Dynapar OnSite™

Service Terms and Conditions for the Dynapar OnSite™ Condition Monitoring System

These Terms and Conditions ("Terms"), along with the Schedules and any Attachments described elsewhere in these Terms make up your "Agreement" with Dynapar Corporation ("Dynapar"). You can accept this Agreement by inputting the name of the subscriber (the "Customer"), your full name and title in the indicated electronic fields and by clicking the box at the bottom of the Order Form appended to this Agreement ("Order"). You may also acknowledge your acceptance to the Agreement by submitting a purchase order or executing an Order Form and returning the same to Dynapar (both methods shall also be deemed ‘Orders’). If you are entering into this Agreement on behalf of a corporation or other legal entity, the terms "you", "your" and "Customer" refer to such entity. If you do not agree to the Terms of this Agreement you are not permitted to use the Services described below.

1.     AGREEMENT

If the Customer requests Dynapar and Dynapar agrees to supply additional subscriptions to the Customer in addition to the initial quantity on the Order, then the further subscriptions will be provided to Customer on a newly issued Order and such additional Orders will be considered components of this Agreement and be governed by this Agreement.

2.     SERVICES

Dynapar will supply the Services described in Schedule A (the "Services") to Customer and Customer will receive, accept, and pay for the Services, all on the terms and conditions of this Agreement.

3.     CUSTOMER'S OBLIGATIONS

In addition to its other obligations under this Agreement, Customer agrees to the following:

1. Customer will not, and will ensure that its officers, employees and agents do not, (i) use the Services (or any part of them) for any act or monitoring that is unlawful under any applicable law; or (ii) permit the export or re-export of all or a part of the Services in violation of any applicable law.
2. Customer will indemnify, defend and hold harmless Dynapar (and its officers, directors, employees, agents and affiliates) from and against any claim, loss, damages, costs (including reasonable attorneys fees) or actions to the extent arising out of or related to data produced by the Service or Customer^’s breach of any Terms of this Agreement.
3. Limitations on Use.
   1. Other than use in accordance with this Agreement, Customer will not copy the OnSite Analytics or any other component of the Services; and
   2. Customer will not distribute, disassemble, analyze, modify, upgrade, enhance, alter, reverse engineer, de-compile, or otherwise attempt to discover the source code of (including the creation of derivative works based on) or port, reproduce, copy or interfere with any element of the Services (including the OnSite Analytics or any firmware that is part of the Services and embedded in the Hardware). Customer will only use the Services for Customer^’s own internal business and no other purpose. Customer will not sublicense, rent, transfer, use for the benefit of others (whether in a service bureau environment or otherwise), or grant any rights in the Services or any part of it in any form to any other party unless agreed to in writing by Dynapar.
4. Customer shall:
   1. take all reasonable steps to prevent any unauthorized access to the Services and ensure the non-disclosure and confidentiality of the Services;
   2. ensure that it and its officers, employees and agents take all reasonable steps to prevent any unauthorized access to the Services and any disclosure of any part of the Services to a third party; and
   3. not remove any copyright and other proprietary notices associated with the Services.

4.    FEES AND PAYMENT

Customer shall pay to Dynapar for the Services (including any other payments) either according to any schedule stated in the Order Form or in the absence of a schedule three (3) days after the first shipment of Hardware from Dynapar to Customer ("Service Commencement Date"), unless the Customer has been granted a 30-day free trial in which case fees do not apply for the first 30 days ("Service Fees"). After any 30 day free trial is over, if the Customer choses to continue using the Services, then all fees apply thereafter.

1. Dynapar shall issue all invoices via email and collect all amounts due via credit card on thirty (30) day terms.
2. All amounts billed by Dynapar are due upon issuance of invoice.
3. Customer shall pay all amounts billed, including any sales or use taxes, access fees or other fees required by law on any of Dynapar’s Services.
4. If Customer fails to pay any amount when due, and Customer’s default continues for ten (10) days after Dynapar’s written notice, all sums unpaid shall become immediately due and payable, and Dynapar may suspend or terminate any Services. In addition, Dynapar shall have all other rights and remedies provided under this Agreement and applicable law.
5. If Customer, with Dynapar’s consent, uses the Services to provide third party technical services to another party (end user) the Customer remains responsible for the above fees and shall provide a point of contact at the end user to Dynapar.

5.    WARRANTY

1. Dynapar does not warrant any connection, transmission over, security of or results from the use of any information provided (or omitted to be provided) in connection with the Services. Availability or accuracy of information provided by the Services may become disrupted/degraded from time to time as a result of events such as, but not limited to, disruption to satellite signals, unavailability of mobile telephone services, disruptions to the internet or to Dynapar^’s own or third party servers, and computer failures, worms or viruses. Dynapar will use commercially reasonable efforts to minimize the effects of such disruptions or degradation of Services to Customer, but will not be liable for any Services disruptions or failure.
2. To the extent that Dynapar provides access to information provided by other sources or the Customer incorporates other information data sources into their use of the Services, Dynapar accepts no liability for and makes no warranties, express or implied, with respect to this information, its content, quality or its continued provision.
3. To the extent that Dynapar provides hypertext links to sites on the internet that are operated by other persons, Dynapar takes no responsibility for and gives no guarantees or representation in respect of these sites.
4. WITH RESPECT TO THE SERVICES PROVIDED UNDER THIS AGREEMENT, DYNAPAR (i) MAKES NO WARRANTY WHATSOEVER; and (ii) EXPRESSLY DISCLAIMS ANY WARRANTY WITH RESPECT TO MERCHANTABILITY, FITNESS FOR ANY PURPOSE, NON-INFRINGEMENT, NON-INTERFERENCE, SECURITY, TIMELINESS, EFFECTIVENESS, POTENTIAL SAVINGS, IMPROVEMENTS IN DOWNTIME, UPTIME, SAFETY, LOSS AVOIDANCE OR OTHERWISE.
5. If the Services include third party data integration Services, the Customer warrants that it has the necessary consent and authority from the relevant third party provider to provide Dynapar unrestricted access to the data from, and to integrate with, such systems and acknowledges that the information displayed as a result is dependent on the existence and access to such systems which may or may not change and/or be available at any time.
6. Customer is responsible for the use of the Services including any usernames or passwords registered by or allocated to Customer, and the Customer is responsible for protecting and securing its usernames and passwords from unauthorized use.
7. The above warranties shall be null and void in the event of (i) any alteration, modification, or special configuration made (or attempted to be made) by the Customer to the Hardware or de-installation or installation of Hardware by the Customer without following Dynapar’s written instructions; (ii) use of the Hardware and/or Services not in the ordinary course of business; (iii) accidents, misuse, abuse, neglect, damage and tampering with Hardware; or (iv) excessive water, weather or physical damage to Hardware.
8. Dynapar from time to time reserves the right to upgrade the OnSite Analytics and Firmware that it determines in its sole discretion may be necessary. In most cases, Dynapar will elect, at its sole option, to do this via over-the-air programming. If Dynapar needs to visit the Customer’s site for upgrades, then Dynapar and Customer will mutually agree on an access schedule for the affected sites/Hardware.

6.     DISCLAIMER; LIMITATION OF LIABILITY

1. DYNAPAR WILL NOT BE LIABLE UNDER THIS AGREEMENT OR OTHERWISE FOR ANY INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, SPECIAL, STATUTORY, PUNITIVE, OR INDIRECT DAMAGES REGARDLESS OF THE FORM OF ACTION OR THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT PRODUCT LIABILITY OR OTHERWISE. THESE LIMITATIONS APPLY NOTWITHSTANDING THAT DYNAPAR KNEW, OR SHOULD HAVE KNOWN, OR WAS ADVISED OF THE POSSIBILITY OF A PARTICULAR KIND OF DAMAGES AND NOTWITHSTANDING THAT ANY LIMITATION CAUSES A REMEDY TO FAIL OF ITS ESSENTIAL PURPOSE. THIS PARAGRAPH SHALL SURVIVE ANY EXPIRATION OR TERMINATION OF THIS AGREEEMENT. DYNAPAR DOES NOT REPRESENT, WARRANT, OR GUARANTEE THAT WIRELESS SERVICES WILL BE AVAILABLE AT ALL TIMES. CUSTOMER UNDERSTANDS AND ACKNOWLEDGES THAT WIRELESS SERVICE IS SUBJECT TO TERRAIN, ELECTRICAL FAILURES, LIMITATIONS ON WIRELESS COVERAGE OR SERVICE, ATMOSPHERIC CONDITIONS, AND OTHER CONDITIONS BEYOND DYNAPAR^,S CONTROL. DYNAPAR WILL NOT BE LIABLE FOR LOSS OF SERVICE OR OTHERWISE AS A RESULT OF ACTS, ERRORS, OR OMISSIONS OF DYNAPAR^’S OR CUSTOMER’S COMMUNICATIONS VENDORS, CUSTOMER^’S EMPLOYEES OR AGENTS, OR ANY OTHER ACT OR OMISSION OF A THIRD PARTY. DYNAPAR DOES NOT WARRANT THAT THE SERVICES OR INFORMATION WILL MEET CUSTOMER^’S REQUIREMENTS OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ERRORS WILL BE CORRECTED.
2. THE REMEDIES OF CUSTOMER IN THIS AGREEEMENT ARE EXCLUSIVE AND IN LIEU OF ANY OTHER REMEDIES AVAILABLE TO CUSTOMER UNDER APPLICABLE LAW.
3. Notwithstanding anything in this Paragraph 6, Customer's sole remedy, and Dynapar's total liability to Customer, in respect of any defect or failure in the Services shall be limited, at Dynapar's option, to the rectification of the Services.
4. Dynapar's liability (whether in contract, tort (including negligence) or otherwise) in respect of all claims for loss, damages or liability, including (but not limited to) claims in connection with this Agreement, will not in any circumstances whatsoever exceed an amount equal to the fees paid to Dynapar by Customer for the affected Services in the 12 month period immediately prior to the date liability first arose.
5. In no event will any measure of damages awarded in relation to this Agreement include, nor will Dynapar be liable for, any loss or damage suffered by the Customer to the extent caused by: (i) any delay or failure by the Customer to perform its obligations under this Agreement; (ii) any accidental, negligent or willful act of the Customer, its agents, sub-contractors or employees; and (iii) defects in any products and/or services provided to Customer by a third party.
6. Customer's right to bring any claim or proceedings against Dynapar in respect of any defect in, or failure of, the Services (or any part of them) is conditional upon the Customer promptly notifying the Dynapar in writing of the defect or failure and giving Dynapar a reasonable opportunity to investigate and remedy any defect or failure relating to the Services.

7.     INTELLECTUAL PROPERTY AND CONFIDENTIALITY

1. Customer acknowledges that, as between Dynapar and Customer, all rights (including intellectual property rights) and title to the Services and each and every component thereof, belong to Dynapar, its licensors and/or suppliers or third party providers. Customer will maintain all information about, related to, or describing the Services and/or this Agreement in strict confidence and will refrain from disclosing the same to any third party, except to the extent that observation by third parties is necessary in the course of Customer^’s business or in the ordinary utilization of the Services as contemplated by this Agreement.
2. Dynapar will have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by the Customer, including its individual users, relating to the operation of and features of the Services ("Feedback"). This Feedback may also be used by Dynapar for benchmarking, marketing purposes, and future product development efforts.
3. The parties agree that access and rights to the data collected will be in accordance with Schedule B.

8.     TERM AND TERMINATION.

1. This Agreement shall become effective on the date of the Order.
2. Customer will pay the Service Fees for the period from the Service Commencement Date until the last day of the month in which the Service Commencement Date falls, and thereafter for the payment term stated in the Order (the "Initial Term").
3. The Agreement will automatically renew for additional twelve (12) month periods (each a "Renewal Term"; and the Initial Term and any Renewal Terms being the "Term") unless terminated by Customer by written notice to Dynapar not less than ninety (90) days prior to the end of the then current Term. The Service Fee is subject to a yearly price increase and Dynapar will strive to provide written notice to Customer of a price increase within 90 days before the end of such prior term, in which case any pricing increase will be effective from and after such renewal.
4. Dynapar may terminate this Agreement or suspend the Services at any time in accordance with paragraph 4 of this Agreement.
5. On termination of this Agreement, Customer will (i) remain liable for payment of any charges that become due for payment before the date of termination; (ii) immediately cease to use the OnSite Analytics; (iii) deliver to Dynapar all copies of instruction manuals, user guides and other information supplied by Dynapar to Customer; and (iv) if applicable, remove any thin client application code from its users, computers.
6. If this Agreement is terminated early by Dynapar for Customer’s breach, then Customer will pay the remaining Service Fees for the Services that would have been due but for termination.

9.     EXPORT LAWS

Customer shall comply with all applicable laws governing the use, export and re-export of the Services

10.    GENERAL

1. Any notice required or permitted to be given under this Agreement must be in writing and will be deemed effective (i) if given by personal delivery, upon such personal delivery, (ii) if given by nationally-recognized courier or mail service (in either case that has real-time or near-real-time tracking), at the time that the notice is delivered (or an attempt is made to deliver the notice, regardless of whether refused) to the receiver's premises according to the tracking records of the courier or mail service, or (iii) if given by fax, at the beginning of the next business day at the receiver's location, provided that the sender's fax device generates a confirmation that the fax arrived at the receiver's device and that there is no indication in the course of the transmission that the notice did not arrive at the receiver's fax device. The addresses for notice for each party are those in the Agreement or equivalent document. Either party may change its address for notice by notice to the other party.
2. Customer acknowledges that it has not been offered any illegal or improper bribe, kickback, payment, gift, or other thing of value from and of Dynapar's employees or agents in connection with this Agreement. Reasonable gifts or entertainment provided in the ordinary course of business do not violate the above restriction. In the event that Customer learns of any such violations, Customer will give notice of such violation to Dynapar.
3. If any provision of this Agreement is invalid or unenforceable, the remaining provisions will remain in force and effect; provided, however, that if the provision is material to a party, the other party, upon written request of the effected party, will re-negotiate the relevant terms of this Agreement in good faith.
4. This Agreement shall be governed and construed under the laws of the State of Illinois irrespective to that state's internal conflict or law rules.
5. Any controversy or claim arising out of or relating to this contract/order or breach thereof will be finally settled by arbitration in accordance with the Rules of Commercial Arbitration of the American Arbitration Association, and judgment upon the award rendered by one (1) arbitrator and the arbitration award may be entered in any court having jurisdiction over the controversy or claim in the State of Illinois. Arbitration proceedings shall occur in the county of residence of Dynapar in the State of Illinois. Each party shall bear their own costs in connection with the arbitration.
6. If Dynapar waives any default or breach of this Agreement, this will not constitute a waiver of any other or subsequent default or breach. No waiver will be effective unless made in writing.
7. Except as expressly permitted in this Agreement, Customer may not assign or transfer its rights and obligations under this Agreement without the prior written consent of Dynapar.
8. Neither party will be liable for any delay or failure in the performance of its obligations under this Agreement, except for payment obligations, if such delay or failure is due to an event outside of the reasonable control of a party. This Agreement is between Dynapar and Customer. No third party beneficiaries are intended or permitted. In connection with this Agreement each party is an independent contractor and does not have any authority to bind or commit the other. Nothing herein will be deemed or construed to create a joint venture, partnership or agency relationship between the parties for any purpose.
9. Dynapar and the Customer agree that any agreements may be signed electronically. The parties further agree that the electronic signatures appearing on any agreement or document are the same as handwritten signatures between the parties for purposes of validity, enforceability and admissibility.
10. This Agreement constitutes the entire agreement between the parties with regard to its subject matter, and this Agreement supersedes all prior or contemporaneous agreements between the parties with regard to its subject matter. No amendment to this Agreement will have any force or effect unless it is in writing and is signed by both parties.

SCHEDULE A
SERVICES

For purposes of this Agreement, the following services and definitions shall apply:

Cloud Data storage: means the amount of data that is collected and made available in the OnSite Analytics Portal during a given time period. The duration that data is stored depends on the Services package that is selected as part of the Order.

Firmware: as described under OnSite Analytics, Firmware means the software located in the Hardware. As part of the Services, the Customer will have access to the latest firmware upgrades, which will happen remotely using Dynapar’s cloud.

Hardware: means the Dynapar proprietary OnSite condition monitoring system hardware that is sold or rented by Dynapar or a Dynapar field service provider to Customer via a separate agreement.

Local Services: means services performed at the customer site such as installation, in-person training, and Hardware repair or replacement not covered by warranty.

Number of data reads: means the number of times per day that Hardware wakes up and collects data from a machine; the number or reads varies depending on the Service package that is selected as part of the Order.

OnSite Analytics: means the Dynapar proprietary software that is the subject of this Agreement and resides either on the firmware located in the Hardware or is accessed by Customer as a result of the Services provided by Dynapar to Customer via the OnSite Analytics Portal.

OnSite Analytics Portal: as describe above, the Portal gives the Customer access to the data and the Expert and non-Expert analytics tools, depending on the product model of the Hardware. These tools include Range View, Trending, Alarms, Raw Wave Form, FFT, Waterfall Plots, Harmonic Cursors, among others. The tools are updated periodically via the Portal and the Customer will have access to the latest upgrades includes the Expert and Non-Expert tools.

Remote Service:  means services performed by Dynapar or its field service provider such as data analysis, reporting, remote system setup, alarm configuration, and on-line training using OnSite Analytics and OnSite Analytics Portal.

Technical & Customer Support: available during working hours (M-F, 8-5pm CST).

User Seats: means the number of accounts that the customer can have for each OnSite condition monitoring system. A Customer can have a maximum of 15 seats per unit. Additional seats could be granted on a case by case basis.

SCHEDULE B
DATA ACCESS AND RIGHTS

Collection and Ownership. Customer acknowledges “Usage Data” may be collected from one or more sensors, Internet of Things (IoT) devices or other data gathering equipment (collectively “Devices”) installed or located at Customer’s premises, including location(s) owned, occupied or otherwise under control of Customer. If Customer has ownership rights to one or more of the Devices, Customer owns and retains full access and rights to the Usage Data, or if resold by a field service provider the end-user acquires full access and right as Licensor (and be classified as Licensor herein and hereafter). If Dynapar owns one or more of the Devices, notwithstanding the Devices being located on Customer’s premises, Dynapar shall own and retain full access and rights to the Usage Data.

Use and Access. Each of the parties shall have access to the Usage Data of the other party. However, for avoidance of doubt, Dynapar may not, either directly or indirectly, sell or share Dynapar owned Usage Data with any third parties, without the prior express written consent of Customer. Customer may sell or share Customer owned Usage Data to third parties without the consent of Dynapar. Unless mutually agreed upon by the parties, in no event may a party sell or share with any third-party data owned by the other party. Dynapar’s use of the Usage Data shall primarily be for purposes of improving the Services.

Anonymization and Aggregation. Customer hereby agrees Dynapar and its successors and assigns may collect, use, publish, disseminate, sell, transfer, and otherwise exploit the collected Usage Data if such data has been anonymized by Dynapar or its designee. Anonymized User Data may also be aggregated (“Aggregate Data”). Anonymized Usage Data and Aggregate Data shall not identify Customer, any user, or any individual. Anonymized User Data and Aggregate Data in any form may be used by Dynapar for any lawful purpose. Dynapar is the sole owner of all right, title, and interest in and to the anonymized User Data and Aggregate Data and any conclusions, impressions, understandings, insights, process improvements, or other information (collectively “Analytics”) derived, extracted or otherwise obtained by Dynapar from any form of Usage Data and the Aggregate Data shall be owned exclusively by Dynapar with all rights thereto, which shall be deemed Dynapar Intellectual Property for purposes of this Agreement.

Combination. Anonymized User Data, Aggregate Data and data obtained from other sources may be combined (“Combined Data”) either by Dynapar or by a third-party data analysis vendor and stored either at a Dynapar controlled repository or a third-party repository in any form of structured, raw, or other data format. Combined Data in any form may be used by Dynapar for any lawful purpose. Dynapar is the sole owner of all right, title, and interest in and to the Combined Data and any analytics generated from the Combined Data, including the right to collect, use, publish, disseminate, sell, transfer, and otherwise exploit the Combined Data and analytics, which shall be deemed Dynapar Intellectual Property for purposes of this Agreement.

Transport, Security, and Storage. Save for data collected and transported directly from a sensor, any Usage Data, Aggregate Data or Combined Data transported by Dynapar to a remote or third-party vendor site, Dynapar shall take commercially reasonable steps to ensure transport of the data is securely undertaken, including the use of various encryption technologies and other security measures. Further security shall include maintaining adequate physical controls and password protections for any server or system on which data is stored and any other measures reasonably necessary to prevent any use or disclosure of data other than as allowed under this Agreement.

Affiliation. Customer hereby agrees if Dynapar is divested, sold, separated or otherwise no longer affiliated with, or under common control of, its parent company, a copy of all data including User Data, Aggregate Data and Combined Data shall remain with the parent company along with all the same rights, title and obligations as Dynapar as set forth herein.

OnSite™ Conditioning Monitoring Hardware Terms and Conditions of Sale

1. Entire Agreement

The following Terms and Conditions of Sale ("Hardware Terms") are the only terms and conditions upon which Seller is prepared to sell the OnSite™ Condition Monitoring Products (the “Products” or sometimes the “Hardware”) to Buyer and they shall govern the Agreement to the entire exclusion of any and all other terms and conditions (including any terms or conditions the Buyer purports to apply under any purchase order, confirmation of order, specification, communication, or other document) except those which relate to prices, quantities, delivery schedules, and the description and specifications of the Products stated in Seller’s Order Form.

2. Prices.

The prices of Products sold by Seller to Buyer are set forth in the Order Form.

3. Taxes.

All prices for Products are exclusive of, and Buyer agrees to pay any and all excise, sales, use, transfer, personal property and/or value-added tax (VAT), import duty, and any and all other taxes and duties imposed by any national, federal, state, municipal or other governmental authority with respect to the Products or their sale, excepting only taxes based on Seller’s income. Buyer must obtain and provide Seller with any certificate of exemption or similar document required for any tax relief or exemption.

4. Terms of Payment.

All invoices shall be paid in full, on or prior to shipment, unless Buyer has established and maintains open account credit with Seller, in which case payment in full shall be due net thirty (30) days from date of invoice. Seller reserves the right, in its sole discretion, to require full or partial pre-payment, letters of credit, or cash on delivery and to revoke any credit previously extended. All payments must be made in the currency and to the bank or address of Seller indicated on Seller’s invoice. Seller reserves the right to assess, and Buyer agrees to promptly pay, service charges of one and one-half percent (1½%) per month on overdue accounts, or the maximum amount permitted by law, whichever is lower. Undisputed amounts owed by Buyer must be paid without setoff or other withholding. A payment is considered made when received by Seller in accordance with payment instructions on its invoice. If any particular invoice is not paid when due, Buyer agrees to pay all collection costs if this account is referred outside for collection or, if suit is brought to collect this account, Buyer agrees to pay all costs and reasonable attorneys' fees, including all costs and reasonable attorneys' fees incurred on any appeal to an appellate court.

5. Place of Delivery and Method of Tender/Risk of Loss.

All prices are FCA (Incoterms 2010) Seller’s facility. Buyer agrees to pay all transportation charges incurred after the Products are delivered to the carrier and to reimburse Seller for any transit insurance or freight pre-paid for the Products by Seller. The date of delivery is the date on which carrier collects the Products from Seller. Seller reserves the right to deliver the Products in any order and to make partial deliveries. All deliver dates are approximate only. Where Buyer furnishes special transportation instructions, any special expense is to be borne by the Buyer, including special handling, packaging and additional freight charges. When export instructions or special packing are required and have been agreed upon by the Parties, any extra charges such as export duties, licenses, fees and the like shall be borne by Buyer. Title to (subject to the next sentence below), and the risk of loss of or damage to the Products or any part thereof, shall pass to the Buyer upon the earlier of delivery to carrier at the point of shipment or delivery to the Buyer, and Buyer shall have the responsibility of filing any claims for loss, damage, delay or otherwise, with the carrier, insurer, or other related third parties. Subject to applicable law, Seller upon notice to Buyer, may retain title to the Product until such time as Seller receives payment in full from the Buyer.

6. Installation / Maintenance.

Unless otherwise specified in writing on a quotation provided by an authorized representative of Seller, Buyer assumes responsibility for installation of the Products. Buyer assumes responsibility for any required maintenance on the Products.

7. Proprietary Rights.

Seller shall retain all rights to technical data and information, technical processes and business methods, whether patentable or not, embodied in the Products.

8. Delays.

Seller is not liable for any loss, damage, detention or delay due to causes beyond its reasonable control, including but not limited to, Acts of God, acts of Buyer, acts of civil or military authority, fires, strikes, floods, terrorism, epidemics, war, riot, delays in transportation, government restrictions or embargoes, or difficulties in obtaining necessary labor, materials, manufacturing facilities or transportation due to such causes. In the event of a delay due to any cause beyond Seller’s control, Seller may allocate production and deliveries among its customers. The time for delivery to Buyer will be extended for a period equal to the duration of the delay, and Buyer will not be entitled to refuse delivery or otherwise be relieved of any obligations as the result of the delay. In the event of a delay in delivery in excess of ninety (90) consecutive days, the Buyer and Seller each have the right, upon written notice, to terminate the Agreement or any undelivered portion thereof without penalty. Products for which delivery is delayed due to any cause within Buyer’s control may be placed in storage by Seller at Buyer’s risk and expense and for its account. Buyer will be liable for all costs and expenses incurred by Seller in holding or storing Products for Buyer or at Buyer’s request. Seller reserves the right to withhold shipments, in whole or in part, if Buyer fails to make any payment to Seller when due or otherwise fails to perform its obligations hereunder.

9. Cancellations.

If Buyer cancels an order for any reason, fails or refuses, or for any reason is unable to accept delivery of any of the Products it has ordered, or if Buyer requests the diversion of a delivery from Seller, Buyer shall be liable for and pay to Seller, promptly on demand, the full purchase price and all costs and expenses incurred by Seller in filling and shipping Buyer’s order or by reason of such diversion, including costs of demurrage and storage.

10. Product Return.

Only new, unused and undamaged Products in the original boxes are eligible for return up to ninety (90) days from the date of shipment provided that Seller approves in advance any such return. Seller reserves the right to inspect any returned goods, and no return is final until confirmed in writing to the Buyer by an authorized representative of Seller. Buyer must provide with any returned goods an RMA number provided to Buyer by Seller. Any returns of Product may be subject to a restocking charge. Upon Buyer’s compliance with its obligations under this section, Seller will provide Buyer notification of the total value of such returned goods that Seller, in its sole discretion, has accepted. A credit will be issued to Buyer for such value, less any restocking fee to be determined by Seller. Products not accepted for return will be returned to Buyer F.O.B. Seller’s facility.

11. Warranty.

Seller warrants that the Products provided to Buyer shall for a period of one (1) year from the date of delivery from Seller’s facility (“Warranty Period”) and (i) meet the Specifications for the Products, if any provided by Seller; and (ii) be free from defects in workmanship and material.

Remedy. If a Product is defective in workmanship or material or does not meet the specifications, if any, Seller will at its option, during the Warranty Period, (i) repair or replace the Product at no charge to Buyer; or (ii) provide to Buyer a credit equal to the purchase price of the Product, provided Buyer provides prompt written notice of the defect within the Warranty Period. Freight charges for Products returned to Seller for repair/warranty analysis are the responsibility of Buyer, and upon such return, Buyer must properly package such Product to protect against risk of loss and damage, including damage from electrostatic discharge. Such repair, replacement or issuance of a credit shall be Buyer’s sole and exclusive remedy with respect to a breach of the warranty set forth herein. All costs of de-installation or re-installation of the Product shall be borne by Buyer. Products that are repaired or replaced during the Warranty Period are warranted for a period of six (6) months from the date of repair or replacement or the unexpired term of the original Warranty Period, whichever period is shorter. Where Products are replaced pursuant to this section, Buyer shall be invoiced for the replaced Products and then issued a credit for such Products to be applied against future orders. If it is determined by Seller that the Product returned is not defective, Buyer agrees to pay Seller a service fee of One Hundred (USD 100) Dollars per Product return.

Warranty Exclusions. If, however, upon inspection of any of the Products to which this warranty applies, Seller determines that a claimed defect resulted from (i) normal wear and tear, including corrosion; (ii) installation and/or maintenance by Buyer or a third party; (iii) misuse or abuse, whether willful or negligent, of any of the Products by any person other than Seller; (iv) modifications, alterations, service, repair or replacement made by Buyer or a third party during the Warranty Period that were not requested or authorized by Seller; (v) any combination or use of the Products with any incompatible equipment or ancillary products that may be connected to the Products; (vi) failure of Buyer to maintain environmental conditions in accordance with Seller specifications or instructions, including but not limited to, adequate electrical power, temperature, vibration and humidity control; (vii) failure to follow all instructions provided by Seller (whether oral or written); (viii) customized equipment manufactured by third parties for incorporation into any of the Products; (ix) defects or errors in any custom specifications provided by Buyer; (x) causes beyond Seller’s reasonable control; (x) use of the Product in any application not approved in writing by Seller; or (xi) causes other than our workmanship or materials, then the warranty shall be null and void and cease to apply. Seller shall have the sole right to determine whether Products are actually defective and the cause of the alleged defect.

No Other Warranties. SELLER MAKES NO OTHER REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE THAT IS NOT EXPRESSLY SET FORTH IN THIS SECTION 11 Of THE AGREEMENT. SELLER EXPRESSLY DISCLAIMS, AND BUYER EXPRESSLY WAIVES, ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SYSTEM INTEGRATION, NON-INTERFERENCE, AND ACCURACY OF INFORMATIONAL CONTENT. SELLER DOES NOT REPRESENT, WARRANT, OR GUARANTEE THAT WIRELESS SERVICES WILL BE AVAILABLE AT ALL TIMES. BUYER UNDERSTANDS AND ACKNOWLEDGES THAT WIRELESS SERVICE IS SUBJECT TO TERRAIN, ELECTRICAL FAILURES, LIMITATIONS ON WIRELESS COVERAGE OR SERVICE, ATMOSPHERIC CONDITIONS, AND OTHER CONDITIONS BEYOND SELLER’S CONTROL. SELLER WILL NOT BE LIABLE FOR LOSS OF SERVICE OR OTHERWISE AS A RESULT OF ACTS, ERRORS, OR OMISSIONS OF SELLER’S COMMUNICATIONS VENDORS, CUSTOMER’S EMPLOYEES OR AGENTS, OR ANY OTHER ACT OR OMISSION OF A THIRD PARTY. SELLER DOES NOT WARRANT THAT THE HARDWARE OR INFORMATION WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE HARDWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ERRORS WILL BE CORRECTED.

Without limiting the foregoing, Seller does not warrant that the Products will be suitable for Buyer’s specific needs, will work in any particular environment, will perform without interruption, be error free, or will work in conjunction with Buyer’s equipment.

12. Patent Indemnification.

Seller shall have no liability for infringement of any United States patents, trademarks or copyrights (hereinafter collectively referred to as the “Intellectual Property Rights”), except as specifically provided in this section. Any liability of Seller shall be limited as set forth elsewhere in this Agreement. . Seller will defend and indemnify Buyer against allegations of infringement of Intellectual Property Rights subject to the limitations and conditions set forth in this section. Seller will defend, at its expense, and will pay the cost of any settlement or damages awarded in any action brought against Buyer based on an allegation that a Product sold to Buyer infringes the Intellectual Property Rights of a third party. Seller’s obligation to defend and indemnify Buyer is contingent on Buyer notifying Seller within ten (10) days after Buyer becomes aware of such allegations of infringement, and Seller having sole control over the defense of any allegations or actions including all negotiations for settlement or compromise. If a Product is subject to a claim that it infringes the Intellectual Property Rights of a third party, Seller may, in its sole discretion, procure for Buyer the right to continue using the Product, replace or modify the Product so as to make it non-infringing, or offer to accept return of the Product and return the purchase price less a reasonable allowance for depreciation. Notwithstanding the foregoing, Seller shall have no liability for claims of infringement based on information provided by Buyer, or directed to Products for which the designs are specified in whole or in part by Buyer, or infringements resulting from the modification, combination or use in a system of the Products. The foregoing provisions of this section shall constitute Seller’s sole and exclusive liability and Buyer’s sole and exclusive remedy for infringement of Intellectual Property Rights. If a claim is based on information or designs provided in whole or in part by Buyer, Buyer shall defend and indemnify Seller for all costs, expenses, or judgments resulting from any claim that such Product infringes the Intellectual Property Rights of a third party.

13. Buyer Indemnity.

Buyer agrees to defend, indemnify and hold Seller harmless from any and all liability, and to pay all costs and attorney’s fees, for injury or damage to persons or property caused in any manner by the Products while in possession or under the control of Buyer or Buyer’s customer except as expressly set forth elsewhere in these Conditions.

14. DISCLAIMER OF CERTAIN DAMAGES.

IN NO EVENT SHALL SELLER BE LIABLE (AND BUYER WAIVES ALL CLAIMS AGAINST SELLER) FOR CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, SPECIAL OR INDIRECT DAMAGES, COSTS OR EXPENSES BASED UPON NEGLIGENCE, BREACH OF WARRANTY, BREACH OF CONTRACT, STRICT LIABILITY IN TORT, OR ANY OTHER LEGAL THEORY OR CAUSE OF ACTION ARISING, DIRECTLY OR INDIRECTLY, FROM PRODUCTS THAT ARE THE SUBJECT OF THIS AGREEMENT, OR THE USE OR FAILURE THEREOF, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PRODUCTION, PROFITS OR INJURY TO PERSONS OR PROPERTY. THIS DISCLAIMER SHALL REMAIN IN FULL FORCE AND EFFECT EVEN IN THE EVENT THAT BUYER’S SOLE AND EXCLUSIVE REMEDY SHALL FAIL OF ITS ESSENTIAL PURPOSE.

15. LIMITATION OF LIABILITY.

SELLER’S MAXIMUM LIABILITY SHALL NOT EXCEED THE PRICE PAID BY BUYER FOR THE PRODUCT(S) THAT GAVE RISE TO ANY SUCH LIABILITY. THE PROVISIONS OF THIS PARAGRAPH SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THE CONTRACT AND SHALL APPLY REGARDLESS OF THE BASIS OF BUYER’S CLAIM, BE IT IN CONTRACT, WARRANTY, TORT OR OTHERWISE. THE REMEDIES OF BUYER CONTAINED IN THIS CONTRACT ARE EXCLUSIVE AND IN LIEU OF ANY OTHER REMEDIES AVAILABLE TO BUYER UNDER APPLICABLE LAW. THE PROVISIONS OF PARAGRAPHS 14 AND 15 SHALL SURVIVE THE EXPIRATION OR TERMINATION OF THE AGREEMENT BETWEEN THE PARTIES.

16. Export Compliance.

The export or re-export of the Products and related technical data supplied hereunder, if any, may be subject to regulation or restriction under the United States Export Administration Act, the Arms Export Control Act, or other similar laws. Buyer shall not sell, re-export, transfer or otherwise dispose of the Products or any related technical data in violation of U.S. export laws or any other applicable export laws. Buyer shall have sole responsibility for obtaining all applicable licenses or authorizations at its sole cost and expense.

17. Inspection and Acceptance of Products.

Final inspection and acceptance of Products provided under this Agreement shall be made by Buyer within fourteen (14) days of receipt of the Products at Buyer’s facility, except in the case where Buyer’s source inspector or authorized representative inspects the Goods at Seller’s facility. Failure of Buyer to inspect and reject in writing said Products within the above time period (where source inspection is not applicable), shall be deemed to mean acceptance has occurred.

18. Assignment.

Buyer may not delegate any duties nor assign any rights or claims hereunder without our prior written consent, and any such attempted delegation or assignment shall be void.

19. Buyer’s Default; Insolvency.

If Buyer becomes insolvent or if Buyer is in default for any reason under the terms of this Agreement or any other agreement between Buyer and Seller, Seller shall be entitled, at Seller’s option, to discontinue further performance of all or part of the Agreement, to withhold shipments, in whole or in part, and/or to recall Products in transit, retake same, and repossess all Products which may be stored with Seller for Buyer’s account, without the necessity of taking any other proceedings.

20. Governing Law.

The rights and obligations of the Parties hereunder shall be governed by and interpreted, construed and enforced in accordance with the laws of the State of Illinois and the Parties irrevocably submit to the exclusive jurisdiction of the federal and state courts of Illinois. The Parties expressly reject the application to this Contract of the United Nations Convention on Contracts for the International Sale of Goods.

21. Severability; Remedies; Waiver.

In the event that any one or more provisions contained herein (other than the provisions obligating Buyer to pay Seller for the Products) shall be held by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be effected or impaired thereby. Seller’s failure to enforce, or waiver of a breach of any provision contained herein, shall not constitute a waiver of any other breach or of such provision.

23. Notices.

Any notice or communication required or permitted hereunder shall be in writing and shall be deemed received three (3) days after being sent via registered mail with return receipt requested, by courier (for example DHL or FedEx), by first-class mail, postage prepaid, or via email (with evidence of receipt required) to Seller or Buyer at the address specified in the Contract or at such other address, including email addresses, as either Party may from time to time designate to the other in writing.