General Terms & Conditions
1. DESCRIPTION AND SALE OF EQUIPMENT AND SKYFLO SERVICE
1.1 Seller agrees to sell, and Buyer agrees to purchase for the amounts described in Section 3 of this Agreement, the goods described in the Skyflo Equipment Schedule, which is attached to this Agreement as Exhibit A (the “Schedule”). Individual pieces of Skyflo equipment are referred to as “Units” and the Units collectively, is the “Equipment.”
1.2 In addition, and as a separate obligation hereunder, in exchange for Buyer’s payment as described in Section 3 of this Agreement, Seller further agrees to furnish the installation and technical support services referred to in this Agreement.
1.3 In addition, and as a separate obligation hereunder, in exchange for Buyer’s ongoing payments as described in Section 3 of this Agreement, Seller further agrees to furnish access to the Skyflo servers, online services, and software (collectively, the “Skyflo Service”). Buyer agrees to commit to using the Skyflo Service for the Initial Term specified in the Schedule. Unless Buyer’s access to the Skyflo Service is terminated, Seller’s access and payment obligations will continue on a month-to-month basis following the expiration of the Initial Term.
2. GRANT OF SOFTWARE LICENSE IN EQUIPMENT AND SKYFLO SERVICE
2.1 Upon installation of the Equipment and only for so long as Seller has made all required Service Fee payments as described in Section 3 of this Agreement, Seller hereby grants to Buyer a nontransferable, nonexclusive license to utilize the Skyflo Service with Buyer’s own use of the Equipment pursuant to Seller’s policies that may be posted on Seller’s website, as such policies may be updated from time to time.
2.2 Buyer acknowledges that any software listed on any Schedule or incorporated as a component of any Equipment or the Skyflo Service may not be copied, reproduced, or modified by Buyer, in whole or in part, for any purpose. Buyer will not make available software in any form to any third party (except Buyer's employees or agents directly concerned with Buyer's licensed and intended use of the software).
2.3 Seller retains all right, title, and interest in and to the Equipment and Skyflo Service, including without limitation all computers, other hardware, and software incorporated into or used by the Equipment or the Skyflo Service and this Agreement does not grant Buyer any intellectual property rights in the Equipment or the Skyflo Service or any of its components.
2.4 In addition to any other remedy Seller may have in this Agreement, Seller reserves the right to terminate Buyer’s license (and access to the Skyflo Service) if:
a) Buyer fails to comply with any term or condition of this Agreement; or
b) Seller, in its sole discretion, determines Buyer permanently ceased to use the Equipment.
2.5 The license granted under this Agreement will only survive while Buyer continues to make the necessary Service Fee payment. Upon termination, Buyer will return to Seller any software provided by Seller; or, on request by Seller, shall destroy the software and certify in writing that they have been destroyed.
2.6 Buyer acknowledges that all of Buyer's obligations under this Agreement with respect to Equipment apply also to the Skyflo Service. Accordingly, Seller may terminate any license granted under this Agreement and take immediate possession of such software without demand or notice if this Agreement is terminated.
2.7 Certain third-party software may be provided with the Equipment or Skyflo Service and is subject to the accompanying license(s), if any, of its respective owner(s). To the extent portions of the Equipment or Skyflo Service are distributed under and subject to open source licenses obligating Seller to make the source code for those portions publicly available (such as the GNU General Public License [“GPL”] or the GNU Lesser General Public License [“LGPL”]), Seller will make those source code portions (including Seller modifications, as appropriate) available upon request for a period of up to three years from the date of distribution.
3. PURCHASE PRICE AND PAYMENT TERMS
a) The fees for purchasing the Skyflo Equipment, and installation are as listed in the Schedule (the “Purchase Price”).
b) The fees for maintaining access to the Skyflo Service and for on-going support (if any) are as listed in the Schedule (the “Service Fees”).
a) Buyer shall make payments to Seller as follows: 50% of the Purchase Price in advance of the Installation Date; and 50% of the Purchase Price payable within 30 days of the Installation Date. Unless otherwise specified on the Schedule, Service Fees are payable no later than the first day of each month. On or before the Installation Date, Buyer shall make a pro rata payment of 1/30 of the monthly Service Fee times the number of days between the Installation Date and the first day of the next month.
b) Payment will be in United States Dollars. In the event it is necessary to identify an exchange rate, the Parties agree to use the exchange rate into United States Dollars as provided by the Wall Street Journal on the date any such payment is due.
c) Unless otherwise stated on the Schedule, the Purchase Price payments will be payable at Seller’s address set forth above, at such other address as Seller may designate in writing, without further notice or demand therefor, or payable to Seller by any of the following: (a) ACH transfer; or (b) pre-authorized credit card payment. Whenever any payment due hereunder is not made when due, Buyer shall pay interest on such amount at the rate of one and one-half (1 1/2) percent per month (18 percent on an annualized basis) or the maximum interest rate legally permissible in the state specified in Section 19 of this Agreement, whichever is less (“Late Payment Rate”).
The Purchase Price and Service Fees are exclusive of any sales, use or privilege tax, customs duty or import, excise tax based on gross revenue or any similar tax or charge which might be levied because of the production, sale or shipment of any Equipment, Buyer’s use of any Equipment, or Buyer’s use of the Skyflo Service. Buyer agrees to pay and otherwise be fully responsible for any such taxes (except for taxes based on the net income of Seller). Any personal property taxes assessable on the Equipment or Skyflo Service after delivery shall be borne by Buyer. Seller shall have the right, but will not be obligated, to pay any such taxes directly, in which event Buyer shall promptly reimburse Seller in the amount thereof upon presentation by Seller of evidence of payment.
5. DELIVERY AND INSTALLATION
5.1 Seller, at its sole discretion, may designate a representative to perform all delivery, installation, training, and support (if any) described in this Agreement.
5.2 Buyer represents and warrants that: (a) it has selected each Unit based on its own judgment and expressly disclaims any reliance upon statements made by Seller, and (b) as of delivering the Acceptance Certificate, Buyer will have unconditionally accepted such Unit as well as received appropriate training from Seller.
5.3 Buyer shall comply with all laws, regulations and orders of any governmental branch or agency which relate to the installation, use, possession or operation of the Equipment, and shall use the Equipment in the regular course of its business only, within its normal capacity, without abuse.
5.4 The Schedule may specify delivery. If the Schedule does not specify delivery, delivery of the Equipment to Buyer will be F.O.B. origin. The Goods will be shipped in Seller’s standard shipping packages to Buyer at Buyer’s address set forth below. Unless otherwise instructed in writing by Buyer, Seller will select the carrier. Title and risk of loss to Equipment purchased under this Agreement pass to Buyer upon delivery thereof to the carrier, whether or not the Equipment conforms to the terms of this agreement. Shipping dates, if any, are approximate only and merely represent Seller’s best estimate of the time required to make shipment. Seller shall not be liable for any loss or expense (consequential or otherwise) incurred by Buyer because of any delay in delivery for any reason other than arbitrary refusal of Seller to perform. Seller may deliver Units in installments. If any shipment of Units is delayed at Buyer’s request, Seller may invoice Buyer for such Units, and risk of loss to such Goods shall pass to Buyer on the date Seller is prepared to make shipment
5.5 On the Installation Date, Buyer will execute and deliver, along with each Schedule, a Skyflo Installation Checklist (the “Acceptance Certificate”), in the form attached hereto as Exhibit B, with respect to each Unit. Buyer must reject any Units before delivering the Acceptance Certificate. Buy should refer to Seller’s current Return and Damage Policy attached to Schedule.
5.6 Seller will install the Equipment at the location specified in the Schedule. The installation will be done in a workmanlike manner and in compliance with applicable laws and regulations. Installation will begin on or about the delivery date of the first unit and will continue until all Units have been installed. Buyer will obtain any documents, permits, or approvals required by law or regulation for the installation.
5.7 Buyer shall make available a safe and suitable place for installation of the Equipment in accordance with Seller’s installation and site preparation procedures, including:
a) Physical access to Buyer’s premises where the Equipment will be used along with appropriate support and cooperation from Buyer’s representatives to allow Seller to install the Equipment for as long as is necessary to install the Equipment;
b) Access to Buyer’s IT systems, network, and IT representatives to install the Equipment so that it interfaces with Buyer’s IT, network systems, and the Skyflo Service; and
c) Access to Buyer’s representatives to provide Seller’s complete training program including, Equipment use, maintenance, repair, troubleshooting, and general system operation.
6.1 The parties recognize the Equipment is a complex system and may occasionally require support or service. Provided that Buyer has made the necessary Support Fee payment, Buyer is entitled to remote support. Such remote support includes:
a) Buyer may contact Seller at the support phone number or e-mail provided in Section 15 of this Agreement, or on the Schedule to bring support issues to Seller’s attention. Seller will, at its sole discretion, decide whether a support response is appropriate; and
b) Seller may, at its discretion, access the Equipment remotely to identify, diagnose, and correct faults.
6.2 If Seller determines, in its sole discretion, that a support response is appropriate, Buyer shall provide Seller or its designated representative with access to the Equipment, either via remote means or for an on-site visit. Buyer agrees to compensate Seller for its support at the support rate specified in the Schedule or at Seller’s standard support rate.
7. DATA PROVISIONS:
Buyer acknowledges that Seller may monitor, collect, use, and store data regarding Buyer’s use of the Equipment and Skyflo Service for Seller’s business purposes. Sometimes this data will include personal identification and payment information from Buyer’s customers (“Customer Personal Data”). Buyer acknowledges that Seller must use Customer Personal Data for the Equipment to function in its normally intended manner, for example interfacing with Buyer’s point-of-sale equipment. Seller will only use Customer Personal Data to operate the Equipment in its normally intended manner. Seller also collects and indefinitely stores de-identified, anonymous, or aggregate data regarding Buyer’s use of the Equipment (“DAA Data”). Seller uses DAA Data to improve information it shares with its customers. Seller may also share DAA information with third parties for their own uses when those third parties commit to not re-identify that information or share it with others who may attempt to do so.
8. ALTERATIONS AND MODIFICATIONS TO EQUIPMENT:
Any modifications, alterations or additions to Equipment (other than normal operating accessories or controls) without the prior written consent of Seller will void any available warranty.
9. SELLER’S REPRESENTATIONS AND WARRANTIES; LIMITATION OF LIABILITY:
Provided Buyer continues to make the necessary Service Fee payment, Seller will provide Buyer the limited warranty described in the Schedule.
10. BUYER’S REPRESENTATIONS AND WARRANTIES:
10.1 Buyer represents and warrants that the Equipment will not be used for personal, family, or household purposes.
10.2 Buyer represents and warrants that it will comply with all laws and regulations relating to the use and maintenance of the Equipment.
10.3 Buyer represents and warrants that it will only put use the Equipment for the uses contemplated by Seller.
10.4 Buyer is a legal entity, duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation and is in good standing in each jurisdiction where the Equipment will be located and has adequate corporate power to enter into and perform this Agreement.
10.5 This Agreement and Schedule has been duly authorized, executed and delivered by Buyer and constitute a valid, legal and binding agreement of Buyer, enforceable in accordance with their terms, subject to enforcement limitations imposed by state or federal laws generally affecting the rights of creditors and general equitable principles.
11. SELLER’S REPRESENTATIONS AND WARRANTIES; LIMITATION OF LIABILITY:
Seller agrees to warrant all Equipment and the Skyflo Service in accordance with the terms of its standard warranty for each product, as modified from time to time in Seller’s sole discretion. Seller’s sole obligation to Buyer or the initial retail purchaser of any product shall be limited to the repair or replacement, at Seller’s option, of defective products returned to Seller at the sole expense of Buyer or initial retail purchaser.
THE FOREGOING REMEDIES ARE EXCLUSIVE. THERE ARE NO OTHER WARRANTIES WHICH EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF. SELLER DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OF THE GOODS OR OF THE FITNESS OF THE GOODS FOR ANY PURPOSE, AND BUYER AGREES THAT THE GOODS ARE SOLD “AS IS.”
SELLER DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT BUYER’S USE OF THE EQUIPMENT WILL BY UNINTERRUPTED OR ERROR-FREE, AND BUYER AGREES THAT FROM TIME TO TIME SELLER MAY REMOVE THE SERVICE FOR INDEFINITE PERIODS OF TIME, OR CANCEL THE SERVICE IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.
SELLER DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT THE EQUIPMENT WILL BE FREE FROM LOSS, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION, AND SELLER DISCLAIMS ANY LIABILITY RELATING THERETO.
SELLER SHALL USE REASONABLE SKILL AND DUE CARE IN PROVIDING THE EQUIPMENT. THE FOLLOWING LIMITATIONS DO NOT APPLY IN RESPECT OF LOSS RESULTING FROM (A) SELLER’S FAILURE TO USE REASONABLE SKILL AND DUE CARE; (B) SELLERS’S GROSS NEGLIGENCE, WILFUL MISCONDUCT OR FRAUD; OR (C) DEATH OR PERSONAL INJURY.
SELLER EXPRESSLY UNDERSTANDS AND AGREE THAT SELLER AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSSES (EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (I) THE USE OR INABILITY TO USE THE EQUIPMENT (II) ANY CHANGES MADE TO THE EQUIPMENT OR ANY TEMPORARY OR PERMANENT CESSATION OF THE EQUIPMENT OR ANY PART THEREOF; (III) THE UNAUTHORIZED ACCESS TO OR ALTERATION OF SELLER’S TRANSMISSIONS OR DATA; (IV) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE AND/OR SEND OR RECEIVE SELLER’S TRANSMISSIONS OR DATA ON OR THROUGH THE EQUIPMENT; (V) CONDUCT OF ANY THIRD PARTY ON THE EQUIPMENT; AND (VI) ANY OTHER MATTER RELATING TO THE EQUIPMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING SELLER WILL NOT BE LIABLE TO BUYER FOR PERSONAL INJURY OR PROPERTY DAMAGE.
TO THE GREATEST EXTENT PERMISSIBLE BY APPLICABLE LAW, SELLER DOES NOT GUARANTEE OR WARRANT THAT ANY CONTENT YOU MAY STORE OR ACCESS THROUGH THE EQUIPMENT WILL NOT BE SUBJECT TO INADVERTENT DAMAGE, CORRUPTION, LOSS, OR REMOVAL IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT, AND SELLER SHALL NOT BE RESPONSIBLE SHOULD SUCH DAMAGE, CORRUPTION, LOSS, OR REMOVAL OCCUR. IT IS YOUR RESPONSIBILITY TO MAINTAIN APPROPRIATE ALTERNATE BACKUP OF YOUR INFORMATION AND DATA.
12. FORCE MAJEURE
If the performance of this Agreement or any obligation hereunder, except the making of payments hereunder, is prevented, restricted or interfered with by reason of fire, flood, earthquake, explosion or other casualty or accident; strikes or labor disputes; inability to procure parts, supplies or power; war or other violence; any law, order, proclamation, regulation, ordinance, demand or requirement of any government agency; or any other act or condition whatsoever beyond the reasonable control of the affected party, the party so affected, upon giving prompt notice to the other party, shall be excused from such performance to the extent of such prevention, restriction or interference; provided, however, that the party so affected shall take all reasonable steps to avoid or remove such causes of nonperformance and shall resume performance hereunder with dispatch whenever such causes are removed.
13.1 Any of the following constitute a default:
a) Failure to make any payment when due in accordance with the terms hereof;
b) Buyer makes any representation or warranty herein, or in any document or certificate executed by Buyer incident herein, which is found to have been false in any material respect at the time such representation or warranty was made; or
c) Buyer ceases doing business as a going concern or merges with, or a substantial portion of Buyer's assets are acquired by any other entity.
13.2 Any other material breach of this contract by either party shall constitute a default if not cured within 10 business days after written notice of such breach is given.
14.1 Upon default by Buyer, Seller may elect any or all of the following remedies:
a) Terminate this Agreement on 30 days’ written notice;
b) Immediately recover from Buyer as damage, not as a penalty, any and all Service Fee payments that, at the time of default, not yet been paid and, but for the default, would become due over the remainder of the Initial Skyflo Service Term;
c) Proceed by appropriate court action to enforce performance by Buyer of the applicable covenants of this Agreement; or
d) Remotely deactivate the Equipment or suspend Buyer’s access to the Skyflo Service.
No remedy referred to in this Section is intended to be exclusive, but each will be cumulative and in addition to any other remedy referred to above or otherwise available to Seller at law or in equity. No express or implied waiver by Seller of any default will constitute a waiver of any other default by Buyer or a waiver of any of Seller’s rights. In addition to the remedies described in this Section, Seller may, at its sole discretion and for any reason, terminate Buyer’s continued access to the Skyflo Service upon 30 days’ written notice to Buyer. In the event of such a discretionary termination, any and all of the remedies described in this Section remain available to Seller.
Any notices required by this Agreement will be transmitted: (if by physical post) to the address below or the address of the party provided in the beginning of this Agreement by registered or certified mail or other form of expedited delivery that requires the signature or acknowledgment of the receiving party; or by e-mail (if provided).
Notices to Seller:
Phone (for support only): +1 (510) 458-3559
E-mail (for support only): support@L2Finc.com
48531 Warm Springs Blvd., Suite 408
Fremont, CA 94539
16.1 This Agreement may not be assigned, in whole or in part, by Buyer except with the prior written consent of the Seller.
16.2 Seller may freely assign any of its rights under this Agreement, including its right to receive any payment or payments from Buyer hereunder.
16.3 Seller may subcontract the performance of any of its obligations under this Agreement; provided that Seller shall remain primarily responsible for the performance of obligations which it subcontracted hereunder.
17. NO OTHER WARRANTY OR REPRESENTATION
Buyer hereby acknowledges that it has not entered into this Agreement in reliance upon any warranty or representation by any person or entity except for the warranties or representations specifically set forth herein.
18. EFFECT OF WAIVER:
The failure or delay of Seller in exercising any rights granted hereunder will not constitute a waiver of any such right and any single or partial exercise of any particular right by Seller will not exhaust the same or constitute a waiver of any other right provided herein.
19. GOVERNING LAW; VENUE:
THE PARTIES AGREE THIS AGREEMENT WILL BE CONSTRUED IN ACCORDANCE WITH, AND WILL BE GOVERNED BY, THE LAWS OF THE STATE OF CALIFORNIA. BUYER HEREBY CONSENTS TO THE PERSONAL JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN THE COUNTY OF ALAMEDA, STATE OF CALIFORNIA AND IRREVOCABLY AGREES THAT, SUBJECT TO SELLER’S ELECTION, ALL ACTIONS OR THEIR PROCEEDINGS RELATING TO THIS AGREEMENT WILL BE LITIGATED IN SUCH COURTS.
Section headings are inserted for convenience only and will not affect any interpretation of this Agreement.
The terms of this Agreement and any Schedule, including any financial term, are strictly confidential and may not be disclosed to a third party. In case Confidential Information is required to be disclosed by a court order or statutory duty, the obligated Party shall be allowed to do so, provided that it will, without delay, inform the other Party to this Agreement in writing of receipt of such order or coming into existence of such duty and enable the other Party reasonably to seek protection against such order or duty.
22. SELLER’S RIGHT TO CURE:
If Buyer fails to perform any obligations hereunder, then Seller, in addition to all of its rights and remedies hereunder, may perform the same, but will not be obligated to do so, at the cost and expense of Buyer. In such event, Buyer shall promptly reimburse Seller for any such costs and expenses incurred by Seller together with interest thereon at the Late Payment Rate from the date incurred to the date reimbursement is made.
23. ATTORNEY’S FEES
In the event of any action at law or in equity in relation to this Agreement, the prevailing party will be entitled to recover a reasonable sum for its attorney’s fees and costs.
The invalidity in whole or in part of any of these terms and conditions shall not affect the validity or enforceability of any other term or condition.
25. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement and understanding between the Parties concerning the subject matter hereof and supersedes all prior agreements, negotiations and understandings of the Parties with respect thereto. No representation, promise, modification or amendment shall be binding upon either Party as a warranty or otherwise unless in writing and signed on behalf of each Party by a duly authorized representative. Although Buyer may use its standard purchase order form to give any order or notice provided for hereunder, said order or notice will be governed by the terms and conditions of this Agreement, and any term or condition set forth in any such standard form which is inconsistent with or in addition to the terms and conditions of this Agreement shall have no force or effect.