Terms & Conditions of Sale
THESE TERMS AND CONDITIONS GOVERN THE SALE OF ALL HARDWARE, SOFTWARE AND SERVICES (COLECTIVELY, “PRODUCTS”) BY SigmaSense®, LLC (“SigmaSense®”) AND APPLY NOTWITHSTANDING ANY CONFLICTING, CONTRARY OR ADDITIONAL TERMS AND CONDITIONS IN ANY PURCHASE ORDER OR OTHER DOCUMENTS OR COMMUNICATIONS FROM CUSTOMER. THESE TERMS AND CONDITIONS MAY ONLY BE WAIVED OR MODIFIED IN A WRITTEN AGREEMENT SIGNED BY AN AUTHORIZED REPRESENTATIVE OF SigmaSense®.
- Price And Taxes. Unless otherwise noted in writing by SigmaSense®, all prices quoted shall be exclusive of all use, sales, excise, property and similar taxes, duties and any shipping and insurance charges. Any such applicable tax, duty or charge shall be paid by the Customer, in addition to the prices quoted or invoiced.
- Payment Terms. Unless otherwise agreed in writing by SigmaSense®, Customer shall make payment upon execution of the applicable order form in accordance with the applicable quotation or invoice. If in SigmaSense®’s opinion Customer’s financial condition is or becomes impaired or unsatisfactory or inadequate to meet Customer’s obligations under these Terms and Conditions, SigmaSense® may require advance cash payment or an irrevocable letter of credit from a U.S. Bank (in form and substance reasonably acceptable to SigmaSense®). ALL PAYMENTS ARE NON-REFUNDABLE, NON-CANCELLABLE AND NON-CREDITABLE UNLESS OTHERWISE REQUIRED BY LAW OR THESE TERMS AND CONDITIONS, OR AGREED TO BY SigmaSense® IN ITS SOLE DISCRETION
- Orders And Delivery. All orders must be in writing (including electronic orders) and will be binding on SigmaSense® only when accepted by SigmaSense®, in its sole discretion. Without limiting the foregoing, SigmaSense® may reject any order that it believes could violate any applicable export control laws and regulations of the U.S. or any other country, in its sole discretion. All orders must include SigmaSense®’s Product or part number, Customer cost, quantity, ship to address, bill to address, shipping instructions, and net terms. SigmaSense® may in its sole discretion, if Customer requests delivery dates not in compliance with SigmaSense®‘s quoted lead times, specify an alternative delivery schedule. SigmaSense® will use commercially reasonable efforts to comply with Customer’s requested delivery dates and to deliver in accordance with such SigmaSense®-specified delivery schedule; provided that SigmaSense® shall not be liable for any losses arising from any delivery delays.
- Packing And Shipment. All Products shall be packed, if appropriate, for shipment and storage in accordance with standard commercial practices. All shipments shall be Ex Works (Incoterms 2010) Austin, Texas, USA, or an authorized SigmaSense® facility. Customer shall pay all customs charges, duties, transportation, freight and similar charges and special packing expenses. Title to the Products and risk of loss shall pass to Customer at the Ex Works location. Delivery of a quantity that varies from the quantity ordered shall not relieve Customer of the obligation to accept delivery and to pay for the Products delivered.
- Ownership of Intellectual Property. Although Customer will own the hardware Products that it purchases from SigmaSense® in accordance with these Terms and Conditions, SigmaSense® shall continue to own all right, title and interest in the intellectual property incorporated into, or associated with, the hardware Products and the other Products, including patents, copyrights and all other related intellectual property rights. Customer shall not reverse engineer, de-compile or disassemble the Products.
- Changes And Cancellations. Customer may not cancel or reschedule current purchase orders without the prior written approval of SigmaSense®, which approval shall be in its sole discretion.
- Patent and Copyright Indemnification. Subject to Section 11, SigmaSense® shall, except as otherwise provided below, indemnify, defend and hold harmless Customer against any third-party suits, actions, claims, losses, judgments, damages, costs and expenses (including reasonable attorneys’ fees) to the extent based upon a claim that any Product (other than certain third party products sold separately by SigmaSense®), as provided by SigmaSense® to Customer under this Agreement and used within the scope of these Terms and Conditions and the End User Product and License Agreement, infringes a U.S. patent or copyright, if notified promptly in writing. Customer shall promptly provide the information and assistance reasonably requested by SigmaSense® and the sole authority to defend or settle same. SigmaSense® shall not be liable for any settlement agreed to by Customer without SigmaSense®‘s written consent, in its sole discretion.
In case a Product is or, in SigmaSense®‘s opinion, might be held to infringe, SigmaSense® shall have the option, at its own expense, to procure for Customer the right to continue using such Product, or replace or modify such Product to avoid infringement. If no other alternative is commercially reasonable, Customer may return the affected Products in its inventory to SigmaSense® and SigmaSense®‘s sole liability, in addition to its indemnification obligation, shall be to refund a pro-rate portion of the amount paid for such returned Products based on an assumed useful life of five (5) years.
Notwithstanding the foregoing, SigmaSense® shall have no liability to Customer for claims of patent or copyright infringement based upon or arising out of: (a) the inclusion of any Product into an allegedly infringing system or process where the Product alone would not be infringing; (b) modifications of the Products without SigmaSense®’s consent; (c) the use of any Product other than in accordance with the specifications or documentation for such Product where the Product when used in accordance with the specifications or documentation would not be infringing; (d) compliance with designs, plans or specifications furnished by or on behalf of Customer (or its customers) as to the Products or services, (e) failure of Customer (or its customers) to use updated Products or services, including error corrections and updates, provided by SigmaSense® for avoiding infringement, (f) a patent or copyright in which Customer (or its customers) or affiliate or subsidiary of the Customer (or its customers) has any direct or indirect interest by license or otherwise or (g) any other claim of infringement where the Products, standing alone and as delivered by SigmaSense®, would not have given rise to such claim. Customer shall hold SigmaSense® harmless against any expense or loss resulting from infringement of patents or trademarks from compliance with Customer’s designs, specifications or instructions.
The foregoing states the entire liability of SigmaSense® to Customer or any of Customer’s customers or transferees for patent, copyright or other intellectual property infringement, or claims related thereto, by Products furnished hereunder.
- Software. Customer acknowledges and agrees that all software Products, whether incorporated in the hardware Products or otherwise obtained by Customer from SigmaSense® are proprietary to SigmaSense® and its licensors and are subject to copyrights owned by SigmaSense® and its licensors. Subject to these Terms and Conditions and payment of all applicable fees, SigmaSense® grants to Customer a limited, non-exclusive, non-transferable and royalty-free right to use the software Products solely in connection with the use of the hardware Products (the “License”). Customer shall (a) have no right to access or use the software Products as stand-alone software or in connection with any other system or hardware and (b) not copy, modify, adapt, translate, create derivative works or improvements of any software Products. SigmaSense® and its third-party licensors reserve all other rights and licenses in and to the software Products not expressly granted to Customer under this License. Any references to “purchases” or “sales” of software Products signify only the purchase of a right to access and use the software Product for the applicable term in question pursuant to these Terms and Conditions. Customer agrees that it will not acquire any rights with respect to any software Product other than the right to access and use it pursuant to these Terms and Conditions.
- Feedback. Customer hereby grants SigmaSense® a non-exclusive, worldwide, fully paid-up, royalty-fee, non-terminable, perpetual, irrevocable license to use, disclose, modify, reproduce, license, distribute, commercialize and otherwise freely exploit any feedback, comments, or suggestions with respect to the Products and all related intellectual property without restriction of any kind and without any right of accounting.
- Limited Warranty. All Products (other than certain third party products and software incorporated in the Products) are provided subject to the provisions of the Limited Warranty. The current version of the Limited Warranty is available upon request. The Limited Warranty is exclusive and in lieu of all other warranties, and SigmaSense® IS MAKING NO OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS AND SOFTWARE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. The foregoing limitations shall apply even if the above-stated warranty fails of its essential purpose.
- Limitation Of Liability. IN NO EVENT SHALL SigmaSense® BE LIABLE TO CUSTOMER OR ANY OTHER ENTITY FOR LOST PROFITS, LOST BUSINESS OPPORTUNITIES OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS BY ANYONE OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, HOWEVER CAUSED, WHETHER FOR BREACH OF WARRANTY, BREACH OF CONTRACT, REPUDIATION OF CONTRACT, NEGLIGENCE OR OTHERWISE, AND WHETHER OR NOT SigmaSense® HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL SigmaSense®’S LIABILITY ARISING OUT OF THESE TERMS AND CONDITIONS, THE PRODUCTS OR OTHERWISE, EXCEED THE MONEY PAID TO SigmaSense® FOR THE PRODUCTS GIVING RISE TO THE LIABILITY UNDER THESE TERMS AND CONDITIONS OR ANY OTHER AGREEMENT DURING THE ONE (1) YEAR PERIOD PRECEDING THE INCIDENT GIVING RISE TO THE CLAIM. The essential purpose of this provision is to limit the potential liability of SigmaSense® arising out of the sale of Products to Customer whether for breach of contract, negligence, or otherwise. These limitations shall apply notwithstanding any failure of essential purpose of any limited remedy.
- Indemnification. Customer agrees to indemnify, defend and hold SigmaSense® and its officers, directors, employees and agents harmless from and against all third-party suits, actions, claims, losses, judgments, damages, costs and expenses (including reasonable attorneys’ fees) arising in connection with, or related to (a) Customer’s actual or alleged breach of these Terms and Conditions, (b) Customer’s use of any Product, except for those matters as to which SigmaSense® bears sole responsibility as specifically provided herein and (c) Customer’s negligence or willful misconduct.
- Import And Export Requirements. The Products, including technical data, may be subject to U.S. export control laws and regulations, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import laws and regulations in the countries where Customer is operating and other countries. Customer shall, at its own expense, procure all licenses and other permits, pay all tariffs, customs charges, duties and similar fees, and take all other actions and strictly comply with all applicable laws and regulations required to accomplish the export, re-export and import of the Products. Customer shall hold harmless and indemnify SigmaSense® for any damages resulting from a breach of this paragraph by Customer (or any of its customers).
- Customer Support Services. Subject to payment of all applicable fees and charges, CesiumAstro shall provide maintenance and support for the Products in accordance with the support plan purchased by Customer. Support will generally be provided via email at support@SigmaSense.com between the hours of 9:00 am and 5:00 pm CST Monday to Friday, excluding all state and Federal and other company holidays.
- Foreign Corrupt Practices Act. In conformity with the United States Foreign Corrupt Practices Act and with SigmaSense®‘s established corporate policies regarding foreign business practices, Customer and its employees and agents shall not directly or indirectly make an offer, payment, promise to pay, or authorize payment, or offer a gift, promise to give, or authorize the giving of anything of value for the purpose of influencing an act or decision of an official of any government within the countries where Customer is operating or the United States Government (including a decision not to act) or inducing such a person to use his influence to affect any such governmental act or decision in order to assist Customer or SigmaSense® in obtaining, retaining or directing any such business.
(a) Failure by SigmaSense® to exercise any of its rights hereunder shall not constitute or be deemed a waiver or forfeiture of such rights.
(b) No U.S. Government Procurement Regulations required to be included hereunder shall be binding on either party unless specifically agreed to in writing prior to incorporation herein.
(c) SigmaSense® shall have the right to make substitutions and modifications in the specifications of Products provided that overall Product performance is not materially affected in form, fit or function.
(d) Nonperformance of either party, except for any payment obligation, shall be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental acts, orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control and not caused by the negligence of the nonperforming party.
(e) The agreement between Customer and SigmaSense® with respect to the matters described herein and all matters related to the sale and/or license of Products to Customer shall be in all respects governed by the laws of the State of Texas without regard to its conflicts of laws provisions. The parties hereby agree that any dispute relating to the Products sold hereunder shall be subject to the exclusive jurisdiction of the federal and state courts in Travis County, Texas, and the parties agree to the personal and exclusive jurisdiction of these courts. The parties disclaim the United Nations Convention on Contracts for the International Sale of Goods, which shall not apply to this agreement or the parties’ performance hereunder. In the event that either party institutes any legal suit, action or proceeding against the other party arising out of or relating to these Terms and Conditions, the Products or the Limited Warranty, the prevailing party in the suit, action or proceeding shall be entitled to receive in addition to all other damages to which it may be entitled, the costs incurred by such party in conducting the suit, action or proceeding, including reasonable attorneys’ fees and expenses and court costs.
(f) The terms and conditions set forth herein, including the order form and the Limited Warranty, shall constitute the entire agreement between SigmaSense® and Customer with respect to the matters described herein and all related matters with respect to the sale and/or license of the Products, by SigmaSense® to Customer and shall not be qualified or interpreted by any trade usage or prior course of dealing unless expressly authorized in writing by SigmaSense®.
End-User Product and License Agreement
End User Product and License Agreement
PLEASE READ CAREFULLY: THIS END-USER PRODUCT AND LICENSE AGREEMENT (“AGREEMENT”) AND THE TERMS AND CONDITIONS (OR OTHER APPLICABLE AGREEMENT) UNDER WHICH THE SIGMASENSE® PRODUCT (ON WHICH THE SIGMASENSE® SOFTWARE IS BEING PROVIDED OR IS EMBEDDED) WAS SOLD, LEASED OR OTHERWISE PROVIDED IS A LEGAL AND BINDING AGREEMENT BETWEEN YOU AND/OR YOUR ORGANIZATION (“LICENSEE”), AND SIGMASENSE® LLC (“SIGMASENSE®”). USE OF THE SIGMASENSE® PRODUCTS AND THE SIGMASENSE® SOFTWARE ARE SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND ANY APPLICABLE THIRD-PARTY LICENSES. READ THIS AGREEMENT CAREFULLY BEFORE YOU AGREE TO THE TERMS OF THIS AGREEMENT.
BY CLICKING “I AGREE”, PURCHASING OR USING ANY OF THE SIGMASENSE® PRODUCTS, USING THE SIGMASENSE® SOFTWARE, OR OTHERWISE SIGNIFYING YOUR ACCEPTANCE OF THIS AGREEMENT, YOU REPRESENT AND WARRANT THAT (A) YOU ARE AUTHORIZED TO ENTER THIS AGREEMENT AND THE APPLICABLE THIRD-PARTY LICENSES FOR AND ON BEHALF OF YOUR ORGANIZATION, AND ARE DOING SO, (B) YOU AND YOUR ORGANIZATION CAN LEGALLY ENTER INTO THIS AGREEMENT AND THE APPLICABLE THIRD-PARTY LICENSES AND SATISFY ALL OF THEIR REQUIREMENTS AND (C) YOU HAVE READ AND UNDERSTAND AND AGREE THAT YOU AND THE ORGANIZATION SHALL BE BOUND BY THE TERMS OF THIS AGREEMENT AND ALL MODIFICATIONS AND ADDITIONS PROVIDED FOR. IF YOU DO NOT AGREE WITH THE TERMS OF THIS AGREEMENT, YOU SHALL BE PROHIBITED FROM USING THE SIGMASENSE® SOFTWARE.
SigmaSense® reserves the right to update and change, at any time and without notice, this End-User Product and License Agreement and all documents incorporated by reference. You can find the most recent version of this End-User Product and License Agreement at https://sigmasense.com/business-terms/. Your continued use of any of the SigmaSense® Products and/or the SigmaSense® Software after any such changes constitutes your acceptance of the new End-User Product and License Agreement.
IF YOU HAVE ANY QUESTIONS ABOUT THIS AGREEMENT, PLEASE CONTACT US AT:
2408 Rutland Dr.
Austin, TX 78758
This Agreement shall be effective as of the Effective Date (as defined below). SigmaSense® and Licensee agree that the following terms and conditions shall apply to all SigmaSense® Products and SigmaSense® Software. In consideration of the covenants and agreements contained herein, and other valuable consideration, the receipt and sufficiency of which are acknowledged, the parties hereby agree as follows:
- “Applicable Terms and Conditions” means SigmaSense®’s Standard Terms and Conditions for Sale (or other applicable agreement) pursuant to which the SigmaSense® Product was sold or otherwise provided to Licensee, as modified from time to time.
- “Data” means the files and data generated by use of the SigmaSense® Products and/or SigmaSense® Software.
- “Documentation” means the documentation provided by SigmaSense® with the SigmaSense® Products and/or Product Software.
- “Effective Date” means the earliest of (i) the date of shipment or other delivery of any SigmaSense® Product, (ii) the delivery or use of any Product Software or SigmaSense® Source Code, (iii) your agreement to this Agreement by clicking the “I AGREE” box or (iv) other indication of your acceptance of the terms of this Agreement.
- “Open Source Software” means any software or software component, module or package that contains, or is derived in any manner (in whole or in part) from, any software that is distributed as free software, open source software or similar licensing or distribution models, including, without limitation, software licensed or distributed under any of the following licenses or distribution models, or licenses or distribution models similar to any of the following: (i) GNU’s General Public License (GPL) or Lesser/Library GPL (LGPL); (ii) the Artistic License (e.g., PERL); (iii) the Mozilla Public License; (iv) the Netscape Public License; (v) the Sun Community Source License (SCSL); (vi) the Sun Industry Standards License (SISL); (vii) the BSD License; and (viii) the Apache License.
- “Product Software” means, collectively, (i) the SigmaSense® Software, (b) any Third-Party Software and/or Open Source Software included with the SigmaSense® Product and (c) any updates and upgrades provided from time to time by SigmaSense®.
- “SigmaSense® Product” means the board system solution or any chips developed by or on behalf of SigmaSense®.
- “SigmaSense® Software” means the software and other intellectual property developed or created by or on behalf of SigmaSense®, including any application programming interface (“API”), for which the Licensee has acquired the right to use under this Agreement and any updates and upgrades provided from time to time by SigmaSense®.
- “SigmaSense® Source Code” means any source code developed or created by or on behalf of SigmaSense®, including any data structure or other information contained within such source code.
- “Third-Party License” means any of the Third-Party Software Licenses (as defined in Section 3(a)) or Open Source Licenses (as defined in Section 3(b)).
- “Third-Party Licensor” means the licensor of any Third-Party Software or Open Source Software.
- “Third-Party Software” means any software or software component, module or package (other than Open Source Software) that contains, or is derived in any manner (in whole or in part) from, any software that is licensed or distributed by a Third-Party Licensor.
- Software Licenses.
(a) License. Subject to the terms and conditions of this Agreement, SigmaSense® grants to Licensee a non-exclusive, royalty-free, fully paid-up, non-transferable, limited license (the “License”) to use (i) the Product Software on the SigmaSense® Product to be incorporated into Licensee’s products or devices and not as a standalone product or technology, (ii) the Data (including without limitation with the SigmaSense® Product) solely for internal business purposes and (iii) the Documentation solely in connection with the use of the SigmaSense® Product.
In addition, SigmaSense® hereby grants to Licensee a non-exclusive, royalty-free, fully paid-up, non-transferable, limited license to any SigmaSense® Source Code that SigmaSense® makes available to Licensee from time to time solely for internal use in connection with the development of products related to the SigmaSense® Product or as otherwise approved in writing by SigmaSense® in advance.
(b) Proprietary Rights Protection. This License confers no ownership rights to Licensee and is not a sale of any rights in the Product Software, the media on which the Product Software is recorded or printed, the Data or the SigmaSense® Source Code. Licensee does not acquire any rights, express or implied, in the Product Software, the Data or the SigmaSense® Source Code, other than those rights specified in this Agreement. SigmaSense® or its Third-Party Licensors shall own and retain ownership of all right, title, and interest in and to (i) the Product Software and any copies, modifications, enhancements, and derivative works thereof; (ii) the Data and any copies, modifications, enhancements, and derivative works thereof; (iii) the SigmaSense® Source Code and any copies, modifications, enhancements, and derivative works thereof; and (iv) all intellectual property rights embodied within the foregoing subparagraphs(i), (ii) and (iii). Licensee shall not copy, modify, adapt or merge copies of the Product Software, the Data or the SigmaSense® Source Code except as specifically provided in this Agreement. Licensee shall not translate, reverse engineer, de-compile or disassemble the Product Software (except to the extent that law explicitly prohibits this contractual restriction), use the Product Software or the SigmaSense® Source Code in a service bureau or for the benefit of third parties, or use the Data directly or indirectly with a product that is competitive with SigmaSense®’s proprietary products. Licensee will not delete or in any manner alter the copyright, trademark, and other proprietary rights notices of SigmaSense® and/or its Third-Party Licensors appearing on the Product Software, the SigmaSense® Source Code or other SigmaSense® products. Licensee will reproduce such notices on all copies it makes of the Product Software. SigmaSense® and its Third-Party Licensors reserve all other rights and licenses in and to the Product Software and the SigmaSense® Source Code not expressly granted to Licensee under this Agreement.
(c) Feedback. Licensee hereby grants Licensor a non-exclusive, worldwide, fully paid-up, royalty-fee, non-terminable, perpetual, irrevocable license to use, disclose, modify, reproduce, license, distribute, commercialize and otherwise freely exploit any feedback, comments, or suggestions with respect to the Product Software, the SigmaSense® Product, the Data and/or the SigmaSense® Source Code provided by Licensee and all related intellectual property without restriction of any kind and without any right of accounting (“Feedback”).
(d) High-Risk Activities. The SigmaSense® Products and Product Software are not intended for use in connection with any high-risk activity, including, without limitation, air travel, space travel, fire-fighting, police operations, power plant operation, military operations, rescue operations, hospital or medical operations, nuclear facilities or equipment, or the like. Licensee agrees not to use or allow the use any of the SigmaSense® Products or Product Software for or in connection with any such high-risk activity.
(e) Government Sales. If Licensee is a branch or agency of the United States Government or a contractor thereto, the following provision applies. The Product Software is comprised of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and is provided to the Government (i) for acquisition by or on behalf of civilian agencies, consistent with the policies set forth in 48 C.F.R. 12.212; or (ii) for acquisition on behalf of the department of defense consistent with the policies set for the in 48 C.F.R. 227.7202-1 and 227.7202-3 (in each case as amended or supplemented from time to time).
(f) Audit Rights. Licensee shall at all times keep reasonable records relating to its use of the Product Software and the SigmaSense® Source Code and its compliance with the License and other licenses granted herein and the applicable Third-Party Licenses. Upon at least five (5) days’ prior written notice, a chartered or certified public accountant selected by SigmaSense® may, during normal business hours, but no more often than once per year (unless a previous audit discovered a material breach of the terms of this Agreement), inspect Licensee’s records to confirm compliance with this Agreement (and the applicable Third-Party Licenses). If the audit determines that Licensee violated the terms of this Agreement, in addition to any other remedy that SigmaSense® may have, Licensee shall pay to SigmaSense® all reasonable costs incurred by SigmaSense® in conducting the audit. Licensee shall make all payments required under this Section 2(f) within ten (10) days of the date of written notification of the audit results
- Third Party and Open Source Software.
(a) Licensee hereby acknowledges that the Product Software and/or the SigmaSense® Source Code may utilize or include Third-Party Software that must be licensed under the specific license terms applicable to such Third-Party Software. Acknowledgements, licensing terms, copyright notices, disclaimers and other terms applicable to such Third-Party Software (the “Third-Party Software Licenses”) are available at https://sigmasense.com/business-terms/. Licensee (a) acknowledges that any such Third-Party Software License is solely between Licensee and the applicable Third-Party Licensor of the Third-Party Software and (b) shall comply with the terms of any such applicable Third-Party License.
(b) Licensee hereby acknowledges that the Product Software and/or the SigmaSense® Source Code may also utilize or include Open Source Software that must be licensed under the specific license terms applicable to such Open Source Software. Acknowledgements, licensing terms, copyright notices and disclaimers for such Open Source Software (the “Open Source Licenses”) are available at https://sigmasense.com/business-terms/. Licensee agrees to review any such Open Source Licenses and other related documentation in order to determine which portions of the Product Software and/or the SigmaSense® Source are Open Source Software and are licensed under an Open Source License. To the extent any such Open Source License requires that SigmaSense® provide Licensee the rights to copy, modify, distribute or otherwise use any Open Source Software that are inconsistent with the limited rights granted to Licensee in this Agreement, then such rights in the applicable Open Source License shall take precedence over the rights and restrictions granted in this Agreement, but solely with respect to such Open Source Software. Licensee (a) acknowledges that any such Open Source License is solely between Licensee and the applicable Third-Party Licensor of the Open Source Software and (b) shall comply with the terms of any such applicable Open Source License. Open Source Software is distributed WITHOUT ANY WARRANTY, without even the implied warranty of MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Where the terms of an Open Source License entitle Licensee to the source code of any such Open Source Software, such source code is available under the terms of the applicable Open Source License by contacting SigmaSense® at the address above and identifying the specific Open Source Software for which Licensee wants the source code.
- Installation, Training, Support and Other Services. SigmaSense® shall be under no obligation to provide any services, whether relating to installation, training, support or otherwise, as a result of this Agreement (or any Third-Party License).
- Warranty Customer Support Services.
Licensee shall receive all SigmaSense® Products and SigmaSense® Software (other than certain third party products sold separately by SigmaSense®) subject to SigmaSense®’s Limited Warranty from date of shipment (as modified from time to time, the “SigmaSense® Limited Warranty”) and customer support services in accordance with SigmaSense®’s support terms (as modified from time to time, the “Support Terms”). Copies of the current SigmaSense® Limited Warranty and Support Terms are located at https://sigmasense.com/business-terms/.
- Patent and Copyright Indemnification.
SigmaSense® shall indemnify, defend and hold harmless Licensee and Licensee’s officers, directors, employees, agents, permitted successors and permitted assigns (each, including Licensee, a “Licensee Indemnitee”) from and against any and all liabilities, suits, actions and expenses, including costs of litigation and reasonable legal costs as a result of any claim by a third party that the SigmaSense® Software, when used in compliance with the terms of this Agreement and the Applicable Terms and Conditions, infringes any U.S. patent, copyright, trademark, trade secret, or other U.S. intellectual property right of any third party (an “IP Claim”); provided that Licensee provides reasonable notice to SigmaSense®, in writing, of any such IP Claim and promptly tenders the control of the defense and settlement of any such claim to SigmaSense® at SigmaSense®’s expense and with SigmaSense®’s choice of counsel. Licensee shall cooperate with SigmaSense®, at SigmaSense®’ expense, in defending or settling any such IP Claims. The foregoing obligations do not apply to any IP Claim to the extent that it arises from any allegation of or relates to:
(a) the use of the Sigma Sense Product, the SigmaSense® Software, the SigmaSense® Source Code and/or other materials in combination with any other systems, hardware, software or materials not supplied by SigmaSense® if the alleged infringement would not have occurred but for such combination;
(b) modifications of the SigmaSense® Product, SigmaSense® Software and/or SigmaSense® Source Code without SigmaSense®’s consent;
(c) the use of any SigmaSense® Product, SigmaSense® Software and/or SigmaSense® Source Code other than in accordance with the terms of this Agreement, the Specifications or documentation for such SigmaSense® Product, SigmaSense® Software and/or SigmaSense® Source Code where the SigmaSense® Product, SigmaSense® Software and/or SigmaSense® Source Code when used in accordance with the terms of this Agreement, the Specifications or documentation would not be infringing;
(d) compliance with designs, plans or specifications furnished by or on behalf of Licensee (or its customers) as to the SigmaSense® Product and/or SigmaSense® Software or services;
(e) failure of Licensee (or its customers) to use updated SigmaSense® Products, SigmaSense® Software and/or SigmaSense® Source Code or services, including error corrections and updates, provided by SigmaSense® for avoiding infringement;
(f) a patent or copyright in which Licensee (or its customers) or affiliate or subsidiary of the Licensee (or its customers) has any direct or indirect interest by license or otherwise; or
(g) any other claim of infringement where the SigmaSense® Product, SigmaSense® Software and/or SigmaSense® Source Code, standing alone and as delivered by SigmaSense®, would not have given rise to such claim.
Licensee shall hold SigmaSense® harmless against any expense or loss resulting from infringement of patents or trademarks in compliance with Licensee’s designs, specifications or instructions.
In case any SigmaSense® Product, or any SigmaSense® Software or SigmaSense® Source Code is or, in SigmaSense®’s opinion, might be held to infringe, SigmaSense® shall have the option, at its own expense, to procure for Licensee the right to continue using such SigmaSense® Product, SigmaSense® Software and/or SigmaSense® Source Code, or replace or modify such SigmaSense® Product, SigmaSense® Software and/or SigmaSense® Source Code to avoid infringement. If no other alternative is commercially reasonable, Licensee may return the affected SigmaSense® Products, SigmaSense® Software and/or SigmaSense® Source Code to SigmaSense® and SigmaSense®’s sole liability, in addition to its indemnification obligations set forth above, shall be to refund a pro-rata amount paid for such returned SigmaSense® Products, SigmaSense® Software and/or SigmaSense® Source Code.
- Warranty Disclaimer.
EXCEPT FOR THE SIGMASENSE® LIMITED WARRANTY, THE SIGMASENSE® PRODUCTS, THE PRODUCT SOFTWARE, THE SIGMASENSE® SOURCE CODE, DOCUMENTATION AND OTHER PRODUCTS, INFORMATION, MATERIALS AND SERVICES PROVIDED BY SIGMASENSE® ARE PROVIDED “AS IS.” SIGMASENSE® HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER (INCLUDING ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE), AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, SIGMASENSE® MAKES NO WARRANTY OF ANY KIND THAT THE SIGMASENSE® PRODUCTS, THE PRODUCT SOFTWARE, THE SIGMASENSE® SOURCE CODE OR DOCUMENTATION, OR ANY OTHER SIGMASENSE® OR THIRD-PARTY GOODS, SERVICES, TECHNOLOGIES OR MATERIALS (INCLUDING ANY SOFTWARE OR HARDWARE), OR ANY PRODUCTS OR RESULTS OF THE USE OF ANY OF THEM, WILL MEET LICENSEE’S OR OTHER PERSONS’ REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OTHER GOODS, SERVICES, TECHNOLOGIES OR MATERIALS (INCLUDING ANY SOFTWARE, HARDWARE, SYSTEM OR NETWORK) EXCEPT IF AND TO THE EXTENT EXPRESSLY SET FORTH IN THE DOCUMENTATION, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL THIRD-PARTY SOFTWARE IS PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY OF THEM IS STRICTLY BETWEEN LICENSEE AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF SUCH THIRD-PARTY SOFTWARE. The foregoing limitations shall apply even if the above-stated warranty fails of its essential purpose.
- Limitation of Liability.
(a) SigmaSense®’s liability under or for breach of the SigmaSense® Limited Warranty shall be limited to the replacement or refund of the purchase price actually paid by the Licensee to SigmaSense® for the SigmaSense® Product and/or SigmaSense® Software. IN NO EVENT SHALL SIGMASENSE® BE LIABLE FOR LOST PROFITS, LOST BUSINESS OPPORTUNITIES OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS BY ANYONE OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, HOWEVER CAUSED, WHETHER FOR BREACH OF WARRANTY, BREACH OF CONTRACT, REPUDIATION OF CONTRACT, NEGLIGENCE OR OTHERWISE, AND WHETHER OR NOT SIGMASENSE® HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL SIGMASENSE®’S LIABILITY ARISING OUT OF THIS AGREEMENT, THE APPLICABLE TERMS AND CONDITIONS, THE SIGMASENSE® PRODUCTS, THE PRODUCT SOFTWARE, THE SIGMASENSE® SOURCE CODE OR OTHERWISE EXCEED THE MONEY PAID TO SIGMASENSE® FOR THE SIGMASENSE® PRODUCTS GIVING RISE TO THE LIABILITY UNDER THIS AGREEMENT OR ANY OTHER AGREEMENT DURING THE ONE (1) YEAR PERIOD PRECEDING THE INCIDENT GIVING RISE TO THE CLAIM. THE FOREGOING CAP SHALL BE CUMULATIVE WITH, NOT IN ADDITION TO, ANY CAP PROVIDED IN THE APPLICABLE TERMS AND CONDITIONS. The essential purpose of this provision is to limit the potential liability of SigmaSense® arising out of the sale and licensing of products and software to Licensee whether for breach of contract, negligence, or otherwise. These limitations shall apply notwithstanding any failure of essential purpose of any limited remedy.
(b) THE PARTIES UNDERSTAND AND AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 8 ARE A REASONABLE ALLOCATION OF RISK BETWEEN THE PARTIES, AND, ABSENT SUCH ALLOCATION, SIGMASENSE® WOULD NOT BE ABLE TO SUPPLY THE SIGMASENSE® PRODUCTS OR THE PRODUCT SOFTWARE ON THE TERMS SET FORTH HEREIN. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
Licensee agrees, both during the term of this Agreement and for a period of five (5) years thereafter, to hold all information given to it by SigmaSense® that is identified as confidential, and all information concerning the SigmaSense® Products and/or Product Software that is not customarily and publicly available to an end user through use of the SigmaSense® Products or Product Software (collectively, the “Confidential Information”), in confidence, and not to make the Confidential Information available in any form to any third party or to use the Confidential Information for any purpose other than the purposes described in this Agreement. Without limiting the foregoing, any SigmaSense® Source Code is the Confidential Information of SigmaSense®.
As a condition to being provided with any disclosure of or access to Confidential Information, the Licensee shall during the Term and for five (5) years thereafter:
- not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;
- except as may be expressly permitted under the terms and conditions of this Section 9, not disclose or permit access to Confidential Information other than to its employees and other representatives who: (i) need to know such Confidential Information for purposes of the Licensee’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Licensee’s obligations under this Section 9; and (iii) are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 9;
- safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its most sensitive information and in no event less than a reasonable degree of care; and
- promptly notify SigmaSense® of any unauthorized use or disclosure of Confidential Information and take all reasonable steps to prevent further unauthorized use or disclosure; and
- ensure its employees’ and other representatives’ compliance with, and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this Section 9.
Notwithstanding any other provisions of this Agreement, the Licensee’s obligations under this Section 9 with respect to any Confidential Information that constitutes a trade secret under any applicable Law will continue until such time, if ever, as such Confidential Information ceases to qualify for trade secret protection under one or more such applicable Laws other than as a result of any act or omission of the Licensee or any of its Representatives.
This restriction on disclosure shall not apply to the extent that any Confidential Information (a) is or becomes a part of the public domain through no act or omission of Licensee; (b) was in Licensee’s lawful possession prior to the disclosure and had not been obtained by Licensee from SigmaSense®; (c) is lawfully disclosed to Licensee by a third party without restriction on disclosure; or (d) is independently developed by Licensee by personnel not having access to the Confidential Information.
In addition, Licensee may disclose Confidential Information as required by law or court order; provided that (a) Licensee provides SigmaSense® with prior written notice of such obligation and the opportunity to oppose such disclosure or obtain a protective order; (b) Licensee only discloses such Confidential Information as is required to comply with such order or law and (c) no such disclosure shall otherwise exempt such Confidential Information from being treated as confidential under this Agreement.
- Term and Termination.
(a) Term. This Agreement shall commence on the Effective Date and shall continue in effect unless terminated in accordance with this Section 10.
(b) Termination for Breach. SigmaSense® may terminate this Agreement and the licenses granted under this Agreement in the event Licensee breaches the terms of this Agreement and Licensee fails to cure such breach continues within thirty (30) days after receipt of notice from SigmaSense®.
(c) Effects of Termination. In the event of the termination of this Agreement and the licenses granted under this Agreement, Licensee shall destroy or return immediately the SigmaSense® Software, the SigmaSense® Source code and the Data and all copies thereof to SigmaSense® as certified in writing by an officer of Licensee. Licensee shall also immediately cease all use of all SigmaSense® Products.
(d) Survival. Upon termination of this Agreement, all of the parties’ respective rights and obligations hereunder shall cease, except that Sections 1, 2(b), 2(e), 3, 6, 7, 8, 9, 10(c) and 11 and this Section 10(d) shall survive any such termination.
(a) Export Restrictions. The SigmaSense® Products, SigmaSense® Software, the SigmaSense® Source Code, the Data, and related information are subject to U.S. export control laws and regulations, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import laws and regulations in other countries. Licensee shall, at its own expense, procure all licenses and other permits, pay all tariffs, customs charges, duties and similar fees, and take all other actions and strictly comply with all applicable laws and regulations required to accomplish the export, re-export and import of the SigmaSense® Products, Product Software and/or the SigmaSense® Source Code. Licensee shall hold harmless and indemnify SigmaSense® for any damages resulting from a breach of this Section 11(a).
(b) Notice. Any notice to be given hereunder shall be given in accordance with the Applicable Terms and Conditions.
(c) Force Majeure. The obligations of a party (other than payment) will be suspended by the occurrence of any event beyond its reasonable control and not caused by its negligence, that renders its performance impossible including, acts of God, war, fire, flood, accident, strike, casualty, power failures, governmental acts, orders or restrictions or inability to obtain suitable and sufficient labor and materials. The party invoking force majeure shall (a) send written notice thereof to the other within a reasonable time after the invoking party knew or should have known that performance would be delayed or prevented due to the force majeure and (b) take reasonable steps to limit the duration and effect of any such force majeure..
(d) Waiver. The failure of a party to claim a breach of any term of this Agreement shall not constitute a waiver of such breach or the right of such party to enforce any subsequent breach of such term.
(e) Assignment. Licensee shall not assign this Agreement or any of its rights or obligations hereunder without the prior written consent of SigmaSense®, and any such prohibited assignment shall be null and void. SigmaSense® may assign this Agreement or any of its rights or obligations hereunder without the prior written consent of Licensee.
(f) Severability. In the event that any provision of this Agreement is found to be invalid, void or unenforceable, the parties agree that unless such provision materially affects the intent and purpose of this Agreement, such invalidity, voidability or unenforceability shall not affect the validity of this Agreement nor the remaining provisions hereof.
(g) Third-Party Beneficiaries. Licensee hereby acknowledges that there may be third-party beneficiaries to this Agreement. To the extent that this Agreement contains provisions that relate to the SigmaSense® Products and/or the Product Software in which such third parties have an interest, such provisions are made expressly for the benefit of such third-party beneficiaries and are enforceable by such third-party beneficiaries in addition to being enforceable by SigmaSense®.
(h) Governing Law. This Agreement shall be governed by the laws of the State of Texas, without regard to its conflict of law principles. The jurisdiction for any legal action shall be exclusively the state and federal courts in Travis County, Texas and each party consents to the exclusive jurisdiction and venue of such courts. The application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement is expressly excluded. In the event that either party institutes any legal suit, action or proceeding against the other party arising out of or relating to these Terms and Conditions, the SigmaSense® Products, the Product Software or the SigmaSense® Source Code, the prevailing party in the suit, action or proceeding shall be entitled to receive in addition to all other damages to which it may be entitled, the costs incurred by such party in conducting the suit, action or proceeding, including reasonable attorneys’ fees and expenses and court costs.
(i) Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 2(b), 9 or 11(a), would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
(h) Entire Agreement. This Agreement, the Applicable Terms and Conditions, the Limited Warranty and the Support Terms together constitute the entire agreement between the parties on the subject matter hereof and supersedes all prior agreements, communications and understandings of any nature whatsoever, oral or written. This Agreement may not be modified or waived orally and may be modified only in writing signed by duly authorized representatives of each party. In the event of a conflict between this Agreement and the Applicable Terms and Conditions, this Agreement shall control.
[End of End-user Product and License Agreement]
© SigmaSense®, LLC 2020
SigmaSense® LIMITED WARRANTY
(a) SigmaSense® hereby warrants solely to Customer that the hardware Products will not contain any defects in material or workmanship that will cause such hardware Products to fail to function in any material respect when properly operated (the “Limited Hardware Warranty”) for a period of twelve (12) months from the date of delivery to Customer (the “Hardware Warranty Period”).
(b) Customer’s sole remedy for a breach of this Limited Hardware Warranty shall be the repair or replacement of the of the non-functioning hardware Products by SigmaSense®. Customer shall obtain from SigmaSense® a written authorization (“RMA”) before returning any such hardware Products. Customer will provide a description of the failure to function and other reasonable information to enable verification of the failure and return the nonconforming hardware Products to SigmaSense®’s designated facility. Customer shall be responsible for all shipping costs to the SigmaSense®’s designated facility except that SigmaSense®.
(c) SigmaSense® shall respond to any RMA request within five (5) business days of any such request.
(d) If any such hardware Product is not functioning with the scope of this Limited Hardware Warranty, SigmaSense® shall, at SigmaSense®’s sole option, (A) repair such hardware Product, (B) exchange the hardware Product with a hardware Product that is new or has been manufactured from new or serviceable used parts and is at least functionally equivalent to the original hardware Product or (C) exchange the hardware Product with a hardware Product that is a new and upgraded model that has at least equivalent or upgraded function to the original hardware Product, in each case within [twenty (20)] business days of SigmaSense®’s receipt thereof. When repairing or replacing the hardware Products, SigmaSense® may use products or parts that are new, equivalent to new or re-conditioned. SigmaSense® shall be responsible for the shipping costs associated with transporting the repaired or replaced hardware Product(s) back to Customer.
(e) Any hardware Product that was repaired or replaced under this Limited Hardware Warranty will be warranted for ninety (90) days from the repair or replacement date, or the remainder of the applicable Hardware Warranty Period, whichever is longer.
(f) In the event that SigmaSense® determines, using customary testing procedures, that any returned hardware Product is functioning within the scope of this limited Hardware Warranty, then SigmaSense® shall not be responsible for the repair or replacement of such hardware Product and Customer shall be responsible for the shipping costs of the return of such hardware Product to Customer or its designee.
(g) Notwithstanding any of the foregoing, this Limited Hardware Warranty does not extend to (i) non-conformities, defects or errors in any hardware Product due to accident, abuse, misuse or negligent use of the hardware Product or use in other than a normal and customary manner, (ii) environmental conditions not conforming to SigmaSense®’s product specification, or failure to follow prescribed operating and maintenance procedures, (iii) defects, errors or nonconformity’s in any hardware Product due to modifications, alterations, additions or changes not made in accordance with the SigmaSense®’s product specifications or authorized by SigmaSense® in writing, (iv) normal wear and tear, (v) damage caused by force of nature or act of any third person, (vi) any failure by Customer to package the hardware Products adequately for transportation or (vii) service or repair of the hardware Products by or on behalf of Customer, without prior written consent from SigmaSense®.
(a) SigmaSense® hereby warrants solely to Customer that the software Products will conform to SigmaSense®’s published specifications on the date of delivery when properly operated in accordance with the specifications and documentation (the “Limited Software Warranty”) for a period of ninety (90) days from the date of delivery (the “Software Warranty Period”) to Customer.
(b) Defects in the software Products will be reported to SigmaSense® accompanied by supporting information reasonably requested by SigmaSense® to verify, diagnose and correct the defect. SigmaSense®’s exclusive obligation and liability with respect to any nonconforming software Products shall be, at SigmaSense®’s option, (a) to replace that copy of the software Products with one that conforms to the specifications, or, (b) to use reasonable diligent efforts to provide the Customer with a correction or workaround of the defect.
MAKING A CLAIM UNDER THE LIMITED WARRANTY
If Customer wishes to make a warranty claim with respect to the hardware Products or the software Products, please contact us at [support@SigmaSense®.com] between the hours of 9:00 am and 5:00 pm CT Monday to Friday. Upon contacting SigmaSense®, please have the original proof of purchase, showing the date of purchase and full details of the hardware Products purchased.