General Terms and Conditions of Sale

These Delta Terms and Conditions of Sale (“Terms and Conditions”) governs any Software and/or Services in the Order Confirmation that the individual or entity identified as the customer in the Order Confirmation (“Customer”) purchase directly from DIBT or through its authorized resellers (“Reseller”). This Terms and Conditions, the Order Confirmation, and any other incorporated terms comprise the complete understanding between the parties on the subject matter (“Agreement”). By using or accessing the Software or Services, Customer agrees to this Terms and Conditions.

“Affiliate” means an entity that controls, is controlled by, or is under common control with, a party. Control means direct or indirect ownership of (i) more than 50% of an entity’s voting interest; or (ii) the right to receive more than fifty percent (50%) of an entity’s profits.

“Customer Data” means data, information, and content that is inputted into the Software by Customer and the output generated by the Customer from the data it inputted into the Software (e.g., statistical calculations, sorting, collection, averaging, and other mathematical computations).

“Custom Products” means Products specifically manufactured, designed or purchased for Customer that are not part of DIBT or its Affiliates standard stock.

“DIBT” means Delta Intelligent Building Technologies (Canada), Inc., an entity organized under the laws of British Columbia, Canada.

“Indemnified Liabilities” means any (i) settlement amounts approved by the indemnifying party and (ii) damages and costs in a final judgment awarded against the indemnified party and its Affiliates by a court of competent jurisdiction.

“Modifications” means modifications, revisions, enhancements, scripting, fixes, error corrections, workarounds, and improvements made by any person, whether or not issued in a formal update, upgrade, or release.

“Order Confirmation” means the ordering document issued or signed by DIBT or its authorized reseller.

“Services” means any Services to be provided by DIBT or its Affiliates (e.g., Delta Intelligent Building Technologies USA Delta Electronics, March Networks) that are not related to DIBT’s software.

“Products” means any goods (including any embedded firmware that is not separately licensed) relating to building automation that is specified in an Order Confirmation that is distributed by DIBT or a DIBT Affiliate (e.g., Delta Intelligent Building Technologies USA, Delta Electronics, March Networks).

“Third-Party Legal Proceeding” means any claim, demand, action, or legal proceeding made or instituted by someone other than DIBT, Customer, or any of their Affiliates.

1. Orders, Changes and Cancellation.
   • Ordering. If Customer purchases directly from DIBT, then Customer will pay DIBT the fees for the Services and/or any Paid License in accordance with the payment terms stated in the Order Confirmation. If Customer purchases Services and/or any Paid License through a Reseller, then the description of the Services and/or Paid License will be set forth in the ordering document Customer enters with the Reseller (the “Order Confirmation,” which for the purposes of this Agreement is also an “Order Confirmation”) and payment will be made to Reseller in accordance with the terms of the Order Confirmation. The Reseller is responsible for the accuracy of the Order Confirmation, Resellers are not authorized to make any promises or commitments on DIBT’s behalf, and DIBT is not bound by any obligations to Customer other than as specified in this Terms and Conditions. Customer’s orders are subject to final acceptance by DIBT, and DIBT reserves the right to accept or to reject any order from the Customer, in whole or in part. Blanket orders may be accepted for annual quantity pricing, provided that they are firm orders for a stated quantity, and delivery is accepted by the Customer within one year from the date of blanket order entry. Acceptance of Customer’s order is made upon the express understanding that it will be governed by these Terms and Conditions, and that any additional or conflicting terms and conditions accompanying Customer’s order, absent express agreement by the parties to the contrary, are void and of no force or effect. Except as otherwise stated in the Agreement, Customer’s purchases are non-cancelable and payment for Services is non-refundable. Customer will pay all applicable sales tax, VAT, GST, use tax, or similar transaction taxes imposed on Customer’s purchase of Services and/or use of the Software, unless Customer provides DIBT with a valid tax exemption certificate. Customer will have no liability for taxes that are imposed on DIBT or Reseller, as applicable, that are measured by DIBT’s or Reseller’s net or gross income. DIBT is not responsible for Services related to the Software if (i) the Services are not listed in an Order Confirmation that has been signed by DIBT and/or (ii) a DIBT-authorized reseller or service provider provides services to Customer.
   • Order Cancellation or Changes. Requests for order cancellations or changes received within thirty (30) days or less of the scheduled delivery date will not be accepted. Requests for order cancellations or changes of Custom Products received ninety (90) days or less prior to the scheduled delivery date will not be accepted.  Seller may, without prejudice to any other remedy which it may have at law or in equity, cancel or suspend delivery of any uncompleted order in the event of non-payment or other breach of the Agreement by Customer. DIBT shall have no liability to Customer for any costs, losses, or damages of any kind whatsoever arising as a result of any such suspension or cancellation.  Upon the cancellation of any order, the Customer undertakes to indemnify DIBT against all losses, including the cost of all labor, materials, overhead, damages, charges and expenses arising out of the order and its cancellation.  For Services, if either party wishes to change the scope or performance of Services, it shall submit details of the requested change to the other party in writing. DIBT shall, within a reasonable time after such request, provide a written estimate to Customer of the impact on the schedule and fees and the parties shall negotiate and agree in writing on the terms of such change. DIBT may charge for the time it spends assessing and documenting a change request from Customer on a time and materials basis.
   • Risk, Title and Delivery.

1. Unless otherwise stated in the DIBT order acknowledgement, the Products shall be delivered FCA (INCOTERMS 2020) DIBT’s plant or designated distribution point. Absent express instructions from Customer, DIBT shall, in its sole discretion, determine the best method of shipment, routing and common carrier utilized. DIBT will use reasonable commercial efforts to ship orders within the time quoted for shipment.  Times quoted for shipment will date from acceptance by DIBT of the Customer’s order, and will be subject to the issuance of any necessary import permits and licenses.  In no event will DIBT be liable for any costs, losses or damages including, without limitation, re-procurement costs arising out of or caused by delay in delivery or non-delivery of the Products.
2. For Products, title and liability for loss or damage, shall pass to Customer upon DIBT’s delivery of the Products to a common carrier for shipment to Customer. If Customer requests DIBT to arrange for shipment to the Customer’s destination, title and risk of loss shall pass to Customer at the FCA point and all freight, storage, insurance and other costs of shipment from the FCA point shall be paid by the Customer and if advanced by DIBT shall be added to the Customer’s invoice. For Products under evaluation, liability for loss or damage shall pass to Customer upon DIBT’s delivery of the Products to a common carrier for shipment to Customer. Title to Products under evaluation shall not pass to Customer unless purchased or accepted.  Customer shall be solely responsible for all risk of loss or damage to the Products until such time as they are returned, prepaid to the DIBT regional office designated by DIBT.  If reasonably required by DIBT, Customer shall retain adequate insurance for the Products during the Evaluation Period, the value of which insurance shall not be less than the full replacement value of the Products.

• Payment Terms for Direct Sales. The following terms apply when purchases are made directly through DIBT. All orders placed with DIBT are subject to prepayment prior to shipment, unless credit approval is received.  If credit terms are approved, payment will be due thirty (30) days from the date of invoice.  If, in DIBT’s opinion, the Customer’s financial condition does not at any time justify the terms of payment specified, DIBT may cancel any unfilled orders upon written notice unless the Customer immediately pays any outstanding amounts and/or agrees to pay in advance for all Products ordered but not delivered, at DIBT’s option.  Each shipment shall be considered a separate and independent transaction, and payment therefore shall be made accordingly.  In the event of any default by the Customer, DIBT may, without prejudice to any other rights that it may have in law or in equity, decline to make further shipments.  If, despite any default by the Customer, DIBT elects to continue to make shipments, its action shall not constitute a waiver of any default by the Customer or in any way preclude DIBT’s right to exercise any other remedies available to it in law or in equity.  Interest shall accrue against any amount owed to DIBT which remains unpaid by the Customer for more than thirty days from the date of invoice.  Interest shall be payable to DIBT at the rate of 10% per annum, or the maximum allowed by law, whichever is less, and shall be payable monthly in arrears.
• Third-Party Solutions. Customer may decide to purchase, access or use compatible third-party services, products, content or solutions from DIBT’s authorized resellers or unrelated parties (each “Third Party Solutions”) in connection with purchasing Products and Services. DIBT does not provide any aspect of the Third-Party Solutions and is not responsible for any issues, defects, errors, or bugs in the Third-Party Solutions or any issues with DIBT’s Products or Services caused in whole or in part by the Third-Party Solutions.  DIBT’s resellers are solely responsible for any issues with any goods or services they provide. Unless DIBT is performing the services in question, Customer is solely responsible for the proper installation, configuration and maintenance of the Products, and DIBT will no liability or responsibility for those service even if performed by a DIBT authorized reseller.  Customer is responsible for end user notification and delivering of all security updates and advisories to end users, and where applicable installation of updates.  DIBT shall in no way be responsible or liable, under warranty or otherwise, for the performance (or failure to perform) of any Products which are installed, configured, maintained or repaired by anyone other than DIBT.
• Personal Data. DIBT’s Software has been architected so Customer does not need to provide DIBT with any data relating to an identifiable natural person or household “Personal Data.” If Customer elects to provide Personal Data (usually limited to the company-issued email addresses of its Users), then Data Protection Agreement with Standard Contractual Clauses is made a part of the Agreement, which is found at https://www.deltacontrols.com/dpa.

2. Confidential Information.
   • Definition. The term “Confidential Information” means any information disclosed under the Agreement that (a) if tangible, is clearly marked as “Confidential” or with a similar designation; (b) if intangible, is identified as “Confidential” by discloser at the time of disclosure and confirmed in writing to recipient as being Confidential Information; or (c) from the relevant circumstances should reasonably be known by recipient to be confidential (e.g. pricing, product plans, etc.). Confidential Information does not include any portion of the information that recipient can prove: (a) was rightfully known to recipient before receipt from discloser; (b) becomes generally known to the public through no fault of recipient; (c) was received by recipient from a third party without any confidentiality obligation; or (d) was independently developed by recipient without breach of this Section 2.
   • Limited Use and Non-Disclosure. Recipient will (a) use Confidential Information only for the purposes of furthering the business relationship between the parties; (b) protect Confidential Information using the same degree of care it uses to protect its own confidential information of a like nature, but in no event less than a reasonable degree of care; or (c) not disclose Confidential Information to any third party except (i) as required by law and/or (ii) to employees, consultants, and agents who have a need to know it in order to carry out their obligations under the Agreement and are under written confidentiality and non-use obligations at least as restrictive as those stated in the Agreement.
3. Intellectual Property Rights. As between DIBT and Customer, Customer owns all worldwide right, title and interest in and to Customer Data, including all worldwide Intellectual Property Rights (“Customer IP”). DIBT and its licensors own all worldwide right, title and interest in and to the Products, Services, documentation, materials delivered or prepared as part of the Services, and any other work product created under this Agreement, and all of its components and content, including all worldwide Intellectual Property Rights (“DIBT IP”). Except as expressly set forth in the Agreement, no rights to any DIBT IP or Customer IP is granted to the other party. Customer is not obligated to provide DIBT with any suggestions, enhancement requests, or other feedback about the Products, Services or related technology (“Feedback”). However, if Customer’s personnel provide any Feedback to DIBT, DIBT may use and modify it without any restriction or payment. When the Products with firmware are accessible by the Internet, Customer agrees that DIBT may obtain data from the Software other than any data that relates to an identifiable individual (PII) for the purpose of supporting and improving the Software and related solutions. “Intellectual Property Right(s)” means worldwide patent rights (including, without limitation, patent applications and disclosures), trademarks, copyrights, moral rights, know-how, and any other intellectual property rights recognized in any country or jurisdiction in the world.
4. Term and Termination.
   • The Agreement is effective on the earlier of the date the first Order Confirmation is entered into by Customer and expires when all of the Products and Services under that Order Confirmation have been delivered.
   • Termination and Suspension. Either party may terminate the Agreement or an Order Confirmation if the other party materially breaches the Agreement and fails to cure the breach within 30 days after receiving notice that specifically identifies the breach.
   • Effect of Termination. Except if Customer terminates for DIBT’s uncured material breach under Section 4.2, termination of the Agreement or an Order Confirmation will not relieve Customer from Customer’s obligation to pay DIBT any fees stated in an Order Confirmation. After termination or expiration of the Agreement, (a) Customer will stop using the Software and will promptly certify in writing that all copies of the Software have been destroyed, (b) any license granted to the Software will immediately end, and (c) DIBT will have no further obligation to perform any Services. Termination of an Order Confirmation does not terminate the Agreement unless no other Order Confirmations are in effect. Termination of the Agreement will result in the immediate termination of all Order Confirmations. Sections 2, 3, and 6-9 of the Agreement will survive termination.
5. Limited Warranty and Warranty Disclaimer.
   • DIBT warrants that the Products will be free from material defect in materials and workmanship; for a period of twenty-four (24) months from the date of shipment to the Delta Partner, traceable through the unique serial number on each product. unless the Order Confirmation expressly states otherwise. DIBT shall incur no liability under the foregoing warranty unless: (a) the allegedly defective Product is returned prepaid to DIBT within thirty (30) days of the date of discovery of the alleged defect, in accordance with DIBT’s then current repair procedures; and (b) DIBT’s tests determine that the alleged defect is due solely to defects in material or workmanship.
   • DIBT’s liability under this Product warranty shall in any event be limited, at DIBT’s option and expense, to either the repair or replacement of the defective Hardware, or the reimbursement of the purchase price paid by Customer to DIBT for the defective Product, less applicable depreciation. This warranty does not cover damage or defect caused by: (a) failure to properly store the Products, misuse, improper application, wrong or inadequate electrical current, voltage or frequency, inadequate connections, user negligence, repair by non-DIBT designated personnel, shipping damage, tampering, or repair or unauthorized alterations to Products sold, change of location or application, the Customer’s or end user’s neglect, abuse, misuse, or misapplication; (b) exposure to the elements, accidents, vandalism, theft, sabotage, or force majeure/acts of God, including but not limited to fire, flood, or lightning; (c) improper testing, operation, maintenance, adjustment, or any modification of any kind not authorized in writing by DIBT’s personnel or performed by an authorized DIBT service agent, installation contrary to DIBT’s recommendations or specifications or; (d) if serial numbers have been altered, defaced, or removed. DIBT’s warranty can be found at: https://www.warranty.deltacontrols.com/warranty.
   • The above Product warranties do not apply to Products resold by DIBT with the branding of the original manufacturer, including but not limited to goods, services, software and solutions from DIBT’s Affiliates (“Third Party Products”). DIBT does not warrant Third Party Products. DIBT shall use commercially reasonable efforts to extend to Customer any warranties provided by the manufacturer(s) of Third Party Products.  Customer is solely liable for registering Third Party Products with the manufacturer if registration is required as a condition of the manufacturer’s warranty. Third Party Products which are defective must be returned to the manufacturer and not to DIBT.
   • Products requiring repair or replacement (in warranty) will be issued an RMA number by DIBT. Products may not be returned without an RMA number. Customer is responsible for shipping hardware parts requiring repair/replacement to DIBT. DIBT will repair and return or issue an advance replacement at DIBT’s sole discretion as set out in DIBT’s then-current repair documentation. In the event DIBT issues an advance replacement, Customer shall ship faulty Product no later than thirty (30) days following the issuance date of such advance replacement by DIBT (the “Return Date”), unless otherwise agreed upon by DIBT. In the event that no fault is found on the Product for which Customer required repair, Customer shall be liable for DIBT’s then current procedure and repair costs as set out in DIBT’s then-current repair documentation.
   • Products may not be returned without prior written authorization from DIBT, which authorization may be withheld for any reason, or subject to such reasonable terms and conditions as DIBT may require. At a minimum, Products may not be returned unless they are in their original packaging, unopened and unused and must be returned within four (4) weeks from date of delivery. In the event DIBT accepts return of a Product, Customer shall pay shipping costs as well as the greater of DIBT’s then current re-stocking fee, or fifteen percent (15%) of Customer pricing in effect for such returned Product.
   • Out of warranty repair and replacement of hardware parts is subject to DIBT’s then current procedures and repair costs as set out in DIBT’s then-current repair documentation.
   • DIBT warrants that the repaired, refurbished and replaced Products (“Repaired Product”) will be free from material defects and will substantially comply with DIBT’s published documentation accompanying the Product for a period equal to the greater of ninety (90) days from the date of shipment or the remainder of the original warranty period associated with the Repaired Product.
   • DIBT warrants to Customer that the Services shall be performed in a professional, workman-like manner, in accordance with current industry standards and in accordance with the Agreement. DIBT will re-perform any Services which DIBT determines are not in compliance with this warranty which Customer brings to DIBT’s attention, in writing, on or before thirty (30) days immediately following completion of the applicable Service. Any warranty claims hereunder must be made by Customer; no claim will be accepted from a third party.
   • Out of warranty repair and replacement of hardware parts is subject to DIBT’s then current procedures and repair costs as set out in DIBT’s then-current repair documentation.
   • In no event shall DIBT’s liability to Customer or to any other party for breach of any of any warranty exceed the purchase price paid by Customer to DIBT for the defective Product or Service, except for cases of willful misconduct or fraud by DIBT. The express warranties in the Agreement are exclusive and are in lieu of all other warranties, representations or conditions, expressed or implied, including without limitation, implied warranties of merchantability or fitness for a particular purpose, non-infringement, or those arising from statute or usage of trade. Notwithstanding anything contained in the Agreement to the contrary, Products or Services provided to Customer for evaluation and/or at no charge are provided “as is” and without warranty of any kind whatsoever.
6. The indemnity provisions in this Section only apply to Paid Licenses.
   • DIBT’s Indemnification Obligations. DIBT will defend Customer and Customer’s respective directors, officers and employees (“Customer’s Indemnified Parties”) against Indemnified Liabilities in any Third-Party Legal Proceeding to the extent arising from an allegation that (a) the Software infringes, misappropriates or otherwise violates any third party’s Intellectual Property Right, (b) DIBT’s willful misconduct or fraud, or (c) DIBT violated any applicable law.
   • Customer’s Indemnification Obligations. Customer will defend DIBT, its Affiliates, and their respective directors, officers and employees from and against all third party claims to the extent resulting from or alleged to have resulted from (a) the Customer Data infringes, misappropriates or otherwise violates any third party’s Intellectual Property Right, (b) Customer’s willful misconduct or fraud, or (c) Customer violated any applicable law
   • Indemnification Exclusions. Sections 6.1(DIBT’s Indemnification Obligations) and Section 6.2 (Customer’s Indemnification Obligations) will not apply to the extent the underlying allegation arises from:

1. the indemnified party’s breach of the Agreement; or
2. modifications to the Software by anyone other than DIBT or its agents; or
3. combination of the Software with materials not provided by DIBT;
4. failure to use the most current, supported version of DIBT’s Software provided under the Agreement or
5. compliance with the indemnified party’s instructions, design or request for customized features.

• Indemnification Conditions. Sections 6.1 (DIBT’s Indemnification Obligations) and 6.2 (Customer’s Indemnification Obligations) are conditioned on the following:

6. The indemnified party will promptly notify the indemnifying party in writing of any allegation(s) that preceded the Third-Party Legal Proceeding and cooperate reasonably with the indemnifying party to resolve the allegation(s) and Third-Party Legal Proceeding. If breach of this Section 6.4(a) prejudices the defense of the Third-Party Legal Proceeding, the indemnifying party’s obligations under Section 6.1 or 6.2 (as applicable) will be reduced in proportion to the prejudice.
7. The indemnified party will tender sole control of the indemnified portion of the Third-Party Legal Proceeding to the indemnifying party, subject to the following: (i) the indemnified party may appoint its own non-controlling counsel, at its own expense; and (ii) any settlement requiring the indemnified party to admit liability, pay money, or take (or refrain from taking) any action, will require the indemnified party’s prior written consent, not to be unreasonably withheld, conditioned, or delayed.
8. In the event that the Products or any part become, or in DIBT’s opinion are likely to become, subject of a claim of infringement of an Intellectual Property Right, or the use of the Products or any part is enjoined as a result of any such claim, the Customer shall permit DIBT, at its option and expense, to either (i) procure for the Customer the right to continue using the Products; (ii) to replace the affected Products with non-infringing Products; (iii) modify the affected Products so that they become non-infringing; or (iv) remove the affected Products, and refund the purchase price less a reasonable amount for depreciation. In the event of a claim or anticipated claim of infringement prior to the expiration of the Evaluation Period, DIBT may require the immediate removal of Products from Customer’s premises, at DIBT’s sole cost, without further liability to Customer.
9. Notwithstanding any provision to the contrary, the limited indemnity provided by DIBT in this Section in connection with the Products shall not apply and is not available for, or in connection with, any Third-Party Products. This Section states the entire liability of DIBT with respect to any actual or alleged infringement of any Intellectual Proprietary Right.

7. Limitation of Liability. In this Section, “liability” means any liability, whether under contract, tort, or otherwise, including for negligence.
   • General Limitations on Liability. Subject to section 7.2 (Exceptions to Limitations):

(a) Neither party will have any liability arising out of or relating to the Agreement for: (1) indirect, special, incidental or consequential losses (whether or not foreseeable or contemplated by the parties at the Effective Date); (2) exemplary or punitive damages; or (3) the other party’s lost revenues, profits, or data; and

(b) Each party’s aggregate liability arising out of or relating to the Agreement will not exceed the amount paid or payable to DIBT under the applicable Order Confirmation for the six (6) months preceding the subject claim.

• Exceptions to Limitations. Nothing in the Agreement excludes or limits either party’s liability for: (a) breach of confidentiality obligations under Section 2, (b) the indemnification obligations under Section 6, (c) infringement of the other party’s intellectual property rights; (d) death or personal injury resulting from its negligence or the negligence of its employees or agents; or (e) matters for which liability cannot be excluded or limited under applicable law.

8. Dispute Resolution.

If the Customer is domiciled in the U.S.: The Agreement and all matters arising out of or relating to the Agreement is governed by California law, without regard to conflict of law, and each party irrevocably consents to exclusive jurisdiction over all claims and disputes between the parties in the state and federal courts located in Delaware, USA. The United Nations Convention on Contracts for the International Sale of Goods (CISG) does not apply.

If the Customer is domiciled outside of the U.S.: Any unresolved dispute arising out of or in connection with the Agreement shall be finally resolved by arbitration with one arbitrator conducted in English under the Rules of Arbitration of the International Chamber of Commerce that are made a part of the Agreement. Either party can obtain temporary restraining orders, preliminary injunctions, and other similar relief in a court of competent jurisdiction when necessary to preserve status quo or prevent injury pending resolution of the dispute on its merits by arbitration. The United Nations Convention on Contracts for the International Sale of Goods (CISG) does not apply. The Agreement and all matters arising out of or relating to the Agreement shall be governed by the laws of (without regard to conflict of law) and the location of the arbitration will be, as follows:

Customer domiciled in Asia	Laws of Singapore	Arbitration will be held in Singapore
Customer domiciled in Canada	Laws of British Columbia	Arbitration will be held in Vancouver
Customer domiciled in Mexico, Central America or South America	Laws of New York	Arbitration will be held in New York City
Customer domiciled elsewhere (other than the U.S.)	Laws of England	Arbitration will be held in London

9. US Government End Customers. If the Customer is the government of the United States of America, the following provision shall apply: The software and related documentation is provided to the United States government as commercial computer software and/or computer software documentation under licenses customarily provided to the public to the extent such licenses are consistent with Federal law and otherwise satisfy the government’s needs. Accordingly, the government shall have only those rights specified in the license set forth herein as per FAR 12.212 (a). If that license fails to meet the government’s needs or is inconsistent in any respect with Federal law, the government agrees to return the software and the Products, unused, to DIBT.
10. Hazardous Use Prohibition. Customer acknowledges that the Products are intended for standard commercial uses. The Products must not be sold, licensed or otherwise distributed for use in any hazardous environments requiring fail safe performance such as in the operation of nuclear facilities, aircraft navigation or communications systems, air traffic control, direct life support machines, weapons systems, or any other application in which the failure of the Products could lead directly to death, personal injury or severe physical or environmental damage. Customer agrees that the use, sale, license or other distribution of the Products for any such application without the prior written consent of DIBT shall be at Customer’s sole risk.  Customer agrees to indemnify, defend and hold DIBT harmless from any claims, costs, damages, charges, fees, expenses, losses or other liabilities which may arise out of or in connection within the use, sale, license or other distribution of the Products for such applications.
11. Export Control. The Software is subject to U.S. and/or Canadian export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Customer agrees to comply strictly with all such regulations and acknowledges that it has the responsibility to obtain licenses to export, re-export, or import the Software. Where the Customer is based in the United States, the Software may not be downloaded, or otherwise exported or re-exported (i) into or to a national or resident of any country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nations or the U.S. Commerce Department’s Table of Denial Orders. By installing or using the Software, Customer is warranting that it is not located in or under the control of, or a national or resident of any such country or on any such list.
12. Miscellaneous. Neither party will assign the Agreement in whole or in part without the other party’s prior written consent (which consent will not be unreasonably denied, delayed or conditioned), except no consent is necessary for assignment to a successor that is made in connection with a merger or sale of all or substantially all of a party’s assets or equity. Any attempted assignment in violation of this restriction is void. The Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. If a conflict exists between any of the terms the Agreement and the Order Confirmation, then the Order Confirmation will govern only if it is signed by both parties. Neither party relies on any undertaking, promise, assurance, statement, representation, warranty or understanding of any person relating to the subject matter of the Agreement, other than as stated in the Agreement. Notices will be provided in writing and delivered by commercial overnight or next day courier to the address of the other party stated on the Order Confirmation. The Agreement does not create a partnership, agency relationship, or joint venture between the parties. Neither party has the power or authority to bind the other or to create any obligation or responsibility on behalf of the other. Under no circumstances will any employee of one party be deemed to be the employee of the other. If any provision of the Agreement is unenforceable, that provision will be modified to render it enforceable to the extent possible to give effect to the parties’ intentions and the remaining provisions will not be affected. The parties may amend the Agreement only in a written amendment signed by both parties. The Agreement does not confer any benefits on any third party unless it expressly states that it does.

The Agreement can be executed electronically and in counterparts, each of which is deemed to be an original and together comprise a single document. Each party represents and warrants that the individual binding a party under the Agreement is authorized to do so.

Prior Versions:

None