TERMS & CONDITIONS OF SALE
These Terms of Sale and Software License (“Terms”) govern the sale of Goods and licensing of Software by Size Stream, LLC (“Size Stream”) to its Customers. These Terms apply to sales of Size Stream Goods made both by Size Stream and Size Stream’s resellers and agents (“Resellers”).
Each accepted Order is a separate, independent contract and does not affect other Orders between the parties. Unless otherwise agreed in an Order, Customer is responsible for assembling and installing the Goods and the Software, and all updates and replacement parts.
“Agreement” means these Terms along with the Order.
“Customer” means the purchaser of the Goods.
“Documentation” means technical and user manuals and other documentation provided by Size Stream with the Goods.
“Facility” means the Customer facility located at the shipping address identified on the Order.
“Goods” means Size Stream scanners and other Size Stream goods purchased under an Order
“Order” means any quotation, proposal, order and/or invoice for Goods that has been agreed to by Size Stream (or its Reseller) and Customer.
“Services” means installation, training, consulting and other services as agreed by the parties in an Order.
“Software” means the software and associated Documentation incorporated in or delivered with the Goods, including all updates.
Customer shall pay for the Goods and Services as specified in an Order. All sales are final and all payments are nonrefundable, except as expressly set forth in these Terms. Customer may return Goods only pursuant to Section 6 (Limited Goods Warranty) below. Unless otherwise specified in the Order, Customer shall pay in U.S.dollars for Goods and Services within thirty (30) days from the date of the invoice.
Amounts not paid when due will accrue interest at the rate of one and one half percent (1.5%) per month, or the maximum amount allowed by law, if lower.
Customer will pay Size Stream for shipping and handling charges for shipment of the Goods. Typically, these charges will be indicated on the Order. All prices are exclusive of all sales, use, excise, value added, GST (goods and services tax), withholding and other taxes, customs and import duties and taxes, and tariffs.
Until the Goods are fully paid, Size Stream reserves a security interest in the Goods to secure payment of the purchase price and all taxes and other charges. If requested, Customer agrees to sign appropriate financing statements evidencing such security interest.
Shipping Terms; Title and Risk of Loss
Unless otherwise agreed in the Order, Goods will be delivered by Size Stream to the Customer Facility. Size Stream’s title to Goods and risk of loss or damage thereto will pass to Customer at the time of Size Stream’s delivery of Goods to the Customer Facility. Where Size Stream is required by applicable law or regulation to pay any tax, duty or charge in connection with shipment, such amount will be added to the purchase price or subsequently invoiced to Customer, unless otherwise agreed in the Order.
Size Stream will use reasonable efforts to meet quoted delivery dates but does not guarantee any delivery dates.
All information disclosed by a party in connection with an Order shall be confidential information, unless such information is (i) already known to the receiving party, on a non-confidential basis, as evidenced by written records; (ii) independently developed by the receiving party without the use of the disclosing party’s confidential information, as evidenced by written records; (iii) in the public domain, other than through the fault of the receiving party; or (iv) disclosed to the receiving party by a third party not in breach of a duty of confidentiality. The confidential information of Size Stream includes without limitation the Software, Size Stream pricing and terms, and the structure and design of the Goods and Software. Neither party shall, without the other party’s prior written consent, use the confidential information of the other party or disclose such information except (a) to provide to employees of the receiving party or its affiliated entities who require such information to perform such party’s obligations or exercise such party’s rights under an Order, or (b) as required to be disclosed by law, or court or administrative order; provided that the receiving party first gives prompt written notice thereof to the disclosing party.
Limited Goods Warranty For a one (1) year period from date of delivery of the Goods (the “Goods Warranty Period”), Size Stream warrants that the Goods shall be free from defects in material and workmanship, and will operate substantially in conformance with their Documentation (the “Goods Warranty”). Customer may extend the Goods Warranty Period upon payment of applicable extended warranty fees.
Customer agrees to promptly notify Size Stream of any failure of the Goods to meet the Goods Warranty, including a detailed description of the failure. Customer will, upon Size Stream’s request, either allow Size Stream to access (either on-site or through agreed remote access means) the Goods at Customer’s facility, or return the Goods, transportation charges prepaid, to Size Stream’s designated facility in accordance with Size Stream’s then-current return procedures. If Size Stream determines that the Goods fail to conform and have not been subjected to any of the conditions set forth in Section 6(c), then Size Stream as its sole obligation shall repair or replace the Goods or applicable components without additional charge.
Repairs may include the replacement of parts with functionally equivalent, reconditioned or new parts.
The Goods Warranty will not cover services required if the Goods or any component thereof (including without limitation the Software) (i) have been subjected to abuse, misuse, neglect, negligence, accident, improper testing, improper installation, improper storage, improper handling or use contrary to any instructions issued by Size Stream; (ii) have been repaired, altered, or removed from the Customer Facility by persons not expressly authorized by Size Stream; (iii) have not been operated, repaired or maintained in accordance with the Documentation; (iv) have failed due to a Force Majeure Event (as defined below), or (v) have been combined with or used with any third party item which has not been previously approved in writing by Size Stream.
Software License and PC
The Software is not sold to Customer. Customer receives a license to use the Software during the License term as specified in the Order (the “License Term”), on the terms below.
Subject to these Terms and the payment of all applicable fees, and during the License Term, Size Stream grants Customer a nonexclusive, nontransferable, limited license to use a single copy of the Software, in machine-readable form only, and only in connection with the Goods acquired by Customer from Size Stream. Customer may use the Software solely in support of Customer’s own internal business operations. The Software may be used only by Customer’s employees and independent contractors working for Customer. Customer may not copy, modify,disclose or distribute the Software, in whole or in part. For the avoidance of any doubt, Customer shall not use the Software in a “server mode” so as to work with multiple scanners, locations, or PC’s with a single license. The Software is licensed strictly on a “per scanner, per location, per PC” basis. Customer may not and agrees not to: (i) transfer the Software outside the Goods or to any other person or entity; (ii) make copies of the Software; or (iii) transfer the Software outside of Customer’s infrastructure and/or premises. Customer agrees to provide Size Stream with evidence that its use of the Software is in compliance with these Terms and/or third-party software licensor’s terms from time to time as requested by Size Stream. If Customer fails to provide such evidence when requested, or is otherwise not in compliance with these license terms, Size Stream may suspend or terminate Customer’s right to use the Software and Size Stream’s support and maintenance obligations.
The Goods may include a personal computer and/or other computer hardware (“PC”). Customer agrees that the PC and associated software is for use with the other Goods that are shipped with the PC, and for no other use. Customer agrees not to install or load any software on the PC, or to add any peripheral hardware to the PC, without the prior written permission of Size Stream.
The Software or Documentation may contain information on certain open source and other third-party software that is included with or incorporated into the Software (“Third-Party Software”). Third-Party Software is licensed directly by Customer pursuant to the public licenses associated with such software, and is not sublicensed under the terms of this agreement by Size Stream. SIZE STREAM PROVIDES THIRD-PARTY SOFTWARE TO CUSTOMER “AS IS.” Customer agrees, upon the request of Size Stream or its representative, to reasonably document and certify that its use of the Software conforms to these Terms. Size Stream or its representative may upon reasonable prior notice inspect and audit Customer’s installation and use of the Software for compliance. Any inspection or audit will be conducted during regular business hours at Customer’s facility or electronically.
The Software is a “Commercial Item,” as defined at FAR §2.101, consisting of“ commercial computer software” and “commercial computer software documentation.” The Software and Documentation are licensed to U.S. Government end users as commercial items, with only those rights as are granted herein.
If Customer does not renew its License Term, Customer will not have any right to use the Software or receive any updates. If Customer subsequently wishes to reinstate the License Term, Customer must pay the fees which would have applied during the period that the License Term lapsed.
Limited Software Warranty and Software Maintenance and Support Services
For thirty (30) days from the date of delivery of the Software (the “Software Warranty Period”), Size Stream warrants that the Software shall substantially conform to its Documentation (the “Software Warranty”).
Size Stream will provide support and maintenance for the Software for so long as the License Term remains in effect, at no additional charge. Software support and maintenance includes: (i) reasonable access to Size Stream’s telephone and e-mail support, during Size Stream’s normal business hours, for up to two (2) hours per month, and (ii) delivery of Software error corrections and updates that Size Stream generally makes available to its customers.
The successful operation of the Software is dependent on Customer’s use of proper procedures and systems and input of correct data. Customer is solely responsible for protecting and backing up the data used in connection with the Software.
Customer shall provide information and perform tasks as reasonably requested by Size Stream to aid in the resolution of problems, and shall implement all reasonable workarounds to problems as directed by Size Stream.
Size Stream will have no responsibility to provide Software maintenance services for any versions of the Software other than the current and immediately prior versions. Size Stream does not warrant or guarantee that all errors in the Software will be corrected.
Disclaimer of Warranties
EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH IN THESE TERMS, ALL GOODS, SOFTWARE AND SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED. SIZE STREAM DOES NOT WARRANT THAT THE GOODS OR SOFTWARE WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THEIR OPERATION WILL BE UNINTERRUPTED OR ERROR FREE. SIZE STREAM DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, OR ARISING FROM COURSE OF PERFORMANCE, DEALING, USAGE OR TRADE. The warranties in these terms apply only to Customer as original purchaser unless otherwise agreed upon in writing by Size Stream.
If either party breaches a material provision of an Agreement and fails to cure such breach within thirty (30) days after receiving written notice of the breach, the non-breaching party will have the right to terminate such Agreement upon written notice to the other party.
Either party may terminate an Agreement, effective immediately upon written notice, if the other party becomes the subject of a voluntary or involuntary petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation or composition for the benefit of creditors that is not dismissed within sixty (60) days. In the event of any bankruptcy or insolvency proceeding commenced by or against Customer, Size Stream will be entitled to cancel any order then outstanding.
Upon termination or expiration of an Agreement or a License Term for any reason, Customer agrees to cease all use of the Software and to return to Size Stream or destroy the Software and all associated Documentation, and so certify to Size Stream.
Customer acknowledges Size Stream’s ownership of all patents, trade secrets, trademarks and other Intellectual Property Rights related to the Software and Goods. Except for the license rights granted in these Terms, Size Stream reserves all rights in its intellectual property.
Customer acknowledges that the Software, and the underlying source code, algorithms, data structures, methods, formats, ideas and concepts are valuable intellectual property owned by Size Stream and its licensors, including all associated patent, copyright, trade secret, trademark, and other intellectual property rights. Customer agrees not to, or permit others to, decompile, disassemble or otherwise reverse engineer or attempt to discover any source code or algorithms of the Software by any means. Customer will not remove any copyright or other proprietary notices from the Software or any copies. Customer agree that Size Stream may use a software or hardware-based license key to enforce license limitations under these Terms.
During the License Term, Size Stream shall defend, indemnify and hold harmless Customer against any third-party action, suit or claim brought against Customer which alleges that Customer’s use of the Software or Goods as authorized by this Agreement infringes such third party’s trade secrets, trademark, copyright, patent or any other intellectual property rights; provided that: (i) Customer notifies Size Stream promptly in writing of the claim, (ii) Size Stream has sole control of the defense and all related settlement negotiations, and (iii) Customer provides Size Stream with commercially reasonable assistance, information and authority to perform the above at Size Stream’s expense. Customer shall have the right to participate in the defense or settlement with counsel of its own choosing at Customer’s expense.
The foregoing indemnity shall not apply if the alleged infringement is caused by: (i) the combination of the Goods or Software with any products, services, data, intellectual property, or processes not provided by Size Stream if the alleged infringement would not exist but for such combination, or (ii) modifications to the Goods or Software by any person or entity other than Size Stream or Size Stream’s authorized representative, or (c) modifications or new intellectual property made as a result of Customer’s specifications or requirements; or (d) Customer’s failure to install or use the latest version of, or an update to, the Goods or Software provided by Size Stream that Size Stream identifies as avoiding the infringement. THIS SECTION STATES SIZE STREAM’S SOLE LIABILITY TO CUSTOMER WITH RESPECT TO INFRINGEMENT OF ANY INTELLECTUAL PROPERTY AND PROPRIETARY RIGHTS.
Limitation of Liability To the extent permitted by law, in no event Neither party nor its suppliers be liable to the other party or any third party for lost profits, data or business, or for any indirect, special, incidental, exemplary, consequential, or punitive damages of any kind, or for costs of procurement of substitute products or services, arising in connection with an agreement, however caused and on any theory of liability (whether in contract, tort (including negligence), strict liability or otherwise).
Each party’s total cumulative liability arising in connection with an order, whether in contract, tort (including negligence), strict liability or otherwise, shall in no event exceed the amount received by or payable to Size Stream from customer under such order. The limitations set forth in this section shall apply even if a party has been advised of the possibility of such damages, and notwithstanding any failure of essential purpose of any limited remedy.
All provisions of these Terms that, by their nature, should survive termination will survive, including without limitation Sections 5, 9, 11 and 13.
Size Stream may use any feedback regarding any suggested improvements to the Goods and Software for any purpose, including without limitation to modify, supplement, or improve the Goods and Software, without payment or compensation to Customer.
If any provision of these Terms is held invalid or unenforceable, such provision will be enforced to the maximum extent permissible, and the remainder of these Terms will continue in full force and effect. The failure of either party to exercise any right granted herein or to require any performance of any term of these Terms or the waiver by either party of any breach of these Terms will not prevent a subsequent exercise or enforcement of, or be deemed a waiver of any subsequent breach of, the same or any other term of these Terms. Nothing in these Terms will constitute or create a joint venture, partnership, or any other similar arrangement between the parties. No party is authorized to act as agent for the other party hereunder except as expressly stated in these Terms.
The Goods, the Software, and any related technology provided pursuant to an Agreement may be subject to the United States Export Administration Act and the regulations thereunder (or the regulations and laws of another country). Customer agrees not to export or reexport the Goods, the Software, or any related technology into any country in violation of such controls or any other laws, rules or regulations of any country, state or jurisdiction.
Customer will not assign or transfer an Agreement or any rights or obligations under an Agreement, whether voluntary, by operation of law or otherwise, without the prior written consent of Size Stream. Size Stream or any Size Stream successor may assign an Agreement or its right to payments under an Agreement. Any attempted assignment or transfer of an Agreement made in violation of the terms hereof will be null and void. Subject to the foregoing, an Agreement will be binding on and inure to the benefit of the parties’ respective successors and permitted assigns.
These Terms and performance by the parties hereunder will be governed by the laws of North Carolina, U.S.A., without regard to provisions on the conflicts of laws. The United Nations Convention on Contracts for the International Sales of Goods shall not apply to these Terms. If Customer is incorporated or headquartered in the United States of America, then any dispute regarding the Agreement or its subject matter shall be subject to the exclusive jurisdiction of the state and federal courts in Wake County, North Carolina, U.S.A., and the parties hereby irrevocably agree to submit to the personal and exclusive jurisdiction and venue of such courts. If Customer is neither incorporated in nor headquartered in the United States of America, then any dispute regarding the Agreement or its subject matter will be submitted by the parties to binding arbitration under the commercial rules then in effect of the International Centre for Dispute Resolution. The arbitration shall be held in Raleigh, NC, USA. The award rendered by the arbitrator may include, in the arbitrator’s discretion, costs of arbitration, reasonable attorneys’ fees, and judgment on such award may be entered in any court having jurisdiction thereof.
Size Stream will not be responsible for any failure to perform or delay attributable in whole or in part to any cause beyond its reasonable control, including but not limited to acts of God, fire, flood, tornado, earthquake, hurricane, lightning, government actions, actual or threatened acts of war, terrorism, civil disturbance or insurrection, sabotage, labor shortages or disputes, failure or delays by Size Stream’s suppliers, shortage of energy, raw materials or equipment, or Customer’s fault or negligence (a “Force Majeure Event”). In the event of any such delay the delivery date will be deferred for a period equal to the time lost by reason of the delay.
These Terms along with any Order represents the entire agreement between the parties regarding the subject matter thereof and supersede all prior discussions, communications, and agreements between the parties. Conflicting and/or additional terms contained in any purchase orders, invoices or other documents are of no effect. No amendment to an Agreement will be effective unless in writing and signed by both parties. The parties agree there are no third-party beneficiaries under an Agreement.