TERMS AND CONDITIONS OF PURCHASE OF CIVIQ SMARTSCAPES PRODUCTS AND SERVICES
The terms and conditions listed below govern the purchase of products and services (“Products”) provided by CIVIQ Smartscapes, LLC and its affiliated companies (collectively “Seller”). The buyer (“Buyer”) shall mean the entity (e.g., company, corporation, partnership, sole proprietor, etc.) or government agency entering into a purchasing or licensing arrangement with Seller.
For each purchase of Product under this Agreement, Seller shall provide a price quotation, listing the type and quantity of Product that Buyer intends to purchase, along with the applicable fees and expected delivery timetable or commencement date (“Quote”). Buyer shall then issue a corresponding purchase order or similar document (“Order”) referencing the Quote and this Agreement, upon which Seller shall deliver the Product per the agreed timetable.
1.1 If a Product ordered hereunder is accompanied by or has embedded in it Software, Seller shall grant to the Buyer a non-exclusive, non-transferable, perpetual license to use the Software, subject to the terms and conditions of this Agreement. Software may be used only in accordance with Seller’s published product specifications and end user documentation accompanying the Product (“Product Documentation”). The Software and the Product Documentation is subject to Seller’s copyright and other legal protections applicable to proprietary information, none of which Seller waives hereby. The license granted hereunder permits Buyer to use the Software on the Device only. Any other use of the Software shall automatically terminate this license. This license and restrictions hereto shall extend to all subsequent purchasers of the Product from Buyer.
1.2 The Buyer shall have the right to make copies of the Product Documentation, in form and quantity only as is reasonably required for Buyer’s internal use the Product, consistent with the terms and restrictions contained in this Agreement.
1.3 Except for the license rights granted hereunder, all right, title and interest in and to the Software and Product Documentation shall be retained by Seller and/or its suppliers.
1.4 Buyer shall not attempt to decompile, reverse engineer or disassemble the Product, and Buyer shall not make or permit to be made any translation, alteration, adaptation, enhancement, modification, update or addition to, or create derivative works based on the whole or any part of the Product in any way whatsoever.
2. DELIVERY, RISK OF LOSS, PASSAGE OF TITLE
Seller shall use commercially reasonable efforts to deliver the Device and Software to the address(es) and pursuant to the timetables specified in the applicable Order or Quote, Ex-Works FOB Seller’s factory, and no liability shall ensue for any delays in delivery. Risk of loss and damage to Products as well as title shall pass to Buyer upon delivery to Buyer’s designated carrier, and thereafter Buyer shall not be excused from payment in the event of a subsequent loss or damage to a shipment. Seller shall retain a purchase money security interest and right of possession in the Products until Buyer has made full payment. Buyer shall promptly execute any applicable UCC filing statements to perfect Seller’s security interest.
3. WARRANTIES AND REPAIRS
3.1 Seller warrants that, for a period of one (1) year following delivery (the “Warranty Period”), the Device shall be free from material defects in design and workmanship, and shall perform and function in all material respects in accordance with the Product Documentation. Buyer acknowledges that the Software is not error-free; however, Seller warrants that during the Warranty Period, the Software, shall perform and function in all material respects in accordance with the Product Documentation. An immaterial discrepancy between the actual operation, functionality or performance of the Device and Software and that described in the Product Documentation shall not be considered a defect or otherwise give rise to a warranty claim.
3.2 During the Warranty Period, Buyer shall notify Seller of any Product warranty claim, and thereafter, pursuant to Seller’s direction, arrange for the delivery of the Product to Seller or its designee for repair. Buyer's exclusive remedy and Seller’s sole liability under this warranty shall be for Seller to provide, at no additional charge to Buyer, the parts necessary to restore the Product to good working order.
3.3 All Product warranties shall become void and of no further force and effect if the defect in the Product is due to, or the Product is otherwise subject to, accident, misuse, neglect, alteration, improper assembly, improper installation, unauthorized repair, or use other than as provided for in Product Documentation.
3.4 This warranty does not cover Product failure due to Buyer’s failure to comply with applicable building codes, ordinances, and electrical trade practices; operation outside of device specifications; improper installation, use, maintenance, or repairs not authorized by Seller; accidents or abuse; modification or alteration in any way by anyone other than Seller or parties authorized by Seller to perform such modification or alteration; appliance(s) or equipment being attached to the device not approved by Seller; alteration or defacement of the serial number; or fire, flood, lightning, freezing, and acts of God, or any causes other than defects in materials and workmanship.
4. PAYMENT TERMS
Unless specifically agreed to otherwise in writing, Buyer shall pay 50% of the initial quoted amount as a deposit upon Order acceptance, and the balance upon receiving notification that the Product is ready for delivery, it being understood that Seller has no obligation to deliver any Product before payment therefore is received in full. The failure of Buyer to make payment as and when required shall permit the Seller to suspend performance of its obligations under this Agreement and Buyer shall pay for all costs (including but not limited to storage costs) resulting from such suspension. All overdue amounts payable by the Buyer shall accrue interest at 1.5% per month during the period of delay, or the maximum allowed by applicable law, whichever is less. Buyer is responsible for payment of all shipping, insurance, taxes, tariffs, customs duties, or any other charges resulting from or imposed upon this Agreement, except taxes based on Seller’s net income. Title to Products shall not pass to Buyer until all payments for such Product are made in full. Buyer may not terminate or cancel this Agreement for any reason except pursuant to Section 7 of the Terms and Conditions.
5.1 Seller, at its own expense, shall indemnify the Buyer and its officers, agents and employees from and against any action brought against Buyer by a third party to the extent that such action is solely based on a claim that the Product, when used in accordance with this Agreement, infringes any intellectual property rights of any third party. Seller shall pay all costs, settlements and damages finally awarded, provided: (a) Seller shall have sole control of the defense and/or settlement of such claim or suit; (b) the Buyer notifies Seller promptly in writing of each such claim or suit and gives Seller all information known to the Buyer relating thereto; and (c) the Buyer cooperates with any reasonable request of Seller in the settlement or defense of any such claim or suit.
5.2 Seller shall have no indemnity obligations under this Section to the extent that a claim is based upon: (a) the combination, operation or use of the Product with other products not provided by Seller or otherwise specified in Product Documentation, if such infringement would have been avoided in the absence of such combination, operation or use; or (c) the modification of the Product if such infringement would have been avoided in the absence of such modification.
5.3 This Section states the entire liability of Seller and the exclusive remedy of the Buyer with respect to any alleged infringement of any third party rights.
6. LIMITATIONS OF WARRANTIES AND LIABILITY
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NO WARRANTY, WHETHER EXPRESS OR IMPLIED, IS MADE WITH RESPECT TO THE SOFTWARE, DEVICE, OR PRODUCT DOCUMENTATION, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR INFRINGEMENT. WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, NEITHER SELLER NOR BUYER, NOR ANY OF THEIR RESPECTIVE PARENTS, SUBSIDIARIES OR LICENSORS, SHALL BE LIABLE FOR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSS, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR GOODWILL, HOWEVER CAUSED, OR OTHERWISE BE LIABLE IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE AND WHETHER SUCH LOSS ARISES OUT OF OR IN CONNECTION WITH THE USE OF THE PRODUCT OR OTHERWISE UNDER THIS AGREEMENT. EXCEPT FOR (A) A CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT SUBJECT TO SECTION 5, OR (B) A BREACH OF SECTIONS 1, 8 OR 11 (IN ALL CASES, FOR WHICH NO LIMIT APPLIES), THE MAXIMUM LIABILITY OF SELLER AND BUYER FOR CLAIMS ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT SHALL BE THE FEES RECEIVED BY SELLER FOR THE PRODUCT GIVING RISE TO THE CLAIM.
7. TERM AND TERMINATION
7.1 Unless earlier terminated as set forth herein, this Agreement shall have an initial term of one (1) year from the Effective Date, and shall thereafter continue indefinitely until terminated by either party upon ninety (90) days prior written notice to the other.
7.2 Either Seller or Buyer may terminate this Agreement and/or any specific Quotes(s), Order(s) or SOW(s) upon the other party's material breach of this Agreement, such Quote(s), SOW(s) or such Order(s); provided, however, that (a) the non-breaching party shall first have sent written notice to the breaching party describing the breach in reasonable detail and demanding that it be cured, and (b) the breaching party does not cure the breach within thirty (30) days following its receipt of such notice.
7.3 Except in the case of an uncured material breach by Seller in accordance with section 7.2, termination shall not relieve the Buyer from fulfilling their purchase obligations pursuant to open Orders or making payments for Product delivered prior to termination and shall not prevent either party from pursuing any other available remedies.
8.1 Each party may have access to information that is confidential to the other party (“Confidential Information”). Confidential Information shall include all written or oral information that is (i) clearly identified in writing at the time of disclosure as confidential, or (ii) that a reasonable person at the time of disclosure would assume, under the circumstances, to be Confidential Information. Confidential Information may include, without limitation, software programs, technical data, methodologies, know-how, processes, designs, new products, marketing plans, and Buyer or prospect names and/or information. Confidential Information also includes all information received from third parties that either party is obligated to treat as confidential.
8.2 Confidential Information shall not include information that (i) is or becomes a part of the public domain through no act or omission of the other party; (ii) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (iii) is lawfully disclosed to the other party by a third party without restriction on disclosure; or (iv) is independently developed by the other party without use of or reference to the other party’s Confidential Information. In addition, nothing in this Section will be construed to prohibit disclosure of Confidential Information to the extent that such disclosure is required to by law or valid order of a court or other governmental authority; provided, however, that the responding party shall first have given notice to the other party and shall have made a reasonable effort (at the other party’s expense) to restrict the scope of disclosure to the greatest extent reasonably possible and to obtain a protective order requiring that the Confidential Information so disclosed be used only for the purposes for which the order was issued.
8.3 The parties agree, unless required by law, not to make each other’s Confidential Information available in any form to any third party or to use each other’s Confidential Information for any purpose other than in the performance of this Agreement. Each party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or agents in breach of this Agreement. The parties agree to hold each other’s Confidential Information in confidence during the term of this Agreement and for a period of three (3) years thereafter.
8.4 Each party acknowledges and agrees that, due to the unique nature of Confidential Information, there can be no adequate remedy at law for breach of this Section and that such breach would cause irreparable harm to the non-breaching party; therefore, the non-breaching party shall be entitled to seek immediate injunctive relief without need of posting a bond or other surety, in addition to whatever other legal or contractual remedies it might have.
9. INTELLECTUAL PROPERTY
Buyer acknowledges that it acquires no rights to any intellectual property relating to any Product, which rights shall reside wholly with Seller. Neither party shall use the trademarks or trade names of the other without prior written consent.
All notices shall be in writing and given by personal delivery, certified mail, return receipt requested, or by commercial overnight courier for next business day delivery, to the addresses first listed above. Notices to Seller shall be sent to the attention of the Chief Financial Officer; notices to Buyer shall be sent to the address set forth in the applicable Order. Notice shall be deemed given three (3) business day after mailing, or the next business day after delivery to such overnight courier (unless the return receipt or the courier's records evidence a later delivery).
11. EXPORT CONTROLS
11.1 Neither the Product nor any underlying information or technology may be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) Cuba, Iraq, Libya, Sudan, North Korea, Iran, Syria or any other country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Denial Orders. Buyer represents and warrants that it is not located in, under the control of, or a national or resident of any such country or on any such list.
11.2 Buyer is entirely responsible for compliance with export and import laws of the U.S. and all foreign countries in connection with the sale and re-export of the Product to any end-user and Buyer.
12. U.S. GOVERNMENT END USERS
The Software and associated documentation are "commercial computer software" and "commercial computer software documentation," and, as such, the rights of U.S. Government End Users with respect to the Software and documentation are as set forth in this License Agreement, in accordance with FAR 12.212 or DFARS 227.7202-1, as applicable.
This Agreement shall be governed by and construed in accordance with law of the Commonwealth of Massachusetts without regard to conflicts of laws provisions thereof and without regard to the United Nations Convention on Contracts for the International Sale of Goods. The parties consent to the exclusive jurisdiction and venue for actions related to the subject matter hereof in the state and federal courts located in Boston, Suffolk County, Massachusetts. The parties agree that process may be served in the manner provided herein for giving of notices or otherwise as allowed by Massachusetts law.
If any provision of this Agreement is held to be invalid or unenforceable, the parties shall substitute for the affected provision a valid or enforceable provision which approximates the intent and economic effect of the affected provision.
The failure or delay by any party to enforce any terms of this Agreement shall not be deemed a waiver of such term.
This Agreement shall not be assigned by either party without the advance written consent of the other, provided that Seller may assign this Agreement to a successor to all or a substantial portion of its business. This Agreement shall be binding upon and inure to the benefit of the parties, their successors and permitted assigns.
In addition to those provisions which specifically provide for survival beyond expiration or termination, all provisions, if any, regarding payment, liability and limits thereon, and confidentiality and/or protection of proprietary rights and trade secrets shall survive indefinitely or until the expiration of any time period specified elsewhere in this Agreement with respect to the provision in question.
To the extent caused by fire, flood, natural disasters, acts of war or terror, electrical power or telecommunications service delay, outages or disruption, governmental action or other force majeure, no delay, failure or default in performance of any obligation by either party, excepting all obligations to make payments under this Agreement, shall constitute a breach of this Agreement.