1. Definitions
“Products” means the products purchased by customer (“Customer”) from Nextivity (“Nextivity”).
“Order[s]” shall mean each order made by Customer in which Products are purchased.
“Specifications” shall mean the specifications of the Products described on Nextivity’s website at https://nextivityinc.com/channel-partners
2. Product
2.1. Purchase and Sale of Product. Unless otherwise agreed to by both Parties in writing, this Agreement applies to all Orders which Customer may place with the Nextivity for the Products. The terms and conditions of this Agreement shall apply to any Order.
3. Restrictions
3.1. Customer acknowledges that the Products, including the structure, organization, source code and design of any hardware and software included in or as part of the Products constitute valuable trade secrets and other Intellectual Property Rights of Nextivity. Customer will not, and will not cause or permit others to: (i) use, reproduce, distribute, perform, display, sublicense, sell, assign, pledge, timeshare, lease, loan, or rent, use in a service bureau environment, or otherwise transfer such software, hardware or documentation; (ii) modify, adapt, alter, translate, or create derivative works of such software or hardware; or (iii) reverse engineer, reverse assemble or otherwise attempt to gain access to the source code of all or any portion of the Products or any such software or hardware. In addition, in no event will Customer remove, alter or obscure any proprietary notices on the Products, including, without limitation, any software, hardware or accompanying documentation, including copyright notices, and will not permit any third party to do so.
3.2. Any software contained in or accompanying the Products is licensed, not sold, and Customer acknowledges and agrees that any invoices or other transaction documentation purporting to “sell” or “transfer” such software do not convey ownership of any Intellectual Property Rights subsisting in such software or any copies of such software. Customer acknowledges and agrees that Nextivity is and will remain the sole and exclusive owner of all Intellectual Property Rights in and to such software and any improvements, modifications or derivative works thereto.
3.3. Reservation of Rights. Except as expressly set forth in this Section 3, Nextivity reserves all rights and grants Customer no licenses of any kind hereunder, whether by implication, estoppel, or otherwise.
4. Limited Warranty; Disclaimer of Warranties
4.1. Nextivity’s Limited Warranty. Nextivity warrants that all Products furnished under this Agreement will be free from defects in workmanship and materials and will conform in all material respects to the Specifications for (i) twentyfour (24) months from date of acceptance at the end customer, provided that date is within twenty-six months (26) of original shipment from Nextivity’s factory. Any Product that is repaired, modified or otherwise serviced by Nextivity shall be warranted as provided in this Section 7.2 for the remainder of the Limited Warranty period. The foregoing Limited Warranty extends only to Customer and to no other person. The foregoing Limited Warranty does not apply to (i) the cost of shipping and handling the Products for replacement or repair, or damage or loss during shipment for replacement or repair; (ii) any condition of the Products arising from any drawings, materials, designs, plans and the like supplied by Customer or any variation or adaptation of the Products which has been approved or instructed by the Customer, unless otherwise agreed in writing between the Customer and the Nextivity; (iii) Products that have been subjected to accident, abuse, misuse, neglect, shipping or other physical damage, improper installation or operation, improper testing or use contrary to the instructions given by the Nextivity; (iv) Products that have been repaired, altered, or modified by anyone other than Nextivity; or (v) Products for which the total price has not been paid by the due date for payment.
4.2. Exclusive Remedy for Non-Conformance of Product with Limited Warranty. The exclusive remedy with respect to any material non-conformance of the Product to the foregoing Limited Warranty will be limited, at Nextivity’s sole option and election, to: (i) Nextivity’s issuance of a credit based on the lower of Customer’s purchase price or Nextivity’s current listed Product price; (ii) Nextivity’s replacement of the Product; or (iii) Nextivity’s repair of the Product. The return of the Product to Nextivity, in accordance with the Returned Material Authorization procedures set forth between the Parties as in Section 4.3 below, is a condition precedent to all warranty obligations of the Nextivity.
4.3. Returned Material Authorization Procedure. Customer must give notice in writing of Customer’s intent to return Product pursuant to Section 4.3. The notice must be received by the Nextivity during the warranty period and not later than 30 days after the Customer discovers the non-conforming condition which Customer believes requires credit, repair or replacement under Section 4.3. Nextivity will issue a Return Material Authorization (“RMA”) within five (5) days of the receipt of such notification. Upon receipt of the RMA by Customer, Customer shall return the Product to Nextivity together with (i) a statement of the alleged non-conforming condition and part number, for each Product returned and (ii) all original shipping and packing materials. Customer shall bear the cost of shipping returned Product to Nextivity and the cost of shipping of repaired or replacement Product, if repair or replacement is elected by Nextivity pursuant to Section 4.3, Customer bears all risk of loss of returned Products and/or repaired or replaced Products, if repair or replacement is elected by Nextivity pursuant to Section 4.3.
4.4. Disclaimer of Warranties. NEXTIVITY MAKES NO WARRANTIES OR REPRESENTATIONS REGARDING THE PRODUCTS, EXCEPT FOR THE LIMITED WARRANTY FROM NEXTIVITY TO CUSTOMER SET FORTH IN SECTION 4.1. EXCEPT AS PROVIDED IN SECTION 4.1, NEXTIVITY SELLS THE PRODUCTS “AS IS” WITHOUT ANY WARRANTY. NEXTIVITY HEREBY DISCLAIMS ALL OTHER WARRANTIES REGARDING THE PRODUCTS, WHETHER EXPRESS, IMPLIED, OR ARISING BY OPERATION OF LAW, INCLUDING ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT OF THIRD-PARTY RIGHTS. CUSTOMER ACKNOWLEDGES THAT IT HAS RELIED ON NO WARRANTIES OTHER THAN THE EXPRESS WARRANTY SET FORTH IN SECTION 4.1.
5. Limitation Of Liability
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, NEITHER NEXTIVITY NOR ITS SUPPLIERS SHALL BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, LOSS OF USE, INTERRUPTION OF BUSINESS, LOST PROFITS, GOODWILL OR SAVINGS, OR LOSS OF DATA, ARISING OUT OF OR IN CONNECTION WITH THIS ORDER OR THE USE OR PERFORMANCE OF THE PRODUCTS, EVEN IF NEXTIVITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SPECIFICALLY, AND WITHOUT LIMITATION, NEXTIVITY SHALL NOT BE LIABLE IN ANY WAY IN CONNECTION WITH ANY ACTIONS TAKEN BY TELECOMMUNICATIONS SERVICE PROVIDERS, WHETHER INTENTIONAL OR UNINTENTIONAL, THAT MAY IMPACT THE USE OR PERFORMANCE OF THE PRODUCTS. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, NEXTIVITY AND ITS SUPPLIERS’ TOTAL CUMULATIVE LIABILITY UNDER CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY FOR ANY DIRECT DAMAGES OF ANY KIND ARISING FROM OR RELATED TO THIS ORDER OR THE PRODUCT OR ANY SERVICES, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE OR OTHERWISE, SHALL NOT EXCEED THE LOWER OF (A) THE ACTUAL AMOUNTS RECEIVED BY NEXTIVITY FROM CUSTOMER WITH RESPECT TO THE PURCHASE OF PRODUCTS THAT ARE SUBJECT OF A CLAIM IN THE TWELVE (12) MONTHS PRIOR TO THE ACCRUAL OF THE FIRST CLAIM, AND (B) $500,000 USD (FIVE HUNDRED THOUSAND U.S. DOLLARS). MULTIPLE CLAIMS SHALL NOT EXPAND THIS LIMITATION. THIS SECTION SHALL BE GIVEN FULL EFFECT EVEN IF THE REMEDY SPECIFIED IN THIS AGREEMENT IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
6. Export
Customer understands that the Products are subject to export control laws and regulations. Customer may not export or re-export the Products or any underlying information or technology except in full compliance with all United States and other applicable laws and regulations. In particular, but without limitation, none of the Products or any underlying information or technology may be exported or re-exported: (i) to any country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department’s list of specially designated nationals or the U.S. Commerce Department’s list of prohibited countries or table of denial orders. Customer hereby agrees to the foregoing and represents and warrants that Customer is not located in, under control of, or a national or resident of any such country or on any such list.
7. Prohibited Applications
Products are not designed and not warranted to be suitable for use in military applications and/or military environments. Use of Nextivity semiconductor devices in military applications and/or military environments is fully at the risk of Customer. Certain applications using Products may invoke potential risk of death, personal injury or severe property or environmental damage (“Critical Applications”). Products are not designed and are not warranted to be suitable for use in such life-support applications, devices or systems or other Critical Applications. Use of Products in such Critical Applications is fully at the risk of Customer.
8. Miscellaneous.
8.1. Assignment. Neither this Agreement nor any right or duty under this Agreement may be transferred, assigned or delegated by Customer, by operation of law or otherwise, without the prior written consent of Nextivity. Any attempted assignment and delegation without such consent will be void and without effect. Nextivity may feely assign this Agreement. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the Parties hereto and their respective representatives, heirs, administrators, successors and permitted assigns.
8.2. No Waiver. Any waiver (express or implied) by either Party of any breach of this Agreement will not constitute a waiver of any other or subsequent breach. No provision of the Agreement will be waived by any act, omission or knowledge of a party or its agents or employees except by an instrument in writing expressly waiving such provision and signed by a duly authorized officer of the waiving Party.
8.3. Compliance with Laws. Each Party will comply with all applicable laws and regulations in the performance of its duties and tasks under this Agreement. Customer agrees to obtain, at its own expense, all registrations, licenses and approvals from the any authorities and agencies which may be needed in order for Customer to import market and distribute Products (including fulfilling any applicable customs requirements). Any such applications will identify Products as originating from Nextivity and Nextivity’s suppliers. Whenever possible, the registration will be made on Nextivity’s behalf, and Products will be registered in the name of Nextivity and its suppliers. Customer will indemnify, defend, and hold Nextivity harmless from and against any claims, liabilities, damages, losses, costs or expenses, including attorneys’ fees, incurred by Nextivity as a result of Customer’s failure to comply with all applicable laws.
8.4. Severability. In the event any provision of this Agreement is held to be invalid or unenforceable, the valid or enforceable portion thereof and the remaining provisions of this Agreement will remain in full force and effect.
8.5. Governing Law and Jurisdiction. This Agreement will be governed by and interpreted in accordance with the laws of the State of California, U.S.A., without giving effect to any conflict of laws principles that may require the application of the laws of a different state.
8.6. Equitable Relief. Customer agrees that certain breaches of this Agreement by itself may result in irreparable harm to Nextivity, the extent of which would be difficult and impracticable to assess, and that money damages would not be an adequate remedy for such breach.
8.7. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous proposals, negotiations, representations, commitments, writings and all other communications between the parties, both oral and written.
Document Effective Date: January 3, 2014
Revision: 1.1
1. Provide first and second level support to operator, reseller or end users of the Products including visiting subscriber, operator, or customer sites, gathering debug logs, meeting with operator internal teams, reviewing support issues and reporting such to Nextivity;
2. Maintain at least one local technical resource (employee, contractor or third party supplier) who is fully trained on the Products and through whom Nextivity may provide local repairs, software updates, obtain system logs, etc.
3. Be prepared to replace faulty units and aggregate shipment of Products for return to Nextivity’s designated repair location (see Returns, Repairs and Refurbishment document).
1. Provide third level support to operator, Company, its resellers or customers to address any technical issues for which the Company is unable to correct.
2. Provide an issue tracking system that may be used to log, receive tracking numbers for, and receive feedback on, issues from the Company.
3. Nextivity shall respond in accordance with the following schedule for Issues reported to the issue tracking system:
Critical – Response time within 12 business hours
Major – Response time within 24 business hours
Minor – Response time within 2 business days
A. The Company and Nextivity wish to provide for efficient return, repair, replacement or refurbishment of CEL-FI devices returned to Nextivity in cases where the systems 1) are not working, 2) appear not to be working, and 3) are working but have been returned by the Company for refurbishment.
B. The Parties desire to create a standard set of processes and pricing to accommodate each of these circumstances.
Situation A
Non-Working Device, under Warranty – A system appears to be non-functioning
a. Upon receipt at the Company’s delivery location due to obvious shipping damage or as determined by a system test (also known as Dead on Arrival or DOA and such testing may be included in standard acceptance procedures);
b. Following subscriber placement a unit is subsequently returned to the Company.
Resolution A
Return to Nextivity – the unit is presumed to have failed and is returned to the Nextivity’s designated return facility by way of the following procedures:
a. Company will aggregate non-working units into the minimum shipment quantity which is to be negotiated between the Company and Nextivity (quantity TBD);
b. The Company contacts the Nextivity returns manager, who will be identified, and obtains an RMA document, an RMA number and a return location, then ships the units, at the Company’s sole cost, to the designated Nextivity return location.
c. Nextivity tests the units upon receipt and:
i. If the units are found to be non-working, will functionally repair or replace the units at its sole cost;
ii. If the units are found to be working “No Trouble Found” (NTF), Nextivity will repair and refurbish or replace the units. The Company will be invoiced for this service at the then current refurbishment price as agreed in the Pricing Schedule found at the end of this Exhibit;
d. Units are then returned to the Company’s designated receiving location, shipping costs are bore solely by Nextivity.
Situation B
Non-Working Device, Out of Warranty – A system appears to be non-functioning
a. Following subscriber placement, a unit is subsequently returned to the Company for repair, the subscriber intends to remain a customer of the Company and wishes replacement;
b. Company may, at its sole discretion, remove the unit from service and replace with a new or refurbished unit from its inventory of new or used systems, or may send the unit(s) at their sole cost, to Nextivity for repair and refurbishment at the then current prices for such services agreed between the Parties.
Resolution B
Provided an “Out of Warranty Support Agreement” is in place between the Parties:
a. Company will aggregate non-working units into the minimum shipment quantity which is to be negotiated between the Company and Nextivity (quantity TBD);
b. The Company contacts the Nextivity returns manager, who will be identified, and obtains an RMA document, an RMA number and a return location, then ships the units, at the Company’s cost, to the designated Nextivity return location;
c. Nextivity tests the units upon receipt and will repair and refurbish or replace the units per the stipulations of the support agreement then in effect. The Company will be invoiced for this service;
d. Units are then returned to the Company’s designated receiving location, shipping costs are bore solely by Nextivity.
Situation C
The System appears to be functioning properly, but has been returned to the Company (end of contract, churn or other reasons)
a. Case One –
i. Company receives the unit at its designated return facility and tests for basic functionality;
ii. If the unit is deemed working, Company may, at its sole discretion, repackage the unit and return the device to its used inventory for placement with a different subscriber. Nextivity is unaware of this activity.
b. Case Two –
i. Company receives the unit at its designated return facility and tests for basic functionality;
ii. If the unit is deemed working, Company may, at its sole discretion, return the unit to Nextivity’s designated repair facility for Refurbishment;
iii. Company will aggregate non-working units into the minimum shipment quantity which is to be negotiated between the Company and Nextivity (quantity TBD);
iv. The Company contacts the Nextivity returns manager, who will be identified, and obtains an RMA document, an RMA number and a return location, then ships the units, at the Company’s sole cost, to the designated Nextivity return location;
v. Nextivity will refurbish or replace the units per the stipulations of the support agreement then in effect. The Company will be invoiced for this service per the terms and conditions of the agreement and pricing then in effect for such services;
A Mutually Agreed Cosmetic Standard will be added to the Agreement prior to acceptance by Nextivity of the first refurbishment shipment.
Document Effective 3/5/17
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