitions
Sales Quote – A written or electronic quotation issued by Seller specifying pricing, lead time, and other commercial details. Order Acknowledgement – Seller's written or electronic confirmation of Buyer's purchase order, signifying Seller's acceptance. Products – The equipment, parts, software, or services described in the Sales Quote, Order Acknowledgement, or Invoice.
Formation of Contract
Quotations are provided for reference only and do not constitute binding offers.
A binding contract is formed when Seller issues its written or electronic Order Acknowledgement, confirming acceptance of Buyer's purchase order under these Terms and Conditions. Seller's Order Acknowledgement represents acceptance of the order; no further Buyer confirmation is required. Any additional or conflicting terms in Buyer's purchase order have no effect unless expressly agreed to in writing by Seller.
Modification and Cancellation
Any modification of these Terms is valid only if agreed to in writing by Cognesense management. All orders and modifications are subject to Seller's credit approval. No order may be cancelled without Seller's prior written consent and payment of any applicable cancellation charges. This order may be amended at the request of either party from time to time by written change order signed by the parties, setting forth the changes to be made and the effect of such changes on the price and time of delivery. A charge will be made for changes in drawings and/or specifications after Buyer and Seller have previously agreed upon the same. The total charge will include order reprocessing costs, additional material and labor costs, etc. The total charge for these changes will be advised by Seller Order Acknowledgement after receipt of written Buyer authorization or direction for these changes. Should the changes be necessitated by an error on the part of Seller's employees, no charge will be made. The Seller may revoke credit approval at any time based on Buyer's financial condition, payment history, or changes in creditworthiness, and may require cash-in-advance, milestone payments, or other acceptable security.
Pricing Validity
Unless otherwise stated: Prices are in U.S. Dollars and valid for 30 days from the quotation date; Distributors, channel partners, and OEM contractors receive 60 days of price protection; Quoted prices apply only to specified quantities and configurations; Seller may revise prices prior to shipment to reflect changes in labor, material, supplier, or transportation costs. All prices are based on standard commercial packaging for domestic shipment unless otherwise noted. Special export packaging, documentation, or certification requirements will incur additional charges. For shipment-related price adjustments, refer to Section 2.3 (Shipment Timing and Price Adjustment).
Third-Party or Purchased Components
Equipment purchased by Seller from other manufacturers for inclusion in the order will be invoiced based on the prices billed to Seller, with applicable mark-ups or handling charges. Such third-party items will be identified in the quotation or acknowledgement. If a vendor price increase occurs, Seller may adjust billing accordingly.
Force Majeure
Seller shall not be liable for any delay or failure in performance resulting from causes beyond its reasonable control, including but not limited to acts of God, strikes, labor disputes, accidents, material shortages, supplier or transportation failures, or government actions. The delivery schedule and other affected obligations shall be adjusted accordingly.
Electronic Orders and Acceptance
These Terms and Conditions also apply to all orders and acknowledgements processed electronically through Seller's quoting, ERP, or CPQ systems. Acceptance may occur by electronic acknowledgement, email confirmation, or other digital means recognized by Seller's system.
Delivery and Shipment
Delivery Estimates
All quoted or acknowledged delivery dates are estimates only and are based on conditions existing at the time of order acceptance. The Seller will make reasonable efforts to meet estimated delivery schedules but shall not be liable for any loss, damage, penalty, or expense resulting from delay in delivery, regardless of cause. Buyer shall inspect all Products upon receipt and notify Seller in writing of any visible damage, shortage, or nonconformance within ten (10) days. Failure to provide such notice constitutes acceptance of the Products.
Buyer Information and Approvals
Delivery estimates are contingent upon timely receipt of all drawings, parts, specifications, approvals, and other information required from Buyer. Any delay or change in such information or approvals automatically extends the delivery schedule and may result in additional charges. Seller shall have no liability for delay or inability to perform caused, as a whole or in part, by Buyer’s failure to provide such information or access. Buyer shall provide Seller with timely access to facilities, systems, personnel, and information necessary for Seller to perform its obligations. Any delay, restriction, or failure to provide such access automatically extends Seller’s deadlines and may result in additional charges. Seller shall have no liability for delays, failures, or non-performance caused in whole or in part by Buyer’s lack of access or cooperation.
Shipment Timing and Price Adjustment (U.S. and International)
All pricing and delivery schedules are based on the order being released and all required information and approvals being provided in time to allow shipment within six (6) months of order acceptance. If shipment is delayed for more than six (6) months for any reason beyond Seller’s reasonable control, such asBuyer-caused delays including but not limited to: failure to provide approval documentation, or any required information, Seller may, at its sole discretion: invoice at prices in effect at the time of shipment, adjust the pricing and/or delivery schedule accordingly, and/or charge reasonable storage or handling fees for delayed shipment at the time Buyer is ready for shipment or performance.
Title, Risk of Loss, and Transportation
Unless otherwise agreed in writing, all deliveries are made EXW – Ex Works (Seller's facility) per Incoterms® 2020.
Title and risk of loss transfer to Buyer when the goods are made available for collection at Seller's facility. Buyer is solely responsible for arranging pickup, transportation, insurance, export documentation, and all associated costs. Seller assumes no responsibility for damage, loss, or delay once goods have been made available for Buyer or its carrier. Packaging suitable for standard domestic shipment is included in quoted prices unless otherwise noted. Additional charges apply for export or special packaging, insurance, or handling.
Partial Shipments and Accelerated Billing
Seller reserves the right to make partial or installment shipments and to invoice each separately. If manufacture is complete but shipment is delayed at Buyer’s request or for Buyer-related reasons, Seller may issue invoices as if shipment had occurred and hold goods at Buyer’s risk and expense, including reasonable storage and handling charges. If Buyer delays shipment or fails to pick up goods within ten (10) days of notice of availability, Seller may assess storage, handling insurance, and preservation charges at Seller’s standard rates.
Acceptance of Delivery Terms
Buyer's purchase order or authorization to proceed constitutes acknowledgment and acceptance of these delivery and shipment terms. Seller's written or electronic acknowledgment, email confirmation, or system-generated acceptance constitutes Seller's binding confirmation of the order and applicable delivery terms.
Terms of Payment
Payment Terms
Unless otherwise stated in writing, payment shall be Net 30 days from the date of invoice, payable in U.S. Dollars, and subject to Seller's credit approval. Buyer shall have no right of set-off, deduction, withholding, or reduction of any kind against amounts owed to Seller. Seller reserves the right to suspend deliveries or cancel any order if payment is not made when due. If Buyer fails to make any payment when due, Seller may immediately suspend work, suspend delivery, withhold shipment, or place the order on credit hold without liability. Buyer shall remain liable for all costs incurred to date, including materials, labor, subcontractor expenses, and allocated overhead. The Seller shall have no obligation to resume work until all overdue amounts and service charges are paid in full.
Partial Shipments and Invoicing
Each shipment may be invoiced separately, and payment shall be made for each invoice without regard to subsequent deliveries. If shipment or delivery is delayed at Buyer's request or due to causes beyond Seller's control, Seller may issue invoices as though shipment had occurred and hold the goods at Buyer's risk and expense, including reasonable storage or handling charges.
Late Payment and Service Charges
Amounts not paid when due shall accrue a service charge of 1.5 % per month (18 % per year) or the maximum rate allowed by law, whichever is less. The Seller may suspend further shipments or performance until all overdue amounts and service charges are paid in full.
Collection Costs
In the event of default in payment, Buyer shall pay all reasonable costs of collection, including attorney fees and court costs incurred by Seller in enforcing payment.
Taxes
Quoted prices exclude all taxes. Buyer shall pay or reimburse Seller for all sales, use, VAT, excise, import, or similar taxes (except taxes on Seller's net income), including interest/penalties. The Seller may invoice separately. Buyer shall self-assess VAT if applicable.
Return of Equipment
No return of any goods purchased hereunder shall be made for the purpose of credit, or otherwise, without the prior written consent of Seller. Because the Seller may utilize several plant locations for the manufacture of the entire lot of equipment sold hereunder, all materials for credit, repair, replacement or exchange must be returned to the Seller’s factory with transportation charges prepaid. A return goods tag will be issued with written authorization upon application to the General Sales Manager at the above address. No goods will be attempted without the returned goods tag. A restocking charge will be made for unused products and unused standard parts and supplies returned because of Buyer’s error and/or to reduce Buyer’s inventory. Used material returned for credit and exchange must be specifically identified in the order. Credit for such used material will be issued only after examination as to its condition and serviceability at the above specified location.
Repair of Equipment
Except for equipment to be repaired under Warranty (which equipment must be accompanied by a malfunction -history report), all repairs will be made on a time and material basis. A minimum billing of $500.00 will be made for handling and Inspection of material returned for repair other than under Warranty.
Special Facilities and Non-recurring Engineering (NRE)
Tools, dies, jigs, fixtures, molds, test equipment, software, firmware, source code, object code, algorithms, electronic designs, schematics, CAD files, prototypes, and all other facilities, materials, or intellectual property (collectively, “Special Facilities”) developed, designed, or procured by Seller, whether in whole or in part, embody Seller’s proprietary designs, trade secrets, know-how, and engineering experience.
Any charges invoiced to Buyer for Special Facilities or Non-Recurring Engineering (NRE), including but not limited to design, development, validation, testing, or customization of electronics, software, firmware, or integrated systems—represent only a fraction of their total cost, value, or development effort. Seller retains exclusive title, ownership, and all intellectual property rights (including but not limited to copyrights, patents, trade secrets, and moral rights) in and to all Special Facilities and NRE deliverables, regardless of: Whether such items are physically delivered to Buyer; The medium or format (physical, digital, or embedded); or Any partial or full payment by Buyer. Buyer is granted only a limited, non-exclusive, non-transferable license to use such Special Facilities or NRE deliverables solely as embedded in or necessary for the operation of the delivered goods, subject to Seller’s standard license terms (if any). No rights to modify, reverse-engineer, decompile, or create derivative works are granted. All payments made by Buyer for Special Facilities and NRE are non-refundable, regardless of project outcome or order cancellation, except where expressly required by law.
Damage Exclusion and Maximum.
IN NO EVENT SHALL SELLER BE LIABLE TO CUSTOMER OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST EARNINGS, OR LOST BUSINESS OPPORTUNITY, OR FOR LOSS OR CORRUPTION OF DATA, ARISING OUT OF THE SUBJECT MATTER OF THIS AGREEMENT. IN NO EVENT SHALL SELLER'S LIABILITY TO CUSTOMER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED PAYMENTS MADE BY CUSTOMER FOR THE AFFECTED DELIVERABLE. NO CLAIMS OF ANY KIND MAY BE BROUGHT AGAINST SELLER AFTER TEN (10) YEARS FROM THE DATE OF THIS AGREEMENT. THESE LIMITATIONS SHALL APPLY EVEN IF THE APPLICABLE LIMITED WARRANTIES FAIL OF THEIR ESSENTIAL PURPOSE.
Limited Warranties of Equipment, Products, and Services
Seller warrants to Customer: (a) good title to all Equipment and Products; (b) conformance of Products to Seller’s applicable printed specifications and no material defects in workmanship or materials of Products for one (1) year after Customer’s receipt; (c) pass-through to Customer (where possible without extra charge to Seller) of vendor and manufacturer warranties and obligations by others (if any) concerning Equipment; (d) non-infringement by Products of any U.S. patent; and (e) performance of Services in a good, professional, and workmanlike manner consistent with generally accepted industry standards. Where Seller gives technical advice to Customer with respect to Equipment, Products, or Services, Customer agrees that such advice is given without any liability on Seller’s part. Any guarantee of specific properties of or in Equipment, Products, or Services shall only be effective if and to the extent specifically confirmed by Seller in writing. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, EQUIPMENT, PRODUCTS, AND SERVICES ARE PROVIDED “AS IS,” “AS AVAILABLE,” AND WITH ALL FAULTS. SELLER EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AND MERCHANTABILITY, AND ANY WARRANTY ARISING OUT OF A COURSE OF DEALING. These warranties shall not apply for Equipment or Product failure or deficiency due to: (i) failure to use Equipment or Product properly and in accordance with the specifications and instructions provided in the accompanying documentation; (ii) improper installation; (iii) accident, neglect, act of God, pandemic, or misuse; (iv) a cause not arising out of a defect in material or workmanship; (v) failure or defect of electrical power, external electrical circuitry, air conditioning, or humidity control; (vi) use of Equipment or Product in conjunction with an item not provided or approved by Seller; (vii) repair, adjustment, or service on Equipment or Product by any person not authorized by Seller; (viii) alteration of Equipment or Product, or the consequence of use of Equipment or Product for which it was not designed or that adversely affects its integrity, reliability, or performance; or (ix) environmental, site, process, electrical, chemical, mechanical, or installation conditions outside Seller’s control, including corrosion, contamination, vibration, pressure surges, or process upsets.. The obligation of Seller under this warranty is limited exclusively to repair or replacement at Seller’s factory. Seller shall not be responsible for any field removal, reinstallation, or service labor costs. Products must be returned, transportation prepaid and accompanied by proper identification and authorization from Seller. Seller’s total liability under this warranty shall not exceed the purchase price of the equipment or product giving rise to the claim.
Limitation of Liability for Equipment, Products, and Services.
In case of alleged failure by any Equipment, Product, or Service to conform to this Agreement, Customer shall promptly notify Seller of such alleged failure in writing, Customer shall submit evidence to support the claim of alleged nonconformity, and Customer shall provide any associated details reasonably requested by Seller in seller’s attempt to remedy the problem. If such claim is made in accordance with this Agreement and proves justified, Seller shall offer Customer: (a) a reasonable reduction of the price; or (b) for Equipment or Product, replacement of the Equipment or Product to the extent that the Equipment or Product has not been treated, processed, or otherwise used or modified; or (c) for Service, re-performance of the Service at no cost to Customer. The remedy for 9(d) is the remedies in Section 11. The foregoing remedies are exclusive and shall be Customer’s sole remedies with respect to any claim arising out of or relating to any breach of warranty or other failure of Equipment, Product, or Service, whether based in contract, breach of warranty, tort, or otherwise.
Infringement Indemnification.
Seller shall indemnify, defend, and hold Customer harmless from direct damages, to the extent arising solely out of a third-party claim that any unmodified Software or Product as originally delivered by Seller infringes a valid U.S. copyright, trade secret, or U.S. patent right. This indemnity applies only to Software or Products manufactured or developed exclusively by Seller. It does not apply to any Equipment, Service, third-party software, or any item not created by Seller. Seller’s indemnification obligation is strictly conditioned upon Customer: (a) providing Seller with immediate written notice of the claim; (b) granting Seller exclusive and complete control of the defense and settlement; and (c) providing all assistance requested by Seller at Seller’s expense. Failure to meet these conditions relieves Seller of all obligations under this Section. Seller shall have the exclusive right to defend, settle, or otherwise dispose of any claim. Customer may participate in the defense at its own expense, but Customer shall not interfere with, delay, or condition Seller’s control of the defense or settlement. At Seller’s sole option, Seller may fulfill its obligations under this Section by: (a) modifying or replacing the affected Software or Product so it becomes non-infringing; (b) securing Customer’s continued right to use the Software or Product; or (c) refunding to Customer the amount paid for the affected Software or Product, reduced by a reasonable allocation for Customer’s period of use. The foregoing constitutes Seller’s entire obligation and Customer’s exclusive remedy for any alleged or actual intellectual property infringement. Seller shall have no obligation whatsoever under this Section if the claim results from or relates to: (i) any use of the Software or Product not in strict accordance with this Agreement or its documentation; (ii) any modification, translation, alteration, repair, or enhancement not performed by Seller; (iii) Seller’s compliance with Customer’s designs, specifications, directives, or instructions; (iv) the combination, operation, or use of the Software or Product with any third-party component, device, equipment, system, network, platform, or software; (v) Customer’s failure to implement corrections, updates, or replacements provided by Seller; or (vi) any use of a version or release other than the most current version supplied by Seller. To the extent any claim arises from (i)–(vi) above, Customer shall indemnify, defend, and hold Seller harmless from all losses, damages, costs, and expenses (including attorneys’ fees) arising out of such claim. The remedies stated in this Section are Seller’s sole and maximum liability, and Customer’s exclusive remedy, with respect to any actual or alleged infringement. Seller shall have no further liability of any kind under any legal theory.
Compliance with Laws.
Customers agree to comply with all applicable laws, rules, and regulations, including laws, rules, and regulations of the U.S. regarding export control. Customer shall comply with all export laws, restrictions, national security controls, and regulations of the U.S. or other applicable domestic or foreign agency or authority, at Customer’s sole expense, and not export or re-export, or allow the export or re-export, of the Software, Equipment, or Products, in violation of any such restrictions, laws, or regulations, or in violation of the embargo provisions of the U.S. Export Administration Regulations (or any successor regulations or supplement), except in accordance with all licenses and approvals required under applicable export laws and regulations, including those of the U.S. Department of Commerce.
Dispute Resolution
Any controversy or claim arising out of or relating to this Agreement—including its existence, validity, interpretation, construction, performance, breach, or termination—shall be finally resolved by binding arbitration administered by the American Arbitration Association (AAA) under its Commercial Arbitration Rules, subject to this Section.
The arbitration shall be conducted in Chicago, Illinois, before a panel of three neutral arbitrators: one appointed by each party within 30 days after the respondent receives notice of arbitration, and a third (presiding) arbitrator appointed by the two party-appointed arbitrators. The arbitrators are empowered to grant injunctive relief at either party’s request.
This Agreement and all disputes arising hereunder shall be governed by the laws of the State of Illinois, without regard to conflict of laws principles. The arbitral award shall be final, binding, and the exclusive remedy for all claims, counterclaims, or issues presented. It shall: Be issued exclusive of any tax, deduction, or offset; Include post-award interest at 18% per annum (or the maximum legal rate, whichever is less) from the date of the award until paid in full; and Be enforceable by judgment in any court of competent jurisdiction. The prevailing party in any action to enforce the award shall recover all associated costs, fees, and expenses. Notwithstanding the foregoing, either party may seek interim or permanent injunctive relief in any court of competent jurisdiction to: Protect or enforce its intellectual property rights; or Enforce an arbitral award issued under this Section.
Relationship of the Parties
The parties acknowledge that in performing their obligations, each is acting as an independent contractor. Nothing in this Agreement shall be construed to make either party a partner, principal, agent, or employee of the other. Neither party has the authority to enter into any agreement or make any warranty or representation on behalf of the other party, except where and to the extent specifically authorized to do so in writing.
Confidentiality
The parties acknowledge that, during the term of this Agreement, each party may provide the other with confidential or proprietary information, including data, information, ideas, materials, specifications, procedures, schedules, software, technical processes and formulas, source code, product designs, sales, cost, and other unpublished financial information, product and business plans, advertising revenues, usage rates, advertising relationships, projections, marketing data, or other relevant information that is marked “confidential” (or similarly) or, if not so marked, is clearly intended to be confidential (collectively, “Confidential Information”). Each party agrees that it shall not disclose, provide, or otherwise make available any confidential information of the other party without the other party’s prior written consent. Neither party may use, disclose, provide, or permit any person to obtain any such Confidential Information in any form, except for employees, agents, or independent contractors whose access is required to carry out the purposes of this Agreement and who have agreed to be and have been made subject to the same restrictions as set forth herein. The foregoing confidentiality obligations shall not apply to any information received by a party that: (a) is generally available to or previously known to the public; (b) can reasonably be demonstrated to have been known to such party before the negotiations leading to this Agreement; (c) is independently developed by such party outside the scope of this Agreement without use of or reference to the other party’s Confidential Information; or (d) is lawfully disclosed pursuant to a court order, provided that the party subject to such order shall promptly notify the party whose Confidential Information is to be disclosed, so such party may seek a protective or similar order.
Notice
All notices provided under this Agreement shall be in writing to the addresses shown in this Agreement and shall be deemed given or made on the date delivered if delivered in person, on the date delivered (or attempted delivery is refused by the recipient) if delivered by a nationally recognized overnight courier service, or on the third (3rd)business day after it is mailed, if mailed by registered or certified mail, return receipt requested (with postage and other fees prepaid). The party sending such notice shall promptly send the other party a copy of such notice (which shall not itself constitute notice) by facsimile or email.
Governing Law and Jurisdiction
This Agreement and all matters arising out of or relating to it—including its existence, validity, interpretation, construction, performance, breach, or termination—shall be governed by and construed in accordance with the laws of the State of Illinois, without regard to its conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply. Any suit, action, or proceeding arising out of or relating to this Agreement shall be brought exclusively in the state or federal courts located in Chicago, Illinois. Each party: 1. Irrevocably submits to the personal jurisdiction and venue of such courts; and 1. Waives any objection to such a venue on grounds of forum non conveniens or otherwise. To the extent applicable, the Equal Opportunity Clauses set forth in: Section 202 of Executive Order 11246, as amended; Section 503 of the Rehabilitation Act of 1973, as amended; and Section 402 of the Vietnam Era Veterans Readjustment Assistance Act of 1974, as amended are incorporated herein by reference.
Severability; No Waiver; No Assignment
If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect. The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach. This Agreement may not be assigned by either party without the prior written consent of the other party, and any such attempted assignment shall be void. For purposes of this Agreement, any change in control of Customer shall be deemed a prohibited assignment.
Conflict of Terms
These Terms and Conditions supersede any conflicting or additional terms appearing on Buyer’s purchase order or other documentation.
Term and Termination
This Agreement is effective until terminated. The Customer may terminate this Agreement as to Software at any time by destroying all copies of the Software in its possession and control, including any related documentation. At any time, Customer is in default of the provisions of this Agreement, Seller may notify Customer of such default and, if such default remains uncured ten days after the date of such notice, Seller may terminate this Agreement at any time thereafter. Upon termination of this Agreement, Customer must cease all use of the Software and must destroy all copies of the Software in its possession and control, including any related documentation. Upon early termination of this Agreement through no fault of Seller, Customer agrees to pay to Seller all charges, fees, and expenses that may have been incurred through the date of such early termination. If a Deliverable is for ultimate delivery to the U.S. Government or other public agency (“Government”), as evidenced by a government contract number on the Order, termination may be made when a valid and directly applicable termination order is issued to Customer by the Government. In such case, settlement of Seller’s claims for termination shall be under applicable provisions of Governmental agency rules and regulations; provided, however, Customer shall promptly process Seller’s termination claim and receive in trust and promptly remit to Seller all funds received from the Government that are applicable to Seller’s termination claim.
Survival
The following Sections (and other portions of this Agreement that by their nature would naturally survive) shall survive and continue in full force and effect notwithstanding the termination of this Agreement: 1, 3, 4, 8-17, 20, 22, and 23. All payment obligations, storage fees, cancellation charges, NRE charges, indemnification obligations, and price-adjustment obligations shall survive termination.
Effect of Agreement
This Agreement constitutes the complete understanding between the parties with respect to its subject matter and supersedes all previous written or oral agreements, understandings, and representations. To the extent the terms and conditions applicable to any Seller Maintenance and Support Services or Services conflict with the terms of this Agreement, the terms of this Agreement shall control. This Agreement may be modified only in a writing that expressly references this Agreement and is executed by both parties to this Agreement; provided, however, Seller may revise or modify the Software, Equipment, or Products, or change pricing, without notice, and Seller may furnish materially equivalent substitutes for Equipment, Product, or Software that cannot be obtained or produced in sufficient quantity. Buyer acknowledges that it is not relying on any oral statements, estimates, forecasts, technical advice, or representations not expressly set forth in this Agreement. No employee, representative, or agent of Seller has authority to bind Seller to any representation, warranty, or commitment not expressly stated herein.
Software-Specific Provisions
A. License. Subject to and except as otherwise provided in this Agreement, Seller grants to Customer a nonexclusive, nontransferable, revocable, limited license to use the Software, in object code or executable code form only, solely for Customer’s internal business purposes, and not for processing the data of any third party (whether on an outsourcing, service bureau, or other basis), except data supplied by Customer’s customers or suppliers that is necessary for Customer’s internal business purposes or except where authorized in writing by Seller. Customer’s use of the Software is limited to operation with a hardware key provided to Customer by Seller. Customer’s use of the Software shall also be limited by any other restrictions set forth in the Proposal and in the printed, electronic, or online material provided by Seller in connection with the Software.
B. General Limitations. Except as otherwise expressly provided under this Agreement, Customer shall have no right to, and Customer specifically agrees not to: (1) transfer, assign, or sublicense its license rights to any other person, or, with respect to the Seller IP, to transfer or distribute a copy to a third party, without the express written consent of Seller, and any such attempted transfer, assignment, or sublicense shall be void; (2) make error corrections to or otherwise modify or adapt the Seller IP or create derivative works based upon the Seller IP, or to permit third parties to do the same; (3) decrypt, decompile, reverse engineer, disassemble, or otherwise reduce the Seller IP to human-readable form to gain access to trade secrets or confidential information in the Seller IP; (4) operate the Software without use of the hardware key provided by Seller; (5) rent, lease, or lend the Software; or (6) allow any third party to access or use the Seller IP, except as expressly provided in this Agreement. The Customer shall maintain records identifying the location of the Software and all copies thereof (including all backup or archival copies), as well as the identity of the operating systems and database software with which the Software is used. Such records shall be subject to inspection by Seller during regular business hours upon reasonable advance notice.
C. Customer Responsibility. Customer is solely responsible for: (1) obtaining any third-party software required for use of the Software, including any operating system software, database software, or third party applications software; (2) conversion of any of Customer’s existing data files for use with the Software; and (3) taking reasonable backup precautions. Seller shall not be responsible for loss of data or documentation, whether attributable to the Software. With respect to the Equipment Products, Seller expressly disclaims, and Customer agrees to accept sole responsibility for (1) proper installation of the Products/Equipment and (2) ensuring any and all safety related mechanisms are in place with respect to the Products/Equipment, including but not limited to grounding kits and other preventative measures against fires and explosions. With respect to Products, Customer is responsible for checking the latest manufacturer safety, and with respect to Equipment, Customer shall reach out to the third-party manufacturer for this information. Customer shall indemnify Seller for any third-party claims in connection with improper installation or improper or sub-industry standard safety mechanisms.
D. Ownership. Notwithstanding anything to in this Agreement to the contrary, Seller or its licensors retain all right, title, and interest in and to all forms of the Software, all supporting documentation, all copies and modifications of the Software, including all worldwide rights to patents, copyrights, trademarks, and trade secrets in or relating to the Software, Seller Confidential Information, and all of its intellectual property and any modifications thereto (‘Seller IP”). Customer is not acquiring any right, title, or interest of any nature whatsoever in the Seller IP, except the license to use the Software granted in this Agreement.
E. Upgrades and Additional Copies. For purposes of this Agreement, the Software shall include (and the Terms and Conditions shall apply to) any upgrades, updates, bug fixes, or modified versions (collectively, “Upgrades”) or additional copies of the Software. Except as expressly authorized in this Agreement, Customer shall not make any copies or duplicates of the Software without the prior written permission of Seller. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT: (1) CUSTOMER HAS NO LICENSE OR RIGHT TO USE ANY SUCH ADDITIONAL COPY OR UPGRADE UNLESS CUSTOMER, AT THE TIME OF ACQUIRING SUCH ADDITIONAL COPY OR UPGRADE, ALREADY HOLDS A VALID LICENSE TO THE ORIGINAL SOFTWARE AND HAS PAID ANY APPLICABLE FEE FOR THE ADDITIONAL COPY OR UPGRADE; AND (2) ADDITIONAL COPIES OF THE SOFTWARE MAY BE MADE AND USED FOR LAWFUL BACKUP PURPOSES ONLY, PROVIDED CUSTOMER AFFIXES TO SUCH COPIES ALL COPYRIGHT, CONFIDENTIALITY, AND PROPRIETARY NOTICES THAT APPEAR ON THE ORIGINAL.
F. Proprietary Notices. Customer agrees to maintain and reproduce all copyright and other proprietary notices on all copies, in any form, of the Software in the same form and manner that such copyright and other proprietary notices are included on the Software.
G. License Fees. License fees paid by Customer are in consideration for the license rights granted to Customer under this Agreement.
H. Protection of Information. Customer agrees that aspects of the Software and associated documentation, including the specific design and structure of individual programs, constitute trade secrets, proprietary information, or copyrighted material of Seller. The Customer shall not disclose, provide, or otherwise make available such trade secrets, proprietary information, or copyrighted material in any form to any third party without the prior written consent of Seller. Customers shall implement reasonable security measures to protect such trade secrets, proprietary information, and copyrighted material.
I. Limited Warranties of Software. Seller warrants that Software shall substantially comply with any corresponding documentation for one year after Customer’s receipt, provided Customer is not in breach of any of Customer’s obligations under this Agreement. Seller provides no warranty for any software other than the Software. Customer’s receipt of the Software shall be an unqualified acceptance of and a waiver by Customer of all claims with respect to such Software unless Customer gives Seller notice of claim in writing within ten days after such receipt. Seller is not liable for damage to the Software during shipment or installation. The Software is of such complexity that it may have inherent or other defects and Seller does not warrant that the Software shall operate error free or that the Software shall meet Customer’s requirements. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SOFTWARE IS PROVIDED AS IS, AS AVAILABLE, AND WITH ALL FAUL TS. SELLER EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AND MERCHANTABILITY, AND ANY
WARRANTY ARISING OUT OF A COURSE OF DEALING. These warranties do not cover damage resulting from (1) failure to use the Software properly and in accordance with the specifications and instructions provided in the accompanying documentation; (2) improper installation; (3) accident, neglect, act of God, or misuse; (4) a cause not arising out of a defect in material or workmanship; (5) failure or defect of electrical power, external electrical circuitry, air conditioning, or humidity control; (6) use of the Software in conjunction with an item not provided or approved by Seller, (7) use of the Software with any third-party software, firmware, or hardware not operating in accordance with its respective specifications, or (8) repair or adjustment to or service on the Software by any person not authorized by Seller. In addition, Seller does not warrant that the Software or any equipment, system, or network on which it is used shall be free of vulnerability to intrusion or attack.
J. Limitation of Liability. In case of alleged failure by any Software to conform to this Agreement: (1) Customer shall promptly notify Seller of such alleged failure in writing, Customer shall submit evidence to support the claim of alleged nonconformity, and Customer shall provide any associated details reasonably requested by Seller in Seller’s attempt to remedy the problem; (2) if reasonably requested by Seller, Customer shall cooperate with Seller in recreating the conditions that existed at the time the Software allegedly failed; and (3) Seller shall diligently attempt to correct the reported nonconformity by repairing, modifying, or replacing the Software within a commercially reasonable period of time. If Seller is unable to cure such nonconformity by repairing, modifying, or replacing the Software as provided above, then Customer may terminate its right to use the Software, and return all Software to Seller and receive a full refund of the amounts actually paid by Customer for the Software. The foregoing remedies are exclusive and shall be Customer’s sole remedies with respect to any claim arising out of or relating to any breach of warranty or other failure of the Software to operate as intended, whether based in contract, breach of warranty, tort, or otherwise.
K. Software Maintenance and Support Services. Seller may provide software maintenance and support services (“Maintenance and Support Services”) to the Customer under a separate agreement. Customers are encouraged to contact a Seller sales representative in order to inquire about available Maintenance and Support Services.
