Terms and Conditions
The following terms and conditions (“Terms”) will govern the hardware and software (together, the “Products”) created and otherwise provided by UnitX, Inc. (“Company”), and any Company services related thereto. These Terms include, and incorporate by reference, any and all documents/exhibits linked herein along with any Order Form(s) and/or Statement(s) of Work (“SOW”) entered into by a party (“Customer”) for the purchase of the Products. In the event and to the extent that any provisions in these Terms conflict with or are inconsistent with any terms in any Quote/Proposal documentation previously provided to Customer by Company, these Terms shall control. There shall be no force or effect to any contrary or inconsistent terms of any related purchase order or similar form even if signed by Customer and/or Company after the date hereof, unless it expressly amends the terms hereof. Each party’s agreement to undertake and perform any and all matters pertaining to an Order for Products was and is expressly conditional upon Customer’s acceptance of these Terms. Notwithstanding the foregoing, in the event that Company and Customer have separately negotiated and executed a customer-specific Master Services Agreement (or other written master agreement covering the subject matter hereof), the terms of such customer-specific Master Services Agreement shall govern and supersede these Terms to the extent of any conflict or inconsistency, and these Terms shall apply only to the extent not addressed in such customer-specific Master Services Agreement.
1 SALE AND DELIVERY
1.1 Subject to the terms herein, Company will use reasonable commercial efforts to sell to Customer and Customer will purchase from Company the Products in the quantities set forth in the Order Form. Customer will use the Product only for its own internal use.
1.2 All Products are delivered F.O.B. to Company’s plant or other place of shipment, and made available there for shipment to Customer EXW. Customer shall bear all charges related to the shipment to or from Customer of the Products (including, but not limited to transportation, insurance, duties, taxes, cost of compliance with export and import controls and regulations, and other government assessments) and shall bear all risk of loss during and between such shipments. Company will use its reasonable commercial efforts to deliver the Products for EXW shipment within fifteen days of the applicable requested delivery dates.
2. LICENSE AND RESTRICTIONS
2.1 Any Software incorporated into or provided for use in or with a Product (whether initially, as part of maintenance or support or otherwise) is not sold, but rather is licensed solely for Customer’s internal use in or with that Product strictly in accordance with the documentation (the “Documentation”) and any other use restrictions applicable for that Product. For the avoidance of doubt, “Software” means the proprietary software of Company, including all algorithms, models, methodologies, parameters, and application programming interfaces, whether in source code, object code or other form, and all libraries, components, databases, documentation, versions, updates, releases, derivative works, and modifications related thereto, including without limitation any modifications to parameters contained in the Software. Subject to these Terms, Company shall grant to Customer a non-exclusive, non-transferable, non-sublicensable right and license to use any such Software, subject to Section 2.2. Except as expressly set forth herein, Company alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Products or any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any third party relating to the Products, which are hereby assigned to Company.
2.2 Customer will not, and will not permit any third party to: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover or obtain the source code, object code or underlying structure, ideas or algorithms of the Product or any related documentation or data provided by Company (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); (ii) use the Product for any purpose other than its own internal use for its own internal benefit; (iii) possess or use any Product, or allow the transfer, transmission, export, or re-export of any Product or portion thereof in violation of any export control laws or regulations administered by the U.S. Commerce Department, U.S. Treasury Department’s Office of Foreign Assets Control, or any other government agency, (iv) remove any product identification or notices of any proprietary or copyright restrictions from any Product or any support material, or (v) copy any Product, develop any improvement, modification or derivative works thereof or include any portion thereof in any other equipment or item.
2.3 Customer acknowledges that the Product may be distributed alongside or contain or use certain third party software (“Third Party Software”). IN ADDITION TO THESE TERMS, THIRD PARTY SOFTWARE IS TO AND GOVERNED BY (AND CUSTOMER AGREES TO, AND WILL INDEMNIFY COMPANY FOR NONCOMPLIANCE WITH) ALL LICENSES AND RESTRICTIONS OF THE THIRD PARTY RELATED TO ITS SOFTWARE.
3 INSTALLATION; SUPPORT AND MAINTENANCE
3.1 Following Company’s express acceptance of an Order (the “Effective Date”) and subject any related SOW and payment of all applicable Fees, Company will use commercially reasonable efforts to provide Customer the Support Services and Installation Services (collectively, “Services”), each as set forth in the applicable Order Form, and pursuant to the terms of this Section 3 and the Installation Terms as separately made available by Company and agreed upon between the parties (“Installation Terms”). Company retains ownership of any intellectual property resulting from installation, training, consulting, support and/or maintenance.
3.2 Company will provide the Installation Service for any according to a 8-hour work day mutually agreeable to Customer and Company. Company will provide the Support Services from Monday through Friday during Company’s normal business hours of 9:00 am through 5:00 pm Pacific time, other than on Federal holidays (“Support Hours”). Company will provide the Services via electronic mail, phone and onsite as required. Customer may initiate a helpdesk ticket during Support Hours by emailing support@unitxlabs.com. Company will use commercially reasonable efforts to respond to all support tickets within one (1) business day. Customer acknowledges that all requests for onsite Support Services must be made at least three (3) business days in advance. Customer will provide Company with at least two (2) business day’s prior notice to reschedule or cancel any such requested onsite Support Services, and any changes to the Services without at least two (2) business day’s prior notice will be billed in full at Company’s standard rates as set forth in the Order Form and/or, as applicable, in the standard Support Terms as separately made available by Company and agreed upon between the parties.
3.3 In the course of providing the Services, Company will decide, with or without input from Customer, if a “change” is needed (e.g. additional integration requirements, additional part types for inspection, changes to defect standard, additional defect types, relabeling of deep learning networks, delays caused by Customer, or material changes to the scope of the Services exceeding the allotted hours set forth in an Order Form). When a “change” occurs, Company will submit a completed Change Control Form, as separately made available by Company and agreed upon between the parties, which may identify any additional charges for such Services. The parties will promptly execute the Change Control Form in order to avoid delays to Company’s provision of the Services. Notwithstanding the foregoing, Company shall have sole discretion to make changes to the details of design, fabrication, or arrangement of the Products described in the Order Form and/or SOW, provided that such changes are deemed by Company to be improvements to the product or its previously furnished specifications.
3.4 Company will use reasonable efforts at Company’s designated facility to repair or replace defective hardware portions of Products, unless damaged, mishandled, mistreated, or used, maintained or stored other than in conformity with such specifications and Company’s instructions. Company shall provide Customer e-mail notification of updates to Product software as they become generally available without additional charge to Company’s support and maintenance customers. Major upgrades may be subject to additional charge. The contents of all updates shall be decided upon by Company in its sole discretion. Customer may obtain updates through delivery of a machine-readable copy or by downloading updates from a link provided by Company. Company shall use its reasonable efforts to correct any reproducible programming error in the Product software attributable to Company with a level of effort commensurate with the severity of the error. Upon identification of any programming error, Customer shall notify Company of such error and shall provide Company with enough information to reproduce the error. Company shall not be responsible for correcting any errors not attributable to Company. Company shall only be responsible for errors that are reproducible by Company on unmodified Product software as delivered to Customer.
4 CONFIDENTIALITY
4.1 Customer acknowledges that Company and Customer may disclose (as “Disclosing Party”) and receive (as “Receiving Party”) business, technical or financial information relating to the other party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Product or Service. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in pursuant to performance of an Order for Products and otherwise consistent with these Terms) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its rightful possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of or reliance on any Proprietary Information of the Disclosing Party. If required by law, the Receiving Party may disclose Proprietary Information of the Disclosing Party, but will give adequate prior notice of such disclosure to the Disclosing Party to permit the Disclosing Party to intervene and to request protective orders or other confidential treatment therefor.
4.2 Notwithstanding the foregoing, Customer acknowledges and agrees that, (i) as a necessary part of its ordinary business operations in performing the services called for in the Order, Company utilizes the service of certain third-party contractors (“Integrators”) to perform and/or assist Company with the integrating the product with the Customer’s existing system(s) once installed, and (ii) in order to provide the Integrators with information necessary to perform its function, Company is permitted to disclose information such information or data to the Integrator(s), so long as such subcontractor is expressly subject to a binding obligation to protect Proprietary Information no less restrictive than as set forth in Section 4.1.
4.3 Insofar as Company and Company may enter into a separate non-disclosure agreement or similar confidentiality agreement (“NDA”) regarding the treatment of Proprietary Information that remains in effect, the terms of this Section 4 are not intended to replace or supersede the terms thereof, and, in the event of any inconsistency, the terms of that separate NDA shall control.
4.4 Notwithstanding anything in these Terms to the contrary, Company shall have the right to collect and analyze data and other information generated from or collected by the Products (“Business Data”). As part of Company’s commitment to continually improve its products and services, this Business Data, after desensitized of private identifiable information, may be used by the Company to enhance, develop, and improve its products and services, always respecting customer privacy and data protection standards.
5 PRICING; PAYMENT OF FEES
5.1 On the Effective Date, Customer will pay Company the applicable fees described as then payable in the Order Form and in accordance with the terms therein. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Term or then current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email).
5.2 Customer acknowledges and agrees that the first payment described in the Order Form is due and payable regardless of whether the specific SOW for the project contemplated by the Order Form has been completed and finalized. As soon as is practicable following the Effective Date, Company will endeavor to prepare and complete, for Customer’s acknowledgment and approval, a detailed SOW for Customer’s desired concept consistent with the products reflected in the Order Form and compatible with Customer’s equipment according to Company’s analysis. The SOW shall be made available by Company and agreed upon between the parties.Customer agrees to work with Company diligently and in good faith to enable Company to prepare and complete the SOW, which may include, without limitation, providing reasonable access to Customer’s facilities, applicable equipment and systems. In the event the parties’ cannot agree on a completed SOW for the Order within 60 days of the Effective Date, Customer may cancel the Order upon written notice, subject to the Cancellation Fee described in Section 6.3.
5.3 Unless otherwise specified in an Order Form, the remainder of Fees that are not paid on the Effective Date pursuant to Section 5.1 shall be payable in the amounts (or percentages of the Order total) on the dates, schedule or progress points as described in the Order Form. Company will bill for these amounts through an invoice, in which case, full payment for invoices issued in any given month must be received by Company thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of this Agreement. Customer shall be responsible for all taxes associated with any Order or purchase/receipt of Product(s) other than U.S. taxes based on Company’s net income.
5.4 In the case of annual subscriptions, if ordered by Customer, the License Fees therefor are payable annually in advance, the first payment for which is due within 30 days of the completion of site acceptance testing (“SAT”).
5.5 Company reserves title to and a security interest in any and all Products and materials provided pursuant to the Order, as well as all proceed therefrom, to secure any unpaid Fees, including any Cancellation Fee or deferral charges. Title to the Products and materials shall pass to Customer only upon full payment of all Fees as invoiced by Company, including any amounts resulting from an update or amendment to the Order in accordance with these Terms. If Customer makes payment by check or draft, title to the property shall remain with Company until the payment has cleared. Customer shall cooperate and provide any additional documents deemed necessary by Company to perfect its security interest, including but not limited to financing, continuation, or termination statements.
5.6 By submitting the Order Form to Company and thus acknowledging and agreeing to these Terms, Customer represents that it is solvent, and such representation shall be deemed affirmed by its acceptance of any Products, materials or service delivered to or provided by Customer by Company.
6 TERM AND TERMINATION
6.1 Subject to earlier termination as provided below, the Term is specified in the Order Form, subject to renewal terms set forth therein.
6.2 In addition to any other remedies it may have, either party may terminate an Order upon thirty (30) days’ notice (or without notice in the case of nonpayment by Customer), if the other party materially breaches any of these Terms.
6.3 In the event Customer cancels an Order pursuant to Section 5.2, Customer shall be charged a Cancellation Fee, and the remainder, if any, of Customer’s first payment made on the Effective Date, after offset of the Cancellation Fee, shall be returned to Customer within 30 days of Customer’s cancellation. The Cancellation Fee shall include (i) Company’s labor at Company’s (including without limitation shop and engineering work, all at Company’s Rates) incurred from the Effective Date up through and including the date of cancellation notice, and (ii) the amount equal to all materials ordered or received by Company pursuant to the Order, plus a restocking fee of 10% of that total, and including any shipping costs incurred by Company. A cancellation of an Order by Customer will be deemed a termination of Order, effective 30 days after notice of cancellation.
6.4 Upon any termination of an Oder, Customer shall immediately cease all use of all affected Products and return to Company all units and copies of all affected Products and so certify to Company.
6.5 Sections 2.2, 2.3, 4, 5, 6.4, 7, 8, 9 and 10 will survive any termination any Order.
7 WARRANTY AND DISCLAIMER
7.1 Company makes no warranty whatsoever, except as to title once passed to Customer, with respect to the condition or fitness of products manufactured and/or designed per specifications provided by Customer, and Customer shall indemnify, defend and hold Company harmless from an against any claim which is asserted or brought against Company because of its manufacture or sale of that product pursuant to Customer’s provided specifications. Company warrants only to Customer that the Products, when delivered by Company, will conform in all material respects to the applicable specifications provided with the shipment of the Product. Such warranty does not apply to repairs or replacements required due to (i) units that have been damaged, mishandled, mistreated, or used, maintained or stored by Customer other than in conformity with such specifications and Company’s instructions, (ii) alterations, modifications, additions or repairs made by any party other than Company, its employees, agents or subcontractors, unless expressly authorized in writing by Customer, (iii) accidents or damage resulting from wind, fire, water, hail, lightning, earthquake, theft, or similar external causes, unless such accident or damage was within Company’s control or resulted from the negligence of Company or its employees, agents or subcontractors. If Customer at any time believes there has been a breach of such warranty, Customer will promptly notify Company’s support department at support@unitxlabs.com THE EXPRESS WARRANTY DESCRIBED ABOVE REPLACES ALL OTHER WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHICH ARE EXPRESSLY DISCLAIMED. CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF THE FOREGOING WARRANTY SHALL BE THE REPLACEMENT OF NON-CONFORMING UNITS OF PRODUCT FOR WHICH FULL DOCUMENTATION AND PROOF OF NON-CONFORMITY IS PROVIDED TO COMPANY WITHIN ONE YEAR IN THE CASE OF HARDWARE COMPONENT, OR NINETY DAYS IN THE CASE OF SOFTWARE (WHETHER OR NOT EMBEDDED), AFTER THE ORIGINAL NON-CONFORMING UNITS (BUT NOT REPLACEMENTS) ARE SHIPPED BY COMPANY.
7.2 EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE PRODUCT AND SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTIES OF ANY KIND. COMPANY HEREBY DISCLAIMS (ON BEHALF OF ITSELF AND ITS LICENSORS AND SUPPLIERS) ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. COMPANY HAS NOT AUTHORIZED ANYONE TO MAKE ANY REPRESENTATION OR WARRANTY OTHER THAN AS PROVIDED ABOVE.
8 LIMITATION OF LIABILITY; INDEMNITY
8.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, FOR: (A) INTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA, (B) COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS, (C) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (D) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL, OR (E) FOR ANY AMOUNT THAT EXCEEDS THE FEES RELATED TO ANY ORDER(S) THAT ARE PAID OR PAYABLE BY CUSTOMER TO COMPANY IN THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM THAT GAVE RISE TO THE LIABILITY.
8.2 Customer shall indemnify and hold harmless Company and its officers, directors, employees and agents from any and all third-party claims, suits, losses and expenses, including attorney’s fees, which claims arise from bodily injury, sickness, disease, death, or damage to property (excluding loss of use thereof) caused by modification to, or improper use or operation of, the Products or related equipment, or any portion thereof, by Customer or its principals, employees, agents, contractors or assigns.
9 MISCELLANEOUS
9.1 If any provision of these Terms are found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and enforceable. This Agreement is the complete and exclusive statement of the mutual understanding of the parties related to the Products, and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter herein, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of these Terms or any Order for Products, and Customer shall not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding arising from or related to the Products, an Order or the parties’ rights or obligations under these Terms, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices pursuant to these Terms will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. These Terms shall be governed by the laws of the State of California without regard to its conflict of laws provisions.