These Standard Terms and Conditions of Sale and License (these “Standard Terms and Conditions”) apply to any sale or license by Addium, Inc. (“Addium”) of Products (as defined herein). For purposes of these Standard Terms and Conditions, “Customer” shall mean the person or legal entity purchasing or licensing the Products. In addition, these Standard Terms and Conditions are attached to and incorporated by reference into any Order Form or Purchase Order between Addium, Inc. (“Addium”) and the customer identified on the applicable Order Form or Purchase Order (“Customer”) (each a “Party,” and, together, the “Parties”). Capitalized terms used but not defined herein shall have the meaning assigned to them in the Order Form.
b. “Products” means Addium’s generally available products, including equipment, hardware, Subscription Services, and any related Addium documentation provided therewith by Addium, that are made available for sale by Addium or an authorized Addium distributor.
c. “Subscription Services” means Addium’s proprietary hosted products and software solutions made available through a software-as-a-service platform, as may be modified, enhanced and/or updated from time to time.
a. All fees for the Products and any other related payment or reimbursement obligations (collectively, the “Fees”) will be payable in accordance with the terms set forth in the applicable Order Form or Purchase Order; provided that if no terms are included in the Order Form or Purchase Order, payment for any (i) hardware Products is due cash in advance; and (ii) subscriptions to Subscription Services are due and payable yearly in advance. All amounts expressed herein are in legal tender of the United States unless expressly provided otherwise in the Order Form or Purchase Order.
b. All Fees not paid when due will accrue interest daily at the lesser of an annual rate of twenty-four percent (24%) on the unpaid balance or the highest rate permissible by Applicable Laws (as defined below), and Customer shall be responsible for Addium’s costs and expenses of collection, including court costs and reasonable attorney’s fees. If Customer believes that Addium has billed Customer incorrectly, Customer must contact Addium no later than one hundred and twenty (120) days after the date of the applicable invoice, otherwise Customer will be deemed to have waived any objection.
c. Except as otherwise set forth herein, all Fees are noncancelable, and all payments made are nonrefundable. In addition, all Fees shall be paid by Customer to Addium in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason (other than any deduction or withholding of tax as may be required by Applicable Laws). Fees do not include any direct or indirect local, state, federal, or foreign taxes, levies, duties, or similar governmental assessments of any nature, including value-added, excise, use, or withholding taxes. Customer is responsible for paying all taxes associated with its purchases hereunder. If Addium has a legal obligation to pay or collect taxes for which Customer is responsible under this Section, the appropriate amount will be invoiced to and paid by Customer.
a. The terms of this Section apply when Customer does not pay in full for hardware Products prior to shipment by Addium of those hardware Products.
b. Until Addium has received payment in full for all hardware Products, Addium shall retain a security interest in the hardware Products. Customer will sign and deliver to Addium any document to perfect this security interest that Addium reasonably requests.
c. Until Addium has received payment in full for any hardware Products, Customer is responsible for, and shall bear the entire risk of loss of, any theft, damage or destruction of those hardware Products occurring during the period from delivery of the hardware Products at Customer’s site until irrevocable payment for such hardware Products has been made in full to Addium. This includes damage from any cause whatsoever including, without limitation, misuse, accident (e.g., accidental physical impact, exposure to contaminants, etc.), neglect, abuse, alteration, or unauthorized repair or modification. No loss, theft, damage or destruction of the hardware Products as described in this Section will relieve Customer of the obligation to pay any Fees or to comply with any other obligation under the Agreement.
d. Until Addium has received payment in full for all hardware Products, Customer will insure the hardware Products against all hazards (including loss, theft, damage or destruction) in form and amounts and with an insurance satisfactory to Addium, in an amount not less than the full replacement value of the hardware Products. Upon request, Customer shall furnish to Addium a certificate of insurance from the insurer, which certificate shall evidence the insurance coverage required by this Section and shall designate Addium as loss payee and/or additional insured.
e. In addition to any other rights or remedies set forth in the Agreement, if Customer fails to pay all Fees when due, then upon thirty (30) days’ prior written notice, if Customer has not made all applicable payments of Fees due to Addium, then Addium may take any of the following actions: (i) enter Customer’s premises and without any court order or other process of law, repossess and remove the hardware Products, either with or without additional notice to Customer, and Customer hereby waives any trespass or right of action for damages by reason of such entry or removal; (ii) require Customer, at its expense, to return the hardware Products in good repair, ordinary wear and tear resulting from proper use thereof alone excepted, by delivering it, packed and ready for shipment, to such place as Addium may specify; and (iii) accelerate all future Fees due under all Purchase Orders and Order Forms such that all Fees become due and payable immediately. Customer shall be liable to Addium for the fair market value of any hardware Products, determined as of the date of the applicable Purchase Order or Order Form, unless Customer returns the hardware Products to Addium within ten (10) business days after receipt of a demand by Addium in accordance with Section 4(e)(ii).
Customer is responsible for payment of all shipping charges, and Addium will mark all hardware Products for shipment to Customer’s address set forth on the Order Form or Purchase Order. In the absence of specific shipping instructions, Addium will ship the hardware Products by the method Addium deems most advantageous. Addium will deliver the hardware Products F.O.B. Origin per the UCC, and title to and risk of loss of the hardware Products will pass to Customer upon such delivery by Addium. Any stated delivery dates are approximate. Hardware Products will be conclusively deemed accepted by Customer unless a written notice setting out the rejected hardware Products and the reason for the rejection is sent to Addium within ten (10) days of delivery of the hardware Products. In such case, Customer will place rejected hardware Products in safe storage at a reasonably accessible location for inspection by Addium. No delay, loss or damage to the Products will affect or impair Customer’s payment or other obligations included in the Agreement. Access to the Subscription Services will be delivered by issuance of an invitation to create an account at the email address provided by Customer. Subject to the terms and conditions of the Agreement, Addium will use commercially reasonable efforts to promptly fill (by full or partial shipment or issuance of an invitation to create an account, as applicable) Customer’s purchase of Products; each partial shipment or issuance of an invitation to create an account, as applicable, will be deemed a separate sale and/or license and may be invoiced upon such shipment or issuance.
a. Each Party represents and warrants to the other Party that (i) it is duly organized, validly existing, and in good standing as a corporation or other entity under the Applicable Laws of the jurisdiction of its incorporation or organization; (ii) it has the full right, power, and authority to enter into and perform its obligations under the Agreement; (iii) the execution of the Agreement by its representative whose signature is set forth at the end of the Agreement has been duly authorized by all necessary corporate or organizational action of such Party; and (iv) when executed and delivered by both Parties, the Agreement will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms.
c. EXCEPT AS OTHERWISE SET FORTH IN THE AGREEMENT, THE PRODUCTS AND SUPPORT ARE BEING PROVIDED “AS IS” AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR THE SPECIFIC WARRANTIES SET FORTH IN THE AGREEMENT, ADDIUM MAKES NO(AND SPECIFICALLY DISCLAIMS ALL) REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING,WITHOUT LIMITATION, ANY WARRANTY THAT THE PRODUCTS OR SUPPORT WILL BE UNINTERRUPTED, ERROR-FREE, OR FREE OF HARMFUL COMPONENTS; ANY WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT; OR ANY WARRANTY ARISING OUT OF ANY COURSE OF PERFORMANCE, COURSE OF DEALING,OR USAGE OF TRADE. CUSTOMER ACKNOWLEDGES THAT NO STATE MENTOR REPRESENTATION OF ANY PERSON REGARDING THE QUALITY OR CONDITION OF THE PRODUCTS HAS INDUCED CUSTOMER TO PURCHASE THE PRODUCTS, AND THAT NO SUCH STATEMENTS OR REPRESENTATIONS HAVE BEEN MADE. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THE AGREEMENT.
Addium will provide Customer with telephone support for the Products between the hours of 8:00 a.m. and 5:00 p.m. Pacific Standard Time, Monday through Friday, except for holidays. In addition, Addium may, in its sole discretion, provide other support services to Customer in connection with Customer’s use of the Products (“Support”). Support may be provided remotely or on site at Customer locations, provided that any visit by Addium personnel to Customer locations shall be coordinated in advance between the Parties in good faith. Support, if any, is provided hereunder “as-is,” without warranty of any kind, and Addium specifically disclaims all responsibility for any liabilities, claims or damages that result from any on-site visits for the provision of Support. Further, Customer agrees to defend, indemnify, and hold Addium harmless from any liabilities, claims or damages resulting from any personal injury (including death) or property damage resulting from any on-site visits for the provision of Support by Addium personnel or agents.
If Customer purchases any training, consulting, installation and/or other professional services, the terms of the Agreement do not apply to such services, which will instead be governed by a separate services agreement entered into between the Parties.
a. “Confidential Information” means all nonpublic information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether orally or in writing, in connection with the Agreement, that is designated as confidential or that reasonably should be understood by the Receiving Party to be confidential given the nature of the information or the circumstances of disclosure. Confidential Information of each Party includes software, code, business, and marketing plans, financial information, technology and technical information, inventions, know-how, product plans and designs, and business processes disclosed by such Party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) is received from a third party without breach of any obligation owed to the Disclosing Party; or (iv) was independently developed by the Receiving Party.
b. The Receiving Party will (i) use the same degree of care that it uses to protect the confidentiality of its own confidential information of a similar nature (but not less than reasonable care); (ii) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of the Agreement, except as otherwise authorized by the Disclosing Party in writing; and (iii) limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees and contractors who need that access for purposes consistent with the Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less protective than those included in the Agreement.
c. The Receiving Party may disclose Confidential Information of the Disclosing Party to the minimum extent compelled by Applicable Laws to do so, provided the Receiving Party (i) gives the Disclosing Party prior written notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure; and (ii) the Receiving Party ensures that any Confidential Information disclosed under this provision will still be afforded the protection of the Agreement to the extent it does not become publicly available as a result of such disclosure. Without limiting the foregoing, Customer shall not (i) or disclose any Addium Confidential Information to any Addium competitors or (ii) publish or provide to any third party the results of any benchmark or comparison tests of any Products.
d. Each Party acknowledges and agrees that, because a breach or threatened breach by the Receiving Party of any of its obligations under this Section could give rise to irreparable harm to the Disclosing Party for which monetary damages would not be an adequate remedy, the Disclosing Party shall, in addition to any and all other rights and remedies that may be available to the Disclosing Party in respect of this breach, be entitled to equitable relief, without any requirement to post a bond or other security, and without any requirement to prove actual damages or that monetary damages do not afford an adequate remedy.
e. Upon termination or expiration of the Agreement, the Receiving Party shall return or destroy all Confidential Information of the Disclosing Party in its possession. All obligations set forth in this Section 10 will survive any termination or expiration of the Agreement and will continue for two (2) years from the date of termination or expiration; provided, however, that the foregoing termination provision shall not apply to the extent Confidential Information includes any trade secrets, which information shall be subject to, and protected under this Agreement as Confidential Information for so long as such information is a “trade secret” under Applicable Laws (as defined below).
a. Addium shall defend any third-party action, suit or proceeding brought against Customer alleging that the Products infringe any of such third party’s patents or copyrights that are registered in the United States as of the Effective Date (each, a “Claim”), and shall indemnify Customer against any losses, damages, costs, expenses and judgments awarded against Customer in a final, non-appealable judgment arising out of any Claim. The foregoing obligation is conditioned on and subject to Customer (i) promptly giving written notice of the Claim to Addium; (ii) giving Addium sole control of the defense and settlement of the Claim (provided that Addium may not settle any Claim without Customer’s reasonable consent); and (iii) providing to Addium, at Addium’s cost, all reasonable assistance. Addium is not responsible for any settlement it does not approve in writing.
b. Addium will not be required to indemnify Customer in the event a Claim arises out of or relates to any (i) modification of the Product by Customer or at Customer’s direction, or any violation by Customer of the obligations under the Agreement; (ii) use of the Product in combination with any other product or service not provided by Addium; (iii) use of the Product in a manner not otherwise contemplated by the Agreement or the documentation; or (iv) where Customer continues the allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement.
c. If Customer is enjoined from using a Product or Addium reasonably believes it will be enjoined, Addium will have the right, in its sole discretion, and in lieu of indemnification, to (i) obtain for Customer the right to continue use of the Product or (ii) replace or modify the Product so that it is no longer infringing. If neither of the foregoing options is reasonably available to Addium, then Addium may elect to refund a pro rata portion of the amount received from or on behalf of Customer for the applicable Product depreciated on a straight line basis over a five (5) year period for hardware Products or refund the portion of a subscription paid but not used for Subscription Services licensed on a subscription basis, provided that in each case, Customer ceases all use of such Product and, at Addium’s option, returns the Product to Addium. This Section 11 states Addium’s sole and exclusive obligation, and Customer’s sole and exclusive remedy, to the maximum extent permitted under Applicable Laws (as defined below), for any third-party claims of infringement.
NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT OR OTHERWISE, BUT SUBJECT TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAWS, WITH RESPECT TO ANY SUBJECT MATTER OF THE AGREEMENT OR UNDER ANY TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY, STATUTE OR OTHER LEGAL OR EQUITABLE THEORY, (A) NEITHER ADDIUM NOR ANY OF ITS AFFILIATES OR SUPPLIERS IS LIABLE FOR (I) ANY INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF PROFITS, CONTRACTS, BUSINESS, REVENUES, GOODWILL OR REPUTATION, (II) COST OF COVER OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES, OR (III) LOSS OR CORRUPTION OF DATA, INTERRUPTION OF USE, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, COMPUTER FAILURE OR MALFUNCTION, OR DAMAGES RESULTING FROM CUSTOMER’S USE OF (OR INABILITY TO ACCESS OR USE) ANY PRODUCT, AND (B) THE AGGREGATE LIABILITY OF ADDIUM AND ITS AFFILIATES AND SUPPLIERS WILL NOT EXCEED THE AGGREGATE FEES RECEIVED BY ADDIUM FROM CUSTOMER UNDER THE AGREEMENT DURING THE TWELVE MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF ADDIUM IS INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER ADDIUM NOR ANY OF ITS AFFILIATES IS LIABLE FOR ANY FAILURE OR DELAY DUE TO MATTERS BEYOND ITS REASONABLE CONTROL OR FOR ANY ALLOCATION OF PRODUCTS BETWEEN ITS CUSTOMERS IN THE EVENT OF A SHORTAGE.
Customer will conduct its business operations in accordance with all applicable local, national and international laws, ordinances, codes and regulations (collectively, “Applicable Laws”). Without limiting the foregoing, Customer will comply with all Applicable Laws controlling the export of products relating to the Agreement, including, but not limited to, the Export Administration Regulations (15 C.F.R. §§ 730-774), the International Traffic in Arms Regulations (22 C.F.R. §§ 120-130) and the various economic sanctions regulations administered by the U.S. Department of the Treasury (31 C.F.R. §§ 500-600). Among other things, these laws and regulations may prohibit or require a license for the export or retransfer of certain products and technical data to specified countries, entities and persons. Customer also represents that it is not named on any U.S. government denied-party list. Customer shall not permit Users to access or use the Subscription Services or any Product in a U.S.- embargoed country (e.g., Cuba, Iran, North Korea, Sudan, Syria, etc.). Customer hereby gives written assurance that it will comply with all Applicable Laws, including applicable export control laws and regulations.
a. Choice of Law and Jurisdiction. Excluding conflict of laws rules, the Agreement shall be governed by and construed under the laws of the State of Washington (without regard to the conflicts of laws provisions thereof). All disputes arising out of or in relation to the Agreement shall be submitted to the exclusive jurisdiction of the state and federal courts located in Whitman County, Washington state, and the Parties hereto each agree to submit themselves to the exclusive jurisdiction of such court. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods is expressly and entirely excluded with respect to any purchases made under the Agreement.
b. Assignment. Customer may not assign or transfer any of its rights or obligations under the Agreement or any Order Form or Purchase Order, whether by operation of law or otherwise, including in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets or stock (including a sale of substantially all of its business operations where the Products are installed or the Subscription Services are provided), without Addium’s prior written consent, which may be withheld or given in Addium’s sole discretion. In addition, Customer may not resell any Products or Support without Addium’s express written consent. Subject to the foregoing, the Agreement will bind and inure to the benefit of the Parties, their respective successors, and permitted assigns.
d. Relationship of the Parties. The Parties are independent contractors. The Agreement does not create any partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
e. Force Majeure. Addium will not be liable for delays in performance or for non-performance due to unforeseen circumstances or causes beyond Addium’s reasonable control.
f. Notices. All notices under the Agreement must be in writing and will be deemed given (i) when personally delivered, (ii) one day after being sent by overnight courier, or (iii) upon receipt, if sent by certified or registered mail, return receipt requested.
g. Waiver; Severability. No Party will be deemed to have waived any provision of the Agreement or the exercise of any rights held under the Agreement unless such waiver is made expressly and in writing. Waiver by any Party of a breach or violation of any provision of the Agreement will not constitute a waiver of any other subsequent breach or violation. If any provision of the Agreement is held by a court of competent jurisdiction to be contrary to Applicable Laws, the provision will be deemed null and void, and the remaining provisions of the Agreement will remain in effect.
h. Waiver of Jury Trial. Each Party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to the Agreement or the transactions contemplated hereby.
i. No Third-Party Beneficiaries. There shall be no third-party beneficiaries to the Agreement.
j. Counterparts; Electronic Signatures. The Agreement, including any Order Forms or Orders, may be signed in one or more counterparts, which together will form a single agreement. The Agreement may be signed electronically, and the Parties acknowledge and agree that the Agreement is subject to all Applicable Laws that make a contract legally effective in electronic form, and authorize acceptance by means of an electronic signature or process.