TERMS AND CONDITIONS FOR SALE OF PRODUCTS
The following terms and conditions apply to all sales of equipment, software and/or accessories (collectively “Products”) and airtime services (collectively “Airtime”) by Skip-Line, LLC, a wholly owned subsidiary of Spec-Rite Systems, LLC. (“Skip-Line”) to its customer (“Customer”) (Customer and Skip-Line each being a “Party” and collectively the “Parties”), except as may be provided below or as may be set forth in a separate written agreement signed in hand by Skip-Line and Customer. By ordering any Products from Skip-Line, Customer agrees to the following terms and conditions. Skip-Line and Customer, intending to be legally bound, agree as follows:
SECTION 1. ENTIRE AGREEMENT
These terms and conditions (referred to herein as the “Agreement”) constitute the final, complete and exclusive agreement between the Parties relating to the subject matter hereof, and supersedes all prior or contemporaneous proposals, understandings, representations, warranties, promises and other communications, whether oral or written, relating to such subject matter (including without limitation any prior standard terms and conditions published by Skip-Line for the sale of Products and Airtime). Any term or condition in any order, confirmation or other document furnished by Customer at any time, which is in any way inconsistent with or in addition to the terms and conditions set forth in this Agreement is hereby expressly rejected, and Skip-Line’s acceptance of any offer or order of Customer is expressly made in reliance on Customer’s assent to all terms and conditions hereof.
SECTION 2. PURCHASE OF PRODUCTS
- PRICES. The prices applicable to the Products and Airtime (known as “Tariffs” where associated with Airtime) shall be quoted by Skip-Line to Customer. Such prices quoted by Skip-Line do not include any excise, sales, use or other taxes, and therefore are subject to increase in the amount of any such taxes (excluding any tax on Skip-Line’s net income) that Skip-Linemay be required to collect or pay upon the sale or delivery of the Products. In addition, such prices quoted by Skip-Line do not include any charges for the services referred to in Section 2(D) below or any shipping, handling, customs, insurance or similar charges referred to in Section 5 below, all of which will be invoiced to and paid by Customer as provided herein. Customer is responsible for all such taxes, duties and charges resulting from this Agreement or as a result of Skip-Line’s performance hereunder, whether now or hereafter imposed, levied, collected, withheld, or assessed.
- PURCHASE ORDER PROCESS. Customer shall place orders for the Products and Airtime to be purchased hereunder by submitting one or more written purchase orders to Skip-Line during the term of this Agreement. Each such purchase order shall state the descriptions (including Skip-Line’s part numbers) and quantities of the Products and Airtime being ordered, the requested shipment date and shipping address for the Products and Airtime. A purchase order may also state special shipment and insurance information, subject to Section 5(D) below. In no event shall any other terms or conditions set forth on a purchase order submitted by Customer be binding on Skip-Line. In addition, the delivery of Products and Airtime pursuant to any purchase order submitted by Customer shall not be binding on Skip-Line unless and until Skip-Line has accepted such delivery schedule or countered with a different delivery schedule by written acknowledgment or by shipment of the Products and Airtime applicable to such purchase order.
- STANDARD PRODUCTS. Unless specifically set forth by Skip-Line in writing: (1) all Products shall be Skip-Line’s standard, off-the-shelf items, and no special or customized version of any Product shall be provided by Skip-Line; and (2) Skip-Line shall have no obligation to ensure that the Products operate in conjunction with Customer’s equipment, software or other products or systems, and Customer shall be responsible for all costs it incurs in connection with any modifications it elects to make to its own equipment, software or other products or systems. D. RELATED SERVICES. The Parties may agree that Skip-Line will provide to Customer from time to time certain services relating to Customer’s purchase of the Products and Airtime, including without limitation technical support and maintenance services. The Parties agree that, in the absence of a separate written agreement signed in hand by the Parties, covering such services, such services shall be covered by the provisions of this Agreement, including without limitation Sections 6, 7 and 10 below, and that Customer shall be separately invoiced for all such services in accordance with Section 4 below at Skip-Line’s then current rates for such services. In addition, Skip-Line may furnish technical assistance, advice and other information to Customer relating to the use of the Product. Except as may be expressly set forth in a separate written agreement signed in hand by each of the Parties, Skip-Line has no obligation or liability for any technical assistance, advice or information it furnishes concerning the Product, and all technical assistance, advice and information are given without warranty and are accepted by Customer who assumes responsibility for any use.
SECTION 3. PURCHASE OF AIRTIME
The Customer agrees to purchase the Airtime Services from Skip-Line on the terms of this Agreement. Skip-Line will provide, and the Customer will pay Airtime Services Prices in respect of Airtime Services, from the time of Activation of each Product until the provision of Airtime Services is terminated in accordance with this Section A. A. ACTIVIATION AND TERMINATION OF AIRTIME SERVICES. The minimum Airtime Term is one (1) year, which will automatically renew for 4 consecutive one (1) year intervals unless the Customer notifies Skip-Line that they wish to terminate the Airtime. Unless otherwise agreed in writing:
1) The Customer or the Customer’s customers will Activate each Product within thirty (30) days after Delivery;
2) Should the Customer or the Customer’s customers not Activate a Product in accordance with paragraph 6(a), the Products will be deemed to have been Activated on the day falling thirty-one (31) days after Delivery (Deemed Activation);
3) Skip-Line shall reserve the right to terminate the Airtime in such instances where the Customer has failed to pay any due invoices in accordance with Section 4.
After expiry of the initial Airtime Term, and if the Customer does not notify Skip-Line of its desire to renew the Airtime on the previous Tariff, for a further minimum twelve (12) month period, Skip-Line shall:
(a) Increase the Tariff on which the Customer has the Products registered, by ten percent (10%); or
(b) Terminate the provision of the Airtime in respect of which the Airtime Term has expired on giving not less than sixty (60) days’ prior written notice to the Customer.
- COMPLIANCE WITH APPLICABLE LAWS. The Customer will:
(a) comply with all operating procedures, technical specifications and operational requirements notified to the Customer by Skip-Line. Such operating procedures, technical specifications and operational requirements may be changed by Skip-Line by written notice to the Customer;
(b) use the Products and Airtime Services exclusively for peaceful purposes; and
(c) notify its Customers of the provisions of this Section 3 and require each Customer to agree in writing to similar provisions to this Section 3 before requesting Activation of the Product(s).
The Customer will not use the Airtime Services in an abusive or fraudulent manner including, but not limited to, the following:
(a) accessing or attempting to access the Airtime Services by using an unauthorised device;
(b) obtaining or attempting to obtain permission to use the Airtime Services by providing false or misleading information;
(c) intentionally interfering with or causing disruption in the provision of Airtime Services to other third parties, or using the Airtime Services in a manner that interferes unreasonably with the use of Airtime Services by other third parties;
(d) using the Airtime Services to further criminal activity; and
(e) using the Airtime Services to make obscene or illegal communications, to impersonate another person with fraudulent or malicious intent, or to call another person so frequently or at such times of day or in any other manner as to have a likely effect of annoying, threatening or harassing such person. C. REMEDY. If the Customer fails to comply with its obligations as described above, Skip-Line may, at its sole option and without in any way limiting any other rights and remedies it may have, suspend or terminate the Airtime Services provided to the Customer without notice and without liability. On such suspension or termination, Skip-Line will invoice the Customer and the Customer will pay Skip-Line in accordance with this Agreement all charges for the Airtime Services used by the Customer or its Customers up to and including the date of suspension or termination (as the case may be).
SECTION 4. SPEC-RITE ONLINE PLATFORM. The terms and conditions governing the software and services provided by the Spec-Rite Online Platform are found at https://skipline.com/spec-rite-online-platforn-terms/ which are hereby incorporated by reference.
SECTION 5. TERMS OF PAYMENT. Customer shall pay Fifty percent (50%) of the total purchase order upon placement of the purchase order and Skip-Line shall invoice Customer at the time of each shipment of Products to Customer at which time the balance of payment must be made. If credit is available to Customer and Skip-Line gives notice of the credit to Customer, then the balance of the payment is due for all invoiced amounts thirty (30) calendar days from the date of invoice. Payments must be made in U.S. currency unless agreed otherwise in writing. Customer shall make all payments due to Skip-Line without regard to whether Customer has made or may make any inspection of the Products delivered to Customer. Customer may not set off or recoup invoiced amounts or any portion thereof against sums that are due or may become due from Skip-Line, its parent, affiliates, subsidiaries or other division or units. If Customer fails to pay any invoiced amount when due, or if for any other reason Skip-Line is not satisfied with the credit-worthiness of Customer, then Skip-Line shall be entitled to withhold or terminate Airtime Services or withhold Product shipments (and the provision of any services) until Customer re-establishes its credit to Skip-Line’s satisfaction and all delinquent amounts including late interest, if any, are paid to Skip-Line. Additionally, Skip-Line may at its option: (a) repossess Products or software for which payment has not been made; (b) charge interest on delinquent amounts at the maximum rate permitted by law, for each full or partial month; (c) recover all costs of collection, including but not limited to reasonable attorneys’ fees; (d) combine any of the above rights and remedies as may be permitted by applicable law. These remedies are in addition to those available at law or in equity. Skip-Line may re-evaluate Customer’s credit standing at any time and modify or withdraw credit. SECTION 6. DELIVERY OF PRODUCTS
- SHIPPING SCHEDULE. Skip-Line shall use its reasonable efforts to ship Products to Customer in accordance with the shipment schedule provided to Skip-Line by Customer. Skip-Line reserves the right to ship Products as early as five (5) business days prior to the requested shipment date in order to accommodate Skip-Line’s overall delivery schedules. Notwithstanding the foregoing and without limiting the generality of Section 10 below, Skip-Line shall not be liable for damages of any kind as a result of a delay in delivery for any reason. B. CHANGES SUBJECT TO CONSENT. Except as provided in this Section 5(B), Customer shall not be entitled to change a previously requested shipment date, or cancel an order, for any Products except with Skip-Line’s prior express written consent, which consent shall be in Skip-Line’ s sole discretion. If Skip-Line gives its consent pursuant to the preceding sentence but the Products involved have already been shipped to Customer, then: (1) Customer shall return the Products to Skip-Line and pay all related shipping, handling, customs and insurance charges (for both shipping the Products to Customer and returning the Products to Skip-Line); and (2)Customer shall promptly pay to Skip-Line a restocking fee to cover rework and handling fees, if such fee is charged by Skip-Line. C. SHIPMENT PROCESS. All deliveries shall be Ex-Works (EXW) Skip-Line’s designated facility, per Incoterms 2010. Unless otherwise specified by Customer in writing at least thirty (30) days prior to a requested shipment date, Skip-Line shall determine in its discretion the means of shipment and shall not be responsible for arranging insurance on the Products involved. Skip-Line shall invoice Customer for any and all shipping, handling, customs, insurance and similar charges incurred by Skip-Line in shipping Products to Customer, and Customer shall pay such charges. Skip-Line also reserves the right to ship Products to Customer freight collect. Customer shall be deemed to have accepted the Products upon the date title to such Products passes to Customer; provided, however, that nothing in this Section 5(D) shall be deemed to limit Customer’s warranty rights set forth in Section 9 below. Without prejudice to any other rights or remedies Skip-Line may have under this Agreement and in addition to those available at law or in equity, Skip-Line reserves the right to charge a re-stocking fee of 10% of the value of the order if the Products are not collected within seven (7) days from notification of availability.
- INSPECTION AND ACCEPTANCE. Unless other acceptance criteria has been expressly agreed to by written agreement signed in hand by the Parties, the Customer will inspect Equipment within a reasonable period after delivery not to exceed thirty (30) calendar days. Equipment will be presumed accepted unless Skip-Line receives written notice of rejection explaining the basis for rejection within the same timeframe. Skip-Line will have a reasonable opportunity to repair or replace rejected Equipment, at its option. Skip-Line assumes shipping costs in an amount not to exceed normal surface shipping charges to Skip-Line’s designated facility for the return of properly rejected Equipment. Following initial delivery, the Party initiating shipment will bear the risk of loss or damage to Equipment in transit. If Skip-Line reasonably determines that rejection was improper, Customer will be responsible for all expenses caused by the improper rejection.
SECTION 7. TITLE TO PRODUCTS
- PASSAGE OF TITLE. Title to Products shall pass at time of payment by the Customer; Risk of damage thereto or loss thereof, shall pass to Customer at the time Skip Line makes the goods available to Customer for delivery in accordance with Clause 5 above. Notwithstanding the foregoing, Customer hereby grants to Skip-Line the option to take, and upon Skip-Line’s exercise of such option Customer will be deemed to hereby grant, a security interest in all Products delivered to Customer, and in all accessions to, replacements of and proceeds from sale or lease of such Products, as security for the performance by Customer of all of Customer’s obligations arising under this Agreement. Skip-Linemay exercise said option at its sole discretion.
- OWNERSHIP OF PROPRIETARY MATERIAL IN PRODUCTS. Notwithstanding Section 6(A) above, Customer acknowledges that the Products contain proprietary electronics, software and technical information of Skip-Line or its licensor (the foregoing together with any Skip-Line-generated Product documentation being collectively “Proprietary Materials”) and that (as between Skip-Line and Customer) ownership of all patents, copyrights, mask work rights, trademarks, trade names, know-how, and other intellectual property rights relating to or residing in the Products and the Proprietary Materials shall remain with Skip-Line or its licensor. Customer understands and agrees that this Agreement does not constitute a sale of any Proprietary Materials or any such intellectual property rights; except that Customer and its customers shall have the limited right to use Proprietary Materials in the course of using the Products (subject to Section 6 (C) below). Customer shall promptly notify Skip Line of any actual or threatened misappropriation or infringement of Skip-Line’s proprietary rights which comes to Customer’s attention.
- SOFTWARE, LICENSE FOR SOFTWARE AND DOCUMENTATION.
(i) Certain Products may include software to collect information about how, and under what conditions, the Product is used and functions, including without limitation information describing use of the touch panel, the keyboard, docking events, system up and down time, backlighting use, and peripheral utilization. This information may be used by Skip-Line to assist with matters such as repairs, diagnostics, and quality control/improvement.
(ii) Without limiting the generality of Section 6(B) above, the Parties acknowledge that (as between Skip-Line and Customer) Skip-Line owns all rights (including without limitation all copyrights) in any Proprietary Materials obtained by Customer at any time (whether software, documentation or other such Proprietary Materials are contained in a Product, provided on a USB drive or other media, downloaded remotely or otherwise transferred). The terms “sell” and “buy,” and similar terms, as used in this Agreement with respect to any software and/or documentation shall mean the grant to Customer of a non-exclusive, non-transferable limited license (1) to use such software (in object code form only) and/or documentation together with Products provided by Skip-Line in the United States, for the sole purpose of using such Products, subject to the provisions in any separate license agreement or other document (relating to such software and/or documentation) supplied by Skip-Line to Customer, and (2) in connection with any resale of Products provided by Skip-Line, to grant to the purchaser thereof a sublicense to use such software (in object code form only) and/or documentation solely as provided in the foregoing clause “(1)” (subject to the restrictions imposed in Section 6(D) below). Customer agrees that all such sublicenses shall be for the benefit of Skip-Line and shall be enforceable directly by Skip-Line (in Skip-Line’s name or on behalf of Customer). Customer shall have no right to market, distribute or otherwise transfer such software and/or documentation except as expressly provided in this Section 6(C).
- FURTHER RESTRICTIONS. Customer shall abide by the terms of any license accompanying the Products or any Proprietary Materials such as software, and shall not reverse engineer, “reverse compile,” decompile, disassemble, translate, copy, modify, alter, create derivatives of , or otherwise change any Product, or part thereof (including without limitation any software or other Proprietary Materials, or any software or documentation provided by Skip-Line), without the prior express written consent of Skip-Line. Customer shall have no right to obtain source code for any software provided by Skip-Line by any means and shall not use, print, copy, or display the software in whole or in part without the prior express written consent of Skip-Line. Customer shall not defeat any “keys” or codes controlling authorized access or functionality, nor will Customer allow others to do the same. Customer will not cause or knowingly allow harmful software to be placed on or used with the Products, including but not limited to, the generation or dissemination of computer viruses, Trojan horses, time bombs, denial of service attacks, key-logging and other monitoring software, worms, logic bombs, or other code or programs whose effect is to negatively impact the operation or performance of the Products or the safety, security, or privacy of users or owners of the Products, or to negatively impact the operation or performance of the wireless networks with which the Products may interact (“Networks”) or to permit unauthorized use of or access to such Networks. Customer shall not knowingly use Products or software in any way that could cause harm to such Products, the software, or the Networks or impair their use by others. Customer shall not use the Products, or any software provided by Skip-Line, to attempt unauthorized access to any service, data, account, or Network.
- TRADEMARKS. Customer shall not remove from the Products (or their packaging or documentation), or alter, any of Skip-Line’s trademarks, trade names, logos, patent or copyright notices, or other notices or markings, or add any other notices or markings to the Products (or their packaging or documentation), without the prior express written consent of Skip-Line. Skip-Line hereby grants to Customer a non-exclusive, non-transferable limited license to use Skip-Line’s trademarks relating to the Products during the term of this Agreement; provided, however, that (1) Customer shall use such marks only in connection with advertising or promotion of the Products to denote their origin, (2)Customer shall clearly designate that such marks are owned by Skip-Line, and (3)Customer shall otherwise comply with Skip-Line’s then current policies for use of its marks. Any use of Skip-Line’s trademarks by Customer (i) shall be in capital letters, (ii) if they are registered in the United States Patent and Trademark Office, shall be accompanied by the “®” symbol, (iii) if they are not registered in the United States Patent and Trademark Office, shall be accompanied by the “™” symbol, and (iv) shall be followed by a common descriptive name for the Products. Customer shall not, by virtue of the foregoing license, acquire any right, title or interest in Skip-Line’ s trademarks; and Customer shall not contest or otherwise challenge the right, title and interest of Skip-Line in its trademarks or the registration thereof. Customer’s use of Skip-Line’s trademarks shall accrue to the benefit of Skip-Line.
SECTION 8. CONFIDENTIAL INFORMATION
- Unless otherwise provided, all information exchanged between Skip-Line and Customer is non-confidential. If either Skip-Line or Customer requires the exchange of confidential information, the exchange will be made under a separately signed confidentiality agreement between the Parties. Customer shall not disclose to any third party the fact, negotiations, terms or any confidential information relating to Skip-Line’s or its affiliates’ services, Products and other goods under this Agreement without Skip-Line’s prior written consent. B. Neither Skip-Line nor Customer will publicize the terms of this Agreement or the relationship between Skip-Line and Customer in any advertising, marketing or promotional materials without the prior written consent of the other Party. Customer shall not publicly announce or discuss, or cause any third party to announce or discuss, Skip-Line’s Products and Airtime or services without having received, in advance, Skip-Line’s express written consent or notice. Customer shall also contractually obligate its reseller purchasers to refrain from publicly announcing or discussing, or causing any third party to publicly announce or discuss Skip-Line’s Products and Airtime or services without having received, in advance, Skip-Line’s express written consent in each instance.
SECTION 9. PATENT, COPYRIGHT AND TRADEMARK INDEMNITY
- INDEMNITY. Subject to the provisions of this Section 8 and Section 10 below, Skip-Line shall at its expense defend any action against Customer to the extent such action is based on a claim that a Product infringes a valid United States patent, copyright or trademark (except to the extent such action or claim is based on any software or software component provided by Skip-Line at any time whether contained in a Product provided on a USB drive or media, downloaded remotely or otherwise transferred), and Skip-Line shall pay those damages and costs finally awarded against Customer in such action which are solely and specifically attributable to such claim, provided that Customer notifies Skip-Line promptly in writing of such action, Customer gives Skip-Line sole control of the defense thereof (and any negotiations for settlement or compromise thereof), and Customer cooperates in the defense thereof at Skip-Line’s expense. Because Skip-Line has exclusive control of resolving infringement claims hereunder, in no event will Skip-Line be liable for Customer’s attorney fees or costs. If any Product (excluding any software or software component provided by Skip-Line) becomes, or in Skip-Line’s opinion is likely to become, the subject of a claim of infringement, then Customer shall permit Skip-Line, at Skip-Line’s option and expense, either to (1) procure the right to continue using such Product, (2) replace or modify such Product so that it becomes non-infringing, or (3) accept return of such Product or terminate Customer’s license to use the infringing Product and give Customer a credit therefore, less reasonable depreciation for use, damage and obsolescence thereof (such depreciation to be calculated as an equal amount per year over the life of such Product, which is agreed for purposes of this clause to be five (5) years from the date of original delivery of such Product). Customer shall not incur any costs or expenses for the account of Skip-Line under or pursuant to this Section 8 without Skip-Line’s express prior written consent. THE FOREGOING STATES THE ENTIRE LIABILITY OF SKIP-LINE FOR INFRINGEMENT CLAIMS AND ACTIONS.
- CERTAIN EXCEPTIONS. Skip-Line shall have no liability to Customer under this Section 8 or otherwise for any action or claim alleging infringement based upon any conduct involving (1) the use of any Product in a manner other than as specified by Skip-Line, (2) the use of any Product in combination with other products, equipment, devices or software not supplied by Skip-Line (including without limitation any application software produced by Customer for use with such Product), (3) the use of any Product other than for its ordinary purpose, or (4)the alteration, modification or customization of any Product by any person other than Skip-Line, or by Skip-Line based on Customer’s specifications or otherwise at Customer’s direction (regardless of whether such alteration, modification or customization occurs before or after the Product is originally shipped by Skip-Line to Customer). In the event of an infringement action or claim against Skip-Line which is based on any conduct described in the preceding sentence, Customer shall at its own expense defend such action or claim, and Customer shall pay any and all damages and costs finally awarded against Skip-Line in connection with such action or claim, provided that Skip-Line notifies Customer promptly in writing of such action or claim, Skip-Line gives Customer sole control of the defense thereof (and any negotiations for settlement or compromise thereof), and Skip-Line cooperates in the defense thereof at Customer’s expense. Notwithstanding the absence of any such obligation(s), Skip-Line reserves the option, in its sole discretion and at its expense, to assume at any time defense of any such claim.
SECTION 10. LIMITED WARRANTY
- WARRANTY TERMS. Subject to the provisions of this Section 10 and Section 11 below, with respect to each Product sold by Skip-Line hereunder (excluding software or software components), Skip-Line warrants that, for twelve months or such other term as set forth in an extended warranty for the Product purchased after the date such Product is shipped from Skip-Line’s facility or the date title to such Product passes to Customer, whichever date is earlier (such period referred to herein as the “Warranty Period”) all components of such Product, except software and software components, shall be free from faulty workmanship and defective materials. The software and software components, including any documentation designated by Skip-Line for use with such software or software components, is provided “AS IS” and with all faults. The entire risk as to satisfactory quality, performance, accuracy and effort is with the Customer. Skip-Line makes no warranties implied or expressed regarding any of its software or software components or any of its accompanying documentation. The warranties provided by Skip-Line in this Section 10(A) are the only warranties provided by Skip-Line with respect to the Products sold hereunder, and may be modified or amended only by a written instrument signed by Skip-Line and accepted by Customer. The warranties do not apply if, in the sole opinion of Skip-Line, the product has been damaged by accident, misuse, neglect, improper shipping and handling. Since the products are sensitive to static, the responsibility to protect them from static damage is solely that of Customer and user. This warranty is valid only if the product has not been tampered with or serviced by any party not authorized by Skip-Line as a repair facility. Customer’s remedies and Skip-Line’ aggregate liability with respect to the warranties provided by Skip-Line in this Section 10(A) are set forth in and are limited by this Section 10 and Section 11 below.
- WARRANTY CLAIMS. If, during the applicable Warranty Period for a Product sold by Skip-Line hereunder, it is determined that any component of such Product, except software components, is defective due to faulty workmanship or defective materials, or it is determined that any software component of such Product fails to substantially conform to the written documentation designated by Skip-Line for use with such software component, then such Product shall be returned to Skip-Line, it being agreed that Skip-Line shall not bear the expense of shipping such Product to Skip-Line except as otherwise agreed by Skip-Line. Upon receipt of any such Product during the applicable Warranty Period, Skip-Line shall, at its expense, (1) in Skip-Line’s sole discretion, repair or replace such Product (using new or refurbished parts in its sole discretion), and (2) ship such Product to return it to its original location. Skip-Line’ s obligations hereunder shall arise only if Skip-Line’s examination of the Product in question discloses to Skip-Line’s satisfaction that the claimed defect or nonconformity actually exists and was not caused by any improper installation, testing or use, any misuse or neglect, any failure of electrical power, air conditioning or humidity control, or any act of God, accident, fire or other hazard. Repair or replacement of a Product (or any part thereof) does not extend the Warranty Period for such Product.
- OTHER LIMITATIONS. THE EXPRESS WARRANTIES OF SKIP-LINE STATED IN SECTION 10(A) ABOVE (i) DO NOT APPLY TO PRODUCTS NOT MANUFACTURED BY SKIP LINE (MANUFACTURER WARRANTY APPLIES), SOFTWARE NOT DEVELOPED BY SKIP-LINE, CONSUMABLE ITEMS, SPARE PARTS, OR SERVICES; AND (ii) DO NOT APPLY TO PRODUCTS, OR COMPONENTS THEREOF (INCLUDING WITHOUT LIMITATION ANY SOFTWARE COMPONENT), WHICH HAVE BEEN ALTERED, MODIFIED, REPAIRED OR SERVICED IN ANY RESPECT EXCEPT BY SKIP-LINE OR ITS REPRESENTATIVES. IN ADDITION, THE EXPRESS WARRANTIES OF SKIP-LINE STATED IN SECTION 10(A) ABOVE DO NOT APPLY TO ANY SOFTWARE COMPONENT OF A PRODUCT WHICH IS SOLD OR LICENSED SUBJECT TO A SEPARATE LICENSE AGREEMENT OR OTHER DOCUMENT RELATING TO SUCH SOFTWARE COMPONENT AND THE WARRANTIES APPLICABLE TO ANY SUCH SOFTWARE COMPONENT SHALL BE SOLELY AS STATED IN SUCH OTHER LICENSE AGREEMENT OR DOCUMENT. SKIP-LINE MAKES NO WARRANTIES THAT THE SOFTWARE COMPONENTS OF ANY PRODUCT WILL OPERATE IN CONJUNCTION WITH ANY OTHER SOFTWARE OR WITH ANY EQUIPMENT OTHER THAN THE PRODUCTS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, SKIP-LINE IS NOT LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY LOSS OF USE OF THE PRODUCT, INCONVENIENCE OR DAMAGES OF ANY CHARACTER, WHETHER INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOSS OF INFORMATION OR DATA CONTAINED IN, STORED ON, OR INTEGRATED WITH ANY PRODUCT RETURNED TO SKIP-LINE FOR WARRANTY REPAIR) RESULTING FROM THE USE OF THE PRODUCT, RELATING TO WARRANTY SERVICE, OR ARISING OUT OF ANY BREACH OF THIS LIMITED WARRANTY, EVEN IF EMS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IMPORTANT: SKIP-LINE DOES NOT PROVIDE EMERGENCY PUBLIC SAFETY CONNECTIONS OR MISSION CRITICAL MESSAGING THROUGH THE AIRTIME SERVICES.
- DISCLAIMER. THE EXPRESS WARRANTIES OF SKIP-LINE STATED IN SECTION 10(A) ABOVE ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. E. CUSTOMER WARANTIES. The Customer will not make any statements, representations or claims and will not give any warranties to any end customer or potential end customer in respect of the Products or the Airtime Services, save to the extent specifically authorized by Skip-Line, such authorization to be given by Skip-Line in writing at the relevant time. The Customer will indemnify Skip-Line fully, on demand, against all losses, damages, expenses, costs and other liabilities (including, without limitation, legal and other professional fees) incurred by or awarded against Skip-Line as a result of any breach by the Customer of any of its obligations under this Section 10(E). The limitations and exclusions of liability in respect of the Customer under Section 11 will not apply to the indemnity under this Section 10(E).
SECTION 11. LIMITATION OF LIABILITY
- NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT: (A) SKIP-LINE’S AGGREGATE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND THE SALE OF PRODUCTS AND PROVISION OF SERVICES TO CUSTOMER, REGARDLESS OF THE FORM OF ACTION GIVING RISE TO SUCH LIABILITY (WHETHER IN CONTRACT, TORT OR OTHERWISE), AND INCLUDING ANY LIABILITY UNDER SECTIONS 9 AND 10 ABOVE, SHALL NOT EXCEED THE AMOUNT PAID TO SKIP-LINE BY CUSTOMER IN THE TWELVE MONTHS PRECEDING THE CLAIM FOR THE PURCHASE UNDER THIS AGREEMENT OF THE SPECIFIC PRODUCT(S) THAT ACTUALLY CAUSED THE DAMAGE OR LOSS; (B) SKIP-LINE SHALL NOT BE LIABLE FOR ANY EXEMPLARY, SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOST PROFITS), EVEN IF SKIP-LINE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (C) EXCEPT AS PROVIDED IN SECTIONS 9(A) AND 10(B) ABOVE (BUT ONLY TO THE EXTENT AND SUBJECT TO THE LIMITATIONS SET FORTH IN SECTIONS 9 AND 10 AND CLAUSES “(A)” AND “(B)” OF THIS SECTION 11), SKIP-LINE SHALL NOT BE LIABLE FOR ANY CLAIMS OF THIRD PARTIES RELATING TO THE PRODUCTS OR FOR ANY CLAIMS RELATING TO PRODUCT USE ON A NETWORK, AND CUSTOMER SHALL DEFEND SKIP-LINE FROM, AND INDEMNIFY AND HOLD SKIP-LINE HARMLESS AGAINST, ALL SUCH CLAIMS. THE PARTIES EXPRESSLY AGREE THAT THE PRODUCTS ARE NOT CONSIDERED TO BE GOODS FOR USE PRIMARILY FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES, OR CONSUMER GOODS, FOR PURPOSES OF THE UNIFORM COMMERCIAL CODE, SALE OF GOODS ACT OR OTHERWISE. THE FOREGOING STATES THE ENTIRE LIABILITY OF SKIP-LINE WITH REGARD TO THIS AGREEMENT AND THE PRODUCTS. THE LIMITATIONS OF LIABILITY CONTAINED IN SECTIONS 9AND 10ABOVE AND THIS SECTION 11ARE A FUNDAMENTAL PART OF THE BASIS OF SKIP-LINE’S BARGAIN HEREUNDER, AND SKIP-LINEWOULD NOT ENTER INTO THIS AGREEMENT ABSENT SUCH LIMITATIONS.
- Skip-Line will not be liable to the Customer in tort (including negligence), breach of contract, under any indemnity or otherwise for:
- any outage, unavailability or degradation of the Airtime Services due to malfunction of any network or other equipment, suspension or termination of the Airtime Services as permitted by this Agreement, or any other cause; or
- any acts or omission of the network provider that lead to any outage, unavailability or degradation of the Airtime Services; or
- any acts or omissions of a telecommunications carrier unaffiliated with Skip-Line that provides services in relation to this Agreement; or
- any outage, unavailability or degradation of the Airtime Services caused by any legal or regulatory requirements of a specific state, province or country; or e. libel, slander, invasion of privacy infringement of copyright or any other Intellectual Property Rights arising from material transmitted or received via the Airtime Services; or f. infringement of patents or other Intellectual Property Rights arising from use of the Airtime Services or the Products in combination with services or equipment provided by the Customer; or
- use of the Airtime Services in a manner not authorized by this Agreement.
- The Customer acknowledges and accepts that the availability of the Airtime Services, and in particular the ability of any particular Product to send and receive messages cannot be guaranteed as such availability is affected by various factors including, but not limited to, geographical position, environmental conditions, network availability or operator error. Consequently, Skip-Line excludes all liability of any kind whatsoever for any losses of whatsoever nature suffered by the Customer as a consequence of a Terminal being unable to send or receive Messages SECTION 12. U.S. GOVERNMENT RESTRICTED RIGHTS
If the Products and Airtime and all related documentation and technical data are acquired under the terms of a U.S. Government contract, any and all use, duplication and disclosure thereof by the United States of America, its agencies and/or instrumentalities (“U.S. Government”) are subject to the restrictions contained in subparagraphs (a) through (d) of the Commercial Computer Software—Restricted Rights at FAR 52.227-19 when applicable, or in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013, and in similar clauses in the NASA FAR supplement, as applicable, as well as all applicable software licenses and other licenses in connection with the Skip-Line Products and Airtime, documentation and technical data and Skip-Line’s rights therein.
SECTION 13. GENERAL
- FURTHER ASSURANCES. At any time upon the request of Skip-Line, Customer shall promptly and duly execute and deliver any such further instruments and documents and take such further action, as Skip-Linemay reasonably deem desirable to obtain the full benefits of this Agreement. Upon Skip-Line’s exercise of its option in Section 6(A), Customer is deemed to hereby irrevocably appoint Skip-Line as its attorney-in-fact (which appointment is coupled with an interest) for the purpose of executing any documents necessary to perfect or to continue the security interest granted upon Skip-Line’s exercise of its option in Section 6(A) above, and Customer hereby authorizes Skip-Line to file a carbon, photographic or other reproduction of this Agreement as a financing statement.
- GOVERNING LAW. This Agreement shall for all purposes be governed by and interpreted in accordance with the laws of Texas, without regard to conflicts of law principles. The courts of the state of Texas or New York will have exclusive jurisdiction to adjudicate any dispute arising out of or related to this Agreement.
- SEVERABILITY. If any provision or portion of a provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid, or unenforceable for any reason, that portion or provision will be stricken the validity and enforceability of the remaining provisions hereof shall be unaffected and remain in full force and effect. D. MODIFICATIONS. Skip-Linemay unilaterally modify, amend, supplement or otherwise change this Agreement upon at least ten (10) days prior written notice to Customer. Any such future modification, amendment, supplement or other change (a “Change”) shall apply only with respect to orders accepted after the effective date of such Change. As used herein, the term “Agreement” shall include any such future Change. Without limiting the generality of the foregoing, Skip-Linemay establish terms and conditions which apply to one or more particular Products (including without limitation “shrink wrap” license agreements for software products), and in this event, such terms and conditions shall, with respect to the Products addressed therein, supersede this Agreement. E. ASSIGNMENTS. No right or obligation of Customer under this Agreement shall be assigned, delegated or otherwise transferred, whether by agreement, operation of law or otherwise, without the prior express written consent of Skip-Line, and any attempt to assign, delegate or otherwise transfer any of Customer’s rights or obligations hereunder, without such consent, shall be void. Either Party may assign this Agreement in connection with the sale or transfer of all or substantially all of the assets of the business to which it pertains. Subject to the preceding sentence, this Agreement shall bind Customer and its permitted successors and assigns. Notwithstanding anything to the contrary herein, Skip-Linemay engage subcontractors to perform any of its obligations under this Agreement. F. WAIVERS. All waivers must be in writing. The failure of either Party to insist upon strict performance of any provision of this Agreement, or to exercise any right provided for herein, shall not be deemed to be a waiver for the future of such provision or right, and no waiver of any provision or right shall affect the right of the waiving Party to enforce any other provision or right herein. G. EQUITABLE REMEDIES. The Parties agree that any breach of Section 6 or 7 above would cause irreparable injury to Skip-Line for which no adequate remedy at law exists; therefore, the Parties agree that equitable remedies, including without limitation injunctive relief and specific performance, are appropriate remedies to redress any breach or threatened breach of Section 6 or 7 above, in addition to all other remedies available to the Parties.
- RIGHTS AND REMEDIES. All rights and remedies hereunder shall be cumulative, may be exercised singularly or concurrently, and shall not be deemed exclusive except as provided in Sections 8 and 9 above. If any legal action is brought to enforce any obligations hereunder, the prevailing Party shall be entitled to receive its attorneys’ fees, court costs and other collection expenses, in addition to any other relief it may receive. This Agreement is not intended to provide any rights or remedies to any person or entity other than Skip-Line and Customer and their respective permitted successors and assigns (if any).
- FORCE MAJEURE. Except for payment obligations, neither Party will be liable to the other for any failure to meet its obligations due to any Force Majeure event. If the inability to perform continues for longer than ninety (90) days, either Party may terminate this Agreement by providing written notice to the other Party and Customer will pay Skip-Line for Products and Airtime delivered and services performed prior to termination. Force Majeure is an event beyond the reasonable control of the non-performing Party and may include but is not limited to: (a) delays or refusals to grant an export license or the suspension or revocation thereof, (b) any other acts of any government that would limit a Party’s ability to perform the Agreement, (c) fires, earthquakes, floods, tropical storms, hurricanes, tornadoes, severe weather conditions, or any other acts of God, (d) quarantines or regional medical crisis’, (e) labor strikes or lockouts, (f) riots, strife, insurrection, civil disobedience, landowner disturbances, armed conflict, terrorism or war, declared or not (or impending threat of any of the foregoing, if such threat might reasonably be expected to cause injury to people or property), and (g) shortages or inability to obtain materials or components. If a Force Majeure event causes a delay, then the date of performance will be extended by the period of time that the non-performing Party is actually delayed or for any other period as the Parties may agree in writing.
- REGULATORY APPROVALS. The Customer shall acquire all necessary regulatory or other approvals for engaging in the sale, delivery, connection and use of the Products within the territory. All such approvals will, to the extent permitted by law, be obtained in the name of and on behalf of Skip-Line, and, in each instance where a product approval may not under law be obtained in the name of and on behalf of Skip-Line, the Customer shall arrange to secure the agreement of the holder of such product approval to transfer such approval to the nominee designated by Skip-Line from time to time upon the advice of the Customer. The Customer shall provide Skip-Line with copies of all applications for approval submitted by the Customer and documentation submitted or prepared in connection therewith.
- EXPORT CONTROL. Customer agrees to fully comply with all applicable laws and regulations concerning its import, export or re-export of the Products or technical data related thereto, including, without limitation, U.S. Export Administration Regulations and the U.S. International Traffic in Arms Regulations. The Customer further agrees to provide Skip-Line with such information, including End Customer/End User details, assurances and certifications as to the Customer’s activities as Skip-Line may reasonably request in compliance with such laws and regulations. Skip-Line has no obligation to seek any such license, certificate or approval of the import, export or re-export of the Products or technical data related thereto, and the Customer is not authorized to seek the same on Skip-Line’ behalf. Skip-Line has no obligation under this Agreement to provide the Customer guidance on the Customer’s export or re-export of Products or related technical data even if Skip-Line may do so from time-to-time as a convenience to the Customer or for any other reason. Skip-Line has no obligation to deliver to the Customer any Product or related technical data as to which necessary export licenses, certificates and approvals for export from the Skip Line delivery point have not been received by Skip-Line. Skip-Line shall have no duty to modify any Products or related technical data to render them suitable for any export or re
export license, certificate or approval whether sought by Skip-Line or the Customer
- CORRUPT PRACTICES. The U. S. Foreign Corrupt Practices Act (the “FCPA”) makes it unlawful for a U.S. company, or anyone acting on its behalf, to offer, pay, promise or authorize to pay any money, gift or anything of value, including but not limited to bribes, entertainment, kickbacks or any benefit, (a) directly to any official or employee of a foreign government or any foreign political party or candidate for political office (an “Official”), or (b) directly or indirectly to any person while knowing or suspecting that the payment of gift will be passed on to an Official, to secure any improper advantage. The Customer represents to Skip-Line that Customer has not, and covenants and agrees that it will not, in connection with the transactions contemplated by the Agreement or in connection with any other business transactions involving Skip-Line, make or promise to make any payment or transfer of anything of value, directly or indirectly to any Official or Foreign Public Official or to an intermediary for payment to any Official or Foreign Public Official. It is the intent of the parties that no payments or transfers of value shall be made which have the purpose or effect of public or commercial bribery, acceptance of or acquiescence in extortion, kickbacks or other unlawful or improper means of obtaining business. This subsection shall not, however, prohibit normal and customary business entertainment or the giving of business mementos of nominal value in connection with Customer’s performance under this Agreement. The Customer represents to Skip-Line that no ownership interest, direct or indirect, in Customer or in the contractual relationship established by this Agreement, is held or controlled by any Official or Foreign Public Official, and that it will notify Skip-Line in the event of a change in the foregoing. If Skip-Line has a reasonable basis to believe that Customer has taken or failed to take any action that may subject Skip-Line to liability under the FCPA, Customer agrees that Skip-Line shall have the right, upon written notice to Customer, to conduct an investigation and audit of Customer to determine to Skip-Line’ reasonable satisfaction whether or not any actions or failures to act on behalf of Customer may subject Skip-Line to FCPA liability. Customer agrees to cooperate fully with such investigation, the scope, method, nature and duration of which shall be at the sole reasonable discretion of Skip-Line. In the event that Skip-Line believes, in good faith, that Customer has acted in any way that may subject Skip Line to liability under the FCPA , Skip-Line shall have the unilateral right, exercisable immediately upon written notice to Customer, to terminate this Agreement.
- CONSTRUCTION AND SURVIVAL. The headings and subheadings contained herein are for convenience of reference only and shall not be considered a part of this Agreement. Notwithstanding anything to the contrary contained in this Agreement, all provisions of this Agreement which by their nature should continue in force will survive the purchase and sale of the Products and Airtime and services hereunder, including without limitation Clauses 1, 2(A), 2(C), 2(D), 3, 4, 5,6(C), 6(D), 7, 8, 9, 10, 11, 12 and 13 of this Agreement.
- NOTICES. Any notice or communication permitted or required hereunder shall be in writing and shall be delivered in person or by courier, sent by electronic facsimile (fax), or mailed by certified or registered mail, postage prepaid, return receipt requested. If notice is given in person, by courier or by fax, it shall be effective upon receipt; and if notice is given by mail, it shall be effective three (3) business days after deposit in the mail.
- RELATIONSHIP BETWEEN PARTIES. The Parties acknowledge that they are independent contractors. Nothing contained in this Agreement shall be construed to constitute either Party hereto as the partner, franchisee, master/servant, joint venturer, employee, principal, agent or other representative of the other Party hereto, and neither Party has the right to bind or obligate the other except as provided in Clause 13(A) above. Furthermore, nothing contained in this Agreement shall be construed to constitute Customer as an exclusive purchaser or distributor of the Products and Airtime in any respect.