CUSTOMER PURCHASE TERMS AND CONDITIONS 

 

IMPORTANT: PLEASE READ THESE CUSTOMER PURCHASE TERMS AND CONDITIONS CAREFULLY. 

 

THESE CUSTOMER PURCHASE TERMS AND CONDITIONS (“AGREEMENT”) ARE LIMITED TO THOSE CONTAINED HEREIN. THESE TERMS APPLY TO YOUR (“YOU” or “YOUR” or “CUSTOMER”) PURCHASE OF CERTAIN PRODUCTS, SERVICES, SOFTWARE, AND/OR HOSTING SERVICES (ALL OF WHICH ARE DEFINED BELOW) PROVIDED AND SOLD BY STANLEY INDUSTRIAL & AUTOMOTIVE, LLC (“CRIBMASTER”), AND/OR BLACK & DECKER (U.S.) INC. (“SWS VIDMAR LISTA”) A MARYLAND CORPORATION (COLLECTIVELY OR SEPARATELY, AS APPROPRIATE, “SELLER”), AS DESCRIBED IN YOUR SELLER ORDER FORM(S) (DEFINED BELOW). BY PLACING AN ORDER FOR PRODUCTS, SERVICES, SOFTWARE, AND/OR HOSTING SERVICES AS DESCRIBED IN YOUR SELLER ORDER FORM, YOU AGREE TO BE BOUND BY AND ACCEPT THIS AGREEMENT UNLESS YOU AND SELLER HAVE SIGNED A SEPARATE AGREEMENT THAT EXPRESSLY OVERRIDES THIS AGREEMENT, IN WHICH CASE THAT SEPARATE AGREEMENT WILL CONTROL. 

 

YOU MAY ISSUE A PURCHASE ORDER OR OTHER FORM FOR ADMINISTRATIVE PURPOSES ONLY. ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS CONTAINED IN ANY SUCH PURCHASE ORDER OR ANY FORM DELIVERED BY YOU (I) WILL BE NULL AND VOID AND (II) ARE HEREBY DEEMED TO BE MATERIAL ALTERATIONS AND NOTICE OF OBJECTION TO THEM AND REJECTION OF THEM IS HEREBY GIVEN. SELLER’S FULFILLMENT OF YOUR ORDER DOES NOT CONSTITUTE ACCEPTANCE OF ANY OF YOUR TERMS AND CONDITIONS AND DOES NOT SERVE TO MODIFY OR AMEND THIS AGREEMENT. YOU AGREE THAT THIS AGREEMENT AND ANY SELLER ORDER FORMS ISSUED IN CONNECTION HEREWITH WILL CONTROL. NO COURSE OF PRIOR DEALINGS BETWEEN THE PARTIES AND NO USAGE OF TRADE WILL BE RELEVANT TO

DETERMINE THE MEANING OF THE TERMS OF THIS AGREEMENT OR ANY SELLER ORDER FORM.

                                                          Schedules and Exhibits:

 

Schedule A – SOW Template

Exhibit 1 to Schedule A - Specifications

Schedule B – Pricing Terms Sheet

Exhibit A – Product-Specific Terms and Conditions

Exhibit B – CribMaster Application Software Terms

Exhibit C – Software as a Service Agreement 

Exhibit C, Schedule 1 – System Requirements and Security Standards 

Exhibit D – SBD-Customer Global DPTA

Exhibit E – API Addendum

Exhibit F – SolGen Addendum

 

 

This MASTER PURCHASE AGREEMENT (the “Agreement”) is effective as of the date the first Seller

Order Form (defined below) is sent to Customer by Seller, by and between Stanley Industrial &

Automotive, LLC (“CribMaster”), a Delaware limited liability company, and/or Black & Decker (U.S.)

Inc. (“SWS Vidmar LISTA”) a Maryland Corporation (collectively or separately, as appropriate,

“Seller”) and You, the Customer (“Customer”). Customer and Seller may each be referred to as a “Party”, and, collectively, the “Parties.”

 

NOW, THEREFORE, in consideration of the mutual covenants and promises contained herein, the parties hereby agree as follows:

 

1.                   Definitions.

 

a.       “Authorized User” means Customer’s employees, consultants, and contractors, each of whom must be biological human, (a) who are authorized by Customer to access and use the SaaS Solution under the rights granted to Customer pursuant to this Agreement; and (b) for whom access to the SaaS Solution has been purchased hereunder.

 

b.       “Deliverables” means the documents, work product, and other materials that are delivered to Customer hereunder or prepared by or on behalf of Seller in the course of performing the Services, each of which shall be set forth in one or more Statements of Work or other Seller Order Form. 

 

c.       “Effective Date” means the date specified on the cover page of this Agreement as the Effective Date.

 

d.       “Hosting Services” means integrated application and data hosting services including the required         infrastructure,   operating             systems,               licenses,               software,             network               and         IT administration, security, and servers to deliver the Seller application, sold by Seller.

 

e.       “Insights” means analytics based on user data, user inputs and Software User data collected by or provided by Seller.

 

f.        “Products” means, collectively, (i) the tangible products, including, without limitation, any machines, component parts, hardware, accessories and other tangible items sold by Seller to Customer hereunder, (ii) all Software, embedded, hosted or otherwise proprietary to and licensed by Seller to Customer hereunder, and (iii) SaaS Solutions.    

 

g.       “Resultant Data” means data and information related to Customer’s use of the Products and/or Services that is collected, developed and/or used by Seller in an aggregate and anonymized manner, including without limitation to compile statistical and performance information related to the provision and operation of the Products and/or Services, improve the Products or Services,  developing generative AI products and associated models, or for any other lawful purpose, and includes Insights.

 

h.       “SaaS Solution(s)” means the software-as-a-service offering as described in the Order Form and incorporated herein, which may include data hosted by Seller on its servers, hosted by Seller’s cloud provider, or installed and operated on the Customer’s or Authorized User’s own servers and data centers.

 

i.         “Seller” shall mean as applicable Black & Decker (U.S.) Inc. dba SWS Vidmar LISTA or Stanley Industrial & Automotive, LLC, including all its subsidiaries and affiliates, and includes “CribMaster”.  

 

j.         “Seller Order Form(s)”, “Order Form(s)”, means collectively, any invoice, sales quote, purchase order form, Statement of Work, or other documentation provided by Seller in connection with the Products and/or Services provided hereunder. 

 

k.       “Services” means certain customized professional services to be provided by Seller hereunder and as more specifically set forth in each SOW executed under this Agreement.

 

l.         “Shipping Date” means the date a Product is transferred to a carrier at Seller’s facility (FOB Origin).

 

m.     “Software” means collectively Seller-owned software, software embedded in products that is provided by Seller, and software provided by Seller under a license from a third-party supplier (whether operating on a single computer, network or web hosted environment).

 

n.       “Software Users” means, collectively or individually, the Customer and its Authorized Users that are end users of the Software. 

 

o.       "Statement of Work" or "SOW" means each Statement of Work entered into by the parties as a standalone document or as an attachment to this Agreement or an Order Form, substantially in the form of Schedule A.

 

2.                   Scope, Application of Agreement, and Seller Order Forms. Scope, Application of Agreement, and Seller Order Forms. This Agreement governs the relationship between Customer and Seller with respect to Customer’s purchase of the Products and Services and constitutes a binding contract between Customer and Seller. Customer agrees to be bound by and accepts the terms and conditions of this Agreement unless Customer and Seller have both executed a separate agreement which expressly overrides this Agreement. No course of prior dealings between the Parties and no usage of trade will be relevant to determine the meaning of the terms of this Agreement or any Seller Order Form.

 

3.                   Orders, Pricing, Delivery and Installation. 

 

a.       Orders.  All purchase orders are subject to acceptance by Seller and will be deemed to specifically incorporate this Agreement by reference. Customer may issue a purchase order or other form for administrative purposes only. Additional or different terms and conditions contained in any such purchase order or any form delivered by Customer (i) will be null and void and (ii) are hereby deemed to be material alterations and notice of objection to them and rejection of them is hereby given. Seller’s fulfillment of Customer’s order does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend this Agreement. Customer agrees that this Agreement and any Seller Order Form(s) issued in connection herewith will control. No course of prior dealings between the parties and no usage of trade will be relevant to determine the meaning of the terms of this Agreement or any Seller Order Form(s).

 

b.       Pricing.

The price for the Products and Services will be set forth in the applicable Seller Order Form. If a shipment is delivered into a state that requires the Seller to pay, or collect a sales tax/use tax, the tax will be added as a separate line item on the invoice, unless Seller receives an applicable sales tax exemption certificate from Customer.

Prices may change upon notice by the Seller.

 

c.       Fee Increases. Unless otherwise stated by the Seller, prices are those in effect at the time of quote. Seller may increase Fees at its sole and absolute discretion by sending written notice to Customer at least thirty (30) calendar days prior to the date the Fees are to increase, at which time the applicable Seller Order Form shall be deemed amended accordingly.

 

d.       Quotes. Prices quoted are in USD and are valid for sixty (60) days, unless otherwise agreed upon by the Parties in writing. Large projects may require an advance deposit. Purchase orders and quotes from third- parties will not be accepted. If any third-party quotes Seller’s Products or Services, that third- party bears the risk that the quote is correct; and such quotes may not be accepted nor processed by Seller.  All pricing within a third-party quote is subject to change without notice.  

 

e.       SaaS Solution Subscription. The subscription fees and payment schedule for the SaaS Solution shall be set forth in the Order Form and/or quote.  

 

f.        No Deductions or Setoffs. All amounts payable to Seller under this Agreement shall be paid by Customer to Seller in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason or any deduction or withholding of tax as may be required by applicable law.

 

g.       Delivery.  Delivery and freight terms for Products are set forth in the Product-Specific Terms and Conditions Exhibit (Exhibit A).  Seller will make every reasonable effort to meet scheduled shipping dates, but those dates are estimates only and not binding.

 

h.       Installation.  Installation of the Products is the exclusive responsibility of the Customer, unless installation is purchased as a separate line item on the purchase order.  

 

i.         Invoices. Separate invoices shall be issued for products, travel and expenses, installation, and services. 

 

j.         Keys.  Customer acknowledges that some Software Users will be given a key code which will give the Software User access to certain Products for the permitted number of users for which license fees have been paid.  In the event such Software User desires to increase the maximum number of users, Software User or Customer, on Software User’s behalf, shall first obtain Seller’s prior authorization and pay additional license fees to Seller as determined by Seller’s then current pricing structure with Customer.

 

k.       Maintenance Renewal Fees. After the first year of this Agreement and with respect to the Products except for SaaS which includes Maintenance Renewal fees during the initial term, Customer must pay the maintenance renewal fees as specified in the applicable Seller Order Form(s) (“Maintenance Renewal Fees”) to attain access to (a) customer support for the Products and (b) any Seller proprietary software upgrades. The Maintenance Renewal Fees will be automatically billed following the end of the first year of this Agreement, and annually on the anniversary thereof, unless Customer gives written notice of non-renewal to Seller no later than sixty (60) days prior to the end of the current contract year. In the event Customer holds a nonhosted license and elects not to pay the Maintenance Renewal Fees but subsequently requests such services, Customer must first repay the Maintenance Renewal Fees that would have been due had Customer not terminated such services, along with any reactivation fees.

 

l.         Third-Party Fees. Seller may immediately pass-through to Customer any fees and fee increases by third-party resellers for any third-party resold services identified in the applicable Seller Order Form (“Third-Party Resold Services”). 

 

m.     Product Storage Fees. Customer Delayed Shipments. If storage is approved by Seller, in Seller’s sole and absolute discretion, the Customer shall be responsible for storage charges set forth below and including, but not limited to, all third-party costs and expenses incurred by Seller in holding or storing Products for the Customer. 

 

i. Less than trailer loads: (Typically orders where Products can be stored inside Seller's facilities, subject to available storage space)

•               1% of Order Form net value per day

•               5% of Order Form net value per week ii. Trailer Loads: (Typically larger orders stored in rented, insured trailers located on Seller's premises)

•               Minimum: $500.00 per week per trailer iii. If the manufacturing location cannot store the Products on their premises, Products may be stored in rented, insured trailers on carrier's premises, with a minimum charge of $500.00 per day per trailer, payable by the Customer.

 

n.       Professional Services. In the event that Customer purchases Services from Seller, such Services shall be provided to Customer pursuant to and in accordance with the Agreement and the Statement of Work for Professional Services, sample template attached as Schedule A and incorporated herein by reference.

 

o.       Hosting Services. In the event that Customer purchases Products that require Seller to provide Hosting Services as a part thereof, such Hosting Services shall be provided to Customer pursuant to and in accordance with the Agreement and the SoftwareAs-A-Service Exhibit, attached as Exhibit C and incorporated herein by reference.

 

4.                   Payments. Unless otherwise set forth in the applicable Seller Order Form: (i) all terms are net 30 days from the date of invoice, (ii) payment must be made via acceptable form such as credit card, check, wire transfer, or other electronic method. In the event of partial shipments, Seller will invoice and Customer will pay the pro-rata price applicable to the items shipped. If an invoice remains unpaid for thirty (30) days from its due date, Seller may at its sole option impose a late fee on the unpaid balance at the rate of one and one-half percent (1 1/2%) per month from the due date, not to exceed the highest interest rate permitted by law. Failure to pay within specified terms may, at the option of Seller, result in (a) the suspension of the Services and/or any customer support with respect to Products, (b) the suspension or withholding from Customer, without liability, of software updates to Seller-owned Software by Seller, and/or (c) the termination of this Agreement by Seller effective immediately upon written notice to Customer. All reasonable travel, lodging, car rentals, and meal expenses will be billed to the Customer unless otherwise specified in the applicable SOW. Any sales and use taxes shall be added to the invoice. In the event Customer claims exemption from sales and use taxes, Customer must promptly provide Seller with the appropriate tax exemption certificate from the taxing authority.

 

 

5.                   Warranties.  

 

a.       Mutual Warranties. Each party represents to the other party that: (i)it has the full right, power, and authority to enter into this Agreement and to perform its obligations hereunder; (ii) the execution of this Agreement by its representative whose signature is set forth on the cover page hereof has been duly authorized, if necessary, by corporate action of the party; and (iii) when executed and delivered by such party, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.

 

b.       Warranties by Seller. Seller’s product-specific warranties and exclusions are provided in Section 12 of Exhibit A, which is attached hereto and incorporated by reference.

 

c.       Exclusive Remedy.  In the event that a Product is nonconforming with the limited warranties set forth in this Section 5 and Exhibit A, Section 12, Seller will use commercially reasonable efforts to repair, replace, re-perform, or otherwise correct, as applicable, any such nonconforming Product. If Seller is unable to repair, replace, reperform, or otherwise correct such nonconforming Product within a reasonable time after receiving written notice thereof, Seller shall reimburse to Customer the payments made to Seller for such Product.  With respect to the warranty set forth in Exhibit A, Section 12(b)(i), if the Product becomes, or in Seller’s opinion is likely to become, the subject of such an infringement or similar claim, Seller may, at Seller’s option and expense, either procure the right for Customer to continue using the Product, or replace or modify such Product so that it becomes non-infringing.  If neither of the foregoing alternatives is available on terms that Seller, in its sole discretion, deems reasonable, Seller shall reimburse to Customer the payments made to Seller for such Product.  In such event, Customer will cease use of the infringing Product under this Agreement. The remedies set forth in this Section 5(c) constitute the Customer’s sole remedy for any warranty claims hereunder. 

 

d.       Warranty Disclaimer.  EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION AND IN EXHIBIT A, SELLER DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS, IMPLIED, OR ARISING BY OPERATION OF LAW, TRADE USAGE, OR COURSE OF DEALING, RELATED TO THE PRODUCTS SOLD, SERVICES, RENDERED, AND/OR DELIVERABLES PROVIDED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF TITLE, ACCURACY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND/OR NONINFRINGMENT.    

 

e.       Warranties by Customer.  Customer represents to Seller that it is not subject to any trade sanctions imposed by the U.S., EU and/or UN and that it is in compliance and shall comply with all applicable laws and regulations relating to trade restrictions and/or export controls (including trade sanctions imposed by the US, EU and/or UN) with respect to Products and/or Services sold hereunder, and shall provide evidence of compliance with the foregoing as Seller may reasonably request from time to time.

 

8.                   Limitation of Liability.  SELLER WILL NOT UNDER ANY CIRCUMSTANCES BE LIABLE FOR ANY

SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING BUT NOT LIMITED TO, PROPERTY DAMAGE, LOSS OF PROFIT, LOST TIME, LOSS OF DATA, LOSS OF USE OF ANY EQUIPMENT, COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS, TECHNOLOGY OR SERVICES, REGARDLESS OF WHETHER SELLER HAS BEEN ADVISED OF THE LIKELIHOOD OF SUCH DAMAGES, WHETHER SUCH DAMAGES ARE OTHERWISE FORESEEABLE, AND THE THEORY UPON WHICH SUCH LIABILITY IS PREMISED. IN THE EVENT OF ANY LIABILITY INCURRED BY SELLER HEREUNDER, THE ENTIRE LIABILITY OF SELLER FOR DAMAGES FROM ANY CAUSE WHATSOEVER WILL NOT EXCEED THE DOLLAR AMOUNT PAID BY CUSTOMER FOR THE PRODUCT(S) OR SERVICES OR PORTION THEREOF GIVING RISE TO THE CLAIM. 

 

The limitation of Seller’s liability set forth in this Section 8 will survive the expiration and/or termination of this Agreement.

 

9.                   Indemnity.

  

a.                   By Seller.  Seller shall indemnify Customer against all claims, demands, actions, costs, expenses (including, but not limited to reasonable legal costs and disbursements), losses and damages arising out of or in connection with the infringement by the Product of a valid patent, copyright or trade secret right of a third party, provided Customer notifies Seller promptly upon Customer’s receipt of any notice or claim in writing of any claim or threatened claim against Customer and thereafter co-operates with Seller so that Seller will not be prejudiced in the defense, settlement or other handling of such claim or threatened claim.  

b.                   By Customer.   Customer shall indemnify Seller against all claims, demands, actions, costs, expenses (including, but not limited to, reasonable legal costs and disbursements), losses and damages arising out of or with respect to (i) the activities of Customer unrelated to or not approved by this Agreement, and/or (ii) the failure of Customer to perform any obligation of Customer under this Agreement, .  Customer shall indemnify Seller for damages suffered by Seller resulting solely from Customer’s use of revisions, additions to, derivatives or modifications of the Products which are developed by Customer. Customer’s obligation to indemnify Seller for claims under this Section 9(b) is contingent upon Seller notifying Customer promptly upon Seller’s receipt of any notice or claim against Seller and thereafter co-operating with Customer so that Customer will not be prejudiced in the defense, settlement or other handling of such claim or threatened claim.    

 

10.               Trademarks. Trademarks. Customer acknowledges that Seller owns and/or is licensed to use and sublicense to third- parties, certain trademarks, trade names, and other proprietary logos, slogans, and designs, whether registered or unregistered, in various countries around the world (herein separately and collectively referred to as the “Trademarks”) that may be imprinted upon or otherwise associated with the Products and Services. Unless otherwise set forth in the applicable Seller Order Form, Customer acknowledges and agrees that no rights, license, or interest to or in the Trademarks is granted hereunder and that Seller retains all ownership of the Trademarks. Customer acknowledges and agrees that it is prohibited from altering, modifying, removing, obscuring or covering any Trademarks, copyright notices, or trademark notices or other proprietary rights, or legends placed on or embedded by Seller in the Products, Software, or otherwise included in the Services and/or Deliverables.

 

11.               Term and Termination. 

 

a.                   Term. This Agreement commences on the Effective Date and continues until all Order Forms and/or subscriptions hereunder have expired or have been terminated as set forth herein. 

 

b.                   Term of Purchased Subscriptions. The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional one-year terms, unless either party gives the other written notice (email acceptable) at least sixty (60) days before the end of the relevant subscription term. Except as expressly provided in the applicable Order Form, renewal of promotional or one-time priced subscriptions will be at Seller’s applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which subscription volume or subscription length for any SaaS Solution has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing. 

 

c.                   Termination without Breach.  Either party may terminate this Agreement at any time without cause, upon sixty (60) days’ prior written notice to the other party, but such termination shall not affect orders placed and accepted prior to the termination date. 

 

d.                   Termination for Breach.  Seller may terminate this Agreement immediately per the terms of this Agreement, or upon Customer’s material breach of this Agreement, and if such breach is capable of cure, Seller shall provide Customer with written notice detailing the nature of the breach, and if Customer fails to cure such breach within thirty (30) days of notice delivery, Seller may terminate this Agreement without penalty.  

 

e.                   Termination for Insolvency.  Seller may terminate this Agreement immediately by providing notice in writing to Customer, should any of the following events occur: (a) Customer has made or is likely to make an assignment for the benefit of creditors; (b) Customer admits in writing its inability to pay its debts as they mature; (c) a trustee or receiver of Customer is appointed by court; (d) a federal bankruptcy act which is acquiesced in or results in final adjudication in bankruptcy; or (e) Customer fails to perform any obligation herein.    

 

f.                    Effect of Termination.  Upon expiration or termination of this Agreement for any reason, Customer shall return all materials and information relating to the use and support of the Products. Unless expressly stated in this Agreement, termination shall not affect any rights or licenses granted to Customer, or its Software User(s), to use the Products previously granted by Seller, under its own authority, and paid for in full by Customer in accordance with the terms of this Agreement.

 

12.               Confidentiality. “Confidential Information” means information that is provided to or obtained by one party from the other that is valuable, not generally known by the public but which does not rise to the level of a Trade Secret and may include, without limitation, computer software programs, documentation, data, reports, records, verbal communication, and/or materials related to either party’s company or products. “Trade Secrets” means information which derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use. Confidential Information and Trade Secrets are collectively referred to herein as “Information.”  Information includes all such information which has not been in the public domain prior to receiving this Information from the other party, including any affiliations, contracts, and knowledge that either party may have access to or which may be disclosed to the receiving party as a consequence of the business relationship entered into by the parties. In consideration for each party furnishing the Information to the other party, each party hereto agrees to the following: (a) All Information is considered highly sensitive and strictly confidential. Accordingly, each party shall maintain such Information in the utmost confidence. (b) The receiving party shall limit disclosure and transfer of Information to the receiving party’s employees, officers, representatives, and agents that have a legitimate need to review or have access to the Information. In the event Customer wishes to employ independent professionals for the sole purpose of assisting Customer in analyzing the supply chain and inventory management structure and recommending solutions to Customer, then Customer may divulge the Information to such third parties provided that prior to doing so, Seller is notified and approves all such third parties. Customer shall require all such third parties to be bound by the nondisclosure obligations of this Agreement. (c) The actions of negligence of the receiving party’s employees, officers, agents or other representatives referred to herein shall be deemed the actions of the receiving party with respect to the Confidential Information, and any unauthorized use or disclosure of Confidential Information shall constitute a material breach hereof and shall cause irreparable harm and loss to the disclosing party.  The terms set forth above shall survive with respect to (i) Confidential Information for a period of five (5) years following expiration or termination of this Agreement for any reason; and (ii) Trade Secrets for so long as the respective information qualifies as a trade secret under applicable law. The rights of the parties set forth in this Section 12 shall be in addition to and not an abrogation of any existing non-disclosure and/or confidentiality agreement between the parties; provided, however, that in the event of any conflict between the terms of this Section 12 and any such existing agreement, this Section 12 shall prevail.

 

13.               Resultant Data Aggregation. Customer acknowledges and agrees, and shall ensure its Software Users acknowledge and agree, that Seller is entitled to collect and utilize Resultant Data for the purposes of improving the performance of the Products and/or general marketing purposes. Any collection and use of Resultant Data hereunder shall be conducted in accordance with all applicable laws. 

 

14.               Compliance with Law. Customer shall at all times comply with all federal, state, and local laws, ordinances, regulations, and orders that are applicable to the operation of its business and to this Agreement and its performance hereunder. Without limiting the generality of the foregoing, Customer shall, at all times, at its own expense, obtain and maintain all certifications, credentials, authorizations, licenses, and permits necessary to conduct its business as it relates to the exercise of its rights and the performance of its obligations under this Agreement.

a.                   Anti-Bribery and Anti-Corruption. The Customer acknowledges that certain laws of the United States and other jurisdictions relating to anti-bribery and anti-corruption policies applicable to Seller, including but not limited to the U.S. Foreign Corrupt Practices Act  and the U.K. Bribery Act of 2010, but which may not be applicable to the Customer, impose fines or penalties on Seller, if the Seller or anyone acting on the Seller’s behalf makes payments to foreign government officials or other person for the purpose of influencing those officials or persons in making a business decision favorable to the Seller. In addition, the Customer acknowledges that the Seller may be subject to similar laws or requirements of the country of destination of the Products or work to be performed hereunder. Customer represents and warrants that no government official is a principal, owner, officer, employee or agent of the Customer or any entity in which Customer has an interest, and no government official has any material financial interest in the business of the Customer. Neither Customer nor its employees, agents or subcontractors, or their employees or agents, shall make any payment or give anything of value to any official of any government or public international organization (including any officer or employee of any government department, agency or instrumentality), or any other person, to influence his or its decision, or to gain any other advantage for the Seller or Customer in connection with the work performed hereunder. Customer shall immediately notify the Seller of any suspected violation of the applicable laws related to anti-bribery or anti-corruption. Customer shall hold the Seller harmless for all losses and expenses arising out of such violation. 

i.         In the event of any violation of any anti-bribery or anti-corruption law, the Seller may, at its sole option, terminate this agreement or order at any time without notice or indemnity and notwithstanding any other provision of this agreement or order, pay no compensation or reimbursement to Customer whatsoever for any service performed after the date of such violation.

ii.       Customer and its subcontractors and vendors of any tier shall maintain true and correct records in connection with the work and all transactions related thereto and shall retain all such records for at least twenty-four (24) months after termination of this Agreement or Order. Any representative(s) authorized by the Seller may audit any and all records of Customer and any such subcontractor or vendor for the sole purpose of determining whether there has been compliance with applicable anti-bribery or anti-corruption laws.

 

b. OFAC Compliance. The Customer shall maintain compliance with all laws administered by the United States Office of Foreign Asset Control (“OFAC”), or any intergovernmental entity, economic block, or government of any country imposing economic sanctions and trade embargoes ("Economic Sanctions Laws") against designated countries ("Embargoed Countries"), entities, and persons (collectively, "Embargoed Targets"). Without limiting the generality of the foregoing, the Customer shall not (a) directly or indirectly export, reexport, transship, or otherwise deliver goods or services to an Embargoed Target or (b) broker, finance, or otherwise facilitate any transaction in violation of any Economic Sanctions Law, or with any entity considered an Embargoed Target.

 

15.               Additional Terms and Conditions.

 

a.   The purchase and sale of Products, other than Software or the SaaS Solution, shall also be governed by the terms and conditions set forth in Exhibit A.

 

b.   The purchase, sale and use of the Software and related documentation, shall also be governed by the terms and conditions set forth in Exhibit B. 

 

c.    The purchase and sale of the SaaS Solution shall also be governed by the terms and conditions set forth in Exhibit C. 

 

d.   Additionally, Customer may license software directly from a third- party other than Seller, or purchase certain SaaS Solutions which necessitate the utilization of a third-party cloud service provider. In those instances, such third-party may require Customer to agree to the third-party’s terms and conditions, such as an end user license agreement, and that applicable agreement will also govern Customer’s use of such third-party software, or third- party cloud services (“Third- Party Terms”). Customer will look solely to that third-party for any loss, claims or damages arising from or related to the provision of such third-party software or cloud services.

 

16.               General.   

 

a.                   Binding Agreement and Assignments. This Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and permitted assigns. This Agreement is not transferable or assignable without the prior written consent of the other party and any purported transfer or assignment in violation hereof shall be void and of no force and effect, provided that Seller may at any time assign or transfer any or all of its rights or obligations under this Agreement without Customer’s prior written consent to any affiliate or to any entity acquiring all or substantially all of Seller’s assets.

 

b.                   Waiver. No waiver of any provision or breach shall be implied by failure to enforce any rights or remedies herein provided, and no express waiver shall affect any provision or breach other than that to which the waiver is applicable and only for that occurrence.

 

c.                   Force Majeure. Neither party shall be liable for any failure, inability or delay to perform hereunder (except the payment of money), if such failure, inability or delay is due to circumstances beyond its reasonable control, including, but not limited to, acts of God, war, terrorism, strike, lockout, labor disturbance, epidemic or pandemic, social conflict, fire, explosion, earthquake or sabotage.

 

d.                   Governing Law. This Agreement shall be interpreted and governed by the laws of the State of Delaware without giving effect to choice of law provisions. The parties agree that the venue for any actions brought pursuant to this Agreement shall be either the Courts of the State of Delaware, or the U.S. District Court for the District of Delaware, without regard to conflicts of laws principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. 

 

e.                   Disputes.  If any dispute arises in connection with this Agreement, the parties will attempt to settle it by mediation in accordance with the Judicial Arbitration & Mediation Services, Inc. ("JAMS"). The mediation will start, unless otherwise agreed between the parties, within fifteen (15) days of one party issuing a written request to mediate to the other. The mediation will take place in Hartford, Connecticut. Any agreement reached through mediation shall be governed by, construed, and interpreted in accordance with the laws of the State of Delaware. If the dispute is not settled by mediation within fifteen (15) days of commencement of the mediation or within such further period as the parties may agree in writing either party may issue arbitration or court proceedings in Hartford, Connecticut. JAMS shall be the appointing body and administer the arbitration. The JAMS rules in force at the time the arbitration is initiated shall be applied in any arbitration commenced pursuant to this clause.

 

f.                    Independent Contractor. Nothing in this Agreement, and no course of dealing between the parties, shall be construed to create an employment or agency relationship or a partnership between a party and the other party. Each party shall remain an independent contractor and be solely responsible for payment of its employees’ salaries (including withholding of income taxes and social security), workers’ compensation, and all other employment benefits. Neither party is authorized to, or will, make any representation, contract, or commitment on behalf of the other party. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each Party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.

 

g.                   Entire Agreement. This Agreement sets forth the entire Agreement and understanding between the parties with respect to the subject matter hereof, and replaces any prior oral or written communications.  For the avoidance of doubt, the attached Exhibits hereto are made a part of this Agreement.  Any preprinted terms and conditions on Customer purchase orders or other documents shall be deemed deleted and void and of no effect. Fulfillment of Customer’s order does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend this Agreement.

 

h.                   Amendments. Seller may amend this Agreement from time to time in its sole discretion, in which case the new Agreement will supersede prior versions. Customer’s continued use of the Products and/or Services following the Effective

Date shall be deemed as Customer’s consent to any such amendment.  

 

i.                     Severability. In the event any term or provision of this Agreement is determined to be invalid, illegal or unenforceable, the remaining terms and provisions will continue in full force and effect if the essential terms and conditions of this Agreement for each party remain valid, binding and enforceable. 

 

j.                     Survival. All sections intended to survive termination or expiration shall survive such termination or expiration of the Agreement. Termination or expiration of this Agreement shall not limit a party’s liability for obligations accrued as of or prior to termination or for any breach of this Agreement.

 

k.                   Headings and Interpretations. The headings of the sections of this Agreement are intended solely for convenience or reference, and shall be given no effect in the construction or interpretation of this Agreement. Each party has been or has had the opportunity to be represented by counsel in connection with this Agreement and, accordingly, any rule of law or legal doctrine that would require interpretation of any claimed ambiguities in this Agreement against the drafting party has no application and is expressly waived. The use of the masculine pronoun herein shall, where the context so indicates, be deemed to include the feminine and the neuter and vice versa, and the use of the singular shall be deemed to include the plural and vice versa.

 

l.                     Order of Precedence. In the event of any conflict or inconsistency of terms among the various documents that, at any given time, constitute this Agreement, the order of precedence that shall apply is as follows, with each listed document or type of document superseding and prevailing over any subsequently listed document or type of document, and with later executed documents prevailing over earlier documents of the same type, each solely to the extent of any irreconcilable conflict or inconsistency of the terms and conditions thereof:  (i) change orders or other modifications to Seller Order Forms that are executed by the parties after the Effective Date of this Agreement; (ii) Seller Order Forms executed after the Effective Date of this Agreement; and (iii) this Agreement (including its Exhibits).  

m.                 Counterparts.  This Agreement may be executed in duplicate counterparts. Each such counterpart, if executed by both parties, shall be an original and all such counterparts together shall constitute but one and the same document. This Agreement shall not be deemed executed unless and until at least one counterpart bears the signature of each party’s designated signatory.

 

n.                   Remedies.  Seller's remedies shall be cumulative, and remedies specified herein do not exclude any remedies allowed by law.  

 

 

SCHEDULE A - SOW TEMPLATE

 

This SOW is issued pursuant to, adopts, and incorporates by reference the terms and conditions of the Agreement, which was entered into on the Effective Date set forth on the cover page thereto, by and between Seller and Customer. 

 

This SOW is effective beginning on [DATE] (“SOW Effective Date”) and will remain in effect until [DATE/CONTINGENCY], unless earlier terminated in accordance with the Agreement. Transactions performed under this SOW will be conducted in accordance with and be subject to the terms and conditions of this SOW, the Agreement, and any applicable Seller Order Form. Capitalized terms used but not defined in this SOW shall have the meanings set out in the Agreement.

1.                   Scope of Work. [PROJECT SUMMARY].

 

2.                   Work Schedule and Deliverables. The relevant milestones, completion dates, and terms associated with this SOW are as follows:

Line Item	Task	Completion Date
1
2
3

The relevant Deliverables associated with this SOW are as follows:

Line Item	Quantity	Deliverable	Delivery Date	Delivery Location
4
5
6

3.                   Pricing. All costs listed below are based on the scope and assumptions included in this SOW. 

Item	Price [per unit/[OTHER]]	[Cost Structure]
Total:

4.                   Proprietary Rights and Ownership of Deliverables. Seller does not convey or transfer, nor does Customer obtain, any right or interest in any of the software programs, systems, tools, data, materials, or processes utilized or provided by Seller in connection with the performance of this SOW.  Unless otherwise expressly set forth herein and only to the extent that any such software is owned by Seller, Seller grants to Customer a limited, revocable, non-exclusive, nontransferable, non-sublicensable, royalty-free license to use the technology embedded in the Services provided under this Agreement. Ownership rights in the Deliverables shall transfer from Seller to Customer only upon Customer payment in full therefor.

 

5.                   Customer Responsibilities. Customer, at its sole expense, shall:

 

(a)    Allow employees or agents of Seller reasonable access to the premises and facilities where the Services are to be provided. Customer shall not require Seller’s personnel to sign any document as a condition of gaining access to Customer’s premises and facilities that has not been approved in advance by Seller.

 

(b)    Provide for the installation, maintenance, and proper functioning of all products not provided by Seller which are necessary for Seller to perform the Services or provide the Deliverables, including, without limitation, electric power, electrical wiring, cabling, telephone equipment, computers, modems, printers, tables, etc. shall be Customer’s sole responsibility.

 

(c)     Ensure the timely backup, removal, protection, and restoration, as applicable, of any programs, data and removable storage media contained in the computer products,

hardware or software, before rendering same for Services and the restoration of all data after the completion of the Services. 

 

(d)    Provide suitable environmental conditions for performance of the Services and delivery of the         Deliverables.

 

(e)    Provide reasonable assistance to Seller as requested or as set forth herein.

 

(f)      Use the Services and the Deliverables only as intended and with equipment and software recommended by Seller, or the applicable manufacturers and software providers.

 

(g)    Encrypt data before transmission via the internet to any cloud-based data storage or other service (minimum 256 bit encryption) and undertake reasonable security and backup precautions while using Third-Party Resold Services, including but not limited to cloud services.

 

(h)    Comply with all applicable law and use policies.

 

(i)      Ensure that only its authorized personnel have access to Confidential Information, PII (each as defined herein), other data, or use of Third-Party Resold Services, including but not limited to cloud services.

 

(j)      Pay, discharge, and be responsible for, all licensee fees, business, sales, use, or other similar taxes or assessments charged or levied by reason of the services performed or Deliverables provided to Customer under this Agreement; provided, however, that if Seller is required to remit any fee, tax, or duty on behalf of or for the account of Customer, Customer will reimburse Seller within ten (10) days after Seller notifies Customer in writing of such remittance.

Upon the failure of Customer to comply with the responsibilities set forth in this Section 5 (“Noncompliance”), Seller may, at its option, refuse to perform any service where Non-compliance has occurred until such Non-compliance has been cured to the reasonable satisfaction of Seller without any liability or obligation under this Agreement or any applicable law; provided further, that Seller may charge Customer at its then current labor rates for any service call at which no service was performed by Seller as a result of Non-compliance.  Third-Party Resold Services may be suspended for Non-compliance, during which time Customer may not have access to data.

6.                   Time/Days/Place for Service/Service Level Agreement. Seller agrees to provide the Services during the hours of 8:00 a.m. to 6:00 p.m. Eastern Time, Monday through Friday, excluding holidays. Local legal holidays will apply.  All Service completion and Deliverable delivery schedules provided by Seller are estimates and are provided for planning purposes only.

 

7.                   Limited Warranties.

 

(a)    The Services shall be performed in a good workmanlike and professional manner. The Deliverables shall materially conform with the specifications set forth on Exhibit 1 hereto at the time they are delivered to Customer. The foregoing limited warranties are expressly contingent upon Customer fulfilling the Customer responsibilities set forth above and any other conditions that may be specified herein.  In the event Customer finds any Services or Deliverables provided hereunder to be nonconforming with the foregoing limited warranties, Seller shall promptly correct such Services or Deliverables to conform with such limited warranties.  In the event that Seller is unable to correct such Services or Deliverables after three (3) opportunities to do so in accordance with this Section 7(a), Seller shall reimburse to Customer the payments made to Seller for such Services or Deliverables.  To the extent Seller is supplying third party hardware or software as part of the Services or Deliverables, such hardware and software shall be provided solely with the manufacturers’ or publishers’ standard end user warranties, if any.  Seller makes no independent warranties whatsoever with regards to third party hardware or software. The foregoing constitutes Customer’s sole remedy for Service or Deliverable warranty claims.

 

(b)    Third-Party Resold Services are provided “AS IS.”

 

8.                   Disclaimer of All Other Warranties. WITH THE EXCEPTION OF THE LIMITED WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT, SELLER DISCLAIMS ALL OTHER WARRANTIES,

EXPRESSED OR IMPLIED UNDER LAW, INCLUDING THE WARRANTIES OF NONINGRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  SELLER

DOES NOT PROMISE THAT THE SERVICES OR DELIVERABLES PROVIDED, INCLUDING THIRDPARTY RESOLD SERVICES, WILL BE ERROR-FREE OR THAT CUSTOMER’S COMPUTER PRODUCTS, HARDWARE OR SOFTWARE, OR ACCESS TO THIRD-PARTY RESOLD SERVICES, WILL OPERATE WITHOUT DIMINISHMENT OR INTERRUPTION.

 

9.                   Acceptance Criteria.  Customer shall accept Services and Deliverables that materially conform to the specifications set forth on Exhibit 1 hereto.

 

10.               Subcontracting.  Seller may subcontract Services, including on-site Services to be provided to Customer under the applicable SOW.  Such subcontracting will not release Seller from any of its obligations in this Agreement.

 

11.               Independent Contractor.  Nothing in this SOW, and no course of dealing between the parties, shall be construed to create an employment or agency relationship or a partnership between a party and the other party.  Each party shall be solely responsible for payment of its employees’ salaries (including withholding of income taxes and social security), workers’ compensation, and all other employment benefits. Neither party is authorized to, or will, make any representation, contract, or commitment on behalf of the other party.

 

12.               Governing Law.  This Agreement shall be interpreted and governed by the laws of the State of Delaware without giving effect to choice of law provisions.  The parties agree that the venue for any actions brought pursuant to this SOW shall be either the Courts of the State of Delaware, or the U.S. District Court for the District of Delaware.

 

13.               Severability.  In the event any term or provision of this SOW is determined to be invalid, illegal or unenforceable, the remaining terms and provisions will continue in full force and effect if the essential terms and conditions of this SOW for each party remain valid, binding and enforceable.  

 

14.               Counterparts.  This SOW may be executed in duplicate counterparts.  Each such counterpart, if executed by both parties, shall be an original and all such counterparts together shall constitute but one and the same document.  This SOW shall not be deemed executed unless and until at least one counterpart bears the signature of each party’s designated signatory.

 

IN WITNESS WHEREOF, the parties hereto have executed this SOW as of the SOW Effective Date.

       

SELLER:

 

                                                                                                                 By_____________________

Name:

Title:

                                                                                                                   CUSTOMER

                                                                                                                 By_____________________

Name:

Title:

 

EXHIBIT 1 TO SCHEDULE A - SPECIFICATIONS

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SCHEDULE B – PRICING TERMS SHEET

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

EXHIBIT A – PRODUCT-SPECIFIC TERMS AND CONDITIONS

 

This Product Exhibit (“Product Exhibit”) shall govern the purchase and sale of any Products purchased under the Agreement.

 

1. General and Acceptance:

Customer must reference the Seller quote/proposal number on all purchase orders and on all related Seller correspondence. Seller does not warrant that the Products comply with any specific codes or laws, and it is the Customer's responsibility to ensure that the Products meet any required compliance with such codes or laws. Seller is not responsible for providing measurements or modifications to any Products to meet any specific code or law. 

 

Purchase Order Mailing Address and Email Address:

                                         Vidmar       Brand:       11       Grammes       Rd      /      Allentown,      PA       18103-4760          –

Email:  orders@sbdinc.com

LISTA Brand:  106 Lowland St / Holliston, MA 01746 – Email:  orders@listaintl.com CribMaster Brand:  1955 West Oak Circle/ Marietta, GA 30062- Email:

sales@cribmaster.com 

 

2.       Specifications:

All Products are subject to Seller’s standard tolerances for specifications. Seller reserves the right to make substitutions and modifications in the specifications of any Products provided that such substitutions or modifications do not materially adversely affect the performance of the Product for the purposes for which they can be used.

 

3.       Drawings:

For standard-sized and designed cabinets, carts, and accessories, the Customer agrees to the design and size specifications as outlined in the quote and relevant Product documentation. Additionally, when the Customer signs drawings for custom Products, it signifies their agreement and acceptance of the custom Product design.

 

4.       Payment Terms. In addition to the payment terms set forth in Section 3 of the Agreement, the following payment terms are applicable to the Products provided under this Products Exhibit:

 

a)             Progressive Prepayment. A progressive prepayment may be permitted for the Vertical Storage Products: (i) 30% upon order receipt / 60% upon product shipment / 10% upon project completion with Customer sign-off or delivery acceptance; or (ii) 25% upon order receipt / 75% Upon Project Completion with a Customer sign-off or delivery acceptance, depending on the Product.

 

b)            Installation Delays. Where installation is available, in the event installation is delayed, Customer agrees to accept delivery and title of Products and provide a written approval allowing Seller to invoice for such Products. Upon completion of the remaining installation and final Customer sign-off for the project, the installation can then be invoiced.

 

5.           Title and Insurance:  

Title to Products shall transfer from Seller to Customer upon shipment, but Seller shall retain a security interest in the Products until Customer has fulfilled all of its obligations under Agreement, including making payment in full to Seller for such Products.  Customer shall maintain insurance covering the Products against loss by fire, theft or any hazard in an amount equal to the purchase price of the Products from the time of shipment until Customer has made payment in full to Seller for all Products.

 

6.           Freight Terms: 

•       Customer Designated Carrier: (FOB Origin - Freight Collect or third-party). Customer is responsible for carrier freight damage in transit and must file a freight claim 

•       Seller Designated Carrier: (FOB Origin – Prepay and Add)

•       Truck:  FOB, Allentown, PA, Holliston, MA, Burlington, ON, or Marietta, GA

•       Ocean Vessel for Export:  FCA, Allentown, PA, Holliston, MA, Marietta, GA, or Burlington, ON.

 

Products must be inspected upon receipt by the Customer and Seller must be notified of any errors and/or damages within five (5) days of Product delivery for Customer to request a return. Any damage (shredded shrink wrap, bent corner guards, etc.) must be noted on the carriers Bill of Lading form along with a signature. If there is damage to the Product upon arrival, the Customer is instructed to refuse delivery of the damaged Product (including all other items strapped to the pallet). The damaged Product, still in its original packaging, will be returned to Seller for inspection. Failure by the Customer to make any claim against the company within five (5) days of receipt of the Product shall constitute acceptance of the Products and a waiver of Product damage or shortages. Returns must be approved by Seller and will be made in accordance with Section 9.

 

7.           Vidmar and LISTA Special Paint Color Policy:

Vidmar and LISTA products may be available in special or premium colors. A color chip must be submitted and approved by Seller for special or premium colors.  Light or opaque colors may be rejected or may be subject to additional charges.  See below for additional charges for special and ESD paint colors.

 

Special and ESD Paint Color Charge

Order Size                              % Charge

Up to $10,000                       10% of List Price*

$10,000-$50,000                  5% of List Price**

$50,000+                                No Charge

*Minimum charge $500.00 per color per order

**Maximum charge $2,500.00 per color per order

Cabinets:  Standard colors are available at no additional charge.

Seller reserves the right to change standard colors from time to time.  The current standard paint colors may be viewed at the following links:

Vidmar    Brand:                   https://storage.stanleyblackanddecker.com/vidmar/resources-andsupport/colors

LISTA        Brand:                   https://storage.stanleyblackanddecker.com/lista/resources-andsupport/colors

STAK Storage System: (Refer to STAK Catalog for standard paint colors) - Selections of custom paint colors are also available, subject to a minimum of $500.00 net charge, per color, per order. 

 

Custom colors will affect delivery times.

 

 

 

8. Changes and Cancellations:

 

a)       Vidmar and LISTA Products: All Order Forms are non-refundable and non- cancellable unless written notice is received by Seller within two (2) business days after order acknowledgement is generated, and if cancellation is accepted by Seller, there will be a minimum of 50% cancellation charge applied to the Order Form.  No cancellations are accepted for special ordered products and/or custom paint parts.  Any Order Form over $5,000.00 shall not be cancellable or refundable even with advance notice, unless otherwise agreed to in writing by Seller.  

 

Customer will pay all freight expenses if Product has been shipped.

In addition to any remedies that may be provided hereunder or under applicable law, Seller may terminate an Order Form with immediate effect upon written notice to Customer, if Customer: (i) fails to pay any amount when due under the Order Form; (ii) has not otherwise performed or complied with the terms of this Agreement; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.

 

b)      CribMaster Products. 

 

CribMaster Change Order Policy: Customers have five (5) business days from the time they receive the order confirmation e-mail to make any changes to their order without incurring a change order fee. After five business days, any changes made will incur a $500 change fee.

 

CribMaster Cancellation Policy: Any machine that is requested to be cancelled will be charged a fee equal to 25% of the product bundle (i.e., Machine, Graphics, Upgrades). If an entire order is cancelled, the cancellation fee will be equal to 25% of the order total. No cancellations are accepted for custom paint parts. Software is not applicable for cancellations after the license code has been provided.

 

9. Returns:

 

After Seller is notified of a possible return, it will be determined if a return authorization (RA #) will be issued from the Seller’s Customer Service Department.  In the event an RA# is issued, the non-conforming and/or damaged materials must be returned via the delivery carrier with the RA# listed on the goods to be returned.  If the RA# is not noted on the returned shipment, it will be rejected and returned at the Customer’s expense.  Any freight charges incurred returning materials via an unauthorized carrier will be assumed by the Customer.

No products may be returned without prior written authorization from the Seller's Customer Service Department (an “Authorized Return”). If so authorized, the Authorized Returns must, in the Seller’s sole judgment, be new, unused, and in good condition; otherwise, such Authorized Return will not be accepted. 

 

Based on the returned invoiced dollar amounts, the following  return charges will be applied:

 

 

 

Returned Invoiced Dollar Amount	Item Type	Return Charge (percentage of the Returned Invoiced Dollar Amount)
Up to $10,000	For Stock items (Unpainted Accessories)	25%
Up to $10,000	For Non-stock items (Cabinets / Workbenches etc.)	50%
$10,000+	All items	50%

 

Authorized Returns must be sent to the Seller at the address specified by Seller. The Customer is responsible for paying the return freight and ensuring proper packaging. Return shipment requests must be submitted to the Seller within fourteen (14) days of delivery. Obsolete and/or special products (including special paint and finish, and custom products,) are not eligible for return. Any returns that are damaged will not be accepted. Customer will receive a credit for all accepted Authorized Returns, net of any charges listed above, and such credit will be reflected on Customer’s next invoice.  

 

10.   Safety:  Customer shall not modify, deface, obscure, or remove and shall at all times maintain, any and all written safety instructions or signage furnished by Seller and included on or with any Products.

 

11.   Field Service and Installations:

Installation. Seller assumes no obligation to install any Products sold or to place any Products in working order at Customer’s premises.  Where installation is available, and in the event that Seller’s Products are installed by Seller’s designated third-party installer, such installer shall be responsible for any direct damages incurred by Customer in the event of improper installation or the installer’s negligence.  Seller or its designated thirdparty installer shall not, however, have any liability hereunder for any incidental, indirect or consequential damages arising out of the installation of the products.  If Customer designates the installer, Seller shall have no liability arising out of or in connection with the installation of the products, and Customer hereby waives any such claims against Seller. For additional conditions, please refer to the Seller Field Service and Installation Terms and Conditions Statement provided at time of installation purchase. 

 

12.   Warranties, Exclusions and Disclaimers. 

 

a.       The following warranties and exclusions only apply to Vidmar and LISTA Products: 

 

i.                Warranty for Vidmar and LISTA Products only. Seller warrants that all Vidmar and LISTA branded storage cabinets shall be free from defects in material and workmanship for the lifetime of the original Customer, provided the Customer retains ownership, possession, and control of the products. Notwithstanding the foregoing, Tambour Doors are only warranted for a period of two (2) years from the date of delivery. Under this warranty, Seller’s obligation is exclusively limited to the repair or replacement of defective products, and if Seller is unable to repair or replace such products within a reasonable time after receiving written notice, Seller shall reimburse Customer for the payments made for such nonconforming Products. 

ii.               Warranty for Vertical Storage Products for Vidmar and LISTA Products only. Seller warrants that the Vertical Storage Products shall be free from defects in material and workmanship for a period of one (1) year from the date of delivery. During this warranty period, and upon satisfactory proof of claim by Customer, Seller will replace defective parts and supply necessary labor for one (1) year for any moving part proving defective in material or workmanship.

iii.             Exclusions for Vidmar and LISTA Products. The warranties stated above exclude any damage caused by heat or moisture caused by outdoor storage, acts of nature, use or loading in excess of the manufacturer’s recommended capabilities, normal wear and tear, lack of preventative maintenance, exposure to corrosive chemicals or water, rusting from paint removal, including paint removal caused by customer misuse, misuse, neglect, accidents, improper installation/disassembly, unauthorized repairs, alterations, maintenance, modifications, or color match issues between components manufactured more than two (2) months apart. Additionally, this warranty does not cover freight damage or damage caused by heat or moisture from outdoor storage. Vertical lift modules (VLM), carousels, and any other equipment or components not supplied by Seller are explicitly excluded from this warranty.

iv.             Enforcement and Limitations of Vidmar and LISTA Product Warranties. The warranties outlined in this Section 12 (a) may only be enforced by the original Customer. All subsequent purchasers or assignees acquire the products “as is” without any benefit of these warranties. These warranties comprise the sole and entire warranties pertaining to the Vidmar and Lista branded cabinets and Vertical Storage Products supplied by Seller. 

 

b.       The following warranties only apply to CribMaster Products:

 

i.                

Software and Services Warranties by Seller.  Seller warrants and represents to the Customer that, unless impacted by Customer’s worksite conditions, Software Users, or other matters outside of Seller’s control, (i) the SaaS Solution and Software shall perform materially in accordance with its Documentation and the Agreement, (ii) the functionality of the SaaS Solution and Software will not be materially decreased during a subscription term as specified in the Order Form, (iii) the SaaS Solution and Software do not knowingly infringe any valid U.S. patent, trademark, copyright, or other intellectual property right of any third party, and (iv) the Services shall be performed in a professional and workmanlike manner.  The knowing noninfringement warranty shall not apply to any infringement which results from (x) any modifications or derivatives developed by its Software User(s) or their employees or contractors, (y) any unit or copy of the Products, or any part thereof manufactured and produced by Customer, or (z) any combination by Customer of the Products, or any unit or copy thereof, with equipment or software or other items not supplied by Seller, and Customer shall indemnify Seller for damages suffered by Seller resulting solely from subsections (x), (y), and (z) of this Section 7(b). Additional Product-specific warranties may be listed in the applicable Seller Order Forms.

 

ii.                Tangible Products Limited Warranties by Seller. Seller warrants and represents to Customer that the Seller branded tangible Products and all electrical components thereto shall be free from defects for a period of one (1) year from the date of delivery. Additional Seller branded Product-specific warranties may be listed in the applicable Order Forms.

 

EXHIBIT B – CRIBMASTER APPLICATION SOFTWARE TERMS

 

THE FOLLOWING TERMS AND CONDITIONS APPLY TO SOFTWARE USERS, AS DEFINED BELOW, USE OF ALL SOFTWARE AND RELATED DOCUMENTATION PROVIDED BY SELLER, INCLUDING SELLER OWNED SOFTWARE, SOFTWARE EMBEDDED IN HARDWARE (“EMBEDDED SOFTWARE”) THAT IS PROVIDED BY SELLER, AND SOFTWARE PROVIDED BY SELLER UNDER A

LICENSE FROM A THIRD PARTY SUPPLIER (COLLECTIVELY, THE “SOFTWARE”) WHETHER OPERATING ON A SINGLE COMPUTER, NETWORK OR WEB HOSTED ENVIRONMENT, AND SUPPLEMENTS THE TERMS OF THE AGREEMENT TO WHICH THEY ARE ATTACHED (“AGREEMENT”). READ THE TERMS AND CONDITIONS OF THIS EXHIBIT CAREFULLY BEFORE CONTINUING USE OF THE SOFTWARE. SOFTWARE USERS (EITHER AN INDIVIDUAL OR A SINGLE ENTITY) MUST AGREE TO

THE TERMS OF THIS EXHIBIT BEFORE USING THE SOFTWARE. BY INSTALLING OR OTHERWISE USING THE SOFTWARE, SOFTWARE USERS ARE ACCEPTING AND AGREEING TO THE TERMS OF THIS EXHIBIT. IF SOFTWARE USERS ARE NOT WILLING TO BE BOUND BY THE TERMS OF THIS EXHIBIT, THEY SHOULD PROMPTLY RETURN ALL SOFTWARE TO SELLER.

 

1.       Software Users. Software Users means, collectively or individually, the Customer, and the Authorized Users of the Customer that are end users of the Software. Software Users use of all Software and related documentation provided by Seller or Customer is governed by the terms and conditions set forth in this Exhibit B. 

 

2.       License Grant. Seller hereby grants to Software Users, and they accept, a limited, nonexclusive, non-transferrable, non-sublicensable license to access and use the Software in object-code-only form, and the accompanying user documentation, only for Software User’s internal business purposes and only as otherwise authorized in this Exhibit. The maximum number of users or products, as applicable, authorized to simultaneously access and use the Software is set forth in the pertinent Seller Order Form.  Embedded Software may only be used with the hardware in which it is embedded and may not be transferred or otherwise removed from such hardware.  Software Users agree that they will not assign, sublicense, transfer, pledge, lease, rent, or share rights to the Software. Software Users may not modify, adapt, alter, translate, or create derivative works of the Software, and may not merge the Software with any other software or code. Upon loading or accessing the Software, other than Embedded Software, into or on a computer, Software Users may retain the media on which the Software was delivered (if any) for backup purposes. No copies of the Software or any portion thereof may be made by Software Users or any person under their authority or control.

 

3.       Licensor’s Rights.  Software Users acknowledge and agree that all intellectual property rights in the Software are owned by Seller and its suppliers, or each of their licensors, and is protected under U.S. copyright law and trade secret laws of general applicability.  Software Users further acknowledge and agree that all right, title, and interest in and to the Software are and shall remain with Seller or its suppliers, as applicable. Neither this Exhibit nor the Agreement convey to Software Users any interest in or to the Software. Instead, Software Users are granted only a revocable, limited right to use the Software in accordance with the terms of this Exhibit and the Agreement.

 

4.       Limitation on Reverse Engineering. Software Users may not reverse engineer, decompile, disassemble or otherwise attempt to derive the source code of the Software unless such activity is expressly permitted by applicable law. 

 

5.       Term. This License Agreement becomes effective upon Software Users’ use of the Software and shall continue until termination. Notwithstanding the foregoing, Seller may terminate

this License Agreement upon breach by Software Users of any term hereof. Upon such termination, Software Users agree to cease all use of the Software and understand that, where applicable, Seller will restrict access to the Software and destroy or return to Seller the Software and all copies and portions thereof (if any).  If Seller, in its sole discretion, determines Software Users continued use of the Software will not result in additional physical, reputational, or financial harm, damage, data loss, meaningful interference, or interruption of service to Seller, Customer, or other customer systems or services, Seller will provide ninety (90) days’ notice of termination under this Section.

 

6.       Copyright. All title and copyrights in and to the Software (including but not limited to any images, photographs, animations, video, audio, music, text, and “applets” incorporated into the Software), the accompanying printed materials, and any copies of the Software are owned by Seller or its suppliers, or each of their respective licensors. The Software is protected by copyright laws and international treaty provisions. Software Users may copy the printed materials accompanying the Software for Software Users internal use only.  Software Users agree to not make any modifications to the Software or accompanying printed materials and, to the extent such modifications are made, Software Users agree that they are owned by Seller.

 

 

 

EXHIBIT C - SOFTWARE AS A SERVICE

 

This Software-As-A-Service Exhibit (“SaaS Exhibit”) shall govern any SaaS Solution (as further defined below) required by any of the Products and/or purchased under the Agreement, to which this Exhibit C is attached and made a part thereof.

 

1.       Definitions. Solely for the purposes of this SaaS Exhibit, the terms below shall have the meaning ascribed to them below:

 

a.       “Access Credentials” means any username, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the SaaS Solutions.

 

b.       “Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise.

 

c.       “Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise.

 

d.       “Authorized User” means Customer’s employees, consultants, and contractors, each of whom must be biological human, (a) who are authorized by Customer to access and use the SaaS Solution under the rights granted to Customer pursuant to this SaaS Exhibit; and (b) for whom access to the SaaS Solution has been purchased hereunder.

 

e.       “Customer Data” means information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly from Customer or an Authorized User by or through the Services or that incorporates or is derived from the Processing of such information, data, or content by or through the Services. For the avoidance of doubt, Customer Data does not include Resultant Data or any other information reflecting the access or use of the Services by or on behalf of Customer or any Authorized User.

 

f.        “Documentation” means any manuals, instructions, or other documents or materials that Seller provides or makes available to Customer in any form or medium and which describe the functionality, components, features, or requirements of the Services or Seller Materials, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof.

 

g.       “Harmful Code” means any software, hardware, artificial intelligence, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network; or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data Processed thereby; or (b) prevent Customer or any Authorized User from accessing or using the SaaS Solution or Seller Systems as intended by this Exhibit.

 

h.       “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws and all similar or equivalent rights or forms of protection, in any part of the world.

 

i.         “Losses” means any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.

 

j.         “Permitted Use” means any use of the SaaS Solutions by an Authorized User for the purpose of storing Customer Data collected through the Customer’s, or its Authorized Users’, use of Seller software.

 

k.       “Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.

 

l.         “Personal Information” means any information that identifies an individual or relates to an identifiable individual that is collected through use of the SaaS Solutions.

 

m.     “Process” means to take any action or perform any operation or set of operations that the SaaS Solution are capable of taking or performing on any data, information, or other content. “Processing” and “Processed” have correlative meanings.

 

n.       “Representatives” means, with respect to a Party, that Party’s and its Affiliates’ employees, officers, directors, consultants, agents, independent contractors, sublicensees, subcontractors and legal advisors.

 

o.       “Security Incident” means any accidental or unauthorized access, acquisition, use, modification, disclosure, loss, destruction of, or damage to Customer Data, or any other unauthorized Processing of Customer Data, except for that Processing reasonably believed to be authorized.

 

p.       “Seller Hosting Services” means the provision by Seller of network infrastructure, computing servers, data storage, and software connectivity, hosted either by Seller on its own servers or by Seller’s cloud provider(s), which enables Customer and Authorized Users to access Seller Systems.  

 

q.       “Seller Materials” means the SaaS Solution, Documentation and Seller Systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by Seller or any Subcontractor in connection with the SaaS Solution or otherwise comprise or relate to the Seller Hosting Services or Seller Systems. For the avoidance of doubt, the term “Seller Materials” includes Resultant Data and any information, data, or other content derived from Seller’s monitoring of Customer’s or Authorized User’s access to or use of the SaaS Solution but does not include Customer Data.

 

r.        “Seller Personnel” means all individuals involved in the performance of Services as employees, agents, or independent contractors of Seller or any Subcontractor.

 

s.        “Seller Systems” means the information technology infrastructure used by or on behalf of Seller in the performance of the SaaS Solution, including all computers, software, hardware, databases, electronic systems (including database management systems), connected systems, and networks, whether operated directly by Seller or through the use of third-party services.

 

t.        “Sensitive Personal Information” means any of the following types of Personal Information: (i) social security number, taxpayer identification number, passport number, driver’s license number or other government-issued identification number; (ii) credit or debit card details or financial account number, with or without any code or password that would permit access to the account or credit history; or (iii) information on race, religion, ethnicity, sex life or practices or sexual orientation, medical or health information, genetic or biometric information, biometric templates, political or philosophical beliefs, political party or trade union membership, background check information or judicial data such as criminal records or information on other judicial or administrative proceedings.

 

u.       “Service Level Failure” means a material failure of the SaaS Solutions to meet the Availability Requirement.

 

v.       “Service Unavailability” means the SaaS Solution are not available for access and use by Customer and its Authorized Users over the Internet and the unavailability is not due, in whole or in part, to any: (a) act or omission by Customer or any Authorized User that does not strictly comply with this SaaS Exhibit; (b) Customer Failure; (c) Customer’s or its Authorized User’s Internet connectivity; (d) Force Majeure Event; (e) failure, interruption, outage, or other problem with any software, hardware, system, network, facility, or other matter not supplied by Seller pursuant to this SaaS Exhibit; (f) Scheduled Downtime; (g) disabling, suspension, or termination of the SaaS Solutions pursuant to 2.7 (Suspension or Termination of SaaS Solution); or (h) Harmful Code.

 

w.     “Third-Party Materials” means materials and information, in any form or medium, including any software, documents, data, content, specifications, products, equipment, or components of or relating to the SaaS Solutions that are provided by Seller and are not proprietary to Seller.

 

2.       SaaS Solution.

 

2.1.    Access and Use. Subject to and conditioned on Customer’s and its Authorized Users’ compliance with this SaaS Exhibit, Seller hereby grants Customer a non-exclusive, nontransferable right to access and use the SaaS Solutions during the term (as set forth in the Order Form) for the Permitted Use, solely for use by Customer or its Authorized Users in accordance with the terms and conditions herein and pursuant to validly issued Access Credentials. The total number of Authorized Users will not exceed the number set forth in the Order Form, except as expressly agreed to in writing by the parties and subject to any appropriate adjustment of the fees payable hereunder.

 

2.2.    Documentation License. Seller hereby grants to Customer a non-exclusive, nontransferable license to use the Documentation during the Term solely for Customer’s or its Authorized Users’ internal business purposes in connection with its use of the SaaS Solutions.

 

2.3.    Service and System Control. Except as otherwise expressly provided in this SaaS Exhibit, as between the Parties with respect to the SaaS Solutions:

(a)     Seller has and will retain sole control over the operation, provision, maintenance and management of the Seller Materials; and

(b)     Customer has and will retain sole control over the operation, maintenance and management of and all access to and use of, the Customer Systems (as defined in Section 8.3 below) and sole responsibility for all access to and use of the Seller Materials by any Person by or through the Customer Systems or any other means controlled by Customer or any Authorized User, including any: (i) information, instructions, or materials provided by any of them to the SaaS Solutions or Seller; (ii) results obtained from any use of the SaaS Solutions or Seller Materials; and (iii) conclusions, decisions, or actions based on such use.

 

2.4.    Reservation of Rights. Nothing in this SaaS Exhibit grants to Customer or any Authorized

User any right, title, or interest in or to (including any license under) any Intellectual

Property Rights in or relating to, the SaaS Solutions, Seller Materials, or Third-Party Materials, whether expressly, by implication, estoppel, or otherwise. All right, title and interest in and to the SaaS Solutions, the Seller Materials and the Third-Party Materials are and will remain with Seller and the respective rights holders in the Third-Party Materials.

 

 

2.5.    Changes. Seller reserves the right, in its sole discretion, to make any changes to the SaaS Solutions and Seller Materials that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of Seller’s services to its customers; (ii) the competitive strength of or market for Seller’s services; or (iii) the SaaS Solutions’ cost efficiency or performance; or (b) to comply with applicable law. Customer understands and holds Seller harmless for any such changes which negatively impact or impair Customer’s use of the SaaS Solutions and Seller Materials. In the event of such negative impact or impairment, Seller and Customer will work together to identify a reasonable solution to mitigate the impact, but neither Party shall be required to implement or accept such solution. Without limiting the foregoing, either party may, at any time during the term, request in writing changes to the SaaS Solutions. No requested changes will be effective unless and until memorialized in a written change order signed by both parties. Notwithstanding any other provision in this SaaS Exhibit, Seller shall not be liable for any Service Unavailability or disruption to the SaaS Solutions arising from a custom program or script written or provided by Customer or an Authorized User, regardless of whether such custom program or script is accepted and/or implemented by Seller.

 

2.6.    Product Obsolescence. Seller reserves the right, in its sole discretion, to declare as obsolete any SaaS Solution or Seller Materials that it deems necessary or useful to best serve its customers, adapt to technological advances, meet evolving security standards or regulations or otherwise accommodate market needs. Without limiting the foregoing, Seller will use best efforts to either provide impacted customers with a reasonably comparable alternative or reasonable notice to identify and implement another solution. If, as a result of Seller’s decision to declare a SaaS Solution or any Seller materials obsolete, the parties agree Seller is in breach of its obligations under the Agreement, its Exhibits, or any other terms agreed upon by the Parties, Customer’s sole and exclusive remedy shall be termination of the Agreement.  

 

2.7.    Subcontractors. Seller may from time to time in its discretion engage third-parties to perform Services, Processing or provide cloud hosting services to deliver the SaaS Solutions that will have access to Personal Information (each, a “Subcontractor”), subject to the following conditions: (a) Seller will maintain a list of the Subcontractors and will provide this list to Customer upon Customer’s request; (b) Seller will provide Customer prior notice of the addition of any Subcontractor to this list and the opportunity to object to such addition(s); and (c) if Customer makes such an objection on reasonable grounds and Seller is unable to modify the SaaS Solution to prevent access to Customer Data by the additional Subcontractor, Customer will have the right to terminate the relevant portion of the Services. Seller will, prior to engaging any Subcontractor, enter into a data agreement with such third-party that is at least as restrictive as this SaaS Exhibit.

 

2.8.    Suspension or Termination of SaaS Solution. Seller may suspend, terminate, or otherwise deny Customer’s, any Authorized User’s, or any other Person’s access to or use of all or any part of the SaaS Solutions or Seller Materials, without incurring any resulting obligation or liability, if: (a) Seller receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Seller to do so; or (b) Seller believes, in its good faith and sole discretion, that: (i) Customer or any Authorized User has failed to comply with any term of this SaaS Exhibit, or accessed or used the SaaS Solutions beyond the scope of the rights granted or for a purpose not authorized under this SaaS Exhibit or in any manner that does not comply with any instruction or requirement of the specifications; (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any of the SaaS Solutions; (iii) this SaaS Exhibit expires or is terminated; (iv) suspension, termination, or any other denial of access is reasonably required to address Harmful Code, (v) there has been a failure to comply with Third- Party Terms, damage, data loss, meaningful interference, or interruption of service to Seller, Customer, or other customer systems or services or (vi) Seller’s cloud service provider has directed such termination or suspension. This Section 2.8 does not limit any of Seller’s other rights or remedies, whether at law, in equity, or under this SaaS Exhibit. If Customer or any Authorized User’s access to the SaaS Solutions is suspended under this Section 2.8 and later reinstated, Seller reserves the right to charge Customer a reconnection fee.

3.       Use Restrictions; Service Usage and Data Storage.

 

3.1.    Use Restrictions. Customer shall not and shall not permit any other Person to, access or use the SaaS Solutions or Seller Materials except for the Permitted Use and as expressly permitted by this SaaS Exhibit and, in the case of Third-Party Materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not:

a.       exceed any bandwidth or storage space limitations for Customer’s account, if any, or attempt to circumvent or alter the processes or procedures to measure time, bandwidth, utilization, or other methods to document use of the SaaS Solutions;

b.       rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the SaaS Solution or Seller Materials to any Person other than

Authorized Users;

c.       bypass or breach any security device or protection used by the SaaS Solutions or

Seller Materials or access or use the SaaS Solutions or Seller Materials other than by an Authorized User through the use of his or her own then valid Access Credentials;

d.       input, upload, transmit, or otherwise provide to or through the SaaS Solutions or Seller Systems, any information or materials that are unlawful or injurious, or contain, transmit, or activate any Harmful Code; access or use the SaaS Solutions or Seller Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction, or disclosure of the data of any other Seller customer), or that violates any applicable law; and

e.       otherwise access or use the SaaS Solutions or Seller Materials beyond the scope of the authorization granted under this Agreement or the Third- Party Terms or in an unlawful or illegal manner.

 

3.2.    Service Usage and Data Storage. Any fees for designated levels of usage and data storage (each a “Service Allocation”) will be set forth in the applicable Seller Order Form, beginning with the fees payable by Customer for the levels of usage and data storage in effect as of the Effective Date. Seller will notify Customer in writing, which may be via email, if Customer has reached eighty (80) percent of its then current Service Allocation and Customer may increase its Service Allocation and corresponding fee obligations in accordance with this Agreement and the applicable Order Form. If Customer exceeds its Service Allocation for any relevant period, Customer shall also pay to Seller the applicable excess usage and storage fees set forth in the applicable Seller Order Form. Customer acknowledges that exceeding its then-current Service Allocation may result in service degradation for Customer and other Seller customers and agrees that (i) Seller has no obligation to permit Customer to exceed its then-current Service Allocation and (ii) no denial of service by Seller as a result of Customer voluntarily or involuntarily exceeding its then-current Service Allocation shall be deemed to be an event of Service Unavailability.

4.       Customer Obligations.

 

4.1.    Customer Systems and Cooperation. Customer shall at all times during the term: (a) set up, maintain, fix, and operate in good repair, including the installation of all recommended updates, all Customer Systems on or through which the SaaS Solutions are accessed or used; (b) ensure Customer and Software Users adhere to the requirements of Schedule 1 to this SaaS Exhibit, and (c) provide all cooperation and assistance as Seller may reasonably request to enable Seller to exercise its rights and perform its obligations under and in connection with this SaaS Exhibit. For the avoidance of doubt, Seller has no obligation to provide or coordinate services listed in this Section 4.1 or reimburse Customer for the same.

 

4.2.    Effect of Customer Failure or Delay. Seller is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this SaaS Exhibit (each, a “Customer Failure”).

 

4.3.    Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited by Section 3.1 (Use Restrictions), Customer shall and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the SaaS Solutions and Seller Materials); and (b) notify Seller of any such actual or threatened activity.

 

4.4.    Notice. Customer will be responsible for: (i) providing any necessary notices to individuals with respect to the Processing by and transfer of Personal Information to Seller pursuant to this SaaS Exhibit, and (ii) ensuring it has the right to share Personal Information with Seller for the purposes described in this SaaS Exhibit.

5.       Service Levels; Support.

 

5.1.    Service Levels. Subject to the terms and conditions of this SaaS Exhibit, Seller will use commercially reasonable efforts to limit Customer’s Service Unavailability  during the Term (the “Availability Requirement”).

 

5.2.    Scheduled Downtime. Seller will use commercially reasonable efforts to: (a) schedule downtime for routine maintenance of the SaaS Solutions during hours which are intended to minimize the adverse impact of such downtime on Customer; and (b) give Customer at least thirty-six (36) hours prior notice of all scheduled outages of the SaaS Solutions (“Scheduled Downtime”).

 

5.3.    Service Support. Subject to Customer’s satisfying its payment obligations under the Agreement, support for the SaaS Solutions is available by telephone and email during the hours of eight (8) a.m. and six (6) p.m. Eastern Time (as calculated in Hartford, CT), Monday through Friday, excluding holidays. Seller may provide notifications of Service Level Failures to Customer by telephone.

 

6.       Data Backup. The Seller Systems are designed to perform routine data backups exclusively for Customers subscribed to the Seller Hosting Services and in accordance with Seller’s backup schedule.  Customer may request its then most current back-ups of Customer Data from Seller, which Seller shall provide to Customer at Customer’s expense. In the event of any loss, destruction, damage, or corruption of Customer Data caused by the Seller Systems or the SaaS Solution, Seller will, as its sole obligation and liability and as Customer’s sole remedy, use commercially reasonable efforts to restore the Customer Data from Seller’s then most current backup of such Customer Data. EXCEPT AS SET FORTH HEREIN SELLER HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF CUSTOMER DATA.

 

7.       Privacy & Data Protection. To the extent that Seller obtains Personal Information from Authorized users through the SaaS Solutions, Seller agrees to the following:

 

7.1.    Use. Seller will Process Personal Information on behalf of Customer to deliver Services in accordance with this SaaS Exhibit or other documented instructions of Customer, whether in written or electronic form, or as otherwise required by applicable law.

 

7.2.    Confidentiality. Seller will hold Personal Information in strict confidence and impose confidentiality obligations on Seller personnel who will be provided access to, or will otherwise Process, Personal Information, including requiring personnel to protect all Personal Information.

 

7.3.    Information Security Program. Seller will maintain a written information security program that contains appropriate administrative, technical, and physical safeguards to protect Personal Information against anticipated threats or hazards to its security, confidentiality or integrity. This is a confidential document which will not be shared. 

 

7.4.    Cross-Border Transfers. In connection with the performance of this SaaS Exhibit, Seller may transfer Personal Information to various locations. Seller will protect Personal Information in accordance with this SaaS Exhibit regardless of the jurisdiction in which it is located. If required by applicable law, the Parties will enter into EU Standard Contractual Clauses (Controller to Processor) or other similar agreements to facilitate transfer of Personal Information cross border.

 

7.5.    Requests or Complaints from Individuals. Seller will promptly notify Customer, unless specifically prohibited by law, if Seller receives: (i) any requests from an individual with respect to Personal Information Processed, including but not limited to opt-out requests, requests for access and/or rectification, erasure, restriction, requests for data portability, and all similar requests; or (ii) any complaint relating to the Processing of Personal Information, including allegations that the Processing infringes on an individual’s rights. Seller will not respond directly to any such request or complaint and will cooperate with Customer with respect to any action taken relating to such request or complaint and will seek to implement appropriate processes (including technical and organizational measures) to assist Customer in responding to requests or complaints from individuals. Customer is responsible for ensuring the accuracy of any Personal Information provided to Seller.

 

7.6.    Regulatory Requests. At Customer’s request, Seller will assist Customer in the event of an investigation by a competent regulator, including a data protection regulator or similar authority, if and to the extent that such investigation relates to the Processing of Personal Information by Seller on behalf of Customer in accordance with this SaaS Exhibit. Seller reserves the right to charge a reasonable fee to Customer for such requested assistance.

 

7.7.    Unauthorized Access. Seller will take appropriate actions to address incidents of unauthorized access to Personal Information, including notifying Customer as soon as reasonably possible following confirmation of any such incident.  In the event of an incident of unauthorized access, Seller may consider Customer input to determine whether any reports are required to be made or notices given (to public officials, data subjects, or any other person) and each party will assist the other with filing any such reports and giving any such notices.

 

7.8.    Audit. Seller will provide to Customer, its authorized representatives, and such independent inspection body as Customer may appoint, on reasonable notice, a highlevel summary of Seller’s most recent independent audit. Summaries of audits are the expense of the Customer. 

 

7.9.    Return or Disposal. Upon termination or expiration of this Exhibit or Agreement for any reason or upon Customer’s request and expense, Seller will return or destroy Personal Information, except as otherwise required by law applicable to Seller.

 

8.       Security; Use of Customer Data.

 

8.1.    Seller Systems and Security Obligations; Use of Customer Data. Seller will employ reasonable security measures in accordance with standard industry practice. This may include troubleshooting to prevent, find and fix problems with the operation of the SaaS Solution. Seller will not use Customer Data or derive information from it for any advertising or other commercial purposes without Customer’s consent. Seller may use Resultant Data to improve the SaaS Solutions, or for any other lawful purpose.

 

8.2.    Security Incident Procedures.

 

8.2.1.           Discovery by Seller. In the event Seller confirms a Security Incident caused by Seller, Seller shall notify Customer within the timeline provided by applicable law and shall, subject to applicable laws, regulations, or a governmental request, provide Customer with non-privileged details of the Security Incident, to the extent available, including any information relating to the cause of the Security Incident. In the event of a Security Incident, Seller and Customer shall cooperate in good faith to resolve any privacy or data security issues involving Customer Data and to make any notifications to individuals affected by the Security Incident as required by law and equally share the cost of the same. If the Security Incident resulted from the negligence or malicious activity of Customer, any legally required notifications and actions shall be made at Customer’s expense.

 

8.2.2.           Discovery by Customer. In the event Customer becomes aware of a Security Incident related to the SaaS Solutions, Customer shall, in the most expedient time possible under the circumstances, notify Seller of the Security Incident and shall, subject to applicable laws, regulations, or a governmental request, provide Seller with details to the extent available about the Security Incident, including information related to the cause of the Security Incident. In the event of a Security Incident, Customer and Seller shall cooperate in good faith to resolve any privacy or data security issues involving Customer Data and to make any notifications to individuals affected by the Security Incident as required by law. If the Security Incident resulted from the act, omission or negligence of Customer, any legally required notifications and actions shall be made at Customer’s expense.

 

8.3.    Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions and materials provided by or on behalf of Customer or any Authorized User in connection with the SaaS Solutions; (c) Customer’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services (“Customer Systems”); (d) the security and use of Customer’s and its Authorized Users’ Access Credentials; (e) all access to and use of the SaaS Solutions and Seller Materials directly or indirectly by or through the Customer Systems or its or its Authorized Users’ Access Credentials, with or without Customer’s knowledge or consent; and (f) all results obtained from and all conclusions, decisions and actions based on access or use of the SaaS Solutions and Seller Materials.

 

8.4.    Access and Security. Customer shall employ physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the SaaS Solutions; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for Processing by the SaaS Solutions. 

 

8.5.    Prohibited Data. Customer acknowledges that the SaaS Solutions are not designed with security and access management for Processing the following categories of information: (a) Sensitive Personal Information; (b) data that is classified and or used on the U.S. Munitions list, including software and technical data; (c) articles, services, and related technical data designated as defense articles or defense services; and (d) ITAR (International Traffic in Arms Regulations) related data; (e) or any other data the handling and/or storage of which is restricted pursuant to applicable law (each of the foregoing, “Prohibited Data”). Customer shall not, and shall not permit, any Authorized User or other Person to, provide any Prohibited Data to, or Process any Prohibited Data through, the SaaS Solutions, the Seller Systems, or any Seller Personnel. Customer is solely responsible for reviewing all Customer Data and shall ensure that no Customer Data constitutes or contains any Prohibited Data.

 

8.6.    Use of Information of Customer Representatives. Customer acknowledges that Seller will use information relating to Customer Representatives for its administrative purposes, such as administering this SaaS Exhibit, billing, product updates and other similar uses.

 

9.       Fees and Payment.

9.1.    Fees. Customer shall pay Seller the fees set forth in the applicable Seller Order Form (“Fees”) in accordance with this Section 9 (Fees and Payments).

9.2.    Taxes. All Fees and other amounts payable by Customer under these Terms and Conditions are exclusive of taxes and similar assessments. Without limiting the foregoing, Customer is responsible for all sales, use and excise taxes and any other similar taxes, duties and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Seller’s income.

9.3.    Payment. Customer shall pay all undisputed Fees within thirty (30) days after the date of the invoice therefor. Customer shall make all payments hereunder in U.S. dollars by the payment methods set forth in the invoice.  

9.4.    Late Payment. If Customer fails to make any payment when due, then, in addition to all other remedies that may be available:

a.       Seller may charge interest on the past due amount at the rate of 1.5% per month, calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law;

 

b.       Customer shall reimburse Seller for all reasonable costs incurred by Seller in collecting any late payments or interest, including attorneys’ fees, court costs and collection agency fees; and

 

c.       if such failure continues for thirty (30) days following written notice thereof, Seller may suspend performance of the Seller Hosting Services until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Customer or any other Person by reason of such suspension.

 

9.5.    No Deductions or Setoffs. All amounts payable to Seller under these Terms and Conditions shall be paid by Customer to Seller in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason or any deduction or withholding of tax as may be required by applicable law).

9.6.    Fee Increases. Seller may increase Fees by providing written notice to Cusotmer at least thirty (30) calendar days prior to the date the Fees are to increase, at which time the applicable Seller Order Form shall be deemed amended accordingly.

9.7.    Reimbursable Expenses. Customer shall reimburse Seller for out-of-pocket expenses incurred by Seller in connection with performing the Hosting Services as set forth in the applicable Seller Order Form (“Reimbursable Expenses”).

10.   Indemnification.

 

10.1. Indemnification by Seller. Seller shall defend, indemnify, and hold Customer harmless from and against any and all damages, costs, losses, liabilities, or expenses (including court costs and reasonable attorneys' fees) which Customer may suffer or incur in connection with any actual claim, demand, action, or other proceeding by any third party against Customer arising from any claims that the SaaS Solution infringes the intellectual property rights of a third party, provided that Customer (a) promptly gives Seller written notice of the claim; (b) gives Seller sole control of the defense and settlement of the claim (provided that Seller may not settle any claim unless the settlement unconditionally releases Customer of all liability); and (c) provides Seller with all reasonable assistance, at Seller’s expense.  Seller shall not have any liability to the extent any claim is the result of (i) Seller’s compliance with specifications provided by Customer, (ii) the combination of the SaaS Solution with other hardware, products, software, or services not provided by Seller, (iii) Customer or its Authorized Users’ actions, omissions, or breach of this Agreement, or (iv) any lack of access to and / or use  of the Seller Materials by Customer or its Authorized Users if caused by: Customer or its Authorized Users’ lack of internet connectivity; failure, interruption, outage, or other problem with any software, hardware, system, network, facility, or other matter not supplied by Seller pursuant to this SaaS Exhibit; Scheduled Downtime; Force Majeure; disabling, suspension, or termination of the SaaS Solutions pursuant to 2.8 (Suspension or Termination of SaaS Solution); or harmful code, If the SaaS Solution shall be the subject of an indemnifiable claim, or Seller reasonably believes that the SaaS Solution shall be the subject of an indemnifiable claim, Seller may, at its discretion, (i) modify the software or seek a license to remediate the infringement claim, or (ii) terminate this Agreement with written notice. This indemnification obligation constitutes Seller's sole and exclusive liability and Customer’s sole and exclusive remedy with respect to any claim of infringement of intellectual property rights by the SaaS Solution.

 

10.2. Customer Indemnification. Customer shall defend and indemnify Seller (and its affiliates, officers, directors and employees) from and against any and all damages, costs, losses, liabilities or expenses (including court costs and attorneys' fees) which Seller may suffer or incur in connection with any actual claim, demand, action or other proceeding by any third party arising from  (a) the combination of a third-party application or configuration provided by Customer and used with the SaaS Solution that infringes or misappropriates such third party’s intellectual property rights,  (b) Customer’s use of the SaaS Solution in violation of applicable law or this Agreement, or (c) Customer’s actions or negligence leading to malicious access and/or damage to Seller’s Systems. Customer shall also indemnify Seller (and its affiliates, officers, directors and employees) from and against any and all damages, costs, losses, liabilities or expenses (including court costs and attorneys’ fees) which Seller may suffer or incur as a result of Customer’s actions or negligence leading to malicious access and/or damage to Seller’s Systems.

 

11.   Reimbursable Expenses. Customer shall reimburse Seller for out-of-pocket expenses incurred by Seller in connection with performing the SaaS Solutions as set forth in the applicable Seller Order Form. In addition, Customer shall reimburse Seller for out-of-pocket expenses incurred by Seller for any rush work or remedial measures, including but not limited to the hiring of subcontractors, taken by Seller in response to a request from Customer to assist in resolving issues related to Customer’s Systems, Customer’s Responsibilities as described herein, Customer-controlled Data, or the SaaS. Notwithstanding the foregoing, Customer shall not be responsible for reimbursing expenses related to issues with the SaaS if such issues were caused by Seller’s gross negligence.

EXHIBIT C, SOFTWARE AS A SERVICE, SCHEDULE 1

 

System Requirements and Security Standards

 

Customer is responsible for ensuring that all Software Users accessing Seller Software or Seller Systems meet the following minimum system and security requirements where applicable:

 

1)      Supported Browsers: Software Users must access the application via the latest versions of Google Chrome, Mozilla Firefox, Microsoft Edge, or Apple Safari, with JavaScript and cookies enabled.

 

2)      Operating Systems: Access must occur from devices running Windows 10 or later, macOS

11 or later, or current stable Linux distributions. Mobile access (if applicable) requires iOS 14+ or Android 10+.

 

3)      Security: All devices must have up-to-date antivirus and anti-malware protection, active firewall, and current security patches installed. The Customer and Software User are responsible for ensuring that uploaded files are free from viruses, malware, or malicious code.

 

4)      Network: A reliable broadband internet connection is required. The use of network configurations that interfere with application functionality, including certain proxy servers or VPNs, is unsupported. 

 

5)      File Uploads: Software Users must follow the document guidelines for uploads available within each application. These include file types, size limits, and document templates.

 

6)      Authentication: Software Users must follow password best practices, including using unique, hard-to-guess passwords, changing passwords frequently, and using different passwords for different systems. Software Users must use their own, individually assigned credentials to access any Seller Software or Seller Systems. 

 

Seller is not responsible for any issues arising from non-compliance with these requirements. Seller reserves the right to update these requirements as necessary to maintain security and functionality.  

 

 

 

 

EXHIBIT D - DPTA

 

 

 

 

 

INSERT SBD-CUSTOMER GLOBAL DPTA

 

 

 

 

EXHIBIT E – ADDENDUM FOR SELLER API ENDPOINTS SAAS

 

These additional terms (the “API Addendum”) shall only apply to Customers and Software Users who have subscribed to Seller’s API Endpoints SaaS (“API SaaS”) through the Agreement, to which this API Addendum is attached and made a part thereof. By executing an order for Seller’s API, Customer agrees to be bound by these additional terms and pass on these terms to its Software Users. Terms not defined herein shall have the meaning set forth in the applicable Agreement and the Exhibits attached thereto. In the event of any conflict between this API Addendum and the terms of the Agreement or any other Exhibit thereto, the terms of this API Addendum shall control.

BETA PRODUCT

Customer understands the API Software utilizes API connections, is still in development, and may not be feature-complete or error-free. Customer will ensure its Software Users understand the same. Seller’s liability with regard to the API SaaS is limited to the amounts paid by Customer for the API SaaS in the past 12 months. Seller shall have no liability for indirect, special, incidental, or consequential damages related to the API SaaS. The limitations of this API addendum shall survive the Agreement. The parties have entered into this Agreement in reliance upon these limitations of liability, which allocate the risk between the parties and form a basis of the bargain.

LICENSE LIMITATIONS

Notwithstanding the terms contained in the Seller Application Software Exhibit, the following limitations apply to the API SaaS license: the API SaaS is licensed for use by authorized Customers and/or Authorized Users solely for integration into their own business systems. Customers may provide API SaaS access to their Authorized Users but may not (i) repackage or resell the API as a standalone product, (ii) build commercial services that rely on this API for unrelated third parties, or (iii) act as an intermediary service for unlicensed users. Any use beyond direct integration into a Customer’s internal systems require explicit written approval from Seller.

SUPPORT AND MAINTENANCE

Seller may provide support and maintenance for the API at its discretion. Customer agrees that Seller is under no obligation to provide updates, upgrades, or support unless explicitly stated.

USAGE LIMITATIONS

Seller sets and enforces limits on the use of its APIs (e.g., limiting the number of API requests or the number of users served), at its sole discretion. Customer agrees to the limit(s) and will not attempt to circumvent such limitations as documented with each API. If Customer wishes to use any API beyond these limits, they must obtain Seller’s express consent, which may include additional terms and/or charges. For such requests, contact your account manager. Exceeding the usage limitations may trigger Section 2.8 of the Software as a Service Exhibit to the Agreement.

API PROHIBITIONS

When using the APIs, Customer may not (nor allow those acting on their behalf to): defame, abuse, harass, stalk, or threaten others, interfere with or disrupt the APIs, servers, or networks providing the APIs, use the APIs for activities where their use or failure could lead to death, personal injury, or environmental damage (e.g., operation of nuclear facilities, air traffic control, or life support systems), or process or store data subject to the International Traffic in Arms Regulations or any other law prohibiting such processing or storage.

API SECURITY REQUIREMENTS

Customer shall ensure Authorized Users meet all security requirements set forth in the Agreement, including its Exhibits and Schedules.

MODIFICATION TO THIS API ADDENDUM

Nothing in this document is intended to prevent Seller from exercising its rights under the Agreement, including the right to amend this API Addendum. The customer agrees that continued access or use of the services following any such amendment constitutes acceptance of any modified terms.

 

 

EXHIBIT F – ADDENDUM FOR CRIBMASTER SOLUTION GENERATOR SOFTWARE  

 

These additional terms (the “Solution Generator Addendum”) shall only apply to customers who have subscribed to Seller’s Solution Generator Software (“Solution Generator”) through the Agreement, to which this Solution Generator Addendum is attached and made a part thereof. By executing a customer order for Seller’s Solution Generator, you agree to be bound by

these additional terms. Terms not defined herein shall have the meaning set forth in the applicable Agreement and the Exhibits attached thereto. In the event of any conflict between this Solution Generator Addendum and the terms of the Agreement or any other Exhibit thereto, the terms of this Solution Generator Addendum shall control. 

Customer Product Information   

Customer understands Solution Generator does not require Customer’s product catalog data (“Customer Data”) to function; however, Solution Generator’s accuracy is improved, and the user

experience is enhanced if Customer Data is imported into the Solution

Generator system. Customer will provide Customer Data in a mutually agreeable format for Seller to ingest into Solution Generator. Customer shall retain ownership of the Customer Data. Customer Data will be considered Confidential Information and can be deleted by Customer at any time or by Seller upon Customer’s request.