The following terms and conditions (“Terms”) apply to orders for Company Products, Company Software and/or Services (each, as defined below) from Lumafield Inc., a Delaware corporation, with a place of business at 38 Cameron Ave, Cambridge, MA 02140 (“Company”), that are placed by Client via the execution of a Company-issued quotation or order form for such Company Products, Company Software and/or Services (the “Order”). “Client” refers to the entity identified at the top of the Order.
The Order and these Terms constitute Company’s offer with respect to the Company Products, the Company Software and any Services identified in the Order. Client accepts this offer by executing the Order. The executed Order and these Terms are a legally binding contract between Company and Client and constitute the entire agreement between the parties with respect to the Company Products, Company Software and Services identified in the Order (the “Agreement”). Any different or additional terms in a Client purchase order or other Client order documentation are hereby rejected and shall be null and void even if Company effects delivery of the Company Products and/or Company Software or renders Services without further reservation.
1.1 Products. Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Client with access to Company’s proprietary CT inspection system composed of hardware and software to provision computed tomography scanning, reconstruction, and viewing and analysis of volumetric data (collectively, the “Company Products”).
1.2 Consigned Hardware.
(i) Installation. Company shall consign and install at Client’s designated location(s) set forth in the Order, the hardware necessary to operate the Company Products (the “Consigned Hardware”) during the Term. Company shall work with Client to install the Company Products at such designated location(s). Client shall provide reasonable assistance in connection with such installation, including space allocation. Client is responsible for shipping and handling all Company Consigned Hardware to their designated installation location according to the Company’s reasonable shipping & handling instructions. Company will work with transportation providers (i.e., shipper or freight carrier) to provide instructions and pickup coordination as reasonably required.
(ii) Use of Consigned Hardware. Notwithstanding anything herein to the contrary, Company shall at all times retain title to the Consigned Hardware while in the possession of Client and risk of loss of the Consigned Hardware will transfer to Client upon delivery to the designated location(s) and will transfer back to Company when delivered to Company upon the expiration or termination of this Agreement in accordance with Section 5.2. During the Term, Client shall not remove the Consigned Hardware from the designated location without the prior written consent of Company, shall keep the Consigned Hardware in substantially the same condition as it was provided to Client (normal wear and tear in connection with use of such Consigned Hardware in accordance with this Agreement excepted), and shall be responsible for any damage to such Consigned Hardware while in the possession of Client (except to the extent caused by the performance by Company of the Services in accordance with Section 1.4 below). Company may, from time to time during the Term at its discretion, replace or substitute the Consigned Hardware with a unit that has substantially similar or upgraded features and functionality. Company shall coordinate the timing of such replacement or upgrade with Client and any such replacement or upgrade shall be at no additional cost to Client.
(i) Licenses. Subject to the terms and conditions of this Agreement, Company grants to Client a limited, non-exclusive, non-transferable, non-sublicensable right, during the Term, to (a) access and use the software that is installed on the Consigned Hardware and (b) access and use the software made available to Client which is hosted by Company and accessed through Company’s web applications (collectively, the “Company Software”), in each case (1) solely in connection with Client’s use of the Consigned Hardware and (2) solely in accordance with the installation guides, manuals and other documentation made available to Client by Company for use of the Company Products (the “Documentation”).
(ii) Restrictions. Client may not (a) make any part of the Company Software or Client’s logon credentials accessible to anyone other than employees of Client who are authorized to use the Company Products by Company (“Authorized Users”); (b) permit any Authorized Users to use the Company Software except in accordance with the terms of this Agreement; (c) attempt to reverse engineer, decompile, disassemble, or extract any element of and/or otherwise discover any source code, algorithms, methods, or techniques embodied in the Company Software, except to the extent expressly permitted by applicable law, notwithstanding contractual obligations to the contrary, and then only after (1) Client has notified Company in writing of its intended activities and the information sought and (2) Company fails to provide such information within a reasonable period of time following such notice; (d) modify, transfer, assign, pledge, rent, lease, sell, resell, or create derivative works based on the Company Software or any user interfaces related to the foregoing; (e) hide, tamper, amend, alter, obscure, remove or destroy any proprietary markings or proprietary legends placed upon or contained within the Company Software or any related materials, or any Documentation; (f) introduce code or other items to the Company Software, in a manner that adversely affects the operation of the Company Products, Company Software or other systems; or (g) use the Company Software or Company Products in violation of this Agreement, the Documentation, or applicable law. Although Company has no obligation to monitor Client’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
1.4 Maintenance & Support Services.
(i) Installation and Validation. Company will send staff or agents to provide on-site installation and set-up of the Company Products, conduct a safety survey, and calibrate the Company Products prior to Client’s use of the Company Products.
(ii) Training. Company will provide on-site or remote training for Client employees with respect to the utilization of the Company Products including acquiring, reconstructing and analyzing computed tomography scans.
(iii) Support. Company will provide email support services through a designated email address provided by Company. Emails may be submitted at any time and Company will use commercially reasonable efforts to respond to such emails within one (1) business day after receipt. Additionally, if a support question or issue cannot be resolved by email, Company will make support personnel available via video conference to provide support.
(iv) Maintenance. Company will provide maintenance services to keep the Company Products in good working condition throughout the Term. See Section 6.1 (Limited Warranty) for additional information.
(v) On-site Repairs and Scan Coverage. In the case of a malfunction of a Company Product that cannot be repaired remotely, Company will repair such Company Product on-site, and provided such malfunction is not caused by Client, the repair will be at Company’s sole expense. Company will use commercially reasonable efforts to send a technician to the Company Products’ designated location as soon as possible, but in any case no later than ten (10) business days from Client’s notification of the malfunction. While Client is waiting for the Company Products to be repaired, Client may use Company’s service center to scan its parts at no additional cost. Client will cover roundtrip shipping costs related with shipping the parts to and from Company’s service center.
(all service described in this Section 1.4, collectively, the “Services”).
2.1 Export Restrictions. Client may not remove or export from the United States or allow the export or re-export of the Company Products and Company Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Company Software and Documentation are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial computer software or commercial computer software documentation by the United States government will be governed solely by this Agreement and will be prohibited except to the extent expressly permitted by this Agreement.
2.2 Use of Company Products. Client represents, covenants, and warrants that Client will use the Company Products only in compliance with the terms of this Agreement, the then-current Documentation, and all applicable laws and regulations.
2.3 Ancillary Equipment. Client shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Company Products and Company Software, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Ancillary Equipment”). Client shall also be responsible for maintaining the security of the Company Products, Company Software, and Ancillary Equipment.
2.4 Account Credentials. Client acknowledges and agrees that, if the necessary functionality is made available as part of the Company Software and/or Company Products, Client shall require each Authorized User to create a user account, including a user name and password, or other logon credentials (collectively, “Logon Credentials”) to access and use the Company Software and Company Products. Each Authorized User is solely responsible for maintaining the confidentiality of his or her Logon Credentials and for all activities on Company Software and Company Products that occur through the use of such Logon Credentials.
3.1 Proprietary Information. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose proprietary or non-public information relating to the Disclosing Party’s business, products, services, customers, financials and other information which is marked confidential or should reasonably be understood to be confidential based on the nature of the information (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Services, Company Products and Company Software including the source and object code thereto, and any processes, algorithms, methods, and related know-how and residual knowledge developed, created or used by Company or its agents in connection with the performance of the Services, and provision of the Company Products and Company Software. Proprietary Information of Client includes non-public data provided by Client to Company to enable the provision of the Services (“Client Data”). Proprietary Information shall not include data or information which (i) was in the public domain at the time it was disclosed or thereafter falls within the public domain, except through the fault of the Receiving Party; (ii) was known to the Receiving Party at the time of disclosure without an obligation of confidentiality, as evidenced by the Receiving Party's written records; (iii) is disclosed after written approval of the Disclosing Party; (iv) becomes known to the Receiving Party from a source other than the Disclosing Party without an obligation of confidentiality; or (v) is developed by the Receiving Party independently of the Disclosing Party’s Proprietary Information as demonstrated by written records.
3.2 Use and Disclosure of Proprietary Information. Each party agrees to protect the other party’s Proprietary Information in the same manner that it protects its own Proprietary Information of a similar nature but in no event less than a reasonable standard of care. Neither party shall (i) disclose to any unaffiliated third party any Proprietary Information; or (ii) use the Proprietary Information for any purpose other than that indicated in this Agreement without the Disclosing Party’s prior written approval. The Receiving Party agrees to notify the Disclosing Party promptly of any unauthorized disclosure of Proprietary Information and to assist the Receiving Party in remedying any such unauthorized disclosure. The Receiving Party agrees that all persons having access to Proprietary Information under this Agreement will abide by the obligations set forth in this Agreement. Nothing in this Agreement shall be construed to restrict the parties from disclosing Proprietary Information as required by law or court order or other governmental order or request, in each case, provided, that the party requested to make such disclosure shall timely inform the other party and use all reasonable efforts to limit the disclosure and maintain the confidentiality of such Proprietary Information to the extent possible. In addition, the party required to make such disclosure shall permit the other party to attempt to limit such disclosure by appropriate legal means. All Proprietary Information disclosed hereunder shall remain the sole property of the Disclosing Party and the Receiving Party shall have no interest therein or rights with respect thereto except as expressly set forth in this Agreement.
3.3 Survival. The provisions in this Section 3 shall survive for five (5) years after termination or expiration of this Agreement, except that, with respect to any Proprietary Information that constitutes a trade secret as defined under applicable law, the Receiving Party will continue to be bound by its obligations under this Section 3 for so long as such information continues to be eligible for trade secret protection under applicable law, but in no event for a period of less than the five (5) year period specified immediately above.
3.4 Proprietary Rights.
(i) Client Data. Client shall own all right, title and interest in and to the Client Data. Notwithstanding anything to the contrary, Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services, Company Products and Company Software and related systems and technologies (including, without limitation, information concerning Client Data and data derived therefrom), and Company will be free (during and after the Term) to (a) use such data and information to improve and enhance the Services, Company Products and Company Software and for other development, diagnostic and corrective purposes in connection with the Services, Company Products and other Company offerings, and (b) disclose such data and information solely in aggregate or other de-identified form in connection with its business. No rights or licenses to the Client Data are granted except as expressly set forth herein.
(ii) Company Products and Company Software. As between the parties, Company retains all rights, title, and interest (including all intellectual property rights and other rights) in and to the Services, the Company Products and the Company Software, including any updates of any of the foregoing, and except for the licenses expressly set forth herein, no other rights, title or licenses in or to any intellectual property of Company, whether express or implied, is granted or conveyed under this Agreement.
(iii) Feedback. If Client elects to provide any feedback or comments to Company related to the Services, Company Products or Company Software (“Feedback”), all Feedback shall be the sole and exclusive property of Company, and Company shall have the right to use and disclose such Feedback in any manner and for any purpose in Company’s discretion without remuneration, compensation or attribution, provided that Company is under no obligation to use such Feedback.
4.1 Fees. Client will pay Company the applicable fees described in the Order in accordance with the terms therein (the “Fees”). If Client’s use of the Services, Company Products or Company Software exceeds the capacity set forth on the Order or otherwise requires the payment of additional fees or charges (per the terms of this Agreement), Client shall be billed for such usage and Client agrees to pay such additional fees or charges in the manner provided herein. Company reserves the right to change the Fees or applicable charges and to institute new fees and/or charges at the end of the Initial Term or then current Renewal Term (each such term as defined below), upon thirty (30) days’ prior notice to Client (which may be sent by email). If Client in good faith believes that Company has billed Client incorrectly, Client must contact Company no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to request an adjustment or credit. Inquiries should be directed to Company’s Client support department.
4.2 Payment. Company may choose to bill through an invoice, in which case, full payment for each invoice issued in any given month must be received by Company ten (10) days after the mailing date of the applicable invoice. Unpaid amounts are subject to a finance charge of one and a half percent (1.5%) per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate suspension or termination of the Services.
4.3 Taxes. Unless otherwise stated, the Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use, or withholding taxes, assessable by any local, state, provincial, federal, or foreign jurisdiction (collectively, “Taxes”). Client is responsible for paying all Taxes associated with its purchase of Services, Company Products and Company Software hereunder. If Company has the legal obligation to pay or collect Taxes for which Client is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by Client, unless Client provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Company is solely responsible for taxes assessable against it based on Company’s income, property, and employees.
5.1 Term. Subject to earlier termination as provided below, this Agreement shall remain in force for the initial term specified in the Order (the “Initial Term”), and shall be automatically renewed for additional periods of the same duration as the Initial Term (each, a “Renewal Term” and collectively, the “Term”), unless either party provides notice of termination of this Agreement at least thirty (30) days prior to the end of the then-current Initial Term or Renewal Term, as applicable.
5.2 Termination. In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment by Client), if the other party materially breaches any of the terms or conditions of this Agreement.
5.3 Effect of Termination. In the event of any termination or expiration of this Agreement, Client will pay in full for all Services and use of the Company Software and Company Products up to and including the last day on which such are provided. Upon any termination, Company will make all Client Data available to Client for electronic retrieval for a period of thirty (30) days, but thereafter Company may, but is not obligated to, delete stored Client Data. Upon any termination or expiration of this Agreement, Client must promptly return the Consigned Equipment in accordance with the instructions of Company. Client is responsible for the return of all hardware consigned to Client by Company to a domestic location of Company’s choice. Client will ship and handle the Company consigned hardware according to the Company’s reasonable shipping & handling instructions, all Company consigned hardware must be returned in the same condition as received (allowing for normal wear and tear).
5.4 Survival. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, intellectual property rights, warranty disclaimers, and limitations of liability.
6.1 Limited Warranty. During the Term, Company warrants that the Company Products and Company Software will function substantially in accordance with its written specifications and Documentation. In the event of a breach of Company’s warranty in this Section 6.1, Company agrees to use commercially reasonable efforts to cause the Company Products and/or Company Software to function in substantial accordance with its specifications and Documentation. If Company notifies Client that it is unable to remedy any material breach of this warranty, Client or Company shall have the right to terminate this Agreement, and, upon such termination, Company will refund to Client a pro rata portion of any Fees that Client prepaid based on the remaining unused portion of the Term. For any breach of the warranty above, Client’s sole and exclusive remedy, and Company’s sole liability, shall be as provided in this Section 6.1.
6.2 Disclaimer. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN SECTION 6.1, THE COMPANY PRODUCTS, COMPANY SOFTWARE AND SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS”, “AS-AVAILABLE”, AND WITH ALL FAULTS, AND COMPANY MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY COMPANY OR ITS REPRESENTATIVES SHALL CREATE A WARRANTY. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN SECTION 6.1, CLIENT’S USE OF THE SERVICES, COMPANY PRODUCTS AND COMPANY SOFTWARE IS ENTIRELY AT CLIENT’S OWN RISK AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH CLIENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO CLIENT.
7.1 Indemnification by Company. Company hereby agrees to indemnify and hold harmless Client against any damages, losses, liabilities, settlements and expenses (including, without limitation, costs and attorneys’ fees) in connection with any third party claim or action alleging that the Company Products and Company Software infringe any United States patent or any copyright or misappropriate any trade secret, provided, that Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over any defense and settlement thereof. Company will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply (i) with respect to portions or components of the Company Products and Company Software that are (a) not supplied by Company, (b) made in whole or in part in accordance with Client specifications, (c) modified after delivery by Company, or (d) combined with other products, processes or materials where the alleged infringement relates to such combination, (ii) where Client continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (iii) where Client’s use of the Company Products and Company Software is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Company Products or Company Software are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense (1) replace or modify the Company Product or Company Software to be non-infringing provided that such replacement or modified Company Product or Company Software contains substantially similar features and functionality, (2) obtain for Client a license to continue using the Company Product and/or Company Software, or (3) if neither of the foregoing is commercially practicable, terminate this Agreement and Client’s rights hereunder and provide Client a refund of any prepaid, unused fees.
7.2 Indemnification by Client. Client hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including, without limitation, costs and attorneys’ fees) in connection with any claim or action that arises from (i) an alleged violation of applicable law or regulation in connection with this Agreement and/or (ii) Client’s use of the Services, Company Products or Company Software in violation of this Agreement, provided that Client is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over any defense and settlement thereof. Client will not be responsible for any settlement it does not approve in writing.
EXCEPT TO THE EXTENT THE FOLLOWING LIMITATION OF LIABILITY IS PROHIBITED BY LAW, COMPANY’S TOTAL LIABILITY TO CLIENT SHALL BE LIMITED TO DIRECT DAMAGES SUSTAINED BY CLIENT UP TO A MAXIMUM AMOUNT OF THE FEES PAID BY CLIENT TO COMPANY UNDER THIS AGREEMENT FOR THE TWELVE (12) MONTHS PRIOR TO THE ACTION GIVING RISE TO SUCH LIABILITY; PROVIDED THAT, REGARDLESS OF ANY STATUTE OR LAW, NO CLAIM OR CAUSE OF ACTION, REGARDLESS OF FORM, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT MAY BE BROUGHT BY CLIENT MORE THAN TWELVE (12) MONTHS AFTER THE FACTS GIVING RISE TO THE APPLICABLE CLAIM OR CAUSE OF ACTION HAVE OCCURRED, REGARDLESS OF WHETHER THOSE FACTS BY THAT TIME ARE KNOWN TO, OR REASONABLY OUGHT TO HAVE BEEN DISCOVERED BY, CLIENT; FURTHERMORE, NEITHER COMPANY NOR ANY OF ITS SUPPLIERS OR LICENSORS SHALL BE LIABLE TO CLIENT FOR PERSONAL INJURY, OR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OR INTERRUPTION OF BUSINESS, LOSS OF DATA, LOSS OF GOODWILL OR LOST PROFITS), UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT EVEN IF COMPANY HAS BEEN ADVISED OF THE RISK OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO CLIENT. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION 8 AND IN THE OTHER PROVISIONS OF THIS AGREEMENT AND THE ALLOCATION OF RISK HEREIN ARE ESSENTIAL ELEMENTS OF THE BARGAIN BETWEEN THE PARTIES, WITHOUT WHICH EACH PARTY WOULD NOT HAVE ENTERED INTO THIS AGREEMENT.
9.1 Governing Law. This Agreement and all matters arising out of or relating to this Agreement shall be governed by the internal laws of the Commonwealth of Massachusetts without giving effect to any conflict of laws provisions. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sales of Goods, the application of which is expressly excluded. Each party hereby irrevocably consents to the exclusive jurisdiction and venue of the state and federal courts located in Boston, Massachusetts in connection with any claim, action, suit, or proceeding relating to this Agreement, except that either party may seek injunctive, equitable or similar relief from any court of competent jurisdiction.
9.3 Severability and Waiver. If any provision of this Agreement is held to be illegal, invalid, or otherwise unenforceable, such provision will be enforced to the extent possible consistent with the stated intention of the parties, or, if incapable of such enforcement, will be deemed to be severed and deleted from this Agreement, while the remainder of this Agreement will continue in full force and effect. The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach.
9.4 Assignment. Client may not assign, sell, transfer, delegate, or otherwise dispose of, whether voluntarily or involuntarily, by operation of law or otherwise, this Agreement or any rights or obligations under this Agreement without the prior written consent of Company which may be withheld at Company’s discretion. Any purported assignment, transfer or delegation by Client shall be null and void. Company shall have the right to assign Agreement without Client’s consent and without prior notice to Client. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and assigns.
9.5 Independent Contractor. Company’s relationship with Client will be that of an independent contractor. It is agreed and understood that neither party is the agent, representative, nor partner of the other and neither party has any authority or power to bind or contract in the name of or to create any liability against the other in any way or for any purpose pursuant to this Agreement. Nothing contained in this Agreement shall be construed to give either party the power to direct and control the day-to-day activities of the other, constitute the parties as partners, joint venturers, principal and agent, employer and employee, co-owners, or otherwise as participants in a joint undertaking, or allow either party to create or assume any obligation on behalf of the other party for any purpose whatsoever.
9.6 Entire Agreement. This Agreement is the final, complete, and exclusive agreement of the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous communications and understandings between the parties, and any conflicting, different or additional terms in a Client purchase order or other Client documentation are hereby rejected and shall be null and void even if Company effects delivery of the Company Products and/or Company Software or renders Services without further reservation. To the extent of a conflict between these terms and conditions of these Terms and the terms and conditions set out in the Order, the terms and conditions of the Order shall control.
9.7 Notices. All notices under this Agreement will be in writing to the address listed above or to firstname.lastname@example.org (in the case of Company) or the physical or e-mail address listed in the Order (in the case of Client) and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by e-mail; the day after sending, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
9.8 Force Majeure. Company shall not have any liability or responsibility for failure to fulfill any obligation under this Agreement so long as and to the extent to which the fulfillment of such obligation is prevented, frustrated, hindered or delayed as a consequence of circumstances of acts of God or any other cause beyond its reasonable control, including, without limitation, strikes, riots, acts of war, epidemics, pandemics, material shortages, restricting legislation, embargo, blockage, work stoppage or major outage of a public communications carrier.
9.9 Amendment. Company may, from time to time, amend these Terms by posting the amended Terms on Company’s website, and such amended Terms will apply to Company Products, Company Software and Services ordered pursuant to Orders executed after the posting date (i.e., the “Last Updated” date). For clarity, Client’s ongoing receipt of Company Products, Company Software and Services will remain subject to the version of the Terms that were in effect at the time the Order for such Company Products, Company Software and Services was executed by the parties. If the Company desires to amend these Terms with respect to the ongoing receipt of Company Products, Company Software and Services, Company may do so upon written notice to Client; provided, however, that if any such amendment materially and adversely modifies Client’s rights and obligations with respect to the Company Products, Company Software or Services, Client may provide written notice to Company that Client desires to terminate its relationship with Company, and Company will provide the Client with a pro-rata refund of any pre-paid Fees attributable to the period of time for which Company Products, Company Software and/or Services are not used by Client due to the termination. Except as expressly permitted in this Section 9.9, as between Company and Client, this Agreement may be amended only by (i) a written agreement signed by authorized representatives of each of Company and Client or (ii) a waiver in accordance with Section 9.3.
9.10 Effectiveness. This Agreement shall be effective as of the date on which the applicable Order is executed by each of Company and Client. The Order may be executed and delivered (including by facsimile transmission or electronic mail in portable document format) in one or more counterparts, and by Company and Client in separate counterparts, each of which when executed shall be deemed to be an original, but all of which taken together shall constitute one and the same agreement.