These Terms and Conditions of Sale (“Terms and Conditions”) cover sales of products and provision of services by ShockWatch, Inc. dba SpotSee, Thermographic Measurements Companies, and LCR Hallcrest, LLC. (collectively, “SpotSee”). We encourage you to read the entire set of terms and conditions.
1. Applicability: These Terms and Conditions are an essential part of, and applicable to any sale of, or offer to sell, products or services by SpotSee. These Terms and Conditions are integral to, and expressly incorporated by reference into, any document or communication issued by SpotSee with respect to any sale of or offer to sell products or perform services. Unless otherwise expressly agreed in writing by SpotSee, these Terms and Conditions, together with SpotSee’s order acknowledgment and invoice, constitute the sole terms and conditions with respect to any purchase and sale of products or provision of services by SpotSee to a buyer or user (“Buyer”). Any additional or inconsistent terms and conditions contained in any written expression of acceptance, purchase order, or any other document issued by the Buyer of such products or services (e.g., a Purchase Order or Sales Acknowledgement) are rejected by SpotSee. Buyer agrees, acknowledges and consents that Buyer’s competing Terms and Conditions, if any, shall have no force and no effect when a court or other authority of competent jurisdiction makes a legal determination of what contractual terms, conditions and provisions are valid and control the sale of SpotSee’s products or provision of services to Buyer. Buyer agrees that unless explicitly stated otherwise, any new features that augment or enhance the services, and/or any new services subsequently purchased by Buyer will be subject to this Agreement. THIS IS A LEGAL AGREEMENT. BY PLACING AN ORDER FOR PRODUCTS OR USING SERVICES FROM SPOTSEE, BUYER IS ACCEPTING AND AGREEING TO THESE TERMS AND CONDITIONS. BUYER REPRESENTS AND WARRANTS THAT BUYER HAS THE RIGHT, AUTHORITY, AND CAPACITY TO ACCEPT AND AGREE TO THESE TERMS AND CONDITIONS. IF BUYER DOES NOT AGREE WITH ANY OF THE PROVISIONS OF THESE TERMS AND CONDITIONS, BUYER SHOULD NOT PURCHASE PRODUCTS OR USE SERVICES FROM SPOTSEE. SpotSee reserves the right to change these Terms and Conditions at any time. Buyer should review the Terms and Conditions each time prior to making purchases or using services from SpotSee.
2. Order Acknowledgement; Change Orders: Buyer may submit a written Purchase Order for products to SpotSee, but no Purchase Order can create a contract for sale unless and until SpotSee executes a corresponding Order Acknowledgement that is returned to Buyer agreeing to the essential terms of price and quantity. SpotSee’s agreement to enter into a contract with Buyer is also expressly conditioned upon Buyer’s acceptance of these Terms and Conditions. Buyer’s Purchase Order together with SpotSee’s Order Acknowledgement and the agreed applicability of these Terms and Conditions shall result in an agreement (“Agreement”) to enter into a contract between SpotSee and Buyer with respect to the products specified in the Order Acknowledgement. All changes to an order must be received by SpotSee at least ten (10) days before shipment and requires SpotSee’s written consent in the form of a revised Order Acknowledgment. SpotSee’s consent to change orders may be given or withheld in SpotSee’s sole discretion.
3. Insurance and Risk of Loss: Title to the products shall pass to Buyer upon SpotSee’s tender of the products to the carrier, at which time title shall transfer to Buyer and Buyer shall assume and bear the entire risk of loss, theft, destruction, or damage of or to any part of the products, from any cause whatsoever, whether or not covered by insurance. Buyer shall be responsible for insurance on the products but may request SpotSee to arrange for adequate insurance coverage for the products while the products are in transit between SpotSee’s facility and such location the products are being shipped to, provided that any such insurance coverage shall be at Buyer’s sole cost and expense.
4. Acceptance of Products: Buyer, or any user receiving shipment on behalf of Buyer, shall inspect all products immediately upon receipt. Subject to Section 10A, all products will be deemed to comply with the terms of the Agreement in all respects and to have been accepted by Buyer as delivered, unless Buyer notifies SpotSee in writing within fifteen (15) days of delivery of any defect, shortage, or other failure to conform to the terms of the Agreement.
5. Prices and Payment Terms: Unless otherwise stated in a SpotSee Order Acknowledgement, prices are stated in U.S. dollars, are subject to change without notice and do not include taxes or duties of any kind. Buyer agrees to pay Seller the full amount due as set forth on each Seller’s invoice Buyer received within thirty (30) days of invoice date, without setoff or deduction. Any amounts outstanding after the stated due date, which is net 30 days of invoice date, will be subject to a two percent (2%) per month (twenty-four percent (24%) per annum or, if less, the maximum allowed by law) interest charge. Buyer shall indemnify SpotSee against any and all expenses of collection arising from Buyer’s default.
6. Order Cancellations: Unless Buyer orders a custom-made product (“Custom Product”), Buyer may cancel an order without payment of cancellation charges by providing written notice to SpotSee no later than ten (10) days before shipment. SpotSee’s consent is required to cancel any order for Custom Products and to cancel an order less than ten (10) days before the scheduled shipment date. If Buyer cancels a Custom Order, Buyer agrees to pay a cancellation charge in an amount that will be determined by Seller in accordance with the status of the job at the time of the cancellation, which will be at least twenty-five percent (25%) or more of the purchase price as determined by Seller, but in no event less than $1,000. A “Custom Order” is any order for a Custom Product or any product that does not involve the sale of stocked pre‐manufactured inventory.
7. Materials and Property Supplied by Buyer: Materials furnished by the Buyer are verified by delivery tickets. SpotSee bears no responsibility for discrepancies between delivery tickets and actual counts. Buyer-furnished materials shall be delivered in accordance with specifications as provided in the delivery tickets, including without limitation, specified weight, thickness and other technical requirements as may be provided. SpotSee may reject any materials supplied or specified by Buyer (including, but not limited to, artwork, electronic files, or press sheets) which appear to SpotSee to be unsuitable or unusable without alteration or modification. Additional costs incurred if materials are found to be unsuitable or unusable during production may be charged to Buyer. Where materials are so supplied or specified by Buyer, SpotSee will take every care to secure the best results but responsibility will not be accepted for imperfect work caused by defects in or unsuitability of materials so supplied or specified. Buyer’s property and all property supplied to SpotSee by or on behalf of Buyer shall while it is in the possession of SpotSee or in transit to or from Buyer be deemed to be at the Buyer’s risk. SpotSee shall be entitled to make reasonable charge for the storage of any of Buyer’s property left with SpotSee before receipt of the order or after notification to Buyer of completion of the product(s).
8. Resale of Products. Purchases of products are intended for end users and are not authorized for resale, except with the specific authorization of SpotSee and in accordance with the following terms: (1) any repurchase of products is specifically subject to these Terms and Conditions and any re-purchaser shall be bound to these Terms and Conditions to the same extent as if such re-purchaser is a Buyer, (2) Buyer is responsible for complying with all applicable laws and regulations of the country for which the products are destined, (3) Buyer shall remain fully liable for the compliance of any re-purchaser with these Terms and Conditions and agrees to indemnify and hold harmless SpotSee from all damages, losses, costs or expenses incurred by SpotSee arising in any manner from any act of omission on the part of any of Buyer’s re-purchasers and for any violation by Buyer of this Section 8, (4) Buyer will comply at all times with any laws, regulations, rules and guidelines dealing with the export, re-export, or transfer of goods, software and technology to the extent related to the products and services sold hereunder, (5) Buyer will comply at all times with any and all aspects of the Foreign Corrupt Practices Act of 1977 and (6) Buyer will make no representations or warranties with respect to the products beyond those made by SpotSee.
9. Data Services:
A. Description and Application of Data Services. SpotSee’s data services (“Data Services”) gather data from equipment, processes such data and makes it available to customers in useful form through SpotSee’s proprietary software and computer hardware resources, SpotSee’s websites, and/or direct feed to Buyer’s existing information systems. The Data Services are not “airtime” or a simple telecommunications service. SpotSee consumes telecommunications service in order to collect data so that SpotSee can provide the Data Services. Buyer is not a purchaser of telecommunications services, and Buyer acknowledges that Buyer has no contractual relationship or right with respect to any carrier providing telecommunications services. Any attempt by Buyer to connect the Data Services to any non-approved data source that threatens the security and functionality of the Data Service is a violation of these Terms and Conditions.
B. Access. Subject to the terms of these Terms and Conditions, SpotSee will provide Buyer with access to the Data Services on a non-exclusive, revocable basis, for use solely for Buyer’s internal business purposes. Buyer shall not make its access credentials available to, or otherwise allow access to, any third party. Buyer is fully responsible for all use of the Data Services through its access credentials.
C. Intellectual Property Rights. All title and intellectual property rights in and to the Data Services are owned or licensed by SpotSee. This Agreement grants Buyer no rights to any such intellectual property except for the limited rights expressly granted herein. Buyer will not reverse engineer, decompile or disassemble the service.
D. Use and Support.
1. Buyer is not licensed to, and may not, resell the Data Services or act as a service bureau with respect to the Data Services or any component thereof. All rights, including rights of use, not specifically granted under this Agreement are reserved by SpotSee. Buyer shall not resell data or information content, in any derivative work or application, accessible to anyone not directly employed by Buyer. Buyer agrees it will not attempt to obtain data from the SpotSee web sites except via normal rendering of HTML.
2. Buyer will not use the Data Services: (i) in connection with the transmission, sale, license or delivery of any infringing, defamatory, offensive, or illegal products, services or materials; (ii) in any manner that threatens the integrity, performance, or availability of the Data Services, including, without limitation, knowing transmission of any virus, worm, trojan, or other harmful code, attempting to gain unauthorized access to any systems or data, or engaging in any type of denial of service or other cyberattack on SpotSee’s systems; or (iii) in violation of local, state, federal or equivalent privacy or other regulations.
3. To the extent that any data derived from products is considered personal data subject to privacy laws or regulations by any country in which the products or Data Services are used, Buyer represents and warrants that it has obtained and will continue to obtain, update, and maintain adequate consent from the individuals to whom such data relates for SpotSee to receive, process, and make such data available through the Data Service.
4. Buyer’s use of the Data Service will be subject to data practices as set forth in SpotSee’s privacy statement as it may be posted from time to time on SpotSee’s website. Except for third parties who are providing maintenance or support to the products or Data Service, SpotSee will not provide raw data derived from any Buyer products to third parties. However, SpotSee reserves the right to use the information generated from the data for statistical analysis or other industry purposes. Buyer understands that the technical processing and transmission of Buyer’s electronic communications is fundamentally necessary to use of the Data Service. Buyer expressly consents to SpotSee’s interception, storage, analysis and archiving of electronic communications and/or Buyer data, and Buyer acknowledges and understands that Buyer’s electronic communications will involve transmission over the internet, and over various networks, only part of which may be owned or operated by SpotSee. Buyer further acknowledges and understands that electronic communications may be accessed by unauthorized parties when communicated across the internet, network communications facilities, telephone or other electronic means. SpotSee is not responsible for any electronic communications and/or Buyer data which are delayed, lost, altered, intercepted or stored during the transmission of any data whatsoever across networks not owned and/or operated by SpotSee. SpotSee will endeavor to maintain Buyer data for availability by Buyer for two years after termination of the Data Services.
5. Buyer agrees to accept the SpotSee website reports in their existing format and system architecture as such may be reasonably modified by SpotSee from time to time as provided below. Any customization of the products, services or reports is not included in the subscription fees.
6. SpotSee may, in its sole discretion, make feature or functionality updates to the Data Services from time to time. SpotSee will provide advance notice of such service updates, and will make commercially reasonable efforts to identify service updates that may require modifications to Buyer’s applications that interface with it. For those types of update (such as a major version release) that SpotSee reasonably believes will necessitate significant modification of interfacing applications of all users of the Data Services, SpotSee will maintain the immediately previous version (one version back) of the Data Service for no less than 12 consecutive months starting from the date of release of the new version. Buyer’s failure to upgrade its interfacing applications to be compatible with the latest version of the Data Service during this time may result in an interruption or termination of Buyer’s access to the services without liability on the part of SpotSee.
7. SpotSee will make commercially reasonable efforts to maximize the availability of its web sites; however, Buyer acknowledges that system maintenance and backups, as well as server and network malfunctions, may and do occur and SpotSee will not be liable to Buyer for outages and service issues that occur despite SpotSee’s commercially reasonable efforts, regardless of whether the causes of those outages were within SpotSee’s actual or theoretical control.
8. SpotSee will provide reasonable technical support to Buyer, limited to and consisting of general instructions for getting users started and connected with the SpotSee website. SpotSee assumes no responsibility to provide support for Buyer’s applications or for Internet access issues or other issues not under SpotSee’s direct control.
9 SpotSee shall maintain storage of the data on its servers located in the United States. If Buyer requires storage in any other country, it shall request such storage of SpotSee and SpotSee will evaluate such request and let Buyer know the customization and charges that would be required for such storage.
E. Term. The duration of all new Data Services shall be a minimum term of six (6) months and shall renew if elected to in writing by both parties. SpotSee reserves the right to change rates and term duration at the end of any minimum term.
F. Pricing. Unless otherwise agreed by the parties in writing, service fees shall be specified in each order, except that fees for renewal terms may be adjusted by SpotSee for any subsequent term.
G. Suspension. SpotSee may, at its discretion and after written notice and without refund, suspend or disconnect Buyer’s device(s) from the Data Service if there is a breach of any of Buyer’s obligations hereunder or reasonable cause to suspect fraudulent use of a payment card. If Buyer breaches any of its undertakings under these Terms and Conditions or if Buyer is using the Data Services in a fraudulent, abusive or improper manner; unless the reason for such suspension or disconnection is cured to the reasonable satisfaction of SpotSee within thirty (30) days of such notice.
H. Liability. In addition to the limitations of liability contained in these Terms and Conditions, Buyer shall not be liable for acts, omissions or failures of cellular/GSM operators or equipment failures or modifications.
I. FAA. No products or services provided pursuant to these Terms and Conditions have been FAA approved.
J. Software. “Software Components” means software and/or firmware programs or scripts embedded in the products or otherwise furnished with or in connection to the products by SpotSee, but does not include SpotSee’s Data Services. The Software Components are proprietary intellectual property owned by SpotSee or owned by a third-party provider and licensed to SpotSee. The Software Components shall remain the property of such owner. Buyer is only granted a personal, non-exclusive, non-transferable license to use the Software Components while resident on and in connection with the use of the products. Buyer shall not make any copies of the Software Components, download the Software Components off the products, reverse engineer or decompile the Software Components, or disclose the Software Components to any third party. Customer shall have no rights in the Software Components except as expressly provided in this Section 9. To the extent that Buyer purchases products for resale to Buyer’s customers, Buyer shall be permitted to sublicense the Software Components to its customers, but only on the same terms and subject to the same restrictions stated in this Section 9.
K. Data Privacy. The products and/or services provided hereunder require the collection and processing of personal data. Each of SpotSee and the Buyer hereby represent and warrant that it will comply with all applicable laws and government regulations, including any data privacy, data protection, and/or data security laws (collectively, “Applicable Data Privacy Laws”) and regulations related to Buyer’s use of the products and/or services provided hereunder. For the avoidance of doubt, each of SpotSee and Buyer are deemed the “controller” and are each responsible for complying with all requirements under Applicable Data Privacy Laws”, including without limitation, to its obligations related to cross-border data transfers, lawful bases for data processing, conducting a Data Protection Impact Assessment (DPIA), and responding to data subject requests. To the extent Buyer provides personal data to SpotSee, the Buyer hereby represents and warrants that Buyer has the legal authority to do so.
A. Warranty Returns. If a product fails to conform to SpotSee’s Specifications (as defined in Section 11A), Buyer may return within one year from the date of shipment of such product from SpotSee to Buyer. Upon receipt of a product returned in accordance with this Section 10, SpotSee shall, at SpotSee’s election, either (1) refund the purchase price paid by Buyer for such product (without interest) or (2) repair and/or replace such product at no additional cost to Buyer. Repair or replacement shall be determined at SpotSee’s sole discretion and SpotSee may use new or reconditioned replacement parts. The repaired or replaced product will remain under its original warranty period based on the original date of sale and the warranty period shall not recommence. The warranty is only valid and exercisable for the original Buyer and may not be assigned. Notwithstanding the foregoing, no warranty will apply to, and Buyer may not return, any product that, after shipment by SpotSee, has been modified or altered in any way or subjected to any misuse, neglect, accident, fire, flood or normal wear and tear, or installation or operation contrary to published specifications, improper or inadequate maintenance. All claims regarding any defect or failure of a product to conform to SpotSee’s Specifications shall be deemed waived unconditionally and absolutely unless SpotSee receives written notice of such claim prior to the product’s specified expiration date or, if no expiration date is specified, within one year from the date of shipment of such product from SpotSee to Buyer.
B. Non-Warranty Returns. Except as provided in Section 10A, Buyer may return products only on the following conditions: (1) returned products must be new and may not be Custom Products; (2) Buyer must notify SpotSee in writing of the return and ship the products to SpotSee or as directed by SpotSee, at Buyer’s sole expense and risk, so that the returned products are received by SpotSee no later than 35 days after SpotSee’s delivery of the products to Buyer; (3) on or before the return date, Buyer must pay SpotSee a restocking charge equal to 15% of the purchase price for the returned products; and (4) Buyer must either return the products in their original packaging in reusable condition or pay an additional restocking charge as specified by SpotSee to replace the original packaging. If the purchase price for the returned products has been paid in full prior to the return date, the foregoing charges and any other amounts owed by Buyer to SpotSee will be deducted from the purchase price and the remaining amount will be remitted to Buyer.
C. Recycled Material. SpotSee is committed to promoting sustainability and reducing waste by using recycled materials for various purposes. These materials may include but are not limited to plastic, glass, metal, and electronic components. Recycled materials will only be used for their intended purpose. Any use that might be considered harmful, misleading or in violation of ethical standards is prohibited. For the avoidance of doubt, nothing in this Section 10C shall have any impact on Section 11 below.
11. LIMITATION OF SPOTSEE’S LIABILITY:
A. SpotSee makes no warranties, expressed or implied, with respect to the services provided or the products purchased hereunder, except that the products sold hereunder shall conform to SpotSee’s written specifications for such products as in effect and provided to Buyer by SpotSee at the time of sale of such products to Buyer (“SpotSee’s Specifications”). This warranty as to conformance with SpotSee’s Specifications shall only apply to non-conformities which appear within one year from the date of delivery of the product.
B. SPOTSEE’S WARRANTY SET FORTH IN SECTION 11A IS EXCLUSIVE AND IN LIEU OF ANY AND ALL OTHER WARRANTIES, REPRESENTATIONS, AND COVENANTS, EXPRESS OR IMPLIED, STATUTORY, UNDER COMMON LAW OR OTHERWISE. EXCEPT AS PROVIDED IN SECTION 11A, SPOTSEE MAKES NO, AND EXPRESSLY DISCLAIMS, AND BUYER HEREBY EXPRESSLY WAIVES, IN EACH CASE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL WARRANTIES, GUARANTEES, PROMISES, OR REPRESENTATIONS WITH RESPECT TO THE PRODUCTS OR SERVICES, WHETHER WRITTEN, ORAL, EXPRESSED, OR IMPLIED, AND WHETHER IN FACT OR BY OPERATION OF LAW, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR ANY WARRANTY OF NON-INFRINGEMENT (INCLUDING PATENT INFRINGEMENT, BOTH DIRECT AND INDIRECT, AND INCLUDING BOTH CONTRIBUTORY AND INDUCING PATENT INFRINGEMENT). SPOTSEE MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE OPERATIONS OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE AND SPOTSEE MAKES NO WARRANTY THAT THE SERVICES WILL OPERATE PROPERLY AS INTEGRATED WITH BUYER’S SYSTEMS AND APPLICATIONS. BUYER ACKNOWLEDGES THAT TEMPORARY INTERRUPTIONS OF THE SERVICES MAY OCCUR FROM TIME TO TIME.
C. NOTWITHSTANDING ANY OTHER PROVISION OF THE AGREEMENT OR THESE TERMS AND CONDITIONS, BUYER ASSUMES ALL RISK WHATSOEVER, AND SPOTSEE (AND SPOTSEE’S SHAREHOLDERS, DIRECTORS, MANAGERS, OFFICERS, EMPLOYEES, AND OTHER AFFILIATES (COLLECTIVELY, “SPOTSEE’S AFFILIATES”)) SHALL NOT BE LIABLE, FOR ANY LOSS, DAMAGE, OR LIABILITY OF ANY KIND WHATSOEVER (INCLUDING ATTORNEYS’ FEES) IN ANY WAY DUE TO, RESULTING FROM OR ARISING IN CONNECTION WITH THE PRODUCTS SOLD TO BUYER OR SPOTSEE’S PROVISION OF SERVICES TO BUYER, WHETHER SINGLY OR IN CONJUNCTION WITH ANY OTHER EQUIPMENT OR PROCESS OR SERVICES, AND REGARDELSS OF THE FORM OF ACTION, WHETHER IT BE IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE) AND REGARDLESS OF WHETHER SUCH DAMAGES ARE FORESEEABLE, EVEN IF SPOTSEE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIABILITY OF SPOTSEE AND SPOTSEE’S AFFILIATES FOR ANY SERVICES OR FAILURE OF A PRODUCT TO CONFORM TO SPOTSEE’S SPECIFICATIONS SHALL BE LIMITED EXCLUSIVELY TO, AT SPOTSEE’S ELECTION, EITHER (1) REFUND OF THE PURCHASE PRICE PAID BY BUYER FOR SUCH PRODUCT OR SERVICES (WITHOUT INTEREST) OR (2) REPAIR OR REPLACEMENT OF SUCH PRODUCT (OR, IN THE CASE OF SERVICES, REPERFORMANCE OF SUCH SERVICES). IN THE EVENT A COURT OF COMPETENT JURISDICTION SHOULD RULE THAT SPOTSEE OR ANY OF SPOTSEE’S AFFILIATES IS ANSWERABLE IN DAMAGES NOTWITHSTANDING THE LIMITATION OF LIABILITY SET FORTH HEREIN, THE AGGREGATE AMOUNT OF SUCH DAMAGES FOR WHICH SPOTSEE AND SPOTSEE’S AFFILIATES ARE LIABLE SHALL NOT EXCEED THE TOTAL OF ALL PAYMENTS MADE BY BUYER TO SPOTSEE UNDER THE AGREEMENT WITH RESPECT TO THE RELEVANT PRODUCTS OR SERVICES. SPOTSEE AND SPOTSEE’S AFFILIATES SHALL IN NO EVENT BE LIABLE TO BUYER OR ANY OTHER PERSON OR ENTITY FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, OR FOR DIMINUTION IN VALUE, LOST PROFITS, OR LOST BUSINESS OPPORTUNITY DAMAGES OF ANY NATURE, ARISING OUT OF OR RELATING IN ANY WAY TO THE PERFORMANCE UNDER OR BREACH OF THE AGREEMENT OR THE PURCHASE OR SALE OR USE OF PRODUCTS OR SERVICES.
D. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, BUYER EXPRESSLY ACKNOWLEDGES THAT SPOTSEE HAS TESTED THE PRODUCTS ONLY AS SET FORTH IN THE SPOTSEE’S SPECIFICATIONS AND NOT FOR USE WITH OR INCORPORATION INTO ANY PARTICULAR APPLICATION, AND BUYER ASSUMES AND BEARS ALL RISK AND RESPONSIBILITY OF DETERMINING THE SUITABILITY OF THE PRODUCTS FOR THE PURPOSE INTENDED BY BUYER OR BUYER’S CUSTOMER AND THE APPROPRIATE PLACEMENT AND METHOD OF MOUNTING OF THE PRODUCTS. BUYER SHALL NOT MAKE ANY REPRESENTATION TO ANY THIRD PARTY (1) REGARDING THE RELIABILITY OR ACCURACY OF THE PRODUCTS EXCEPT AS EXPRESSLY SET FORTH IN SPOTSEE’S SPECIFICATIONS OR (2) TO THE EFFECT THAT SPOTSEE HAS TESTED THE PRODUCTS FOR THE USE INTENDED BY BUYER OR SUCH THIRD PARTY.
E. BUYER SHALL INDEMNIFY, DEFEND, AND HOLD SPOTSEE AND SPOTSEE’S AFFILIATES HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, LOSSES, DAMAGES, RESPONSIBILITIES, OBLIGATIONS, LIABILITIES, COSTS AND EXPENSES (INCLUDING WITHOUT LIMITATION ATTORNEY FEES, COURT COSTS, COSTS OF ALTERNATIVE DISPUTE RESOLUTION PROCEEDINGS, AND COSTS OF SETTLEMENT) BROUGHT BY ANY PARTY REGARDING PRODUCTS SOLD BY SPOTSEE AND INCORPORATED INTO OTHER ITEMS MANUFACTURED OR SOLD BY BUYER, INCLUDING BUT NOT LIMITED TO ANY CLAIM OF DIRECT OR INDIRECT PATENT INFRINGEMENT.
F. The limitations set forth in this Section 11 shall survive the termination of this Agreement.
12. Intellectual Property and Infringement.
A. SpotSee shall, at its own expense, defend any suits that may be instituted against the Buyer for alleged infringement of United States patents to the extent relating to products manufactured by SpotSee and sold to Buyer pursuant to the Agreement, provided such alleged infringement is only in regards to the authorized use of such product itself by Buyer and not as a part of any combination with other devices and parts, and provided the Buyer gives SpotSee immediate notice in writing of any alleged infringement and of the institution of any such suit and permits SpotSee, through its counsel, to answer the allegation of infringement and to defend such suit, and provided the Buyer gives all information, assistance, and authority required to enable SpotSee to so answer and defend. In case of a final award of damages in any suit SpotSee defends pursuant to this Section 12, SpotSee will pay such award, provided, however, that SpotSee shall not be responsible for any settlement compromise made without its written consent. If a claim of infringement is brought or threatened relating to SpotSee’s products or services provided hereunder, SpotSee shall at its sole option and expense, use commercially reasonable efforts either (a) to procure a license that will protect Buyer against such claim without cost to Buyer; (b) to modify or replace all or portions of such products or services as needed to avoid infringement, such update or replacement having substantially similar or better capabilities; or (c) if (a) and (b) are not commercially feasible, terminate the Agreement and refund Buyer a pro-rata refund of the product or service fees, as applicable, paid for under the Agreement for the terminated portion of the term. The rights and remedies granted to Buyer under this paragraph state SpotSee’s entire liability, and Buyer’s exclusive remedy, with respect to any claim of infringement of the intellectual property rights of a third party.
B. While not acting in an illegal discriminatory manner, SpotSee reserves the right at its sole discretion to reject any order request tendered based on illegal, libelous, scandalous, improper or offensive content or based on copyright, trademark, trade name or service mark infringement related to any elements of the order request.
13. Trademark License: Subject to Section 12, to the extent applicable, Buyer hereby grants to SpotSee a non-exclusive, transferable, sub-licensable, royalty-free, perpetual and worldwide right to use any and all of Buyer’s names, trademarks, designs, logos, and brands in relation to the Custom Product and as may be provided for in the Custom Order, and will execute such further documents which SpotSee determines are reasonably necessary to further confirm this grant of rights.
14. Taxes: In addition to the purchase price, Buyer is responsible for paying any and all taxes, tariff, duties, or imposts (including sales, use, occupation, or possessor taxes, or export or import tariffs or duties) (collectively, “Taxes”) applicable to Buyer’s purchase of the Products. For shipments to addresses located within the United States, SpotSee’s
invoice shall include SpotSee’s good faith estimate of any Taxes to be paid by Buyer (unless, prior to the date of shipment, Buyer furnishes SpotSee with tax-exemption certificates acceptable to the applicable taxing authorities). Buyer shall promptly pay any Tax (including any penalty for non-payment) that is not reflected in the applicable invoice but is later determined to be due. For shipments to addresses located outside the United States, SpotSee will not be responsible for estimating applicable VAT, PST, HST, GST, and similar Taxes or other charges, and all such Taxes and charges, along with any applicable brokerage fees, will be the sole responsibility of Buyer and due at the time of delivery.
15. Legal/Export Compliance.
A. Sanction Laws Compliance. Buyer will not sell, supply, export, re-export, or transfer products directly or indirectly to any individual or entity that is sanctioned by the U.S. Department of the Treasury, Office of Foreign Assets Control (“OFAC”), the U.S. Department of Commerce, Bureau of Industry and Security (“BIS”), the U.S. Department of State, or sanctioned by any applicable foreign law (a “Sanctioned Party” and “Sanction Laws”). Buyer is responsible for any violations of Sanction Laws, and SpotSee’s obligations under these Terms and Conditions are subject to termination if Buyer incurs any violations of Sanction Laws. Buyer represents and warrants that it is not directly or indirectly owned or controlled by a Sanctioned Party, nor is Buyer directly or indirectly owned or controlled by any person or entity that is located, organized or resident in any country or territory that is, or whose government is, the target of Sanction Laws. Buyer shall, immediately upon become aware thereof, notify SpotSee when it becomes directly or indirectly owned or controlled by any Sanctioned Party or when it becomes directly or indirectly owned or controlled by a person or entity located, organized, or resident in a country or territory that is, or whose government is, the target of Sanction Laws.
B. Export Control Laws Compliance. The services or products supplied may be subject to U.S. export control laws and regulations, including the Export Administration Regulations and or any applicable foreign laws (“Export Control Laws”). Buyer shall not, and shall not permit any third parties to, directly or indirectly, export, reexport, or release any products supplied under these Terms and Conditions prohibited by Export Control Laws. Buyer shall be responsible for any breach or violation of Export Control Laws, and SpotSee’s obligations under these Terms and Conditions are subject to immediate termination if Buyer incurs a violation of Export Control Laws.
C. Export, Import and Customs Compliance. Once Buyer obtains possession of products from SpotSee, Buyer is solely responsible for complying with all export, import and customs requirements, laws and regulations that are applicable to the international sale and delivery of the products.
D. No Obligation. SpotSee is under no obligation to service products used or supplied in violation of this clause, and if Buyer becomes a Sanctioned Party or is in violation of Sanction Laws or Export Control Laws, SpotSee can terminate its obligations under these Terms and Conditions without incurring any liability to Buyer for breach of contract, or any under any other theory or cause of action, as a result of such termination.
16. Authorized Use Locations.
A. Restricted Countries. From time to time, for reasons of anti-corruption, anti-terrorism, trade compliance, and anti-money laundering, SpotSee may designate countries or territories as “SpotSee Restricted Countries”. SpotSee will provide notice of updates to this list in these published terms and conditions. At the time of signing, this list includes Cuba, Iran, North Korea, Syria, or the Crimea Donetsk Kherson Luhansk or Zaporizhzhia regions of Ukraine. Customer will not sell, supply, export, reexport, or transfer products directly or indirectly to an individual or entity (i) ordinarily resident in, or incorporated under the laws of, a SpotSee Restricted Country; (ii) the government of a SpotSee Restricted Country; (iii) a party owned or controlled by a party in (i) or (ii); or (iv) a party acting on behalf of the foregoing.
B. Real-Time Devices. Notwithstanding the foregoing, SpotSee real-time and connected devices are also prohibited from use in Russia and Belarus, absent a license or license exception from the applicable government and notification to SpotSee regarding such.
C. No Obligation. SpotSee is under no obligation to service products in a SpotSee Restricted Country, Belarus, or Russia.
17. Confidential Information: All confidential information, written or oral, provided by SpotSee to Buyer relating to the products or services furnished pursuant to the Agreement is deemed proprietary to SpotSee, and shall not be reproduced or duplicated by Buyer without the prior written consent of SpotSee except as provided in Section 9D(4) or this Section 17. Confidential information shall include (i) all information identified by SpotSee as confidential, trade secret or proprietary information, (ii) all information disclosed by SpotSee to Buyer which Buyer knows or should reasonably conclude, whether by virtue of the nature of the information, the manner in which the information is disclosed or transmitted, or otherwise, is confidential, trade secret or proprietary information of SpotSee, and (iii) any verbal discussions about such information described in items (i) and I(ii), whether between SpotSee and Buyer or internally among Buyer’s employees, agents or representatives. Buyer shall prevent the disclosure of any confidential information to any third party, and shall disclose such information only to those employees of Buyer whose function necessitates their knowledge of such information.
18. Governing Law; Venue; Waiver of Jury Trial: THIS AGREEMENT IS GOVERNED IN ITS INTERPRETATION, PERFORMANCE, AND ENFORCEMENT BY THE LAWS OF THE STATE OF TEXAS. Subject to Section 25, Buyer agrees to submit to the non-exclusive jurisdiction of the courts located within the County of Dallas, State of Texas, provided that any lawsuits or other claims brought by Buyer must be brought exclusively within the County of Dallas, State of Texas. Buyer hereby consents and submits to the exclusive in personam jurisdiction of such courts, waives any objection based on forum non conveniens and waives any objection to venue of any action instituted hereunder to the extent that an action is brought in the courts identified above. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, BUYER AND SPOTSEE HEREBY IRREVOCABLY AND EXPRESSLY WAIVE ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM (WHETHER BASED UPON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS
AGREEMENT, ANY INDEMNITY, OR ANY OF THE PRODUCTS OR SERVICES TO BE PROVIDED HEREUNDER.
19. Force Majeure: Any delay by SpotSee in furnishing equipment or services pursuant to the Agreement or in performing any of its obligations hereunder shall be excused and shall not allow the Buyer to terminate the Agreement, nor to delay payment or performance, nor to take any other contractual action, including imposition of liquidated or actual damages, if such failure to perform arises out of causes beyond the reasonable control of SpotSee. Such causes include, but are not limited to, acts of God or of the public enemy, acts of any foreign or domestic government body in either the sovereign or contractual capacity, war, fires, earthquakes, floods, epidemics, labor disturbances, strikes, freight embargoes, severe weather, mobilization or military call‐up, confiscation, revolt or riot, or delays or defaults of subcontractors. In the event of a delay as described in this Section 19, an appropriate adjustment of the delivery schedule set forth in the Agreement shall be made. In the event the delay described continues for a period of six (6) months or more, SpotSee may terminate this Agreement without further liability to SpotSee, subject to any terms hereof that survive termination.
20. Buyer’s Default: If Buyer fails to pay or perform any of its obligations under the Agreement, advises SpotSee of its intention not to pay or perform any of such obligations, or otherwise appears unable to so pay or perform, SpotSee may give Buyer written notice of default. If, within ten (10) days of receipt of such notice, Buyer has not corrected such failure to pay or perform or has not otherwise given SpotSee adequate assurance of payment or performance, SpotSee may, in its sole discretion, declare the Agreement terminated (subject to the survival of any provisions hereof which survive termination), stop all further performance, and elect either of the following remedies:
A. Hold Buyer liable for (i) all costs committed or incurred by SpotSee up to the date of termination, (ii) all costs incurred by SpotSee in connection with or as a result of such termination, (iii) the profit which SpotSee would have realized on completion of performance (such profit shall be calculated from actual costs incurred plus SpotSee’s estimated cost to complete its performance of the Agreement (if such computation results in a projected loss, zero profit shall be assumed and no reduction of the sums set forth in (i), (ii), and (iii) shall be made), and (iv) all fees and expenses, including reasonable attorney’s fees, court costs, collection agency fees, incurred by SpotSee in the collection of this amount. Buyer, upon payment of the assessments set forth above, shall be entitled to possession of any hardware items which are complete on the date of such termination. All incomplete hardware and all data and software shall remain the property of SpotSee; or
B. Retain all equipment, data and software manufactured as of the date of termination. In such event, SpotSee’s damages will be difficult or impossible to determine, and in lieu of any actual damages, Buyer shall pay to SpotSee, as liquidated damages and not as a penalty, a sum equal to ten percent (10%) of the total contract price, plus any and all fees and expenses, including attorney’s fees, incurred by SpotSee in the collection of such sum.
C. Nothing in the Agreement or in this Section 20 shall be construed as limiting SpotSee’s remedies for breach, and SpotSee may, in addition to the remedies set forth in this Section 20, exercise any and all other rights and pursue any and all other remedies available under applicable law.
21. Assignment: Buyer shall not assign the Agreement or any rights or obligations under the Agreement without the prior written consent of SpotSee, and no purported assignment by Buyer shall be binding on SpotSee without such prior consent.
22. Publicity: Buyer shall not make or authorize any news release, advertisement, or other disclosure using SpotSee’s name without SpotSee’s prior written approval.
23. Separability: If any portion of these Terms and Conditions is found by any court or other judicial or administrative authority to be unenforceable or otherwise void, the remaining provisions of the Agreement shall not be affected thereby, and shall remain in full force and effect.
24. Waiver: The failure of SpotSee to insist on the performance of any obligation of Buyer hereunder shall not be construed as a waiver by SpotSee of such obligation or any other obligation of Buyer hereunder, and the same shall remain an obligation of Buyer.
25. Dispute Resolution: Buyer agrees that, prior to initiating any lawsuit, arbitration or other civil action against SpotSee for any concerns or problems about the Agreement(s), or for any other reason, Buyer must first:
A. Notify SpotSee in writing, delivered by certified mail, return receipt requested, or by personal service, of the nature of any claim, error or omission, problem or issue (“Problem”), and briefly describe the Problem in sufficient detail to determine the general nature of the Problem and any damages claimed to have been caused by the Problem. Buyer will then allow SpotSee thirty (30) days to access the problem and fifteen (15) days to communicate with Buyer to resolve the problem.
B. In the event SpotSee denies liability for the Problem or Buyer disagrees with SpotSee’s proposed solution to the Problem, Buyer expressly agrees to participate in good faith in mediation conducted by a mutually acceptable third party in Dallas, Texas, before exercising its rights under Texas law. In the event the parties reach a successful conclusion, in whole or in part, the agreement thereby shall be reduced to writing by the mediator and the parties shall each sign it and it shall be binding upon the parties. Either party may enter the agreement with a court of competent jurisdiction for enforcement if necessary.
C. In the event the parties fail to resolve their dispute by mediation or mediation is not completed within forty-five (45) days of commencement, then Buyer and SpotSee specifically agree to submit the dispute to binding arbitration in Dallas, Texas, in accordance with the rules of the American Arbitration Association. If the dispute is for less than $25,000, arbitration will be by a single independent arbitrator. If the parties cannot agree on the arbitrator, they agree to let the American Arbitration Association assign an independent arbitrator. If the dispute is in the amount of $25,000 or greater, then arbitration will be by a panel of three arbitrators. When a panel of three arbitrators is used, each of the parties shall name one arbitrator. The third arbitrator shall be selected by the two named arbitrators from the list of the current active members of the American Arbitration Association. The parties agree that discovery shall be limited to only those facts and issues needed to resolve the Problem described in Section 25A. The arbitration shall be binding, final, not appealable, enforceable and in lieu of any right to sue or seek other arbitration in any court or tribunal. Attorney fees and costs may be awarded at the discretion of the arbitrator. In no instance may punitive or exemplary damages be awarded. Any award hereunder shall be construed in strict accordance with Texas law. Notwithstanding the foregoing, either party shall be entitled to apply to any court of competent jurisdiction for a temporary restraining order, preliminary injunction, permanent injunction or other equitable relief, without breach of this arbitration provision.
26. Complete Agreement: There are no oral agreements between the parties. The Agreement, including these Terms and Conditions, constitutes the entire agreement and understanding of the Buyer and SpotSee as to the subject matter hereof and shall replace and supersede all prior or contemporaneous agreements, written or oral, as to such subject matter. No addition to or modification of the Agreement or of these Terms and Conditions shall be binding upon SpotSee unless in writing and signed by an authorized representative of SpotSee. If Buyer believes that it is entitled or obligated to act in a manner that is contrary to these Terms and Conditions and mandatory law, Buyer agrees to provide SpotSee with a detailed and substantiated explanation of its reasoning in writing at least thirty (30) days before it acts contrary to the Agreement and these Terms and Conditions, to allow SpotSee to access whether it may, at its sole discretion, provide an alternative remedy for the situation, though it is under no obligation to do so.
27. Headings: The headings to the foregoing paragraphs are for convenience or reference only and do not form a part of the Agreement and shall not in any way affect the interpretation thereof.
28. Notices: Unless otherwise expressly agreed in writing, all notices and other communications required or permitted to be made under the Agreement shall be in writing (including by facsimile transmission) delivered to the address specified for notices in the Order Acknowledgement or such other address as shall be designated by Buyer or SpotSee in a written notice to the other party. All such notices shall be deemed to have been given or made upon the earliest to occur of (i) actual receipt by the intended recipient or (ii) (A) if delivered by hand or courier, when signed for by the designated recipient; (B) if delivered by mail, four business days after deposit in the mail, postage prepaid; or (C) if delivered by facsimile when sent and receipt has been confirmed by telephone. Electronic mail (email) shall be allowed only for routine communications and not for any other purpose. Notices shall be addressed to the following recipient: ShockWatch, Inc. Attn: CFO 5501 Lyndon B Johnson Freeway, Suite 400 Dallas, TX 75240; phone (214) 630-9625; fax (214) 638-4512.
These Term and Conditions were last updated on the February 12, 2024