APPLICABILITY. Subject to the terms and conditions of this Sanveo Terms and Conditions, the applicable Order (as defined) and any related invoice, which are incorporated into this Sanveo Terms and Conditions as if fully set forth herein (collectively “Agreement”), Sanveo Inc. (“Sanveo”) will make available and provide to you (“Customer”) the services (“Services”) and solutions (“Solutions”) for a specified project (the “Project”) as described in the Order. “Order,” for purposes of this Agreement, means the Confidential Proposal prepared and delivered by Sanveo to Customer that describes the Services and Solutions which Sanveo is willing to provide to Customer for the Project or a similar written or electronic document prepared by Sanveo that sets forth the specific Services and Solutions which Sanveo is willing to provide to Customer for the Project. Sanveo’s acceptance of any Order is conditioned upon Customer’s assent to the Agreement. Customer’s execution of an Order, or receipt of any Services or Solutions referred to in any Order, each constitute Customer’s assent to this Agreement. Only this Agreement applies to any Order and all other terms and conditions proffered by Customer, whether as part of any Order or otherwise, are rejected and do not form a part of the Agreement. Sanveo’s delay or failure to object to any terms or conditions received from Customer will not constitute a waiver of any term or condition of the Agreement.The parties further agree as follows.
PRICE. The prices of Services and Solutions for any Project are set forth in the applicable Order prepared by Sanveo or any related invoice delivered to Customer by Sanveo for the Project.
PAYMENT. Unless otherwise expressly agreed by Sanveo, all invoices are due and payable, in full, within thirty (30) of the date of the invoice. Payments are required to be made in United States dollars, unless Sanveo otherwise expressly agrees in writing to an alternative form of currency. Customer is not entitled by reason of any set-off, counter-claim, abatement, or other similar deduction to withhold or reduce payment of any amount due to, or otherwise reflected in an invoice delivered by, Sanveo. Payment obligations to Sanveo are entirely separate from and unaffected by the payment obligations under any agreement that Customer may have with any of its customers, prime contractors, subcontractors or other parties involved in the Project. Sanveo fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”), unless Sanveo determines that it is required by law to collect Taxes from Customer, in which event the invoice will reflect, and include, those additional Tax amounts payable by Customer. Customer is fully responsible for paying all Taxes associated with its obligations under this Agreement. Sanveo is responsible solely for Taxes assessable against it based on Sanveo’s income, property and employees. If Customer disputes, on a bona fide basis, any Sanveo fees or expenses included in an invoice, Customer must notify Sanveo within ten (10) days of receipt of the invoice setting forth the specific reasons for the purported dispute. In such event, Customer must promptly pay to Sanveo any undisputed amounts within the time period specified in the relevant invoice. A failure to pay undisputed amounts will be considered an admission that all amounts included within the referenced invoice are due and payable to Sanveo and Customer will then be deemed to have unconditionally waived any of its previously asserted objections to amounts with respect to which Customer has previously objected or disputed. If Customer fails to pay any sums correctly due to Sanveo by the due date for payment, then Sanveo shall be entitled to (i) suspend performance of its obligations under the Agreement, which includes all work referenced in any Order, from the due date for payment until payment in full is made; and/or (b) charge interest on any unpaid such sums from the due date for payment until payment in full is made accruing on a daily basis and compounded monthly at the rate of one and one half percent (1.5%) per month or such maximum annual interest as is permitted by law, whichever is less. Time is of the essence regarding Customer’s payment of its obligations to Sanveo under this Agreement.
INTELLECTUAL PROPERTY AND RELATED RIGHTS. All intellectual property rights in any Services or Solutions remain entirely vested in Sanveo or its licensors, including all intellectual property rights developed in connection Sanveo’s performance of the Agreement, unless otherwise expressly agreed by Sanveo in the applicable Order. Unless otherwise expressly set forth in any Order, no rights are transferred or licensed to Customer as a result of the provision or delivery of any Services or Solutions. Title to all software remains vested in Sanveo or its licensors. Any software is licensed to Customer for use with any Services or Solutions and is provided “AS IS.” Customer must not, nor permit others to, manufacture, reverse engineer, translate, decompile, create derivative works based on the whole or any part of software delivered in connection with Services or Solutions, disassemble, adapt, modify, duplicate, or otherwise copy or reproduce any software without obtaining Sanveo’s prior written consent. Customer grants to Sanveo and its affiliates a worldwide, perpetual, irrevocable, royalty-free, transferable license, and sub-license, to make, use, sell, offer for sale, import, or otherwise incorporate into any Sanveo services and solutions, all suggestions, enhancements, comments, recommendations or corrections (“Feedback”) provided by Customer to Sanveo, whether in connection with the Project or otherwise. Sanveo shall be entitled to use the Feedback in any way and for any purpose without restriction, payment or consent.
EXPORT CONTROL. Customer will comply with all applicable export control laws and regulations and will indemnify Sanveo for all damages, including reasonable attorneys’ fees, resulting from Customer’s failure to do so.
Period and Remediation. Sanveo warrants, for a period of thirty (30) days from date of delivery to Customer, that all (i) Services have been provided in a good and workmanlike manner, consistent with prevailing industry standards and (ii) Solutions have been delivered free from defects in material and workmanship, and conform to Sanveo’s published specifications, if any, in all material respects. For Services or Solutions not conforming to this warranty, the following conditions must be met: (1) Customer must notify Sanveo in writing promptly on discovery of the deficiency or non-conformity with reasonable detail within the warranty period; and (2) Sanveo will evaluate the alleged non-conformity and confirm the claimed deficiency or non-conformity is present and not attributable to a Disqualifying Event (as defined below). If the foregoing conditions are met, Sanveo, at its sole option, will, subject the exclusions referred to in Section 6(b) below, either, remediate the deficient or non-conforming Services or Solutions or credit Customer’s account for a pro rata portion of Customer’s unused payment(s) to Sanveo, to reflect the relative costs and value of the Services or Solutions delivered to Customer through the date of credit, as determined by Sanveo (subject to reduction for any out-of-pocket costs or expenses incurred by Sanveo).
Exclusions. The foregoing warranties do not apply: (1) in cases where Services or Solutions are used, or integrated with, third party products or services that have not been authorized by Sanveo; (2) to Services or Solutions for which claims are being made by anyone other than Customer; (3) to any Services or Solutions that are provided AS IS and WITH ALL FAULTS; and (4) to any gratuitous services, including information, assistance, or advice that, though not invoiced to and paid by Customer hereunder, is provided by Sanveo. Warranty claims may only be made by the Customer and are not assignable to third parties. Final determination of warranty eligibility will be made by Sanveo.
Exclusive Warranties. THESE WARRANTIES ARE IN LIEU OF AND EXCLUDE (TO THE FULLEST EXTENT PERMITTED BY LAW) ALL OTHER WARRANTIES, CONDITIONS, STIPULATIONS, STATEMENTS, TERMS, OR UNDERTAKINGS OF ANY KIND, EXPRESS OR IMPLIED, WRITTEN OR ORAL, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THEIR CONDITION, QUALITY, PERFORMANCE, MERCHANTABILITY, OR FITNESS FOR PURPOSE, AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING OR USAGE OF TRADE. UPON THE EXPIRATION OF THE APPLICABLE WARRANTY PERIOD, ALL WARRANTY LIABILITY TERMINATES. THIS SECTION 6 CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES FOR BREACH OF THESE WARRANTIES. SANVEO WILL HAVE A REASONABLE TIME TO PROVIDE A REMEDY. THESE WARRANTIES CANNOT BE EXPANDED EXCEPT IN A WRITING EXECUTED BY AN AUTHORIZED REPRESENTATIVE OF SANVEO. VERBAL REPRESENTATIONS AND TECHNICAL ASSISTANCE WILL NOT EXPAND THESE WARRANTIES.
PATENT AND COPYRIGHT INFRINGEMENT
Defense and Indemnity. Subject to the exclusions and conditions set forth in this Section 7 below, Sanveo will defend any suit or proceeding brought against Customer to the extent it is based upon a claim that Services or Solutions delivered by Sanveo to Customer directly infringe a valid United States or European Union member country patent or copyright (“Claim”). Notwithstanding the foregoing, Sanveo will have no liability or obligation under this Section 7 regardless of the theory of the Claim where the Claim arises out of or is connected with: (a) Sanveo’s compliance with Customer’s designs or specifications; (b) Customer’s use of Services or Solutions in combination with any other product, process, or system that is not provided by Sanveo, (c) modification of any Services or Solutions after Sanveo delivered them, (d) use of Services or Solutions in a manner for which they were not intended or designed, or (e) Sanveo’s compliance with standards issued by any public or private standards body, and the alleged infringement would not have occurred but for compliance with that standard. If a suit or claim is brought against Sanveo alleging that Services or Solutions violate a patent, copyright, trademark, or other intellectual property right and any of the events referred to in clauses (a) through (d) of this Section 7 occur, Customer will defend that suit or claim and indemnify Sanveo and keep Sanveo indemnified for, from, and against all damages and costs awarded against Sanveo, including reasonable attorneys’ fees and costs.
Conditions. As conditions to receiving any benefit under this Section 7, Customer must: (a) provide prompt written notice of a Claim, including copies of all materials, communications, notices, and other information relating to the Claim, to Sanveo; (b) give Sanveo all information, assistance (for which Sanveo will bear the reasonable expense), and authority Sanveo deems necessary, to defend or settle the Claim; (c) not make any admission, compromise, representation with respect to the merits or defense of the Claim, or accept or settle any Claim; and (d) give Sanveo exclusive control of the defense of the Claim, including the right to select counsel and to settle the Claim without Customer’s consent. If these conditions are complied with, and subject to the limitation of liability (Section 10) in the Agreement, Sanveo will bear the cost of the defense and will pay all final damages and costs awarded against Customer, excluding Customer’s attorneys’ fees or costs.
Remedies. If Customer’s use of Services or Solutions, which are the subject of a Claim is enjoined, Sanveo will, in its sole discretion: (a) procure for Customer the right to continue using the affected Services or Solutions; (b) replace the affected Services or Solutions with non-infringing Services or Solutions; (c) modify the Services or Solutions to make them non-infringing; or (d) refund Customer’s purchase price less depreciation subject to Sanveo’s internal accounting policies, upon Customer’s discontinued use, or return if possible, of the affected Services or Solutions. SECTION 7 STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND SANVEO’S SOLE AND EXCLUSIVE LIABILITY FOR INTELLECTUAL PROPERTY INFRINGEMENT AND, UNLESS OTHERWISE EXPRESSLY AGREED BY SANVEO IN THE APPLICABLE ORDER, IS FURTHER SUBJECT TO THE LIMITATION OF LIABILITY SET FORTH IN SECTION 10.
FORCE MAJEURE. Sanveo will not be liable for delays or failures to perform an obligation under the Agreement attributable to an unforeseen circumstance or a cause beyond Sanveo’s reasonable control (“Force Majeure Event”). During the Force Majeure Event, Sanveo may suspend, modify, or cancel the delivery of Services or Solutions without penalty.
CANCELLATIONS AND DEPENDENCIES
Customer Failures and Dependencies. Sanveo may be unable to perform or provide Services to Customer if Customer fails to provide or deliver to Sanveo information, materials or other data on which the performance of Sanveo’s obligations is dependent or on which Sanveo may rely, and Customer understands that Sanveo’s performance may have, and may be subject to, these dependencies. If Customer fails to perform any obligation under an Order or otherwise does not timely provide or deliver to Sanveo information, materials or other data on which Sanveo may be dependent or on which it may rely in the performance or delivery of any Services or Solutions, then, in such event, Sanveo may cancel, terminate or suspend its performance under any applicable Order without affecting any contractual, legal, or equitable rights or remedies that Sanveo may have to Customer. Without limiting its remedies, Sanveo will be entitled to reimbursement of all costs, direct and indirect, incurred or committed, plus prorated anticipated profits based on any cancellation, suspension or termination undertaken pursuant to the preceding sentence. Continued delivery of any Services or Solutions after Customer’s failure will not constitute a waiver of Sanveo’s rights or remedies or a breach of Sanveo’s obligations under the Agreement.
Customer Cancellation. Customer may not cancel any Order, this Agreement, or any portion of an Order, without Sanveo’s prior written consent, which may be granted, withheld or conditioned by Sanveo in its sole discretion.
LIMITATION OF LIABILITY
In General. IN NO EVENT, WILL SANVEO BE LIABLE, WHETHER IN CONTRACT, WARRANTY, REPRESENTATION, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), STRICT LIABILITY, INDEMNITY, CONTRIBUTION OR ANY OTHER THEORY, FOR ANY INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL LOSS, DAMAGE, COST OR EXPENSE OF ANY KIND WHATSOEVER, HOWSOEVER CAUSED, OR ANY LOSS OF PRODUCTION, COST OF PROCUREMENT OF SUBSTITUTE GOODS, LOSS OF CAPITAL, LOSS OF SOFTWARE, LOSS OF DATA, LOSS OF PROFIT, LOSS OF REVENUES, CONTRACTS, BUSINESS, COST OF REWORK, LOSS OF GOODWILL OR ANTICIPATED SAVINGS, WASTED EXPENSES, OR WASTED MANAGEMENT TIME, EVEN IF SANVEO HAS BEEN ADVISED OF THEIR POSSIBILITY OR THEY ARE FORESEEABLE.
Aggregate Limit of Liability. SANVEO’S TOTAL AGGREGATE LIABILITY IN CONTRACT, WARRANTY, REPRESENTATION, TORT
(INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), STRICT LIABILITY, INDEMNITY, CONTRIBUTION, OR OTHERWISE, WILL NOT EXCEED THE AMOUNT PAID TO SANVEO UNDER THE AGREEMENT GOVERNING THE PROJECT THAT GIVES RISE TO THE CLAIM. LIABILITY AMOUNTS MAY NOT BE AGGREGATED ACROSS DIFFERENT PROJECTS EVEN IF THE PROJECTS INCLUDE THE SAME OR SIMILAR PARTIES.
Death and Personal Injury. NOTHING IN THIS AGREEMENT EXCLUDES OR LIMITS THE LIABILITY OF EITHER PARTY FOR DEATH OR PERSONAL INJURY ARISING FROM NEGLIGENCE OR ANY OTHER LIABILITY NOT EXCLUDABLE BY LAW.
Software Code. NOTWITHSTANDING ANYTHING TO THE CONTRARY, FOR CODE (SOFTWARE OR FIRMWARE) SUPPLIED PURSUANT TO CUSTOMER SPECIFICATIONS, OR FURNISHED OR CREATED BY ANYONE OTHER THAN SANVEO, SANVEO WILL HAVE NO LIABILITY FOR ANY USE OF IT, ERRORS CONTAINED IN IT, INTEROPERABILITY, OR CLAIMS OF INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS DUE TO ITS PUBLICATION, DISTRIBUTION, SALE, OR USE. CUSTOMER WILL DEFEND ALL SUITS AND CLAIMS AND INDEMNIFY SANVEO AND KEEP SANVEO INDEMNIFIED FOR, FROM, AND AGAINST ALL RESULTING CLAIM, LOSS, DAMAGE, AWARD, AND COST (INCLUDING BUT NOT LIMITED TO REASONABLE LEGAL FEES) ARISING OUT OF THE CODE.
Safety. SERVICES AND SOLUTIONS ARE NOT SPECIFICALLY DESIGNED FOR USE IN LIFE SUPPORT, SAFETY EQUIPMENT OR OTHER APPLICATIONS WHERE MALFUNCTION CAN RESULT IN PERSONAL INJURY OR DEATH. CUSTOMER’S USE OF SERVICES OR SOLUTIONS FOR SAFETY CRITICAL APPLICATIONS IS AT ITS OWN RISK. CUSTOMER WILL DEFEND ALL SUITS AND CLAIMS AND INDEMNIFY SANVEO AND KEEP SANVEO INDEMNIFIED FOR, FROM, AND AGAINST ALL RESULTING CLAIM, LOSS, DAMAGE, AWARD, AND COST (INCLUDING BUT NOT LIMITED TO REASONABLE LEGAL FEES) ARISING OUT OF USE OF SERVICES OR SOLUTIONS IN SAFETY CRITICAL APPLICATIONS.
Allocation of Risk. The allocation of risk contained in this Agreement is reflected in the price of the Services and Solutions, and is reasonable in all the circumstances having regard to all relevant factors, including the parties’ bargaining positions.
Nondisclosure of Trade Secrets and Confidential Information; No License. Customer must maintain the secrecy of and not disclose, without Sanveo’s express written consent, all trade secrets and proprietary or confidential information that Customer receives from Sanveo. If Sanveo and Customer execute a separate confidentiality or non-disclosure agreement (an “NDA”), the separate NDA will control and supersede the confidentiality provisions set forth in this Section 11 to the extent that the NDA expressly provides for that precedential and controlling effect. Within thirty (30) days after all Services or Solutions have been delivered under any Order, Customer may request that Sanveo (a) return to Customer all documents or copies of documents that Customer provided to Sanveo as well as work papers, reports or other documents Sanveo prepared in the course of performing its Services or delivering its Solutions that are not the property of Sanveo or (b) destroy the foregoing materials. If Customer does not timely request the return or destruction of documents or materials pursuant to the immediately preceding sentence, Sanveo shall make the determination. In addition to the foregoing, Sanveo shall have the right to retain a copy of all reports and similar materials prepared in connection with any Services or Solutions solely for Sanveo’s internal use or as otherwise required by Sanveo’s then current retention policies.
Pass-down Provisions. If Services or Solutions are to be used in the performance of a prime or other form of contract for which pass-down, pass-through or similar clauses or provisions are purportedly applicable to Sanveo or which Customer otherwise seeks to impose upon Sanveo, Customer must inform Sanveo and let it review and evaluate any those clauses or provisions before Sanveo begins performance, so that Sanveo may decide whether to perform or otherwise become obligated thereunder. If Sanveo is notified, or becomes aware, of pass-down, pass-through or similar clauses or provisions after it enters into any applicable agreement with Customer or starts performance of any Services or Solutions, Sanveo may, at any time, rescind and terminate the applicable Order and rescind its willingness to proceed. In the event that Sanveo rescinds its willingness to proceed or terminates the Order pursuant to this Section 11(B), then, in such event, Sanveo shall have no liability to Customer or any other person for its termination or rescission; provided, further, that Customer shall pay to Sanveo any amounts due to Sanveo through the date of rescission or termination and shall not be relieved of such payment obligation.
Assignment. Sanveo may assign, transfer, or subcontract its rights and obligations under the Agreement. Customer may not assign, transfer, or subcontract its rights or obligations, except to a successor in interest to all or substantially all of the assets of Customer, without Sanveo’s prior written consent. A permitted assignment by Customer will not, however, relieve it from its obligations. Except as set forth in this Section 11(C), the rights and obligations of this Agreement will inure to the benefit of the respective parties, their successors, and assigns.
Notices. Notices required or permitted by the Agreement must be in writing and signed by an authorized representative of the party providing notice, addressed to the receiving party as specified in writing, and sent by courier, certified mail, facsimile, personal delivery, or email. If notice is sent by facsimile, in-person delivery, or email, notice will be deemed received and effective upon the earlier of actual receipt (except in the case of email, if an “out-of-office”, automatic reply or similar form of acknowledgement is the sole indication of receipt) or one business day after delivery. If notice is sent via other delivery methods, notice will be deemed received and effective upon the earlier of actual receipt or five business days after delivery.
Entire Agreement. The Agreement constitutes the entire agreement and understanding of the parties with respect to the subject matter thereof and supersedes all prior written or verbal communications, representations, agreements, understandings, proposals, negotiations, and promises.
Modification and Waiver. Except as expressly set forth in the Agreement, no modification or waiver of the Agreement is effective unless it is in writing and signed by an authorized representative of the party charged with having given the waiver, or both parties in the event of a modification. No failure or delay by Sanveo to assert any rights or remedies will be construed as a waiver or a continuing waiver of its rights and remedies, nor will a failure or delay to assert a breach be deemed to waive that or any other breach.
Survival. If a part of the Agreement is found by a court of competent jurisdiction to be invalid or unenforceable, that part will be severed from the Agreement, which will continue to be valid and enforceable to the fullest extent permitted by law. Sections 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11 will survive any cancellation or termination of the Order or Agreement.
Ethical Behavior. The parties will not offer or pay any bribe or any improper benefit, direct or indirect, to any individual, public servant, or corporation and will act in conformity with the United States Foreign Corrupt Practices Act (“FCPA”) or such other similar laws in any relevant jurisdiction. Without limiting the generality of Customer’s obligation to comply with the FCPA, with respect to foreign (non-U.S.) business, Customer will not take any act in furtherance of directly or indirectly (through a third party or otherwise) paying, promising to pay, gifting, promising to give, or authorizing the giving of anything of value to any foreign official, foreign political party (or one of its officials), or candidate for foreign political office, for the purpose of securing any improper advantage in order to assist in obtaining or retaining business for or with, or directing business to, any person by: influencing any act or decision in that entity’s official capacity; inducing a foreign official to, or omit to do, any act in violation of the official’s lawful duty; inducing that entity to use its influence with a foreign government or instrumentality of a foreign government to affect or influence any act or decision of the government or instrumentality.
Customer will immediately inform Sanveo if it has, or believes it may have, failed to comply with, this Section 11(H).
Governing Law and Venue. The Agreement will be construed and enforced according to the internal laws of the State of California, excluding its conflicts-of-law principles. Courts in the Northern District of California shall have exclusive jurisdiction over all disputes arising out of the Agreement and each party submits to the exclusive jurisdiction of those courts. The parties waive the right to trial by jury. In addition to all other rights and remedies, the prevailing party in any litigation proceeding will be entitled to reimbursement from the other party for its expenses incurred in the proceeding, including reasonable legal fees.