STANDARD TERMS & CONDITIONS OF SALE
House of Design’s Proposal (the “Proposal”) together with these Standard Terms and Conditions of Sale (the “Terms and Conditions”) are the only terms and conditions which govern the sale of the goods described in the Proposal (“Goods”) and services described in the Proposal (“Services”) by House of Design LLC or any of its subsidiaries (“HOD” or “Seller”) to the buyer of the Goods and Services (“Buyer”). No other terms and conditions will change these Terms and Conditions unless acknowledged in writing and signed by an authorized representative of HOD and Buyer. HOD hereby objects to any different or additional terms in Buyer’s purchase order or other documents from Buyer.
2. Delivery of Goods and Services.
Unless expressly agreed otherwise in a writing signed by an authorized representative of HOD, all delivery dates for Goods and Services set forth in HOD’s Proposal or elsewhere are estimates only. Unless stated otherwise in HOD’s Proposal, all Goods are delivered F.O.B., point of shipment.
If Buyer fails to accept delivery of any of the Goods on the dates agreed to, or Buyer requests a delayed delivery, including without limitation because the Buyer has not provided appropriate instructions, documents, licenses or authorizations, because Buyer’s facilities are not yet ready for delivery, because Buyer has failed to procure all needed equipment and materials to accompany the Goods sufficient to allow for installation, SAT (as defined below) or commissioning, or because of any other reason attributable to Buyer (each, a “Buyer Delay”): (i) risk of loss to the Goods shall pass to Buyer on the previously agreed delivery date; (ii) the Goods shall be deemed to have been delivered on such date; (iii) HOD, at its option, may store the Goods until Buyer picks them up or requests delivery, and in such case Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
With respect to the Services, the Buyer shall (i) cooperate with HOD in all matters relating to the Services and provide such access to Buyer’s premises, and such office accommodation and other facilities as may reasonably be requested by HOD, for the purposes of performing the Services; (ii) respond promptly to any HOD request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for HOD to perform Services in accordance with the requirements hereunder; (iii) provide such materials or information as HOD may reasonably request to carry out the Services in a timely manner and ensure that such materials or information are complete and accurate in all material respects; and (iv) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start. Buyer shall indemnify, defend and hold harmless HOD from and against any and all cost, loss, expense or liability due in whole or part to a failure by Buyer to comply with clauses (i) through (iv) of this paragraph.
3. Title and Risk of Loss.
Unless stated otherwise in HOD’s Proposal, title and risk of loss pass to Buyer upon delivery of the Goods at the point of shipment.
4. Buyer’s Acts or Omissions.
If HOD’s performance of its obligations is prevented or delayed by any Buyer Delay or other act or omission of Buyer or its customers, agents, subcontractors, consultants, or employees (including without limitation Buyer’s or its customer’s use of any Goods for Productive Use (as defined in Section 5 below) prior to HOD’s completion of its site acceptance test (“SAT”) or commissioning, where applicable, or lack of readiness of Buyer’s or its customer’s facility) HOD shall not be deemed in breach of its obligations hereunder or otherwise liable for any costs, charges, or losses sustained or incurred by Buyer, in each case, to the extent arising directly or indirectly from such prevention or delay. Buyer shall indemnify, defend and hold harmless HOD from and against any and all costs, charges, liabilities, expenses and losses incurred or suffered as a result of any such of Buyer’s acts or omissions, including lack of timely readiness of Buyer’s facility.
5. Inspection and Rejection of Nonconforming Goods.
(a) Buyer shall inspect the Goods within 3 days of receipt (“Inspection Period”). Unless SAT or commissioning is required, Buyer will be deemed to have accepted the Goods unless it notifies HOD in writing of any Nonconforming Goods (as defined below) during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by HOD. “Nonconforming Goods” means any Goods received by Buyer from HOD pursuant to HOD’s Proposal that: (a) do not conform to the product description listed in HOD’s Proposal; (b) do not in all material respects conform to the specifications listed in HOD’s Proposal; or (c) materially exceed the quantity of Goods ordered by Buyer pursuant to the applicable HOD Proposal. Buyer’s use of any Goods for Productive Use prior to SAT or commissioning (where applicable) without HOD’s prior written consent shall be deemed acceptance by Buyer. “Productive Use” means used for revenue-generating (i) production of goods (e.g., trusses, wall panels, floor panels), (ii) provision of services, or (iii) processing, within Buyer’s operating environment, other than immaterial use conducted with HOD’s written consent or under HOD’s direction primarily for purposes of testing the Goods.
(b) If Buyer timely notifies HOD of any Nonconforming Goods, HOD shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith.
(c) Buyer acknowledges and agrees that the remedies set forth in Section (b) are Buyer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section (b), all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased hereunder to HOD.
6. Price; Changes.
(a) Buyer shall purchase the Goods and Services from HOD at the Price(s) set forth in HOD’s Proposal, unless otherwise agreed in writing by the parties. Prices and other terms in HOD’s Proposal, or in HOD-confirmed Purchase Orders, are subject to change due to: (a) increases in prices from third-party suppliers after the date of such Proposal/Purchase Order; (b) engineering errors or misinterpretations, or changes in scope, costs or resources due to lack of complete or accurate information from Buyer; (c) changes requested by Buyer after the date of such Proposal/Purchase Order.
(b) Buyer agrees to reimburse HOD for all reasonable shipping costs incurred by HOD in the agreed delivering of the Goods to the delivery point and all reasonable travel and out-of-pocket expenses incurred by HOD in connection with the performance of the Services, including consumables deemed appropriate by HOD to perform the Services or customize and/or test the Goods.
(c) All Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs, and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, HOD’s income, revenues, gross receipts, personal or real property, or other assets.
(d) Any changes requested by Buyer affecting the ordered Goods or Services must first be reviewed by HOD and any resulting adjustments to affected provisions, including price, schedule, and guarantees mutually agreed in writing prior to implementation of the change. HOD may, at its expense, make such changes in the Goods as it deems necessary, in its sole discretion, to conform the Goods to the applicable specifications. If Buyer objects to any such changes, HOD shall be relieved of its obligation to conform to the applicable specifications to the extent that conformance may be affected by such objection.
7. Payment Terms.
(a) Unless otherwise set forth on the Proposal, payment is due prior to shipment. Buyer shall pay all invoiced amounts due to HOD within 10 days from the date of HOD’s invoice. Buyer shall make all payments hereunder in U.S. dollars by ACH or check for payments originating from within the U.S.A or by wire transfer for payments originating from outside the U.S.A. HOD may charge Buyer an administrative fee for wire payments.
(b) Buyer shall pay interest on all late payments at the rate of 1.5% per month calculated daily and compounded monthly. Buyer shall reimburse HOD for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees and court costs. In addition to all other remedies available hereunder or at law (which HOD does not waive by the exercise of any rights hereunder), HOD shall be entitled to suspend the shipment of any Goods or performance of any Services if Buyer fails to pay any amounts when due hereunder and such failure continues for 10 days following written notice thereof.
(c) Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with HOD, whether relating to HOD’s breach, bankruptcy, or otherwise.
(d) If installation, commissioning or SAT (if contemplated under the Proposal) of Goods is delayed more than one month due to any Buyer Delay (as defined above), Buyer shall pay all remaining payments (e.g., commissioning or SAT payments, etc.) within thirty (30) days of HOD’s invoice, notwithstanding such delayed installation, commissioning or SAT.
8. Security Interest.
To secure Buyer’s prompt and complete payment and performance of any and all present and future indebtedness, obligations and liabilities of Buyer to HOD, Buyer hereby grants HOD a first-priority security interest, with priority over all other liens, claims and encumbrances, in all Goods purchased hereunder, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. Buyer acknowledges that the security interest granted hereunder is a purchase-money security interest under the law applicable in the state where the Goods are located. HOD may file a financing statement for such security interest and Buyer shall execute such statements or other documentation necessary to perfect HOD’s security interest in such Goods. Buyer also authorizes HOD to execute, on Buyer’s behalf, such statements or other documentation necessary to perfect HOD’s security interest in such Goods. HOD shall be entitled to all applicable rights and remedies of a secured party under applicable law.
9. Limited Warranty.
Buyer shall purchase the Goods and Services from HOD pursuant to the Limited Warranty set forth in Exhibit 1 hereto. HOD’S PROPOSAL AND THESE TERMS AND CONDITIONS SET FORTH BUYER’S SOLE REMEDY AND HOD’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED PRODUCT WARRANTY SET FORTH IN HOD’S PROPOSAL AND THESE TERMS AND CONDITIONS. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN HOD’S PROPOSAL AND THESE TERMS AND CONDITIONS, (A) NEITHER HOD NOR ANY PERSON ON HOD’S BEHALF HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WHATSOEVER, EITHER ORAL OR WRITTEN, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PRODUCTION RATE OR CAPACITY, TITLE, OR NON-INFRINGEMENT, OR PERFORMANCE OF GOODS TO STANDARDS SPECIFIC TO THE COUNTRY OF IMPORT OR OTHERWISE, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED, AND (B) BUYER ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY HOD, OR ANY OTHER PERSON ON HOD’S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN HOD’S PROPOSAL. Any rate or performance descriptions in the Proposal and elsewhere are estimates only. Actual rates can vary widely from estimated rates, depending on numerous factors including (i) proper maintenance of the Goods; (ii) operation and maintenance of the Goods by appropriately trained and skilled system operators and maintenance professionals (including without limitation trained robotic system engineers); (iii) use of high quality materials and components; (iv) proper and timely material flow for both infeed and outfeed; (v) adherence to automation best practices within the industry, including without limitation multiple shifts.
10. Limitation of Liability.
(a) IN NO EVENT SHALL HOD BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT, OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT HOD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL HOD’S AGGREGATE LIABILITY ARISING OUT OF HOD’S PROPOSAL OR HEREUNDER, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO HOD FOR THE GOODS AND SERVICES SOLD HEREUNDER.
(c) The limitation of liability set forth in Section 10(b) shall not apply to liability resulting from HOD’s gross negligence or willful misconduct.
(d) Buyer shall indemnify, defend and hold harmless HOD from and against any and all costs, loss, liability, damage or claims arising as a result of any Goods subjected to abuse, misuse, neglect, negligence, accident, improper testing, improper installation, improper storage, improper handling, abnormal physical stress, abnormal environmental conditions or use contrary to HOD’s specifications or any other instructions issued by HOD, in each case by any Person other than HOD or its authorized Representative.
(e) Buyer is responsible for ensuring the design and quality of components built using the Goods adhere to Buyer’s customers’ requirements and specifications as well as to applicable law, regulations and building codes and will indemnify, defend, and hold harmless HOD from and against any and all liability, cost or expense arising in connection with third-party claims against HOD alleging such design or quality issues.
11. Compliance with Law; Safety.
(a) Buyer shall comply with all applicable laws, regulations, and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations hereunder. Buyer shall comply with all export and import laws of all countries involved in the sale of the Goods hereunder or any resale of the Goods by Buyer. Buyer assumes all responsibility for shipments of Goods requiring any government import clearance. HOD may terminate this agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Goods. HOD does not assume any responsibility for compliance with federal, state or local laws and regulations, except as expressly set forth herein, and compliance with any laws and regulations relating to the operation or use of the Goods is the sole responsibility of Buyer. All laws and regulations referenced herein shall be those in effect as of the date set forth herein. In the event of any subsequent revisions or changes thereto, HOD assumes no responsibility for compliance therewith. If Buyer desires a modification as a result of any such change or revision, it shall be treated as a change per Section 6. Nothing contained herein shall be construed as imposing responsibility or liability upon HOD for obtaining any permits, licenses or approvals from any governmental agency required in connection with the supply, erection or operation of the Goods at Buyer’s location.
(b) HOD warrants that the Goods will comply with the relevant standards of the Occupational Safety and Health Act of 1970 (“OSHA”) and the regulations promulgated thereunder as of the date hereof. Buyer shall promptly notify HOD if it learns or suspects the Goods do not so comply. Upon HOD’s determination that the Goods do not so comply, HOD will replace the affected part or modify it so that it conforms to such standard or regulation. HOD’s obligation shall be limited to such replacement or modification. In no event shall HOD be responsible for liability arising out of the violation of any OSHA standards relating to or caused by Buyer’s design, location, operation, or maintenance of the Goods, its use in association with other equipment of Buyer, or the alteration of the Goods by anyone other than HOD. Even when not explicitly requested by HOD, Buyer assesses, evaluates and communicates any safety risk with regard to the equipment and/or systems to which the execution of services or delivery of Goods may relate, including respective in-house regulations or guidelines of Buyer. Buyer’s internal regulations or guidelines will not have a restrictive effect on HOD, unless otherwise expressly agreed by HOD in writing.
(c) Buyer will be responsible for the proper use of the Goods. Buyer shall implement adequate training, instruction and documentation measures, following at least the guidelines set forth in any HOD manuals. HOD is not obliged to test and/or provide warning with regard to special purposes or conditions of use for the Goods. Buyer will be responsible for compliance with all industry-specific standards and safety requirements.
Safety is the full responsibility of Buyer. This includes, but is not limited to, (i) risk assessment, (ii) safety protocols, (iii) understanding of requirements as stated in the user manual, (iv) validation and inspection of any safety function, and (v) prohibition and prevention of misuse of the Goods. Safety is not included in HOD’s scope of services. HOD may provide technical assistance which is understood as non-binding recommendations.
(d) Buyer shall indemnify, defend and hold harmless HOD from and against any and all liability, cost and expense arising out of Buyer’s failure to comply with the provisions of this Section 11.
Either party may terminate the whole or any part of the other party’s performance if there is a material breach by the other party of the Proposal or these Terms and Conditions. In the event of any such breach, the non-breaching party will provide the breaching party with written notice of the nature of the breach and the non-breaching party’s intention to terminate for default. In the event the breaching party does not cure such failure within five (5) days of such notice, the non-breaching party may, by written notice, terminate the agreement hereunder; provided, that the breaching party shall continue its performance to the extent not terminated. Notwithstanding the foregoing provisions, HOD may terminate the Proposal and these Terms and Conditions immediately upon notice to Buyer if (i) Buyer fails to pay any amounts when due; (ii) HOD discovers that Buyer cannot or will not abide by previously agreed upon tolerances or other design criteria related to the Goods and Services; or (iii) Buyer fails to issue its purchase order, if a purchase order is contemplated under the Proposal, within 30 calendar days after the date Buyer signed the Proposal or, if no signing date is indicated, the date of the Proposal, unless a longer time period is explicitly permitted under the Proposal. If HOD terminates pursuant to this Section 12, Buyer will be responsible for all HOD’s costs and expenses incurred through the date of termination, without prejudice to any other rights and remedies HOD may have under the Proposal, these Terms and Conditions or applicable law.
No waiver by HOD of any of the provisions of HOD’s Proposal and these Terms and Conditions is effective unless explicitly set forth in writing and signed by HOD. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising hereunder operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
14. Confidential Information.
All non-public, confidential, or proprietary information of HOD, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by HOD to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” in connection with HOD’s Proposal or these Terms and Conditions is confidential, solely for the use of performing hereunder and may not be disclosed or copied unless authorized in advance by HOD in writing. Upon HOD’s request, Buyer shall promptly return all documents and other materials received from HOD. HOD shall be entitled to injunctive relief for any violation of this Section. This Section 14 does not apply to information that is: (a) in the public domain; (b) known to the Buyer at the time of disclosure; or (c) rightfully obtained by the Buyer on a non-confidential basis from a third party. HOD may collect and receive data, logs, error messages, reports, feedback, and other information from or on behalf of Buyer, from the Goods, and from Buyer’s use of the Goods and Services (“Data”). HOD may use Data in any manner to provide the Goods and Services and to modify, improve and develop the Goods and Services or other products and services.
15. Intellectual Property; Software.
Buyer acknowledges and agrees that: (a) HOD (or its licensors) will retain all Intellectual Property Rights (as defined below) used to create, embodied in, used in and otherwise relating to the Goods and any of their component parts or any of the Services; (b) any and all HOD’s Intellectual Property Rights are the sole and exclusive property of HOD or its licensors; (c) Buyer shall not acquire any ownership interest in any of HOD’s Intellectual Property Rights hereunder; (d) any goodwill derived from the use by Buyer of HOD’s Intellectual Property Rights inures to the benefit of HOD or its licensors, as the case may be; (e) if Buyer acquires any Intellectual Property Rights in or relating to any Good or Services purchased hereunder (including any rights in any trademarks, derivative works or patent improvements relating thereto), by operation of law, or otherwise, such rights are deemed and are hereby irrevocably assigned to HOD or its licensors, as the case may be, without further action by either Party; and (f) Buyer shall use HOD’s Intellectual Property Rights only in accordance with these Terms and Conditions and any instructions of HOD. Buyer shall not: (a) take any action that may interfere with any of HOD’s rights in or to HOD’s Intellectual Property Rights, including HOD’s ownership or exercise thereof; (b) challenge any right, title or interest of HOD in or to HOD’s Intellectual Property Rights; (c) make any claim or take any action adverse to HOD’s ownership of HOD’s Intellectual Property Rights; (d) register or apply for registrations, anywhere in the world, for HOD’s trademarks or any other trademark that is similar to HOD’s trademarks or that incorporates HOD’s trademarks in whole or in confusingly similar part; (e) use any mark, anywhere, that is confusingly similar to HOD’s trademarks; (f) engage in any action that tends to disparage, dilute the value of, or reflect negatively on the Goods purchased under HOD’s Proposal or any HOD trademark; (g) misappropriate any of HOD’s trademarks for use as a domain name without prior written consent from HOD; or (h) alter, obscure or remove any of HOD’s trademarks or trademark or copyright notices or any other proprietary rights notices placed on the Goods purchased under HOD’s Proposal, marketing materials or other materials that HOD may provide. “Intellectual Property Rights” means all industrial and other intellectual property rights comprising or relating to: (a) patents; (b) trademarks; (c) internet domain names, whether or not trademarks, registered by any authorized private registrar or governmental authority, web addresses, web pages, website and URLs; (d) works of authorship, expressions, designs and design registrations, whether or not copyrightable, including copyrights and copyrightable works, software and firmware, application programming interfaces, architecture, files, records, schematics, data, data files, and databases and other specifications and documentation; (e) trade secrets; (f) semiconductor chips, mask works and the like; and (g) all industrial and other intellectual property rights, and all rights, interests and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, however arising, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, such rights or forms of protection pursuant to the laws of any jurisdiction throughout in any part of the world. If software is included in or with Goods, the terms of HOD’s Software License Addendum, attached as Exhibit 2 hereto, shall apply. Licenses to certain third-party software, as identified by HOD, may be required to be obtained by Buyer in connection with the Goods. Pricing and terms applicable to such third-party software are to be negotiated solely between Buyer and such third-party provider.
16. Force Majeure.
HOD shall not be liable or responsible to the Buyer, nor be deemed to have defaulted or breached HOD’s Proposal and these Terms and Conditions, for any failure or delay in fulfilling or performing any term hereof when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of HOD, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion, or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, pandemic, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), power or telecommunication outages or disruptions, restraints or delays affecting carriers, or inability or delay in obtaining supplies of adequate or suitable materials.
Buyer shall not assign any of its rights or delegate any of its obligations under HOD’s Proposal or hereunder without the prior written consent of HOD. Any purported assignment or delegation in violation of this Section 17 is null and void. No assignment or delegation relieves Buyer of any of its obligations under HOD’s Proposal or hereunder.
18. Relationship of the Parties.
The relationship between the parties is that of independent contractors. Nothing shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
19. No Third-Party Beneficiaries.
HOD’s Proposal is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason hereunder.
20. Governing Law.
All matters arising out of or relating to HOD’s Proposal or these Terms and Conditions are governed by and construed in accordance with the internal laws of the State of Idaho, U.S.A., without giving effect to any choice or conflict of law provision or rule (whether of the State of Idaho or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Idaho.
21. Dispute Resolution; Jurisdiction.
In the event of any claim relating to the Proposal, these Terms and Conditions or the Goods (a “Claim”), the parties shall first attempt to resolve the Claim by direct discussions among senior-level authorized representatives. If the parties do not resolve the Claim through such direct discussions within a period of 30 business days after either party’s written notice to the other, then upon written notice by either party to the other party, and within a period of the next 90 days, the parties shall attempt to resolve the Claim by non-binding mediation administered by the American Arbitration Association (“AAA”) under its Commercial Mediation Rules. Thereafter, any unresolved Claim may be resolved according to any available remedies. Any legal suit, action, or proceeding arising out of or relating HOD’s Proposal, these Terms and Conditions or the Goods shall be instituted in the federal courts of the United States of America or the courts of the State of Idaho, in each case located in the City of Boise and County of Ada, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on HOD’s Proposal or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), e-mail or other form of electronic transmission (with confirmation of transmission), or certified or registered mail (return receipt requested, postage prepaid). Except as otherwise provided hereunder, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section 22.
If any term or provision herein is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision hereunder or invalidate or render unenforceable such term or provision in any other jurisdiction.
Provisions of HOD’s Proposal or hereunder which by their nature should apply beyond their terms will remain in force after any termination or expiration of HOD’s Proposal, including, but not limited to, Compliance with Laws; Confidential Information; Governing Law; Intellectual Property; Limitation of Liability; Submission to Jurisdiction; and Survival.
25. Amendment and Modification.
The Proposal and these Terms and Conditions may only be amended or modified in a writing stating specifically that it amends the Proposal or these Terms and Conditions, as the case may be, and is signed by an authorized representative of each party.
to Standard Terms and Conditions of Sale – LIMITED WARRANTY
With respect to equipment supplied by a third party integrated into the Goods, warranties for such items are limited to the warranty extended by the third-party supplier. HOD hereby assigns to Buyer all warranties received from its suppliers to the extent HOD is able and agrees to assist Buyer in making any claim pursuant to the said warranties.
With respect to other Goods and Services provided hereunder, subject to the provisions below and elsewhere in these terms and conditions, HOD warrants to Buyer that:
(i) Except as expressly provided herein, for a period of twelve (12) months from delivery to Buyer of the Goods (“Warranty Period”), each Good is warranted against manufacturing defects in material and workmanship. Notwithstanding the foregoing, where SAT or commissioning is required under the Proposal, the Warranty Period shall commence upon the earlier to occur of (a) completion of SAT or commissioning, as reasonably determined by HOD; or (b) Buyer’s first use of the Goods for Productive Use.
(ii) Buyer will receive good and valid title to all Goods, free and clear of all encumbrances and liens of any kind, other than those (if any) specifically reserved hereunder; and
(iii) HOD shall perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement.
The foregoing warranty does not apply to any Good that:
(i) has been subjected to abuse, misuse, neglect, negligence, accident, improper testing, improper installation, improper storage, improper handling, lack of maintenance, abnormal physical stress, abnormal environmental conditions or use contrary to HOD’s specifications or any other instructions issued by HOD, in each case by any Person other than HOD or its authorized Representative;
(ii) has been reconstructed, repaired or altered by Persons other than HOD or its authorized Representative; or
(iii) has been used with any products, hardware or software provided by Buyer or by any third party that has not been previously approved in writing by HOD;
(iv) with respect to third-party Goods, was included at Buyer’s insistence, despite HOD’s written objection;
(v) has failed or not performed due to ordinary wear and tear; or
(vi) is damaged due to Buyer’s use for Productive Use prior to SAT or commissioning if contemplated under the Proposal.
Buyer’s remedy under these terms and conditions is conditioned upon Buyer’s compliance with its obligations below. During the Warranty Period, with respect to any allegedly defective Goods:
(i) Buyer shall notify HOD, in writing, of any alleged claim or defect within 15 business days from the date Buyer discovers, or upon reasonable inspection should have discovered, such alleged claim or defect;
(ii) At HOD’s direction, Buyer shall either (i) ship, at its expense and risk of loss, such allegedly defective Goods to HOD’s facility for inspection and testing by HOD or (ii) allow HOD or its representative access to such Goods and cooperate with HOD or such representative to facilitate inspection and testing;
(iii) if HOD’s inspection and testing reveals, to HOD’s reasonable satisfaction, that such Goods are Defective and any such defect has not been caused or contributed to by any of the factors described above, subject to the exclusions and limitations herein, HOD shall in its sole discretion and at its expense, repair or replace such defective Goods; and
(iv) HOD shall ship to Buyer, at HOD’s expense and risk of loss, the repaired or replaced Goods to Buyer’s U.S. facility as specified by Buyer.
Buyer has no right to return for repair, replacement, credit or refund any Good except as set forth in these terms and conditions. In no event shall Buyer reconstruct, repair, alter or replace any Good, in whole or in part, either itself or by or through any third party. HOD, at its sole discretion, may credit the Prices paid for the Defective Goods (less applicable NRE charges, if any) in lieu of the remedies provided above.
With respect to any Services subject to a claim under the warranty set forth above, HOD shall, in its sole discretion (i) repair or re-perform the applicable Services or (ii) credit the Prices paid for such Services (less applicable NRE charges, if any).
Buyer acknowledges and agrees that the functionality and performance of the Goods is dependent upon a wide variety of factors not attributable to HOD, including without limitation operator experience and attentiveness, proper maintenance, quality and consistency of material and general operating conditions. Goods are not warranted to operate perfectly or without the need for routine adjustments, re-calibration and maintenance.
THE FOREGOING SETS FORTH BUYER’S SOLE AND EXCLUSIVE REMEDY AND HOD’S ENTIRE LIABILITY FOR ANY DEFECTIVE GOODS OR OTHER BREACH OF THE LIMITED PRODUCT WARRANTY SET FORTH ABOVE.
to Standard Terms and Conditions of Sale
SOFTWARE LICENSE ADDENDUM
1. Grant of License; Restrictions
1.1 License Grant. Subject to the terms and conditions of the agreement between Buyer and HOD to which this Addendum is attached (the “Agreement”), this Addendum, the applicable Sales Confirmation, and the payment of all applicable fees (including without limitation annual renewal fees), HOD hereby grants Buyer a perpetual (but terminable pursuant to the terms hereof), limited, non-exclusive, non-transferable license to the Software: (i) to install (except where embedded in the Goods) and use the Software solely for its internal business operations; and (ii) to reproduce and use the Documentation in connection with the use of the Software.
1.2 License Restrictions. Except as expressly permitted in this Addendum, Buyer shall not, directly or through others including, without limitation, Users: (i) use, store, maintain, distribute, sell, transfer, market, sublicense, rent any component(s) of HOD Materials; (ii) except to the extent expressly authorized by law, copy, reverse assemble, reverse compile, decompile, or reverse engineer HOD Materials or use or attempt to derive the source code for any of HOD Materials; (iii) modify, create derivative works, or translate any of HOD Materials or combine or merge any part of HOD Materials with or into any other software or documentation; (iv) offer, use, sublicense or otherwise commercially exploit any of HOD Materials to or for any third party, including without limitation using the Software to provide hosting service bureau, commercial time-sharing, rental, or software as a service (SaaS) service to any third party; (v) permit the use of the Software or any other HOD Materials by third parties; or (vi) reproduce the Software or Documentation without HOD’s copyright and trademark notices. Without limiting any of the foregoing, if a serial number, password, license key or other security device is provided to Buyer for use with the Software, Buyer shall not, and will not permit any User to, share or transfer such security device with or to any other User of the Software or any other third party. Buyer will remain responsible and directly liable to HOD for any and all violations of the terms contained in this Addendum and in the Documentation by any User.
1.3 Third Party Materials. The HOD Materials may contain or may be distributed or bundled with certain third-party software, data, or other materials (collectively, “Third Party Materials”) that are separately licensed by their respective owners, and therefore subject to terms governing the use thereof that are in addition to or different from the terms of this Addendum. Buyer agrees to comply with such additional or different terms and conditions. Such terms may be included or referenced in or with such Third Party Materials, within the Documentation. Information on how to obtain source code for certain third party code, if applicable, may also be found at these locations. The information supplied at these locations is for Buyer’s information only, and any licenses or restrictions contained in this Addendum do not alter any rights or obligations Buyer may have under the terms associated with the Third Party Materials. In addition, Buyer will be solely responsible for obtaining and complying with any licenses that may be necessary to use the Third Party Materials.
1.4 Retention of Rights. The Software is licensed, not sold. Except for such rights as are expressly granted to Buyer by such license, HOD and its Affiliates, or their respective suppliers or licensors where applicable, own, reserve and retain all right, title and interest in and to HOD Materials, and all of HOD’s and its Affiliates’, or their respective suppliers’ or licensors’ Intellectual Property Rights. Buyer shall not use, register or attempt to register, any marks, trade names, or logos, in any manner, that may cause confusion with HOD’s trademarks
and service marks. Buyer will not register, nor attempt to register, any design, patent or copyright which, in whole or in part, incorporates any HOD Materials or Intellectual Property Right. If Buyer provides to HOD any feedback, suggestions, recommendations, or other input, or makes any improvements, enhancements, or modifications, relating to any HOD product, technology, or service (collectively, “Feedback”), then HOD and its Affiliates (as applicable) will be entitled to use the Feedback without restriction or consideration, and without first seeking or obtaining Buyer’s prior approval.
2. [Intentionally Omitted]
2. Warranty and Disclaimers
3.1 Limited Software Warranty. HOD warrants that, during the Warranty Period, the Software will perform substantially in accordance with the specifications in the applicable Documentation in effect when such Software is first delivered to Buyer, provided that the Software and Goods are operated in accordance with the Documentation. Buyer is deemed to accept the Software on the Sales Confirmation Date. Buyer must report any alleged non-conformance of such warranty or any other warranty that is required by law to HOD in writing during the Warranty Period. Buyer’s sole and exclusive remedy and HOD’s sole liability with regard to any breach of the warranty contained in this Section 3.1 shall be, at HOD’s option and expense, to either: (i) repair or replace the non-conforming Software; or (ii) refund to Buyer the fees paid by Buyer for the non-conforming Software. If HOD elects to return the applicable fees paid for the non- conforming Software: (a) Buyer shall promptly return the non-conforming Software and Documentation to HOD or establish to HOD’s satisfaction that it has destroyed/uninstalled the applicable Software and Documentation; and (b) the licenses granted to Buyer hereunder in respect of such non-conforming Software and Documentation shall automatically terminate.
3.2 [Intentionally Omitted]
3.3 Exceptions. The foregoing warranties are solely for the benefit of Buyer, who has no authority to extend such warranties to any other person or entity. Buyer will bear the expenses of asserting a warranty claim. HOD will have no liability to Buyer in respect of any warranty claim made pursuant to Section 3.1 or Section 3.2, or any obligation to correct any defect or problem with the Software, to the extent that it arises out of: (i) any use of the Software by Buyer or its Users not in accordance with the Documentation; (ii) any modification or alteration of the Software by anyone other than HOD or its authorized subcontractors; or (iii) any use of the Software in combination with any other software or equipment not specified in the Documentation as supported by HOD; or (iv) any failure by Buyer to comply with any of its obligations or requirements.
3.4 Disclaimers. EXCEPT TO THE EXTENT THAT ANY WARRANTIES APPLY TO THIS ADDENDUM THAT CANNOT BE DISCLAIMED OR EXCLUDED BY LAW: (I) THE LIMITED WARRANTIES STATED IN SECTION 3.1 AND SECTION 3.2 SET FORTH THE ONLY REPRESENTATIONS AND WARRANTIES CONCERNING THE HOD MATERIALS AND THE PROFESSIONAL SERVICES, AND (II) THE HOD MATERIALS AND PROFESSIONAL SERVICES AND THIRD PARTY MATERIALS ARE PROVIDED “AS IS”, AND HOD AND ITS AFFILIATES AND SUPPLIERS DISCLAIM ALL OTHER WARRANTIES, CONDITIONS AND OTHER TERMS, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, AS TO ACCURACY, RESULTS, PERFORMANCE, TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
4. Limitation of Liability
4.1 Limitations of Liability.
4.1.1 No Consequential Damages. EXCEPT FOR BUYER’S: (I) NON-COMPLIANCE WITH THE USE RESTRICTIONS CONTAINED WITHIN THIS ADDENDUM OR VIOLATION OF ANY OF HOD’S INTELLECTUAL
PROPERTY RIGHTS; AND/OR (II) BREACH OF BUYER’S OBLIGATIONS PURSUANT TO SECTION 7 (CONFIDENTIALITY) OR SECTION 8.3 (EXPORT CONTROLS), IN NO EVENT SHALL EITHER PARTY OR ITS RESPECTIVE LICENSORS OR AFFILIATES BE LIABLE FOR ANY LOSS OF PROFITS OR REVENUES, LOSS OF SAVINGS, GOODWILL, DATA, INACCURACY OF ANY DATA, THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR SOFTWARE, DAMAGE TO REPUTATION, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, HOWSOEVER ARISING AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOS
4.1.2 Damages Cap. Except for (i) its obligations with respect to any Third Party IP Claim as provided in Section 5.1 (HOD Indemnification), or (ii) claims relating to death or bodily injury caused by HOD’s negligence; HOD’s and its suppliers’ and Affiliates’ maximum, cumulative liability for any damages arising under this Addendum regardless of the form of action, whether in contract, tort (including but not limited to negligence or strict liability) or otherwise, shall in no event exceed the amount of fees APPLICABLE TO THE seller materials paid by Buyer to HOD under the Proposal.
4.2 Third-Party Beneficiaries. The warranties made by HOD in this Addendum, and the obligations of HOD under this Addendum, run only to Buyer. Under no circumstances shall any Affiliate of Buyer, or any other person be considered a third-party beneficiary of this Addendum or otherwise entitled to any rights or remedies under this Addendum even if such Affiliates of Buyer or other persons are provided access to HOD Materials pursuant to this Addendum.
4.3 Failure of Remedy. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SET FORTH IN THIS ADDENDUM SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. EACH PARTY HEREBY DISCLAIMS ALL LIABILITY OF ANY KIND ON BEHALF OF ITS LICENSORS AND SUPPLIERS.
5.1 HOD Indemnification. Subject to the applicable limitations set forth in Section 5 above, HOD will defend Buyer and its Authorized Affiliates (each, an “Indemnitee”) against any Third Party IP Claim. HOD shall pay to each Indemnitee the damages, costs, and expenses (including reasonable legal fees) finally awarded against such Indemnitee by a court of competent jurisdiction (or settlements agreed to in writing by HOD), directly attributable to such Third Party IP Claim. HOD’s indemnification obligations under this Section 5.1 are subject to and conditioned upon the applicable Indemnitee(s): (i) providing HOD with prompt written notice of any Third Party IP Claim; (ii) permitting HOD to assume and control the defense and settlement of any Third Party IP Claim; (iii) not prejudicing the defense of any Third Party IP Claim; (iv) mitigating such damages, costs and expenses, as far as reasonably possible; and (v) providing HOD with such assistance, documents, authority and information as HOD may reasonably require in relation to any Third Party IP Claim and its defense or settlement thereof. HOD will have no liability to any Indemnitee under this Section 5.1 for any Third Party IP Claim to the extent that it: (a) arises out of any unauthorized use, reproduction, or distribution of any HOD Materials by any Indemnitee; (b) arises out of any modification or alteration of HOD Materials by anyone other than HOD; (c) arises out of the use of the Software in combination with any other software or equipment or the practice of any method or process not expressly supported in the Documentation; or (d) would have been avoided by the use of the latest Update of the Software provided to the applicable Indemnitee(s) by HOD.
5.2 Buyer Indemnification. Buyer shall, at its own expense, indemnify and hold HOD and its Affiliates harmless from and against any and all third party allegations, threats, claims, suits, and proceedings and all related liabilities, damages, and costs (including, without limitation, reasonable attorneys’
fees) arising out of or in connection with Buyer’s breach of this Addendum.
5.3 Replacement. If any HOD Materials or portion thereof become, or in HOD’s opinion are likely to become, the subject of any claim or suit for infringement of the Intellectual Property Rights of any third party, HOD shall be entitled, at its own expense and option, to elect to either: (i) procure the right for Buyer to continue using HOD Materials (or portion thereof) in accordance with the provisions of this Addendum; (ii) make such alterations, modifications or adjustments to HOD Materials so that the allegedly infringing HOD Materials (or portion thereof) become non- infringing without incurring a material diminution in performance or function, as applicable; (iii) replace the allegedly infringing HOD Materials (or portion thereof) with a non-infringing, substantially similar substitute; or (iv) if HOD determines that neither (i), (ii) nor (iii) can be achieved after the exercise of commercially reasonable efforts, terminate this Addendum and the license for HOD Materials and refund to Buyer all fees paid by Buyer for to the affected HOD Materials, less an amount equal to depreciation of such fees calculated on a three (3) year straight-line basis from the date of delivery. Upon payment of any refund, Buyer acknowledges and agrees that its license for such HOD Materials will immediately and automatically terminate.
5.4 Sole and Exclusive Remedy. THIS SECTION 5 STATES HOD’S SOLE AND ENTIRE OBLIGATION AND LIABILITY, AND BUYER’S SOLE AND EXCLUSIVE REMEDY, FOR INFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.
6. Term and Termination
6.1 Term. This Addendum is effective as of the Sales Confirmation Date and shall continue until terminated pursuant to this Section 6. Except as otherwise specified in a Statement of Work, either Party may terminate any Professional Services for convenience upon thirty (30) days’ prior written notice to the other Party.
6.2 Termination by Either Party for Material Breach. Either Party may terminate this Addendum or any Professional Services effective upon delivery of written notice to the other Party if the other Party materially breaches the Agreement or this Addendum (including Buyer’s failure to pay applicable renewal or other fees) or any Professional Services terms or conditions and fails to cure such breach within thirty (30) days of delivery of written notice thereof.
6.3 Termination for Insolvency. To the extent permitted by law, either Party may terminate this Addendum effective upon delivery of written notice to the other Party upon the occurrence of any of the following events: (i) a receiver or similar officer is appointed for the other Party or its property; (ii) the other Party makes a general assignment for the benefit of its creditors; (iii) the other Party commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief law, which proceedings are not dismissed within sixty (60) days; or (iv) the other Party becomes insolvent or is liquidating, dissolving or ceasing business operations.
6.4 Effect of Termination. Upon the effective date of termination of this Addendum according to this Section 6, all rights of Buyer with respect to HOD Materials shall immediately cease to be of any further force or effect. In addition, Buyer shall certify to HOD within ten (10) days following the effective date of such termination that Buyer has destroyed or has returned said materials and all copies thereof. Termination of this Addendum shall not limit either Party from pursuing other remedies available to it, including but not limited to injunctive relief, nor shall such termination relieve Buyer of its obligation to pay all fees that have accrued prior to the effective date of such termination or are otherwise owed under any Statement of Work.
6.5 Survival. Sections 1.2, 1.3, 1.4, 2.2, 2.3, 3.3, 3.4, 4, 5, 6.4, 6.5, 7, and 8 shall survive any termination of this Addendum.
7. General Provisions
7.1 Assignment. Buyer will not assign or transfer this Addendum or its rights and obligations under this Addendum to any third party without the prior written consent of HOD. For purposes of this Section 7.1, any change of control of Buyer, whether by merger, sale of equity interests, or otherwise, will constitute an assignment requiring the prior written consent of HOD. Any attempt by Buyer to assign this Addendum or its rights and obligations hereunder in violation of this Section 7.1 will be null and void, and will constitute a material breach of this Addendum. HOD is free to assign or transfer any or all of its rights or obligations under this Addendum at its discretion.
7.2 Entire Agreement. This Addendum supersedes all prior or contemporaneous agreements or representations including, without limitation, all non-disclosure or confidentiality agreements, whether written or oral, concerning the subject matter hereof. No addition to, or modification of, any provision of this Addendum shall be binding upon the Parties unless expressly stated to amend the terms hereof and approved by a duly authorized representative of each Party. In event of a conflict between the terms of this Addendum and the terms of the Agreement, or a Sales Confirmation, the terms of this Addendum shall control unless the Agreement or such Sales Confirmation expressly states that it modifies a specific provision within this Addendum, and in such event this Addendum shall only be deemed modified with respect to the Agreement or such Sales Confirmation.
7.3 Export Controls. Buyer acknowledges that the license to use the Software hereunder may be subject to export control laws which may include, without limitation, the United States Export Administration Regulations, the Trading With the Enemy Act, the International Emergency Economic Powers Act, the Arms Export Control Act and regulations promulgated by the United States Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), as amended from time to time (collectively, the “Export Control Laws”). Buyer agrees that all actions taken by Buyer in furtherance of fulfillment of this Addendum will be in compliance with applicable Export Control Laws. Buyer agrees to comply with all applicable Export Control Laws. In addition, Buyer agrees that it will not export, re-export, transfer or license any Software to any third parties that are named as a “Specially Designated National” or “Blocked Person” as designated by OFAC.
7.4 Remedies. Without affecting any other rights or remedies that HOD or its Affiliates may have, the Buyer acknowledges that HOD and/or its Affiliates may be irreparably harmed by any breach of the terms of this Addendum including but not limited to breach of obligations with respect to HOD’s confidential information or violation of any of HOD’s Intellectual Property Rights and that damages alone may not necessarily be an adequate remedy. Accordingly, the Buyer hereby acknowledges that, except as provided in this Addendum and without proof of actual damages, that injunctive relief, specific performance or other equitable relief in favor of HOD or relevant member of HOD’s Affiliates is an appropriate and necessary remedy for breach of the terms of this Addendum.
Unless otherwise defined herein, all capitalized terms used in this Addendum shall have the meanings given to them in this Section 8 or in the Agreement.
“Affiliate” means any entity which controls, is controlled by, or is under common control with HOD or Buyer, as applicable, where “control” means the legal, beneficial or equitable ownership of at least a majority of the aggregate of all voting equity interests in such entity, but only for so long as such control exists.
“Documentation “means the then-current documentation published and generally made available by HOD for the Software as modified by HOD from time to time.
“Intellectual Property Rights” means all rights, title, and interest in and to all intellectual property, including without limitation, any and all patents, design rights, copyrights, trademarks, service marks, trade names, domain names, rights in know-how, confidential information, and other trade secret rights, and all applications, registrations, issuances, reissuances, extensions, continuations, divisions and other counterparts thereof, and all other intellectual property rights and forms of protection of a similar nature anywhere in the world.
“Professional Services” means any consulting or other professional services set forth on a Statement of Work such as installation or application development services.
“Sales Confirmation Date” means the effective date of the applicable Sales Confirmation.
“HOD Materials” means the (i) Software and all whole or partial copies and components thereof, including by way of example and not limitation, all human and/or machine readable instructions and code; files, libraries, modules, menus, algorithms, tools, processes, procedures, concepts, functions, methods, formulae, calls, routines, metadata, macros, templates, scripts, commands, syntax, and other technology and/or components of the Software, and the user interface of the Software (and all features, functions and content associated therewith, such as, its displays, screens, objects, reports, selections, images, shading, colors, organization, associations, structure, positioning, text, look and feel, recordings, or pictures); (ii) HOD’s confidential information and its other Intellectual Property Rights; and (iii) other HOD materials (such as license keys, license enabler files, packaging, Deliverables, and Documentation) which may be made accessible to Buyer in association with this Addendum; but expressly excluding any Third Party Materials.
“Software” means HOD’s proprietary software in object code form listed on a Sales Confirmation, including any Updates made available to Buyer under this Addendum.
“Statement of Work” means a signed writing or other ordering form entered into by the Parties under this Addendum to document the mutually agreed upon Professional Services.
“Third Party IP Claim” means any claim, suit or proceeding brought by a third party to the extent such claim, suit or proceeding is based upon an allegation that the Software, unmodified and in the form originally delivered to Buyer by HOD directly (i) infringes any copyright, trademark, or patent issued as of the Sales Confirmation Date, or (ii) misappropriates any trade secret, and in the case of each of (i) and (ii), only if such direct infringement or misappropriation occurs in the United States of America.
“Update” means any error corrections (patches), and/or Versions of the Software, which HOD elects in its sole discretion to make generally available to its customers at no additional charge. Updates do not include new or separate products, including, without limitation, any Versions, which HOD offers only for an additional fee.
“User(s)” means Buyer’s employees and/or contractors authorized by Buyer to use the Software.
“Version” means a new release of the Software, which includes new as well as improved features and functionalities from the immediately preceding Version of the Software, that HOD elects to make generally available at an additional charge to its customers.