DATASPEED, INC. – TERMS AND CONDITIONS
1. Offer. These Terms and Conditions (“Agreement”) apply to all products (“Products”) and services (“Services”) provided to a purchaser of such Products or Services (“Purchaser”) under a purchase order, sales agreement, ordering document, or proposal (collectively, “Order”) with Dataspeed, Inc. (“Seller”). This Agreement is incorporated into each and every Order issued to Seller by a Purchaser. The Order constitutes Seller’s offer to the Purchaser to sell the Products and/or Services identified in the Order, and otherwise to enter into the agreement that the Order and this Agreement describe, and the Order and this Agreement shall be the complete and exclusive statement of such offer and agreement.
2. Acceptance. A contract is formed when Purchaser accepts the Order by written acknowledgement, by accepting the Products and/or Services, or other issued acceptance documents for the Products and/or Services. Acceptance is expressly limited to this Agreement and the terms and conditions expressly referenced on the face of the Order, and shall not include any terms and conditions contained in Purchaser’s purchase order. Notwithstanding any contrary provision in Purchaser’s purchase order or other acceptance document, delivery of Products, performance of Services, or commencement of Services by Seller shall not constitute acceptance of Purchaser’s terms and conditions to the extent any such terms or conditions are inconsistent with or in addition to the terms and conditions contained in the Order.
3. Prices. Prices for Products and/or Services shall be set forth in the Order. Unless otherwise expressly stated in the Order: (a) prices for Products specified in the Order do not include storage, handling, packaging or transportation charges; and (b) prices do not include any applicable federal, state, local or foreign duties or taxes.
4. Payment Terms. Unless otherwise expressly stated in the Order, all accounts are payable in U.S. currency thirty (30) days from the date of Seller’s invoice. Credit and delivery of Products shall be subject to Seller’s approval. The Purchaser shall pay Seller for Services performed in accordance with the rates and charges set forth in the Order. If the Purchaser objects to any portion of an invoice, the Purchaser shall notify Seller, in writing, within fourteen (14) calendar days of invoice receipt, identify the cause of disagreement, and pay when due any portion of the invoice not in dispute. Failure to provide notification shall constitute acceptance of the invoice as submitted. If Purchaser fails to pay undisputed invoiced amounts within the thirty (30) calendar days of the invoice date, Seller may at any time, without waiving any other claim against the Purchaser (including lien rights) and without thereby incurring any liability to the Purchaser, suspend or terminate the Order. Purchaser is prohibited from and shall not setoff against or recoup from any invoiced amounts due or to become due from Purchaser or its affiliates any amounts due or to become due to Seller or its affiliates, whether arising under the Order, any related purchase order or under any other agreement. Purchaser will reimburse Seller for actual, reasonable expenses incurred by Seller for meals, travel and lodging in connection with its provision of the Services.
5. Shipping and Delivery. All sales of Products are F.O.B. Purchaser’s plant unless otherwise specified in the Order. Premium shipping expenses and/or other related expenses necessary to meet Purchaser’s accelerated delivery schedules shall be the responsibility of Purchaser. Deliveries of orders placed by Purchaser may be changed, deferred or canceled only upon specific agreement in writing by Seller and Seller may condition such agreement upon Purchaser’s assumption of liability and payment to Seller for: (a) a sum equal to the costs of work in process including costs accrued for labor and material; (b) any amount for which Seller is liable by reason of commitments made by Seller to its suppliers; and (c) any other loss, cost or expense of Seller as a result of such change, deferment or cancellation.
6. Proprietary Materials. Seller shall have and retain all rights, title and interest, including all intellectual property rights, in and to all Products, Services, Software (defined below), and associated materials, including, without limitation, all related reports, specifications, designs and any other property, tangible or intangible, furnished by Seller in connection with or under the Order (“Proprietary Materials”). No Proprietary Materials created by Seller in connection with or pursuant to the Order shall be considered “works made for hire” as that term is used in connection with the U.S. Copyright Act.
7. Confidentiality. During this Agreement, each party may have access to information that is considered confidential by the other. This information may include, but is not limited to, Proprietary Materials, the Software, documentation, technical know-how, technical specifications, software object code and source code, protocols, processes, strategic business plans, results of testing, systems, financial information, Product information, methods of operation, customer information, supplier information and compilations of data (“Confidential Information”). Each party shall use the other party’s Confidential Information only for the purposes of this Agreement. Each party shall maintain the confidentiality of the other party’s Confidential Information in the same manner in which it protects its own Confidential Information of like kind, but in no event shall either party take less than reasonable precautions to prevent the unauthorized disclosure or use of the other party’s Confidential Information. Each party is permitted to disclose the other party’s Confidential Information to its employees, contractors and other third parties on a need to know basis only, provided that such employees, contractors and/or third parties have written or legal confidentiality obligations to that party no less stringent than those contained in this Agreement. The confidentiality provisions of this Agreement do not apply to information that is or becomes generally available or known to the public through no act or omission of the receiving party; was received lawfully from a third party through no breach of any obligation of confidentiality owed to the disclosing party; or created by a party independently of its access to or use of the other party’s Confidential Information. Upon termination of this Agreement, each party shall return the other party’s Confidential Information and shall not use the other party’s Confidential Information for its own, or any third party’s benefit. The provisions of this Section shall survive termination of this Agreement for so long as the Confidential Information remains confidential.
8. Use of Products. The Products are intended exclusively for testing and development purposes. Purchaser shall use the Products exclusively for testing and development purposes, and shall not use the Products for any productive or commercial purposes. In addition, Purchaser shall take commercially reasonable safety precautions when using the Products to avoid any personal injury to human operators and/or bystanders. Seller shall have no liability or responsibility whatsoever to Purchaser, or any third party, for any property damage or personal injury (including death) arising out of, or in connection with, Purchaser’s use of the Products, except to the extent resulting directly from Seller’s gross negligence or intentional misconduct.
9. Licenses. Certain Products may contain computer software, in object code and/or source code form (“Software”). Subject to Purchaser’s compliance with the terms of this Agreement, Seller grants Purchaser a nonexclusive, nontransferable, license to use the Software, for the purposes described in the Order. All rights not expressly granted to Purchaser in this Agreement are reserved by Seller, and Purchaser may not use the Software in any manner not expressly authorized by this Agreement. Purchaser may use the Software for its internal business operations only and not by, or for the benefit of, any affiliate, subsidiary, parent company or any other third party, nor may the Software be used for service bureau services. Except to the extent expressly permitted under the applicable Order, Purchaser shall not: remove or destroy any proprietary rights marks or legends on or in the Software and on authorized copies; modify, enhance, adapt, translate, or create derivative works of the Software; transfer, distribute, assign, sublicense, rent, lease, export or sell the Software; decompile, disassemble, or reverse engineer the Software; or make copies of the Software other than for archival and backup purposes. Seller is the owner or licensee of all intellectual property rights in and to the Software, including copyrights, trade secrets, trademarks, patents, and know-how. Purchaser acknowledges the foregoing and agrees to implement software protection measures designed to prevent unauthorized use and reproduction of the Software, including, but not limited to, keeping the Software in a secure place, under reasonable access and use restrictions not less strict than those applied by Purchaser with respect to its own confidential information.
10. Purchaser’s Products. Seller is not responsible for the design of Purchaser’s products and will not, under any circumstances, have any warranty, indemnification or other liability or obligations with respect to Purchaser’s products to the extent related to or arising out of the design and/or specifications for such products. Suggestions by Seller as to design, use and suitability of the Products are made in good faith; provided, however, Purchaser assumes full responsibility for accepting and/or using such suggestions.
(a) Seller warrants, the Products will operate in substantial conformance with their written specifications for a period of one (1) year from the date of shipment of Products supplied under the Order. If during the applicable warranty period, any Products do not comply with the warranties set forth in this Section 11(a), then Seller shall promptly repair or replace such Products, at Seller’s sole cost and expense for all associated materials and labor. During the applicable warranty period, Seller will provide Software updates and error corrections for the Software at no charge. If Purchaser desires maintenance and support services after the expiration of the warranty period, such services may be available pursuant to the terms of a separate agreement.
(b) Services provided by Seller under an Order will be performed in a manner consistent with that degree of care and skill ordinarily exercised by members of the same profession currently practicing under similar circumstances.
(c) THE SELLER DISCLAIMS, AND PURCHASER HEREBY EXPRESSLY WAIVES, ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE PRODUCTS AND/OR SERVICES, AND/OR THE RESULTS OBTAINED FROM THEIR USE BY PURCHASER AND/OR ITS USERS, INCLUDING, WITHOUT LIMITATION, ANY STATUTORY OR IMPLED WARRANTIES OF MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE. SELLER SPECIFICALLY, BUT NOT BY WAY OF LIMITATION, DISCLAIMS ANY AND ALL LIABILITY FOR THE USE OR PERFORMANCE OF THE SERVICES AND/OR PRODUCTS SELECTED BY THE PARTIES HEREBY EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE UNIFORM COMMERCIAL CODE AND ANY SPECIFIC STATE ADOPTIONS THEREOF SHALL NOT GOVERN THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THESE TERMS OR ANY ORDER CONFIRMATION.
12. Liability Limitation. Specific performance shall not be available to Purchaser as a remedy in connection with Seller’s providing of the Products and/or Services. Monetary damages against Seller shall be limited to the dollar amount charged to Purchaser for the applicable Order placed by Purchaser and accepted by Seller for any of the Services and/or Products alleged to be the cause of any loss or damage, whether founded in contract, tort (including negligence), strict liability or otherwise, arising out of, or resulting from: (a) any Order placed by Purchaser and accepted by Seller or Seller’s performance or breach; or (b) the design, manufacture, delivery, sale, repair, replacement or use of any Products. IN NO EVENT SHALL SELLER BE LIABLE TO PURCHASER FOR ANY SPECIAL, INDIRECT, EXEMPLARY, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF ANTICIPATED PROFITS, LOSS OF USE, LOSS OF REVENUE AND COST OF CAPITAL) ARISING OUT OF OR RELATING TO THE ORDER CONFIRMATION, ANY RELATED PURCHASE ORDER, OR THE SERVICE AND/OR PRODUCTS. ANY AGREEMENT VARYING OR EXTENDING THE REMEDIES SPECIFICALLY STATED HEREIN WILL BE BINDING ON SELLER ONLY WHEN SPECIFICALLY AGREED TO IN WRITING BY SELLER AND SPECIFICALLY REFERENCING THIS SECTION.
13. Termination. In the event that Purchaser fails to perform any of its obligations stated in the Order and fails to cure such breach within ten (10) days after receipt of written notice from the Seller specifying such breach, the Seller may at its option immediately terminate the Order. Upon any such termination by Seller: (a) Seller shall be relieved of any further obligation to Purchaser (including, without limitation, any obligation with respect to delivery or transition of supply); (b) Purchaser shall be liable to Seller for the immediate payment of amounts then billed to date by Seller to Purchaser; (c) Purchaser shall purchase and pay Seller immediately for all raw materials, components, work in process and finished goods acquired by Seller in connection with the Order; and (d) Purchaser shall immediately reimburse Seller for all other loss, cost or expense of Seller as a result of the termination of the Order.
14. Right of Entry. If applicable, Purchaser shall provide for Seller’s right to enter the property owned by the Purchaser and/or others in order for Seller to perform the Services in the Order. The Purchaser agrees, to the fullest extent permitted by law, to indemnify and hold Seller and his or her subconsultants harmless from any Claim (defined below), liability or cost (including reasonable attorneys’ fees and costs of defense) for injury or loss arising or allegedly arising from procedures associated with testing or investigative activities or discovery of hazardous materials or suspected hazardous materials on said property.
15. Excusable Delay. Seller shall not be liable for any delay or failure to perform if such delay or failure to perform is caused by circumstances beyond its reasonable control, including without limitation acts of God or public authority, riots or other public disturbances, labor disputes of any kind, power failures, failure of Purchaser to provide required information, failure of Purchaser to provide adequate containers, or the change in cost or availability of raw materials, components or services based on market conditions, supplier actions or contract disputes. During any such delay or failure to perform by Seller, Seller’s obligations under the Order shall be suspended and Seller shall not have any obligation to provide Purchaser with Services from other sources or to pay or reimburse Purchaser for any additional costs to Purchaser of obtaining substitute Services.
16. Employee Solicitation. Purchaser agrees not to hire, attempt to hire, or retain as consultants or otherwise, employees and/or consultants of Seller directly or through a third-party entity during the employment or consulting period and for a period of one (1) year subsequent to the employee’s and/or consultant’s last day of work for Seller regardless of the circumstances surrounding employee’s cause of termination of employment.
17. Seller Indemnification. Seller shall defend, at its sole expense, any third party claim, demand, or suit against Purchaser (“Claim”) alleging that Purchaser’s authorized use of the Products allegedly infringes a third party’s U.S. patent, copyright, trademark, trade secret or other intellectual property right, and shall indemnify and hold Purchaser harmless from and against any and all damages, fines, penalties, judgments, costs, and expenses (including reasonable attorneys’ fees and costs incurred by Purchaser) awarded or assessed against Purchaser in connection with the Claim, or reached through a negotiated settlement of the Claim. . If the Products are held to be infringing, or Seller believes that they are likely to infringe, then Seller shall, at its sole expense and option, either (i) procure for Purchaser the right to continue using the Products; or (ii) replace or modify the Products such that it is non-infringing but maintains substantially the same functionality as the applicable Product. If neither (i) nor (ii) is commercially practical, Seller may terminate the applicable Order, accept return of the Products, and provide a refund of all amounts paid for the Products, pro-rated over a period of five (5) years from the date of shipment.
18. Purchaser Indemnification. Purchaser holds harmless, indemnifies, and will defend Seller and its related or affiliated entities including their respective officers, agents and employees against any Claims, liabilities, expenses, charges, or fines including attorney’s fees and expenses to the extent directly or indirectly caused by Purchaser’s (including those acting on behalf of Purchaser) (a) use of the Products, modification of the Products, and/or incorporation of the Product into Purchaser’s products; (b) negligent acts or omissions and involving property damage or bodily injury; (c) breach of the terms of this Agreement and/or Order between the parties; or (d) violation of applicable law. This provision shall apply even if there is concurrent negligence but shall not apply to property damage or bodily injury arising solely from Seller’s negligence. Liability per above is not limited by limits of workers’ compensation coverage.
19. Indemnification Conditions. The indemnification obligations in Sections 17 and 18 are subject to the indemnified party providing prompt notification in writing of any Claim to the indemnifying party, indemnified party granting the indemnifying party sole control of the defense and any related settlement negotiations regarding the Claim, and indemnified party cooperating with the indemnifying party, at the indemnifying party’s expense, in the defense and/or settlement of such Claim. Sections 17 and 18 sets forth the indemnifying party’s sole indemnification obligations, and the indemnified party’s sole indemnification remedies, in connection with the Claims described therein.
20. Waiver. Waiver by Seller of any of the terms or conditions of the Order shall be effective only if in writing and signed by Seller, and shall not constitute a waiver of such terms as to any subsequent events or conditions, whether similar or dissimilar. No course of dealing or custom in the trade shall constitute a modification or waiver by Seller of any right.
21. Survival. This Agreement shall survive and continue in full force and effect following the expiration, cancellation or termination of an Order.
22. Entire Agreement. The Order, including this Agreement and any other attachments, exhibits or supplements specifically referenced in the Order, constitutes the entire agreement between Seller and Purchaser with respect to the matters contained in the Order and supersedes all prior oral or written representations and agreements. Except as otherwise provided in this Agreement, the Order may only be modified by a written agreement signed by Seller.
23. Applicable Laws. Unless otherwise specified, the laws of the State of Michigan, except for its choice of laws provisions, shall govern this Agreement.