Terms and Conditions of Sale
THESE TERMS AND CONDITIONS OF SALE TOGETHER WITH AN ORDER ACKNOWLEDGEMENT DULY SIGNED BY INTERAXON AND BUYER FORM A BINDING LEGAL AGREEMENT BETWEEN INTERAXON AND BUYER.
Buyer acknowledges and agrees that Buyer is aware of the following and will ensure that End Users and Distributors are made aware of the following warning:
THE SOFTWARE, USER INFORMATION, USER INTERFACE, SUPPORT, COMMUNICATION AND AGREEMENTS, ARE ONLY PROVIDED IN ENGLISH. DO NOT USE THE MUSE OR OTHER INTERAXON PRODUCTS UNLESS YOU CAN FLUENTLY READ AND UNDERSTAND ENGLISH.
DEFINITIONS & INTERPRETATION.
Construction. In this Agreement: (a) unless the context requires otherwise, the singular will include the plural and vice versa; (b) “includes” and “including” are not limiting; and (c) “all” includes “any” and “any” includes “all”.
Headings. The headings of each section of this Agreement are provided for convenience only. If any conflict of interpretation arises between a heading and the text of this Agreement, the text shall prevail to the extent of such conflict.
Agreement. All references to “Agreement” include this Agreement and any Schedules (including any attachments, exhibits or documents referenced in or by such Schedules).
“Amendment” means: (a) an express written amendment to this Agreement signed by an authorized signatory of InteraXon and Finder; or (b) an express written notice contemplated by this Agreement sent by InteraXon to Finder in compliance with the notice provision in this Agreement.
“Business Day(s)” means any weekday. Notwithstanding the foregoing, with respect to delivery of Products by INTERAXON, the term shall not include a day designated as a national holiday in the Territory or in Canada. Any reference herein to a number of days that does not reference “Business Day(s)” is a reference to a number of calendar days.
“Buyer Generated Content” means any text, feedback, ideas, suggestions, documents, proposals, photographs or other data or information Buyer, Distributor or anyone acting on behalf of Buyer or Distributor submits to InteraXon or through InteraXon Services.
“Distributor” means a person or entity enabled by Buyer to distribute Products to End Users in the Territory. Such person or entity shall be deemed to represent Buyer and be an agent of Buyer,
“End User” means a user of any Products who obtains the Products through Buyer or a Distributor and who acquires such Products for use in the regular course of their business, or for personal use, and not with a view toward further distribution.
“Excluded Taxes” means only those Taxes imposed on INTERAXON by a Tax Authority: (a) based on INTERAXON’s net income, or (b) in respect of INTERAXON’s property. For clarity, Excluded Taxes do not include any Taxes imposed or as otherwise directed by INTERAXON on INTERAXON in relation to: (i) INTERAXON executing, delivering, becoming a party to or performing any obligations under this Agreement, or (ii) INTERAXON receiving any payment pursuant to this Agreement.
“InteraXon Branding Guidelines” means INTERAXON’s then-current branding guidelines applicable to this Agreement (which may be located at http://findyourmuse.com/legal or as otherwise directed by INTERAXON) as they may be modified or amended by INTERAXON from time-to-time, which shall be deemed to be incorporated by reference into this Agreement.
“InteraXon Return Procedures” means INTERAXON’S then current procedures for returning INTERAXON products, such procedures may be amended by INTERAXON from time-to-time.
“InteraXon Services” means any online and mobile services made available by InteraXon from time- to-time, including, but not limited to certain websites, widgets, computer programs and mobile applications hosted by or on behalf of InteraXon.
“Limited Warranty” means INTERAXON’s then current standard limited warranty, in whatever form or medium provided by or on behalf of INTERAXON to end users in conjunction with their purchase of new Products, as may be amended from time to time and as may be made available by INTERAXON (at http://findyourmuse.com/legal, or as otherwise directed by INTERAXON).
“Non-Personally Identifiable User Generated Data” means all Buyer Generated Content except for Personally Identifiable User Generated Data.
“Order” means Buyer’s order to purchase Products from INTERAXON. For clarity, INTERAXON’s acceptance of any Order is subject to INTERAXON and Buyer entering into an Order Acknowledgement, and in all other cases, an Order is deemed rejected.
“Order Acknowledgement” means a written agreement between INTERAXON and Buyer pertaining to the purchase of INTERAXON products by Buyer.
“Parties” means INTERAXON and Buyer, and “Party” means INTERAXON or Buyer, as applicable.
“Personally Identifiable User Generated Data” mean Buyer Generated Content that identities a user of an InteraXon product or service. For example, InteraXon considers the user’s picture, name, address, phone number, email address, and EEG data (commonly known as brainwaves) as Personally Identifiable User Generated Data. For clarity, Personally Identifiable User Generated Data does not include anonymized or aggregated data.
“Product” means a product manufactured by on behalf of INTERAXON and described in the Order Acknowledgment. Product specifically excludes any services including any services provided by or on behalf of INTERAXON, Buyer and/or any third party.
“Prohibited Distributor” means any person or entity that produces, creates or manufactures brain sensing technology or applications unless such person or entity is expressly and in writing pre-approved by INTERAXON. This definition may be modified or amended by INTERAXON from time-to-time by notice. Such revised definition will be deemed to be incorporated by reference into this Agreement.
“Reverse Engineer” includes any act of reverse engineering, translating, disassembling, decompiling, decrypting or deconstructing (including any aspect of “dumping of RAM/ROM or persistent storage”, “cable or wireless link sniffing”, or “black box” reverse engineering) data, software (including interfaces, protocols and any other data included in or used in conjunction with programs that may or may not technically be considered software code), service or hardware or any method or process of obtaining or converting any information, data or software from one form into a human readable form.
“INTERAXON’s License(s)” means INTERAXON’s then current standard license(s), in whatever form or medium provided by or on behalf of INTERAXON to end customers in conjunction with Products, as may be amended from time to time and as may be made available by INTERAXON (at http://findyourmuse.com/legal, or as otherwise directed by INTERAXON).
“Software” has the meaning ascribed to it in INTERAXON’s License applicable to the Product. Software specifically excludes Third Party Applications and, for clarity, Third Party Applications shall not form part of Software or any specification for a Product (regardless of whether or not a Third Party Application is identified in any specification for a Product) and Third Party Applications shall not constitute, or be treated, construed or interpreted as being shipped, supplied, authorised or otherwise provided by or on behalf of INTERAXON.
“Taxation Authority” means any government, state, municipality or any local, provincial, state or other fiscal, customs, excise or taxing authority, body or official with responsibility to impose, assess, collect or administer any Taxes or make any decision or ruling in respect of any Taxes.
“Taxes” means all taxes, dues, fees, levies, withholdings and similar charges or duties of any nature whatsoever, imposed, assessed or collected by any Taxation Authority, together, in each case, with all interest, penalties, fines or other additional amounts imposed in respect thereof.
“Territory” means the country(ies) identified in the Order Acknowledgement.
“Third Party Applications” means any software, application, technology, content, website, standard or specification, product or service developed by or on behalf of Buyer or a third party for installation and/or use in conjunction with an INTERAXON product, including without limitation all intellectual property rights embodied therein.
“Transaction Taxes” means all Taxes that are or are in the nature of: (A) sales, use, ad valorem, value added, excise, goods and services, or harmonized sales Taxes; (B) license, stamp, or transfer Taxes; or (C) customs, import or export Taxes.
DELIVERY ACCEPTANCE. Buyer shall validate each shipment of Product(s) against attached packing slips for accuracy of items and quantities promptly upon receipt and immediately notify INTERAXON in writing of any discrepancy between the attached packing slip and the shipment upon discovery of any nonconformity. Unless INTERAXON has received notice of any nonconformity from Buyer within five (5) Business Days of the Product shipment date, Buyer shall be deemed to have accepted the shipment.
PAYMENT. Buyer agrees to pay INTERAXON’s invoice in full in the currency specified on the Order Acknowledgement without deduction or set-off: (a) if a time period is specified on the Order Acknowledgement, within the time period specified on the Order Acknowledgement; or (b) if no time is specified on the Order Acknowledgement, payment is required in advance of shipment by INTERAXON. No discounts are authorized by INTERAXON. INTERAXON may require full or partial payment in advance of Product delivery. Buyer represents and warrants that Buyer: (a) can make the payments as contemplated in the Agreement; and (b) Buyer is not restricted or impeded in any way from making, and does not require any approvals (including from any government authority) to make, foreign payment transactions from Buyer’s territory to INTERAXON as contemplated by and in compliance with the Agreement. If INTERAXON is required to bring legal action to enforce Buyer’s payment obligations under this Agreement, Buyer shall pay all reasonable legal fees and costs (including any registration fees, penalty fees, reasonable legal and third party professional fees and disbursements) associated with such legal action. In addition to any other remedies available to INTERAXON, if Buyer fails to pay any amount when it is due under the Agreement: (i) INTERAXON may refuse to accept any Order and/or delay/cancel shipment of any outstanding deliveries, or withhold any services, until the account has been settled without any penalty to INTERAXON or recourse against INTERAXON; and/or (b) INTERAXON may charge interest on the outstanding balance from the date it became due and payable until the date the outstanding balance is paid in full at the interest rate of interest specified on the Order Acknowledgement, and if no interest rate is specified on the Order Acknowledgement, the of interest will be the maximum rate permitted by law.
DISPUTED INVOICES. Buyer agrees that Buyer will pay any amounts not disputed by Buyer in good faith and in compliance with the Agreement. Disputed amounts must be paid by Buyer to INTERAXON on the later of: (a) the applicable invoice payment date; or (b) if the dispute is resolved in INTERAXON’s favour after the applicable invoice payment date, immediately following the resolution of the dispute or on or before such other date as mutually agreed by the Parties in writing as part of the resolution. Buyer may only withhold payment of any amounts that Buyer disputes in good faith and if Buyer has notified INTERAXON in writing of the amount of the invoice it disputes and reasons why it disputes this amount prior to the applicable invoice payment date. Reference to “disputed amounts” in the Agreement means invoices disputed in compliance with this section.
CREDIT. INTERAXON may, in its sole discretion, extend credit to Buyer subject to receipt of financial information as may be requested by INTERAXON from time to time or as required by the Agreement. Buyer acknowledges and agrees that INTERAXON has no obligation to provide credit to Buyer, and the provision of credit shall in no way modify the terms of this Agreement. If INTERAXON, at its sole discretion decides to extend credit to Buyer, Buyer agrees to comply with INTERAXON’s then current credit guidelines in effect from time-to-time.
TAXES. Buyer is solely responsible for and will pay all Taxes (other than Excluded Taxes) in relation to the Agreement. INTERAXON is solely responsible for and will pay any Excluded Taxes it is liable for under law. Unless otherwise specified in the Agreement, all amounts payable by Buyer to INTERAXON under the Agreement are exclusive of Transaction Taxes. Buyer will pay to INTERAXON, in addition to the amounts otherwise payable by Buyer to or for the benefit of INTERAXON under the Agreement, all applicable Transaction Taxes (whether or not charged or required by law to be charged by INTERAXON), unless: (A) Buyer is entitled to a lawful exemption from such Transaction Taxes, or (B) Buyer has remitted such Transaction Taxes directly to the relevant Taxation Authority as required by law; and, in either case, Buyer has provided INTERAXON with evidence thereof to INTERAXON's satisfaction. Notwithstanding anything to the contrary contained in the Agreement (including the remainder of this section), if any amounts (including Taxes) are required to be withheld by Buyer from any amount payable to or for the benefit of INTERAXON under the Agreement, Buyer will: (I) pay an additional amount to INTERAXON such that the net amount received by INTERAXON, after all required withholdings (including any withholdings applicable to amounts payable pursuant to this sentence), equals the full amount of the payment then due; (II) pay, or cause to be paid, the full amount withheld to the relevant Taxation Authority in accordance with law; and (III) deliver to INTERAXON as soon as practicable an official receipt (or certified copy thereof) or such other documentation as is reasonably acceptable to INTERAXON evidencing such payment to the relevant Taxation Authority. Buyer agrees to hold INTERAXON harmless in respect of any Taxes (other than Excluded Taxes) imposed, assessed or collected by any Taxation Authority in relation to the Agreement. INTERAXON agrees to hold Buyer harmless in respect of any Excluded Taxes imposed or assessed by a Taxation Authority on Buyer.
Buyer acknowledges and agrees that notwithstanding the Limited Warranty: (i) any returns or warranty claims associated with the Products will be accepted by or on behalf of Buyer in accordance with applicable laws, INTERAXON’s then current Limited Warranty, and InteraXon Return Procedures for the Product; and (ii) Buyer will be responsible for ensuring that: (A) Products are stored in a safe and suitable environment (which shall not damage the Products and/or impair the performance, function or appearance of the Products), and in accordance with INTERAXON’s reasonable instructions from time to time; (B) Products are distributed on a first in first out basis; and (C) any obligations imposed on the seller of the Products under applicable laws are fulfilled, including any obligations that extend beyond INTERAXON’s obligations set out in the Limited Warranty or INTERAXON’s obligations as expressly set out in the Agreement; and (iii) INTERAXON will be under no obligation to repair or replace a Product under warranty to the extent: (I) Buyer has not complied with storage requirements applicable to Products; or (II) the Product has been modified in any way by, or on behalf of, anyone other than INTERAXON; or (III) if the damage or harm is caused or contributed to by Buyer, any third party, any good or service of Buyer, or any good or service of a third party.
EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, INTERAXON EXPRESSLY EXCLUDES TO THE FULLEST EXTENT PERMISSIBLE IN LAW ALL REPRESENTATIONS, WARRANTIES, CONDITIONS, ENDORSEMENTS, GUARANTEES, STIPULATIONS AND COVENANTS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING: (A) ANY EXPRESS OR IMPLIED REPRESENTATIONS, WARRANTIES, CONDITIONS, ENDORSEMENTS, GUARANTEES, STIPULATIONS OR COVENANTS OF FITNESS FOR A PARTICULAR PURPOSE OR USE, NON-INFRINGEMENT, MERCHANTABILITY, MERCHANTABLE QUALITY, SATISFACTORY QUALITY, DURABILITY, TITLE, OR RELATED TO THE PERFORMANCE OR NON-PERFORMANCE OF THE PRODUCTS OR SERVICES, OR ARISING FROM A STATUTE OR CUSTOM OR A COURSE OF DEALING OR A USAGE OF TRADE OR OTHERWISE WHICH, BUT FOR SUCH EXCLUSION, WOULD OR MIGHT SUBSIST IN FAVOR OF ANY PERSON. AND (B) WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, INTERAXON’S DISCLAIMERS AS SET OUT IN THE INTERAXON’S LICENSE APPLICABLE TO THE PRODUCT SHALL APPLY.
INTELLECTUAL PROPERTY RIGHTS AND REPRESENTATIONS.
Buyer’s only rights with respect to any software, including software included with or embedded in the Product, shall be as provided under the terms of the INTERAXON’s License applicable to the Product. Title to all Software remains with INTERAXON. Buyer acknowledges and agrees: (i) to all terms of INTERAXON’s License applicable to the Product; (ii) INTERAXON retains ownership of all right, title and interest in all intellectual property, works of authorship, trademarks, trade secrets and the like in all aspects of the Products and that nothing in the Agreement transfers any title or ownership interest in any Product, including any associated marks, copyrights, software, literature, materials, or documentation to Buyer or any third party; and (iii) Buyer shall not alter, modify, adapt, create derivative works, translate, deface, decompile, disassemble, reproduce, or Reverse Engineer (except to the extent that applicable law prohibits reverse engineering restrictions) all or any portion of any INTERAXON products or services, or permit, facilitate or instruct any other person to do so.
Subject to Buyer’s compliance with this Agreement, INTERAXON’s Licenses and INTERAXON’s reasonable instructions from time to time, when a Product is made commercially available by INTERAXON pursuant to the Agreement, INTERAXON hereby grants to Buyer a non-assignable, revocable, non-exclusive, non-transferable right in relation to those Products to:
(i) promote, market and distribute the Products (without modification) to End Users in the Territory;
(ii) sell Products (without modification and which, in the case of Software, means Software media and not the Software itself) to End Users in the Territory;
(iii) give End Users in the Territory the right to obtain a license from INTERAXON for the use of the Software; and
(iv) provided that Buyer complies with the requirements of Sections 9(c) and 9(d), appoint Distributors and grant them all or a portion of the rights set out in Sections 9(b)(i) to 9(b)(iii) above.
Buyer may appoint Distributors as specified in Section 9(b(iv)), provided that Buyer agrees and ensures that: (i) such Distributors are not Prohibited Distributors; (ii) such Distributors execute distributor agreements with Buyer that are no less restrictive than and consistent with the terms and conditions of the Agreement; (iii) Buyer shall be fully liable for the acts and omissions of Distributors and anyone acting through Distributors; (iv) INTERAXON has no liability to such Distributors or anyone acting through such Distributors; and (v) Buyer and Distributors are aware and acknowledge that INTERAXON has appointed and may, from time-to-time appoint distributors, resellers, and agents to distribute Products (including software) and/or services in the Territory and INTERAXON may directly or indirectly distribute such Products in the Territory and nothing in the Agreement precludes INTERAXON from doing that.
Buyer shall ensure that Buyer and any anyone representing Buyer: (i) does not participate in any threatening, deceptive, tortious, offensive, misleading, obscene, illegal, or unethical practices that may be detrimental to INTERAXON or to any INTERAXON products or services and that any representations made about INTERAXON and INTERAXON products and/or services are fair and accurate; (ii) does not make any representations, warranties, or guarantees to End Users concerning any INTERAXON products and/or services without INTERAXON’s prior express written authorization; (iii) will comply with all applicable federal, national, state, provincial and local laws and regulations, including those relating to tax, foreign exchange, anti-corruption, transfer of money, marketing, consumer protection, data protection, anti-mafia, organised crime, anti-terrorism or maintenance of public order; (iv) will not sell refurbished or used INTERAXON products, or any parts or materials associated therewith, in whole or in part except to the extent authorized by an Amendment; (v) does not engage in business practices, promotions or advertising which may be injurious to the reputation or business goodwill of INTERAXON; (vi) upon receiving notice of removal of a Product, forthwith stop marketing and distribution of Products specified in such notice; (vii) except to the extent expressly agreed in an Amendment, will not modify the Product or replace the Software on the Product or modify any point of sale packaging; and (viii) will not use INTERAXON marks (including, without limitation, as part of any press releases, products, services, domain name, company name, marketing, and/or promotional materials) without INTERAXON’s prior express written authorization and in compliance with the InteraXon Branding Guidelines.
Except to the extent expressly agreed upon in writing in and Amendment, Buyer will not (and will not allow any third party to): (a) use the Product and the associated software for any purpose other than as authorized under INTERAXON’s License(s); (b) remove or alter any copyright notice or any other notices that appear on Products or the associated software, or modify or create derivative works thereof; (c) use the Product or any associated software, or allow the use, transfer, transmission, export, or re-export of the Products or any associated software or portion thereof in violation of any export control laws or regulations, or in violation of any laws or regulations.
Buyer represent that Buyer will ensure that any Buyer Generated Content: (a) will not infringe any third party's copyright, patent, trademark, trade secret or other proprietary rights, or rights of privacy; (b) will not violate any law, statute, ordinance or regulation; (c) will not be obscene or contain child pornography; and (d) will not be defamatory, unlawfully threatening or harassing, harmful to minors or others in any way, or otherwise offensive or inappropriate.
Buyer grants to INTERAXON a revocable, non-exclusive, worldwide, royalty-free license, to reproduce, distribute, transmit, publicly perform, publicly display, digitally perform, modify, create derivative works of, and otherwise use Personally Identifiable User Generated Data in any media now existing or developed in the future only so far as required to deliver INTERAXON Services and products. Buyer waives any rights of publicity, moral or other similar such right with respect to Personally Identifiable User Generated Data while used in accordance with the preceding sentence. Buyer grants to InteraXon a perpetual, irrevocable, non-exclusive, worldwide, royalty-free license, with the right to sublicense, to reproduce, distribute, transmit, publicly perform, publicly display, digitally perform, modify, create derivative works of, and otherwise use and commercially exploit Non-Personally Identifiable User Generated Data in any media now existing or developed in the future. Buyer waives any rights of publicity, moral or other similar such right with respect to the Non-Personally Identifiable User Generated Datathat might require permission for InteraXon to use such Non-Personally identifiable Buyer Generated Content.
Buyer acknowledges and agrees that: (i) INTERAXON is not responsible for the selection, implementation, and performance of any third party equipment used in connection with Products or Interaxon Services; (ii) Buyer is aware that only certain smartphones or tablets are designed to work with Products; (iii) content generated or found through InteraXon Services or products is for informational purposes only and is not intended to replace the relationship between the user and his or her physician or other health-care provider; and (iv) InteraXon is not a licensed medical or health-care care provider and has no expertise in diagnosing, examining, or treating medical conditions of any kind.
CANCELLATION. Buyer may cancel or delay delivery of an Order only upon written request to INTERAXON made prior to INTERAXON confirming INTERAXON’s acceptance of the Order in an Order Acknowledgement. INTERAXON may agree to a Buyer request to cancel or delay delivery under an Order Acknowledgement subject to special conditions specified by INTERAXON which may include Buyer paying for: (a) costs of settling and paying claims arising out of the termination of work under INTERAXON's subcontracts or vendors; (b) accounting, legal and clerical costs; and/or (c) twenty percent (20%) of the purchase price of the portion of the shipment under the Order Acknowledgement that is cancelled or delayed.
ELECTRONIC DOCUMENTS. Buyer hereby consents to the exchange of information and documents from INTERAXON to Buyer electronically (“Electronic Agreement”) including by electronic data interchange , over the Internet or by e-mail. Buyer agrees that the Electronic Agreement shall be the equivalent of an original written paper agreement between Buyer and INTERAXON. A printed version of the Electronic Agreement and of any information or documents exchanged electronically shall be admissible in judicial or administrative proceedings based upon or relating to the Electronic Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
FORCE MAJEURE. Neither Party is liable in any way including for any damages or penalties for any failure or delay in performance hereunder which is proximately caused by, attributable to or arising from strikes, shortages, suppliers, riots, insurrection, fires, floods, storms, earthquakes, acts of God, war, governmental action, restrictions by governmental or other competent authority, statutory or regulatory obligations, labour conditions, disruptions caused as a result of the Internet, or other causes beyond a Party’s reasonable control. The failure to make any payment required under this Agreement shall never be excused under this force majeure provision.
NOTICES. Except as otherwise provided in the Agreement, all notices or other communications hereunder shall be deemed to have been duly given when made in writing and delivered in person, by courier or deposited in the mail, postage prepaid, registered mail or its equivalent, return receipt requested, and addressed to: (a) Buyer at the Sold To address in the Order Acknowledgement; or (b) INTERAXON at 303 – 511 King Street West, Toronto, Ontario, Canada M5V 1K4. In addition to the foregoing, INTERAXON may, at its option, give Buyer any notice under the Agreement electronically, which shall be deemed to have been duly given when transmitted to an email address furnished by Buyer to INTERAXON.
ERRORS. If any Products are priced, quoted, listed or in any way incorrectly presented due to a typographic, photographic, availability or specification error in an Order Acknowledgement, INTERAXON reserves the right to correct any such errors, inaccuracies or omissions.
In order to fulfill the purposes of the Agreement, each of the Parties (each in turn a “Disclosing Party”) may disclose or permit the other Party (the “Receiving Party”) access to the Disclosing Party’s Confidential Information (as defined in the NDA) in accordance with the terms and conditions of the NDA as described in the Order Acknowledgement. The Parties acknowledge and agree that the provisions of the NDA will be incorporated by reference into the terms of the Agreement except that: (a) the terms of the NDA will continue to apply to this Agreement with respect to Confidential Information disclosed pursuant to this Agreement even if the NDA expires; (b) Confidential Information revealed or otherwise disclosed under the Agreement may be used or reproduced solely to the extent necessary to further and fulfil the purposes of the Agreement (which will be determined to be the “Purpose”); and (c) the completion of the Agreement will not affect the validity of and effect of the NDA. The terms of the Agreement will be deemed to be INTERAXON’s Confidential Information.
LIMITATION OF LIABILITY. THE LIABILITY OF EACH PARTY TO THE OTHER PARTY UNDER THIS AGREEMENT WILL BE SUBJECT TO A TOTAL CUMULATIVE CAP EQUAL TO THE TOTAL AMOUNT PAID BY BUYER TO INTERAXON PURSUANT TO THE ORDER ACKNOWLEDGEMENT. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, ECONOMIC, SPECIAL, COMMERCIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS, LOSS OF BUSINESS REVENUE OR EARNINGS, LOST DATA, DAMAGES CAUSED BY DELAYS, OR A FAILURE TO REALIZE EXPECTED SAVINGS) DIRECTLY OR INDIRECTLY ARISING OUT OF OR IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THE AGREEMENT, OR FROM A BREACH OF CONTRACT, TORT OR OTHER LIABILITY, EVEN IF THE POSSIBILITY OF SUCH DAMAGES WERE KNOWN OR SHOULD HAVE BEEN KNOWN OR THEIR LIKELIHOOD HAS BEEN DISCLOSED TO INTERAXON OR BUYER AS THE CASE MAY BE. FOR CLARITY AND NOTWITSTANDING THE FORGOING, NEITHER PARTY’S LIABILITY WILL BE SUBJECT TO ANY LIMITATION: (A) IN RESPECT OF THAT PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT; (B) IN RESPECT OF THAT PARTY’S INFRINGEMENT OR VIOLATION OF THE INTELLECTUAL PROPERTY RIGHTS OF THE OTHER PARTY; (C) TO THE EXTENT THAT SUCH LIABILITY CANNOT BE EXCLUDED AT LAW; AND (D) ANY OBLIGATION TO PAY ANY AMOUNT PAYABLE FOR PRODUCTS OR SERVICES DELIVERED PURSUANT TO THIS AGREEMENT.
GOVERNING LAW. THIS AGREEMENT, ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PREEXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, COMMON LAW AND/OR EQUITABLE CLAIMS) BETWEEN BUYER AND INTERAXON ARISING FROM OR RELATING TO THE AGREEMENT, ITS INTERPRETATION, CONSTRUCTION OR THE BREACH OR VALIDITY THEREOF, SHALL, EXCEPT TO THE EXTENT THAT INTERAXON IS EXPRESSLY PROHIBITED BY APPLICABLE LAW, BE GOVERNED BY LAWS OF THE PROVINCE OF ONTARIO, CANADA, AND SHALL TAKE PLACE IN THE COURTS OF THE CITY OF TORONTO, ONTARIO, CANADA, EXCLUDING ANY BODY OF LAW GOVERNING CONFLICTS OF LAW. The United Nations Convention on Contracts for the International Sale of Goods is hereby excluded in its entirety from application to this Agreement. Except as otherwise expressly provided in this Agreement, the Parties to this Agreement do not intend that any of its terms shall be enforceable by any person not a Party to it by virtue of any applicable laws pertaining to the rights of third parties. Buyer acknowledges and agrees that a breach of the Agreement may cause irreparable harm to INTERAXON, for which damages may not be an adequate remedy. Accordingly, in addition to any remedies at law, notwithstanding any other provision in the Agreement, INTERAXON may seek injunctive or equitable relief at any time, including against Buyer, without posting any security in any court of competent jurisdiction.
(ii) as a Subsequent Recipient, the Party shall only use such End User Data for the purpose for which the End User Data was disclosed to the Subsequent Recipient, in a manner consistent with the Agreement or as otherwise agreed to in writing by the Parties.
(iii) as a Subsequent Recipient, the Party shall use the same or better standard of care to safeguard the Direct Recipient’s End User Data as it uses to safeguard its own End User Data, but in all instances no less than a reasonable standard of care. A Subsequent Recipient may disclose the Direct Recipient’s End User Data to the Subsequent Recipient’s parent or affiliates only if: (A) they have a need to know the Direct Recipient’s End User Data in order to fulfil the Subsequent Recipient’s obligations and only if they have entered into an agreement with the Subsequent Recipient with terms that afford no less protection to the End User Data than the terms of the Agreement; and (B) Subsequent Recipient is vicariously liable for the failure of any of the parties that have had access to the End User Data through the Subsequent Recipient, to comply with the Subsequent Recipient’s obligations herein.
(iv) each Party may disclose End User Data if compelled by legal process; except as prohibited by law, under such a circumstance, the Party will: (A) promptly notify the other Party to permit the other Party to seek a protective order or take other appropriate action; and (B) reasonably cooperate in the other Party’s efforts to obtain a protective order or other reasonable assurance that confidential treatment will be afforded to the End User Data.
(v) the Party will treat End User Data as strictly confidential at all times, except as expressly specified in this section or as otherwise expressly agreed to in writing by the Parties.
(vi) the Party will have in place appropriate technical, physical and organisational security safeguards to protect End User Data against unauthorised, unlawful or accidental access, collection, use, loss, theft, alteration, disclosure, copying or destruction.
NON-EXCLUSIVITY. Buyer acknowledges on behalf of itself and Distributors that it is aware that and it will ensure that Distributors are aware that INTERAXON and/or INTERAXON affiliates may have appointed and may, from time-to-time, appoint other distributors, resellers and agents to distribute INTERAXON products and/or services in the Territory, and that INTERAXON and/or INTERAXON affiliates may have distributed and may, from time-to-time, distribute directly or indirectly INTERAXON products and/or services in the Territory and that nothing in the Agreement precludes INTERAXON from doing any of the foregoing.
MULTIPLE BUYERS AND/OR INTERAXON ENTITIES. Notwithstanding anything to the contrary contained in the Agreement, Buyer acknowledges and agrees that: (a) if there is more than one entity comprising the “Buyer” (including if the entity described under Sold To and Bill To on the Order Acknowledgement are different, in which case both entities will be deemed to be “Buyer”; (b) where there are multiple INTERAXON entities that are Parties to this Agreement, INTERAXON’s obligation under the Agreement to Buyer will be no greater than its obligations would be if there was only one entity comprising the “Buyer” and/or one INTERAXON entity as a Party to this Agreement; and (c) each of the entities comprising the “Buyer” shall be jointly and severally liable for the obligations of Buyer under this Agreement. For the purposes of this Section 20, a Guarantor described in the Order Acknowledgement will be deemed to be a “Buyer”.
LEGAL AND/OR REGULATORY. Buyer acknowledges and agrees that notwithstanding anything to the contrary contained in the Agreement, INTERAXON in its discretion may choose to not ship or make available any product and/or service which, in INTERAXON's determination, fails to comply with legal and/or regulatory and/or contractual requirements or restrictions, and/or which INTERAXON is otherwise prohibited from shipping or making available (either temporarily or permanently) or if Buyer is involved in any proceeding concerning Buyer’s solvency, or if a receiver or administrator has been appointed in relation to any of Buyer assets or if INTERAXON has a serious concern about Buyer’s solvency or ability or desire to continue business. Buyer irrevocably authorises INTERAXON to register or file or disclose on its on behalf or on behalf of Buyer a copy of the Agreement or any portion thereof, as INTERAXON may determine in its sole discretion, with any government authority or agency or other administrative body or as INTERAXON determines may be necessary. Unless Buyer is expressly authorised by INTERAXON in writing or required by law, Buyer will ensure that the Agreement is not registered or filed anywhere or otherwise disclosed to any third parties. Where Buyer is required by a law of the Territory to disclose the Agreement, Buyer agrees to: (i) provide INTERAXON with sufficient notice to enable INTERAXON to seek an order to limit or preclude such disclosure; (ii) redacts from the Agreement being disclosed, any commercial or other information that is not mandatory to disclose; and (iii) ensures that the recipient is made aware of the confidential nature of the Agreement being disclosed. Unless otherwise expressly agreed to in writing by INTERAXON, Buyer acknowledges and agrees and will ensure that End Users are aware that INTERAXON is providing English only documentation and English only interface. Any translation or localisation obligations relating to the Products and/or the English documentation and/or interface, to comply with local legal, regulatory or other requirements shall be Buyer’s responsibility and shall be performed by Buyer at Buyer’s cost and only in accordance with INTERAXON’s instructions and then current translation guidelines in effect from time-to-time.
CHANGES. Buyer acknowledges and agrees that: (a) INTERAXON reserves the right to make changes in the design of Products and/or associated software without the obligation to make equivalent changes to products that have previously been supplied to Buyer; and (b) except as expressly set forth in the Agreement, Buyer will not be entitled to change or cancel any order that has previously been accepted by INTERAXON without the prior written agreement of INTERAXON.
SEVERABILITY. If any section, clause, provision or sentence or part thereof of the Agreement (“Provision”) is held invalid under any applicable laws, such invalidity shall not affect any other Provision that can be given effect without the invalid Provision (including the limitations of liability which form an essential basis of the bargain between the Parties). Further, all terms and conditions in the Agreement shall be deemed enforceable to the fullest extent permissible under applicable law and, when necessary, the Parties hereby agree that the court is requested to reform any and all terms or conditions to give them such effect.
WAIVER. A Party’s failure to exercise any of its rights under the Agreement will not constitute or be deemed to constitute a waiver or forfeiture of those rights and a waiver of any default, breach or non-compliance under the Agreement shall not be effective unless such waiver is signed by the Party to be bound by the waiver (which in the case of INTERAXON must be signed by an authorised signatory of INTERAXON) and provided in writing to the other Party.
CONFLICT. If there is any conflict between an Order and an Order Acknowledgement, the Order Acknowledgement shall prevail.
ASSIGNMENT. Except as expressly authorised under the Agreement, neither Party may assign the Agreement, or any rights or obligations in the Agreement, in whole or in part, without the other Party’s prior written consent, which consent will not be unreasonably withheld, provided that such assignment does not materially affect the rights or obligations of the non-assigning Party. Notwithstanding the foregoing, either Party may assign the Agreement without consent to any purchaser of a majority of the assigning Party’s outstanding shares or to any purchaser of substantially all of the assets of the assigning Party that relate to this transaction, or may assign it to a parent, wholly owned subsidiary, or to an affiliate provided that the assigning Party has provided express written notice in accordance with Section 13 (Notices) to the other Party at least thirty (30) days in advance of such assignment. In the case of any assignment by Buyer, Buyer shall ensure the purchaser is not a person or company or entity who, upon a reasonable objective determination, competes with INTERAXON and/or an INTERAXON affiliate. Any purported assignment in violation of this section shall be null and void. For clarity, the Party assigning the Agreement shall not be released from any liability arising under the Agreement, whether before or after the assignment, unless the other Party expressly consents in writing (such consent not to be unreasonably withheld, delayed or conditioned) that the assigning Party is released from liability arising after the consent date.
VARIATIONS. These Terms and Conditions of Sale shall apply to the Order Acknowledgement to which it is attached, unless and to the extent expressly modified in a written agreement signed by INTERAXON and Buyer. The terms and conditions of the Agreement may not be changed unless such changes are made in writing in an agreement signed by INTERAXON and Buyer.
ENTIRE AGREEMENT. The Parties acknowledge and agree that they have not relied on any prior or contemporaneous communications, representations, warranties, conditions, or agreements whether oral or written, collateral or otherwise (collectively “Pre-Contractual Statements”) in entering into the Agreement and accordingly the Agreement and any non-disclosure agreement between the Parties constitute the entire agreement between the Parties. The Agreement supersedes any prior or contemporaneous communications, representations, warranties, conditions or agreements between the Parties, whether oral or written, collateral or otherwise, regarding the subject matter of the Agreement. The Parties acknowledge and agree that they shall: (a) treat any such Pre-Contractual Statements as being withdrawn and having the effect that they were never made; and (b) have no right or remedy in respect of such Pre-Contractual Statements. Nothing in this section shall operate to limit or exclude any liability for fraud.
EXECUTION. The Agreement may be executed in two or more identical counterparts, facsimile counterparts or electronic counterparts, each of which when executed by a Party shall be deemed to be an original and such counterparts shall together constitute one and the same Agreement. Signing of the Agreement and transmission of the signed Agreement by facsimile or electronic document transfer will be acceptable and binding upon the Parties hereto. The Agreement shall be binding when the Agreement has been signed once by each of the Parties. Buyer covenants to provide INTERAXON with an original copy of the Agreement with the original signatures of Buyer’s signatory(ies) (“Buyer’s Original”). Buyer acknowledges and agrees that the failure of Buyer to provide INTERAXON with a Buyer’s Original shall not have any impact on the enforceability of the Agreement. Any handwritten changes made to the Agreement must be initialed by all Parties in order to be binding on the Parties.
LANGUAGE. The Agreement will be interpreted and performed in the English language and all communication between INTERAXON and Buyer will be in English. If INTERAXON, in its sole discretion, decides to translate the Agreement (including any amendments thereto) into the local language for the Territory or any part thereof, Buyer shall review and approve such translated version. If Buyer fails to approve such translated version within seven (7) Business Days of INTERAXON’s request, Buyer will be deemed to have approved such translated version. For clarity, to the extent of any conflict between the English version of the Agreement (including any amendments thereto) and the translated version, the English version will prevail.
SURVIVAL. The provisions of the Agreement that under a commercially reasonable interpretation reveal that the Parties likely would have such provisions survive termination or expiration of the Agreement, will survive the termination or expiration of the Agreement, including without limitation, Sections 4, 7-9, 13,15-18, 20, 21 and 30.
Revised: March 16, 2014