For the purpose of these Terms and Conditions of Sale (“Terms and Conditions”) the following are defined terms:
1.1 “Agreement” means these Terms and Conditions.
1.2 “Product” means the goods of Mountain Leverage as listed on Customer’s purchase order.
1.3 “Software” means: (i) the Vocollect software initially licensed by Customer as specified in the Vocollect License Agreement; (ii) any software later acquired by Customer from Mountain Leverage; and (iii) all modifications, enhancements, new versions, and new releases related to the above which may be provided by Mountain Leverage from time to time pursuant to a support agreement.
2. GENERAL TERMS
2.1 Offer and Acceptance
ANY SALE OR LICENSE OF THE PRODUCTS AND/OR SOFTWARE IS EXPRESSLY CONDITIONED ON CUSTOMER’S ACCEPTANCE OF THE TERMS AND CONDITIONS OF SALE EXPRESSED HEREIN, AND MOUNTAIN LEVERAGE HEREBY REJECTS ANY ADDITIONAL OR DIFFERENT TERMS IN CUSTOMER’S RESPONSE TO THIS OFFER. These Terms and Conditions, together with any and all other agreements referenced herein, and any and all other agreements between Mountain Leverage and Customer, are the final expression and the complete and exclusive statement of the agreement between the parties. In no event shall any oral representations made by any party, including any employee or agent of Mountain Leverage, be considered part of these Terms and Conditions, or apply to the Products and/or Software purchased and/or licensed by Customer. If the Customer’s purchase order, or any other form, contains terms in addition to, or different from,those set forth herein, this writing shall be construed as a “counter offer” and not as an acceptance of Customer’s terms and conditions. This Agreement may not be modified, altered, or waived except in writing and signed by the party to be bound.
3. PAYMENT TERMS
Payment shall be in U.S. Dollars. Invoices for Products and/or Software licensing fees are due on receipt and payable in full within thirty (30) days from the date of invoice. Customer shall be charged interest on any outstanding balance unpaid after thirty (30) days from the date of invoice, at the rate of 1.5% per month or the highest rate permitted by law, whichever is higher, until such outstanding balance is paid. Notwithstanding the foregoing, Mountain Leverage, in its sole and absolute discretion, may require different payment terms for any Customer orders. Mountain Leverage may suspend its performance under this and any other agreement if Customer fails to comply with any part of its payment obligation.
Unless otherwise provided in Mountain Leverage’s quotation or acknowledgement, any taxes (except taxes based on Mountain Leverage’s U.S. source net income), duties, fees, charges, or assessments of any nature levied by any governmental authority in connection with this transaction, whether levied against Customer or against Mountain Leverage, shall be the responsibility of Customer and shall be paid directly by Customer to the governmental authority concerned. If Mountain Leverage is required to pay any such levies and/or fines, penalties, or assessments in the first instance, or as a result of Customer’s failure to comply with any applicable laws or regulations governing the payment of such levies by Customer, the amount of any payments so made, plus the expense of currency conversion, if any, shall be promptly reimbursed in U.S. Dollars by Customer upon submission of Mountain Leverage’s invoices therefor.
4. SHIPPING TERMS
For Products shipped to locations in the United States, shipping will be F.O.B. Honeywell/Vocollect Facilities, Freight Collect. For Products shipped to locations outside the United States, shipping will be FCA Honeywell/Vocollect Facilities, Freight Collect, in accordance with Incoterms 2000. The method of shipment and carrier shall be selected by Mountain Leverage unless Customer specifies a method of shipment and carrier in writing at least ten (10) days prior to shipment. Title and all risks of loss or damage pass to Customer upon delivery to carrier. Ship dates specified by Mountain Leverage are only Mountain Leverage’s best estimates and Mountain Leverage’s only responsibility will be to use reasonable commercial efforts to meet all specified ship dates.
4.2 Rescheduling, Cancellation, and Returns
No order may be cancelled, rescheduled, or reconfigured without Mountain Leverage’s prior written authorization and, in such event, Customer will be liable to Mountain Leverage for a restocking/cancellation fee equal to twenty percent (20%) of the value of the cancelled portion of the order. Subject to Customer’s rights pursuant to Section 6 of this Agreement (Warranties and Remedies), in no event may any Product or Software be returned to Mountain Leverage after shipment.
5. TERMS OF LICENSE FOR SOFTWARE
Mountain Leverage hereby grants unto Customer a limited, non-exclusive, non-transferable, perpetual license to use the Software in object code only, solely for use in accordance with the product specifications, during the term of this Agreement (the “License”), and subject to the provisions of Sections 5.2 through and including 5.7 below. Customer’s use of the Software is restricted to the number of users “seats” purchased by Customer. Mountain Leverage, and its licensors and/or suppliers, as applicable, shall retain all right, title, and interest in and to the Software, including all patents, copyrights, trademarks, trade secrets, and other proprietary rights therein. Customer may not make copies of the Software, except for one (1) additional archival or back-up copy. All copies of the Software, whether authorized or unauthorized, are subject to the terms and conditions of this Agreement. Customer shall not, nor shall Customer authorize any third party, to (i) modify, translate, localize, or create derivative works of the Software; (ii) distribute, sell, lend, rent, transfer, convey, decompile, disassemble, reverse engineer or attempt to reconstruct, identify or discover any source code, underlying user interface techniques or algorithms of the Software by any means whatsoever, for any purpose whatsoever; (iii) grant any sublicense, leases, or other rights in and to the Software to any third party; (iv) utilize the Products and/or Software to provide services to any third party that are the same as or similar to those offered by Mountain Leverage; or, (v) take any action that would cause the Software to be placed in the public domain. The copyright notices and other proprietary legends shall not be removed from the Software.
5.2 The Software includes or is distributed with certain third party software (“Third Party Software”). Such Third Party Software is licensed to Customer pursuant to the license terms of such Third Party Software which are accessible at www.vocollect.com/sla. By signing below, Customer acknowledges it agrees to the license terms applicable to the Third Party Software. Mountain Leverage shall not be responsible for providing Customer with any Microsoft® client access licenses which may be necessary to use the Software.
5.3 Voice Application Software
The Software may be used by Customer or its Affiliates. For purposes of this Agreement, “Affiliate” shall mean any entity that controls, is controlled by, or is under common control with Customer, and any reference to control shall mean ownership of more than fifty percent (50%) of the outstanding voting equity interest of an entity. Customer shall be responsible for the breach by any Affiliate of the terms of this Agreement and Customer shall indemnify Mountain Leverage for any such breach.
5.4 Software Support Plan
A Software Support Plan may be purchased separately pursuant to Mountain Leverage’s then-current service and support contract terms. Any upgrades and releases which are provided by Mountain Leverage under the Vocollect Service and Support Agreement, or licensed separately from Mountain Leverage, shall be considered part of the Software and shall be governed by the provisions of this Agreement. Mountain Leverage provides no installation, training, or education for the Products and/or Software unless Customer has specifically purchased such services.
5.5 Termination of License
This Agreement is effective until terminated. Customer may terminate this Agreement by destroying all copies of the Software and purging same from all memory devices. In the event of a material breach by Customer, Mountain Leverage may immediately terminate this Agreement by written notice to Customer. For purposes of this Agreement, a material breach shall mean an infringement or misappropriation of Mountain Leverage’s intellectual property rights or a breach of Section 5.1 or Section 5.6. For any other breach of this Agreement, Mountain Leverage shall provide Customer with written notice of such breach and, if Customer does not cure the breach within fifteen (15) days of the giving of such notice by Mountain Leverage, Mountain Leverage may immediately terminate this Agreement. Upon any termination, Customer shall destroy all copies of the Software or, if requested by Mountain Leverage, return all copies of the Software to Mountain Leverage and have an appropriately authorized representative certify in writing the return or destruction of all copies of the Software. Notwithstanding termination of this Agreement, Customer shall pay all outstanding Invoices for Products and/of Software licensing fees as prescribed above in Section 3.
Customer acknowledges that the Software, related documentation, and other confidential information related to the Products which may be provided by Mountain Leverage or its authorized representative (collectively “Confidential Information”) is the confidential information of Mountain Leverage. Customer shall not disclose the Confidential Information to third parties or use the Confidential Information other than in connection with its license rights under this Agreement. Customer agrees that it shall take reasonable measures to protect the secrecy of, and to avoid disclosure and unauthorized use of, all Confidential Information. Without limiting the foregoing, Customer shall take at least those measures that it takes to protect its own most highly Confidential Information.
Confidential Information shall not include information: (a) already in Customer’s possession at the time of disclosure, (b) that is or later becomes part of the public domain through no fault of Customer, or (c) is required to be disclosed pursuant to law or court order, provided that Customer shall notify Mountain Leverage prior to such disclosure and assist Mountain Leverage in preventing or limiting such required disclosure. Customer agrees and acknowledges that any breach of the provisions contained in this Agreement regarding ownership or confidentiality shall cause Mountain Leverage irreparable harm, and that Mountain Leverage may obtain injunctive relief without the requirement to post a bond, as well as seek any and all other remedies available to Mountain Leverage in law and in equity in the event of breach or threatened breach of such provisions.
6. WARRANTIES AND REMEDIES
Mountain Leverage agrees to facilitate warranty claims on behalf of Customer for the Talkman® terminals, headsets, terminal chargers, battery chargers, and batteries during the applicable “Warranty Periods,” which is one (1) year for the Talkman® terminals, headsets, terminal chargers, and battery chargers, and six (6) months for batteries. All Warranty Periods begin on the earlier of: (i) the date of Product installation, or (ii) thirty (30) days from the Product ship date. All other items sold by Mountain Leverage are subject to the terms and conditions of the original manufacturer’s warranty.
Provided that Customer is not in breach of any of the restrictions in this Agreement, Mountain Leverage warrants that the Software will substantially conform to the description documentation agreed upon by the parties as it pertains to the voice solution and Software, for a period of ninety (90) days from the date the Software is shipped.
The SOLE AND EXCLUSIVE REMEDY on which Customer may rely for a breach of this warranty and Mountain Leverage’s ONLY OBLIGATION shall be, at the sole and absolute discretion of Mountain Leverage, (i) the repair of the Products at a Vocollect facility or at Vocollect authorized repair centers; or, (ii) the replacement of the Products with a unit of comparable value. For such replacement, Customer shall, at its own expense, ship the defective Products to Vocollect Inc. or one of Vocollect’s designated authorized repair centers, and Vocollect shall ship the repaired or replaced Products back to Customer at Vocollect’s expense. Parts supplied under this warranty may be new or rebuilt at the option of Vocollect, Inc.
In the event of a breach of the warranty for the Software, Mountain Leverage’s sole and exclusive obligation shall be, at Mountain Leverage’s option, correction of the substantial nonconformity, or refund of the applicable license fee for the Software.
6.2 Exclusions to Warranty
The above warranty is made subject to: (i) Customer’s proper use of the Products and Software for their intended purpose; (ii) Customer’s use of the most recent version of the Software provided to Customer by Mountain Leverage; and, (iii) claims must be reported to Mountain Leverage within the applicable Warranty Period and must be properly documented by Customer in the sole and absolute discretion of Mountain Leverage. The warranty does not cover any Products or Software which: (i) have been misused, subjected to unauthorized use, or modified by a party other than Mountain Leverage, or its authorized repair centers; (ii) have not been properly installed; (iii) have been subject to unusual stress; (iv) have not been properly maintained in accordance with the operating instructions provided with the Products or Software; (v) do not contain original serial numbers and other identification marks; (vi) have a defect which results from acts or omissions caused by persons other than Mountain Leverage or from products, material, or software not provided by Mountain Leverage; or, (vii) have a defect which has not been properly documented by Customer and reported to Mountain Leverage during the applicable Warranty Period as provided for hereinabove.
6.3 Disclaimer of Warranties
Mountain Leverage gives no other warranties for the Products or Software except those expressly contained in these Terms and Conditions. MOUNTAIN LEVERAGE DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, AND WARRANTIES OF NONINFRINGEMENT.
7.1 Limitation of Liability
IN NO EVENT SHALL MOUNTAIN LEVERAGE OR ANY OF ITS LICENSORS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR SPECIAL, INDIRECT, CONSEQUENTIAL, PUNITIVE, OR INCIDENTAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUES AND LOSS OF PROFITS, WHETHER ARISING UNDER CONTRACT, WARRANTY, OR TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR ANY OTHER THEORY OF LIABILITY ARISING OUT OF, OR IN CONNECTION WITH, THE USE OF, OR INABILITY TO USE, THE PRODUCTS (INCLUDING THE SOFTWARE), EVEN IF MOUNTAIN LEVERAGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Regardless of whether any remedy set forth herein fails as to its essential purpose or otherwise, the total liability of Mountain Leverage or any of its licensors, regardless of the form of the action, shall not exceed the amount paid by Customer for the license fee for the applicable Software or the purchase price for the Products upon which such claim is based.
8. GENERAL PROVISIONS
If any of the provisions of these Terms and Conditions are declared to be invalid, such provisions shall be severed from these Terms and Conditions and the other provisions hereof shall remain in full force and effect.
All notices pursuant to these Terms and Conditions shall be in writing and addressed to the Customer at the address listed on the purchase order, or to Mountain Leverage at its most recent address, and shall be deemed made or given when delivered personally or placed properly addressed and postage prepaid in the mail of any jurisdiction, or by electronic mail with delivery and read receipts or facsimile.
8.3 Choice of Law; Jurisdiction</h3
All questions, disputes or actions arising in connection with these Terms and Conditions and the purchase or license of the Products and/or Software shall be construed, resolved and governed under the laws of the State of West Virginia, without regard to its conflicts of law provisions and excluding the United Nations Convention for the International Sale of Goods.
8.4 Export Controls
Customer warrants that it is, and will remain, in compliance with all export and re-export requirements, including, but not limited to the Export Administration Act and regulations (the “Regulations”), the Arms Export Control Act and regulations, and any orders and licenses issued thereunder (the “Export Laws”). Customer additionally warrants that it has not been, and is not currently, debarred or suspended from or otherwise prohibited or impaired from exporting, re-exporting, receiving, purchasing, procuring, or otherwise obtaining any item, product, article, commodity, or technical data regulated by any agency of the Government of the United States.
8.5 Force Majeure
Mountain Leverage shall not be liable for any delay in delivery or failure to deliver, due to (i) fires, floods, strikes, or other labor disputes; accidents to Mountain Leverage’s facilities; acts of sabotage, riots, terrorism, or natural disasters; difficulties procuring materials; shortages of raw materials and energy supplies; interference by civil or military authorities, whether legal or de facto; governmental restrictions, including but not limited to failure to obtain export licenses;delays in transportation or lack of transportation facilities; restrictions imposed by federal, state, or other governmental legislation or rules or regulations thereof, including a force majeure event occurring in respect to one of Mountain Leverage’s suppliers; and (ii) any other cause beyond Mountain Leverage’s control.
This Agreement constitutes the entire Agreement between the Customer and Mountain Leverage with respect to the subject matter hereof, and no waiver, modification, alteration, or amendment of any of the terms or conditions hereof shall be effective unless and until set forth in a writing duly signed by an officer of Mountain Leverage and by Customer.
The delegation or assignment by Customer of any or all of its duties or rights hereunder without Mountain Leverage’s prior written consent, which shall not be unreasonably withheld, shall be null and void and of no force and effect. The failure of Mountain Leverage to object to any conduct or violation of this Agreement will not be deemed to be a waiver of any rights or remedies Mountain Leverage may have under this Agreement. This Agreement is to be binding upon the parties hereto and their respective successors and assigns. Sections 5.5, 5.6, 6.2, 6.3, 7 and 8 shall survive termination or expiration of this Agreement for any reason.