NEXTIVITY INC. End User Sale Terms and Conditions (The “Agreement”)
“Products” means the products purchased by customer (“Customer”) from Nextivity (“Nextivity”) or a Nextivity approved reseller.
“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/warranty
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 or a Nextivity approved reseller for the Products. The terms and conditions of this Agreement shall apply to any Order.
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 material defects in workmanship and materials and will conform in all material respects to the specifications applicable thereto until the later of (a) twenty-four (24) months from date of sale to the end customer, and (b) twenty-seven months (27) of the date such Product was first shipped from Nextivity’s factory (the “Warranty Expiration Date”). Any Product that is repaired, modified, or otherwise serviced by Nextivity shall be warranted as provided in this Section 4.1 for the remainder of the Limited Warranty period. The foregoing Limited Warranty is non-transferrable. 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 in Section 4.3 below, is a condition precedent to all warranty obligations of the Nextivity.
4.3 Returned Material Authorization Procedure. For warranty claims under Section 4.1, Customer must notify Nextivity of the non-conforming Product prior to the Expiration Date for such Product. Such notification must contain Customer’s shipping address and a statement of the alleged non-conforming condition, Serial number and part number for each Product returned. Nextivity will issue a Return Material Authorization (“RMA”) after receiving such notification. Upon receipt of the RMA by Customer, Customer shall return the Product to Nextivity. Customer shall bear all shipping costs and risk of loss in returning Product to Nextivity and, if repair or replacement is elected by Nextivity pursuant to Section 4.1, all shipping costs and risk of loss in the delivery of a repaired or replaced Product to Customer.
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 NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. CUSTOMER ACKNOWLEDGES THAT IT HAS RELIED ON NO WARRANTIES OTHER THAN THE EXPRESS WARRANTY SET FORTH IN SECTION 4.1.
6. 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 THE ACTUAL AMOUNTS RECEIVED BY NEXTIVITY FROM CUSTOMER WITH RESPECT TO THE PURCHASE OF PRODUCTS. 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.
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.
8. PROHIBITED APPLICATIONS
Products are not designed and not warranted to be suitable for use in military combat systems or similar weapons or defense applications. Products are also not designed and not warranted to be suitable for use in certain medical applications and systems where failure of the product could result in death or personal injury. These military applications and medical applications are collectively referred to herein as “Critical Applications”. Use of Products in such Critical Applications is at the Customer’s own risk.
9.1 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.
9.2 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.
9.3 Compliance with Laws. 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.
9.4 Sever-ability. 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.
9.5 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. Any dispute arising from or relating to the subject matter of this Agreement shall be finally settled by arbitration in San Diego, California, using the English language in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. (“JAMS”) then in effect. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the United States Federal Courts located in the Southern District of California.
9.6 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.
9.7 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.