These Terms and Conditions for Sale (“Terms”) are the terms and conditions upon which MeQ Inc. and its affiliates (collectively, “Seller”) makes all sales of Seller’s earphones (“Hardware”), its related proprietary software which allows end users to create personalized “EarPrint(s)” and optimize sound for a user’s individual hearing (“Software”) and any and all ancillary products (collectively, the “Product”) and constitute an agreement between Seller and the entity purchasing the Product (“Buyer”). Acceptance of all purchase orders is expressly made conditional upon these Terms, without modification or addition. Seller expressly disclaims any other terms and conditions of sale and unless agreed otherwise in writing by both parties, these Terms shall constitute the final, complete and exclusive agreement of the parties with respect to all sales of the Product by Seller to Buyer. Notwithstanding anything herein to the contrary, any purchase, acceptance or use by Buyer of any Product and/or Software shall constitute an irrevocable acceptance of these Terms.
1. INTELLECTUAL PROPERTY AND LICENSE: As between the parties, all right, title and interest to any intellectual property rights embodied in the Product (including the Software) and all inventions, works of authorship, derivative works, developments or improvements thereof (all of the foregoing, “Seller IP”) shall remain with Seller. Subject to the terms and conditions of these Terms, Seller grants Buyer a limited, non exclusive, non transferable license, without the right to sublicense, to internally use the Product and related documentation solely to support Buyer’s rights and obligations under these Terms.
2. ORDERING: Buyer shall order the Product by submitting a purchase order in the form set forth by Seller. The purchase order may not be cancelled or rescheduled by Buyer. Each purchase order shall include a description of the ordered Product, quantity, total cost in accordance with Seller’s applicable quotation, shipping location, method of delivery, requested packaging, if any, and method of payment. Seller’s acceptance of purchase orders and shipments are subject to availability. No order shall bind Seller until accepted by its authorized representative. Seller may accept or reject any order submitted by Buyer. Seller shall have no liability to Buyer as a result of such refusal of any such orders submitted. Seller will use reasonable commercial efforts to approve or reject purchase orders within 5 business days. Purchase orders may not be accepted for delivery to certain addresses and territories based upon Buyer’s location. Seller may contact Buyer (via email or phone) if additional information is required to accept the order. Invalid order information will result in delays processing the order. Without prior notification, Seller maintains the right to limit the Product order quantity and the right to refuse to sell Products to any Buyer for any reason or no reason at all. Seller reserves the right not to sell to resellers.
3. PAYMENT TERMS: Prices for the Product are set forth in the ordering form. All prices are exclusive of transportation, insurance, taxes, duties and other charges related thereto. Seller’s order confirmation does not constitute Seller’s acceptance of the order. If Buyer’s purchase order is canceled, Seller will attempt to notify Buyer by using the e-mail address given to Seller with the purchase order. Buyer will not be charged if the purchase order is canceled. If Buyer’s payment method has already been charged for a purchase order that is later canceled, Seller will issue Buyer a refund.
4. TAXES: Except to the extent that Buyer provides Seller with a tax-exempt certificate acceptable in the appropriate taxing jurisdiction prior to shipment of the Product, Buyer shall pay any present or future excise, sales, use or similar tax and other governmental charges except for taxes based on Seller’s income, and Buyer agrees to indemnify Seller against liability for payment of such taxes. Such taxes, when applicable, will appear as separate additional items on the invoice.
5. TITLE AND DELIVERY: Title and the risk of loss or damage to the Product shall pass to Buyer upon delivery of Product to a common carrier at Seller’s shipment facility, carrier acting as Buyer’s agent. Seller may choose the method of shipment in its discretion, unless Seller has received and approved specific shipping instructions from Buyer. If Buyer delays shipments, payments shall become due on the date when Seller is prepared to make shipment; Product held for Buyer during any such delay shall be at the risk and expense of the Buyer. Seller shall make commercially reasonable efforts to meet the date(s) quoted or acknowledged; however, Buyer understands that delivery is dependent on third parties which are outside Seller’s control and thus, in no event will Seller be liable for any delays. In the event of any such delay, the date of delivery shall automatically be extended for a period equal to the time lost by reason of the delay. In the event that Seller, for any reason, has insufficient supplies of Product to meet future demand or accepted offers, Seller reserves the right in its sole discretion to make partial deliveries of Product and invoice them separately, which shall not relieve Buyer of the obligation to accept other parts of its order.
6. RESTRICTIONS: Except as explicitly provided in these Terms or expressly permitted by applicable law, Buyer will not, and will not permit or authorize distributors, end users or any other third party to: (a) disassemble or reverse engineer the Product, including the Software; (b) copy, modify, enhance or otherwise create derivative works of the Product; (c) tamper with any security features of the Product; or (d) remove any notices (including copyright or patent notices) from the Product. Buyer represents and warrants that the Product or Seller IP will not be made available: (A) to persons or entities that commit, threaten to commit or support terrorism; or (B) in the following countries: North Korea, Iran, Syria, Lebanon, Iraq and Libya.
7. CANCELLATION OR RESCHEDULING OF ORDER: Seller reserves the right to cancel a purchase order if Buyer files for bankruptcy or assignment for the benefit of creditors by Buyer; or if a receiver is appointed for Buyer’s assets; or if there is a material breach by Buyer of the provisions of these Terms with respect to the purchase order in question or prior purchase orders.
8. PRODUCT RETURN: If for any reason, the Buyer is not satisfied with the Product, Buyer will return, at his or her cost, the Product to Seller within 30 days from date of receipt for a full refund by the Seller.
9. LIMITED WARRANTY: Seller warrants, for 1 year from date of initial shipment to Buyer that the Product will be free from material defects in materials, workmanship and design. This warranty shall not apply to any Product which Seller determines has been, by Buyer or otherwise, subject to operating or environmental conditions not in accordance with the applicable specifications, or have otherwise been subject of mishandling, misuse, neglect, improper testing, repair, alteration or damage. EXCEPT AS EXPRESSLY SET FORTH ABOVE, THE PRODUCT IS PROVIDED “AS IS”, AND NO OTHER WARRANTIES, EITHER EXPRESSED OR IMPLIED, ARE MADE WITH RESPECT TO THE PRODUCT, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. BUYER’S SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF THE FOREGOING LIMITED WARRANTY WILL BE, AT SELLER’S OPTION,REPLACING OR REPAIRING (USING NEW OR REFURBISHED PARTS) ANY DEFECTIVE PARTS WITHIN A REASONABLE PERIOD OF TIME AND SHIP THE PRODUCT TO BUYER, AT BUYER’S EXPENSE. SELLER DOES NOT WARRANT THAT THE OPERATION OF THE PRODUCT WILL BE UNINTERRUPTED OR ERROR-FREE.
10. INDEMNITY: Seller shall defend or settle any suit or proceeding brought against Buyer based on a third party claim that a Product sold hereunder constitutes an infringement of any existing United States patent, copyright or trade secret; provided that Seller is notified promptly in writing and is given complete authority to control the defense, as well as assistance and information required for the defense. Seller shall not be responsible for any cost, expense or compromise incurred or made by Buyer without Seller’s prior written consent. If any Product is in the opinion of Seller likely to, or does, become the subject of a claim for patent infringement, Seller may, at its sole option, procure for Buyer the right to continue using the Product or modify it to become non-infringing. If Seller is not reasonably able to modify or otherwise secure Buyer the right to continue using the Product, Seller shall remove the Product and refund Buyer the amounts actually paid. Seller shall not be liable for any infringement or claim based upon: (i) the combination or incorporation of the Product with other products not supplied by Seller, to the extent that the infringement results from such combination or incorporation of the Product; (ii) the modification by Buyer of the Product not contemplated by these Terms or authorized by Seller; (iii) Buyer’s negligence or willful misconduct; or (iv) any use by Buyer of a Product in violation of these Terms.
11. LIMITATION OF REMEDIES AND DAMAGES: BUYER’S SOLE REMEDY AND SELLER’S ENTIRE LIABILITY ARE AS SET FORTH ABOVE. IN NO EVENT SHALL SELLER OR ANY OF ITS SUPPLIERS, LICENSORS, DIRECTORS, OFFICERS, EMPLOYEES OR AFFILIATES BE LIABLE TO BUYER FOR: (I) ANY LOSS OF DATA OR DAMAGE THERETO; (II) LOSS OR DAMAGE CAUSED BY THE COMBINATION OR INCORPORATION OF THE PRODUCT WITH OTHER PRODUCTS OR SYSTEMS NOT SUPPLIED BY SELLER; (III) LOSS OR DAMAGE CAUSED BY THE MODIFICATION BY BUYER OF THE PRODUCT; OR (IV) CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR SIMILAR DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION AND THE LIKE), WHETHER FORESEEABLE OR UNFORESEEABLE, ARISING OUT OF THE USE OR INABILITY TO USE THE PRODUCT OR ACCOMPANYING WRITTEN MATERIALS, REGARDLESS OF THE BASIS OF THE CLAIM AND EVEN IF SELLER OR ITS REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. SELLER’S LIABILITY TO BUYER FOR DIRECT DAMAGES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE BASIS OF THE FORM OF THE ACTION, WILL BE LIMITED TO THE AMOUNT PAID TO SELLER FOR THE APPLICABLE PURCHASE ORDER THAT GAVE RISE TO THE CLAIM OR ACTION, AND IF NO SUCH SINGLE PURCHASE ORDER IS SO APPLICABLE, THEN SELLER’S LIABILITY SHALL NOT EXCEED THE AMOUNTS PAID BY BUYER TO SELLER HEREUNDER DURING THE 3 MONTHS PRECEDING THE EVENT.
12. EXPORT COMPLIANCE: Buyer shall not transfer, export or re-export any Product or part thereof, or any related technology, except in full compliance with export controls administered by the U.S., and any other applicable import and use restrictions. Buyer is solely responsible for determining compliance and obtaining all required approvals to facilitate the export of any Products, including outside of the U.S
13. GENERAL: These Terms shall constitute the final, complete and exclusive agreement of the parties with respect to all sales of Product by Seller to Buyer and shall supersede all prior offers, negotiations, understandings and agreements. No additional or different terms or conditions, whether material or immaterial, shall become a part of any agreement unless expressly accepted in writing by an authorized officer of Seller. These Terms are not assignable by Buyer. These Terms are binding on the parties and their respective successors and permitted assigns. Any waiver by Seller of one or more of these terms and conditions or any defaults hereunder shall not constitute a waiver of the remaining terms and conditions or of any future defaults hereunder. No failure or delay on the part of Seller in exercising or enforcing any right hereunder shall operate as a waiver thereof or preclude any other exercise or enforcement of rights hereunder. Any provision of these Terms that is prohibited or unenforceable under applicable law shall be ineffective to the extent of such prohibition or unenforceability, without impairing or invalidating the remaining provisions of these terms and conditions. These Terms and all performance and disputes arising out of or related to goods in question, shall be governed by the laws of the State of California, without reference to conflict of laws principles. The parties hereby irrevocably agree to submit any claim arising out of or related to these terms and conditions to the competent courts of San Francisco, New York.