1. Sale of Devices
1.1 Orders for Devices. Your order for Devices is subject to cancelation by NeoSpectra, in its sole discretion, and any automatic confirmation email sent by NeoSpectra in connection with your order does not constitute acceptance of the order by NeoSpectra. NeoSpectra is not responsible for pricing, typographical, or other errors in any offer on the Webstore and reserves the right to cancel any orders resulting from such errors. NeoSpectra reserves the right, including without prior notice, to limit the quantity of Devices purchased per Customer or per order for any reason. NeoSpectra will attempt to notify you should such limits be applied. NeoSpectra also reserves the right, at NeoSpectra’s sole discretion, to prohibit sales to dealers or resellers. For purposes of these Terms, "reselling" will be defined as purchasing or intending to purchase any Devices through the Webstore for the purpose of engaging in a commercial sale of the same Devices to a third party.
1.2 Shipment of Devices. Delivery dates are estimates only. Delivery of each order for Devices is subject to availability of the Devices. NeoSpectra may deliver partial shipment. Title to and ownership of the physical units of all Devices will pass to you upon receipt of full payment by NeoSpectra for such Devices. For international shipments (a) you will be the importer of record and responsible for clearing your shipment for import and (b) you authorize NeoSpectra to designate the shipment provider to act as your agent with the relevant customs and tax authorities in the destination country and to clear your shipment and pay any import fees (and you agree to reimburse the shipment provider for such fees, if applicable).
1.3 Software and Services Not Included in purchase of Devices. Customer agrees and acknowledges that (a) the Devices purchased under these Terms are designed only to be used in conjunction with authorized access Services and the licensed use of the Software, and not on a standalone basis, and (b) any rights to use or access the Software and Services (together with the applicable fees for such use or access) are NOT included in the purchase of the Devices, except as (i)expressly set forth otherwise herein or on the Webstore or (ii) otherwise selected by Customer as part of the checkout process within the Webstore. Customer further agrees that if it fails to obtain (and maintain) licensed use or access to the Software and Services, NeoSpectra may disable access to the Devices and the Devices shall cease to function. The parties agree and acknowledge that the foregoing terms are essential to the bargain, that the favorable pricing of the Devices is based upon these conditions, and that NeoSpectra shall have no liability to Customer in connection with any failure of a Device to function in the absence of Customer’s authorized access to and use of the Software and Services.
1.4 Support. The parties agree that no support services for the Devices are to be provided under these Terms, and that any ongoing technical support, maintenance, or other similar sustaining obligations with respect to the Devices must be mutually agreed upon by the parties in a separate Agreement.
2. License of Software
2.1 Grant of License. Subject to the terms and conditions of this Agreement (including Licensee’s obligation to pay all applicable Charges), NeoSpectra grants to Customer a limited, non-exclusive, non-transferable, revocable, non-sublicensable license during the Term (as defined in Section 4) to install and use the Software (in executable code form)solely in accordance with any documentation provided by NeoSpectra in connection with the Software.
2.2 Restrictions on Use. Customer acknowledges that the Software and its structure, organization, and source code constitute valuable intellectual property of NeoSpectra and its suppliers. Accordingly, Customer agrees not to (a) modify, adapt, alter, translate, or create derivative works from the Software, (b) merge the Software with other software, (c) sublicense, lease, rent, loan, or otherwise transfer the Software to any third party, (d) use the Software in any service bureau or time-sharing arrangement, (e) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Software, or (f) otherwise use or copy the Software except as expressly allowed under Section 2.1.
3. Provision of Services
3.1 Scope of Services. NeoSpectra offers and provides the Services as, and within the scope, described on the NeoSpectra Portal website located at www.si-ware.com (the “Portal Site”). Subject to the terms and conditions of this Agreement (including Licensee’s obligation to pay all applicable Charges (as defined in Section 5.1), NeoSpectra grants to Customer the right to access and use the Services during the Term (as defined in Section4) solely in accordance with any documentation provided by NeoSpectra in connection with the Services. The Services are subject to changes in NeoSpectra’ discretion and without prior notice but NeoSpectra will try to inform you of any upcoming changes that may impact your use of the Services and you have the right to terminate your account and end the use of the Services at any time as further described in these Terms. When using the Services, you will be subject to any additional posted terms, guidelines, or rules applicable to specific services, and features which may be posted from time to time on the Services. All such additional terms are hereby incorporated by reference into these Terms.
3.2 Use of Services. The Services are not intended for, and should not be used by, anyone under the age of thirteen (13). You are permitted to use the Services only for your own personal or internal business use. Unauthorized use of the Services, or the resale of the Services, is expressly prohibited. Customer’s use of the Services shall be subject to any capacity limits set forth on the Portal Site. Customer agrees not to upload executable files to the Services, and not to use the Services to transmit (a) any material protected by copyright, trademark, trade secret, patents, or other intellectual property right without proper authorization; (b) any computer viruses, worms, or any software intended to damage or alter a computer system or data; (c) any material that is unlawful, harassing, abusive, tortious, threatening, harmful, abusive, invasive of another’s privacy, vulgar, defamatory, trade libelous, pornographic, obscene, or otherwise objectionable material of any kind or nature or which is harmful to minors in any way; or (d) any material that violates any law or regulation, including without limitation the laws and regulations governing export control. In addition, you agree not to use the Services to: (i) use information from the Services in connection with sending unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (ii) harvest, collect, gather or assemble information or data regarding other uses, including e-mail addresses, without their consent; (iii) interfere with or disrupt servers or networks connected to the Services or violate the regulations, policies or procedures of such networks; (iv) attempt to gain unauthorized access to the Services, other accounts, computer systems or networks connected to the Services, through password mining or other means; or (v) harass or interfere with another user’s use and enjoyment of the Services.
3.3 Availability of Services. NeoSpectra agrees to use reasonable endeavors to ensure that the Services are available twenty-four (24) hours a day, seven (7) days a week. However, there will be occasions when the Services will be interrupted for maintenance, upgrades, and emergency repairs or due to failure of telecommunications links and equipment that are beyond the control of NeoSpectra.
3.4 User Account. A user account is required to access the Services and only those authorized individuals who are registered with NeoSpectra may be using the Services. To open a user account, you or a representative of the Customer, must complete the registration process by providing NeoSpectra with current, complete, and accurate information about you and the Customer, and promptly update such information if they have changed. Should NeoSpectra suspect that such information is untrue, inaccurate, not current, or incomplete, NeoSpectra has the right to suspend your use of the Services. If you are an individual, you represent that you are thirteen (13) years or older. When you register, NeoSpectra will ask you to provide a password. You will be responsible for all activities that occur under your password and therefore you should keep your password confidential; if you are using an administrator user account you are also responsible for all activities that occur under the user accounts that have been set up or approved through such administrator user account. You agree to notify NeoSpectra immediately of any unauthorized use of your account, administrator user account, and password or if you believe thatyour password is no longer confidential. NeoSpectra reserves the right to require you to alter your password if NeoSpectra believes that your password isno longer secure. No contract will exist between you and NeoSpectra for the Services until NeoSpectra accepts your order by a confirmatory e-mail, SMS/MMS message or other appropriate means of communication.
3.5 Ownership of and responsibility for Customer Data. NeoSpectra does not claim ownership rights in any data contained in your account (the “Customer Data”). For the sole purpose of enabling NeoSpectra to display such Customer Data through the Services, you grant NeoSpectra a non-exclusive, royalty-free license to use, copy, distribute, and display such Customer Data. Regular backups of Customer Data shall be your exclusive responsibility. NeoSpectra is not responsible and liable to you in any way for any data contained in the account of other users of the Services that may be accessed by or provided to you in connection with your use of the Services.
4. Term and Termination for Software and Services
For Software and Services, these Terms are effective on the date you accept them and shall continue for as long as you pay the required fees for the Software and Services and unless access to the Software and Services are terminated earlier by either party (the “Term”). NeoSpectra may revoke your license to the Software and access and/or use of the Services effective immediately upon notice to you in the event that you materially breach any of the Terms hereof. You may terminate the subscription to the Software and the Services up to four (4) weeks prior to the renewal of the subscription period by contacting NeoSpectra’s customer support or, for the Services, canceling your subscription under “My Account”. NeoSpectra shall have no obligation to maintain any data stored in your account or to forward any data to you or any third party after the termination has become effective. The sections titled “Intellectual Property Rights”, “Indemnification”, “Warranties”, “Limitation of Liability”, “Applicable Law and Binding Arbitration”, and “Miscellaneous” will survive the termination or expiration of the Services.
5. Purchase price and license and service fees; payment
5.1 Charges. You agree to pay the purchase price for any Devices, license fees for any Software, and any service fees for any Services (individually, and collectively, “Charges”) in accordance with the fees, charges, and billing terms in effect at the time a Charge is due and payable. Without limiting other remedies, NeoSpectra reserves the right to charge a late fee on all past due payments equivalent to the lesser of one and a half percent (1.5%)per month on the unpaid balance or the highest rate allowed by law. You will pay for all collection costs, attorneys fees, and court costs incurred in the collection of past due amounts. NeoSpectra’s Charges are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you are generally responsible for payment of all such taxes, levies or duties. NeoSpectra may collect and remit taxes with respect to certain jurisdictions and you agree to pay any and all such taxes. All Charges for the Software and Services are non-refundable.
5.2 Recurring Charges/Subscriptions. NeoSpectra will automatically renew and charge upon the commencement of an annual term and then at each subsequent anniversary of that initial term for continuous annual subscriptions for Software and/or Services. The renewal Charges shall be NeoSpectra’s then current fee for the Software or Services for which you were enrolled in the prior billing period. If timely payment is not received or cannot be charged to your selected payment method for any reason, NeoSpectra has the right to either suspend orterminate your use of the Software and access and use to the Services. If NeoSpectra receives a cancellation notice from you, you will be obligated to pay the balance due on your account. You agree that NeoSpectra may charge such unpaid Charges to your selected payment method or otherwise bill you for such unpaid Charges.
6. Intellectual Property Rights
6.1 Ownership of Software and Services. The Software and Services (excluding the Customer Data), and all worldwide intellectual property rights therein, are the exclusive property of NeoSpectra and its suppliers. All rights in and to the Software and Services not expressly granted to Customer inthese Terms are reserved by NeoSpectra and its suppliers. Customer will not remove, alter, or obscure any proprietary notices (including copyright notices)of NeoSpectra or its suppliers on the Software or Services. You agree that you will not publish, distribute, extract, re-utilize, or reproduce any content of the Services (excluding Customer Data) in any material form other than in connection with your use of the Services.
6.2 Intellectual Property Rights in Devices. Notwithstanding anything to the contrary in these Terms, as between the parties, NeoSpectra owns and retains all intellectual property rights contained in or related to the Devices. There are no licenses to these intellectual property rights in the Devices granted under these Terms, whether express or implied, and all intellectual property rights in the Devices are reserved by NeoSpectra.
6.3 No Tampering or Reverse-Engineering of Devices. Customer agrees and acknowledges that the Devices require the Software and Services to function as designed, and each Device may contain a security mechanism designed to ensure the proper operation of the Device with conjunction with the NeoSpectra Software and Services. Customer further agrees that it shall not (and shall not authorize any third party to): (a) tamper with, circumvent, alter, modify, or otherwise manipulate any security mechanism contained within the Device for any purpose whatsoever, including to cause the Device to function independently of the Software and Services; (b) reverse-engineer, disassemble, or other wise attempt to extract any internal functionality of any Device; or (c) modify the Device in any way. To the extent that any applicable law in any jurisdiction requires that Customer have the right to perform any of the acts described in the immediately preceding sentence, before Customer undertakes any such act, Customer shall first give written notice to NeoSpectra and NeoSpectra will arrange for Customer to receive such rights to the extent required under applicable law, which arrangement may be subject to reasonable conditions permitted under law.
6.4 Feedback. NeoSpectra alone will own all right, title, and interest, including all related intellectual property rights, to any suggestions, ideas, feedback, recommendations, or other information provided by you relating to the Devices, Software, and Services and you hereby assign and agree to assign such submissions to NeoSpectra free of charge. NeoSpectra may use such submissions as it deems appropriate in its sole discretion.
8. Indemnification. You agree to indemnify and hold NeoSpectra harmless from and against any and all claims, costs, damages, losses, liabilities, and expenses (including attorneys’ fees and costs) arising out of or in connection with your use of the Devices, Software, Services, or breach of these Terms. NeoSpectra reserves the right, at NeoSpectra’s own expense, to assume the exclusive defense and control of any matter for which you are required to indemnify NeoSpectra and you agree to cooperate with NeoSpectra’s defense of these claims.
9.1 SOFTWARE AND SERVICES. THE SOFTWARE AND SERVICES ARE PROVIDED BYNEOSPECTRA ON AN “AS-IS” BASIS. NEOSPECTRA AND ITS SUPPLIERS DISCLAIM ALL EXPRESS, IMPLIED, OR STATUTORYWARRANTIES RELATING TO THE SOFTWARE AND SERVICES, INCLUDING BUT NOT LIMITED TO,MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ANDNON-INFRINGEMENT. NEOSPECTRA DOES NOTWARRANT THAT USE OF THE SOFTWARE AND SERVICES WILL BE UNINTERRUPTED ORERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SOFTWARE AND SERVICES,ARE FREE OF VIRUSES, OR OTHER HARMFUL COMPONENTS. IF APPLICABLE LAW REQUIRES ANY WARRANTIESWITH RESPECT TO THE SOFTWARE AND SERVICES, ALL SUCH WARRANTIES ARE LIMITED INDURATION TO NINETY (90) DAYS FROM THE DATE OF THE RESPECTIVE RECEIPT (FORSOFTWARE) OR USAGE (FOR SERVICES).
YOU UNDERSTAND AND AGREE THATTHE SUBMISSION OF ANY CUSTOMER DATA TO NEOSPECTRA THROUGH THE SERVICES IS DONEAT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANYLOSS OR DAMAGE TO SUCH CUSTOMER DATA OR ANY DAMAGE TO YOUR COMPUTER SYSTEM ORLOSS OF DATA THAT MAY RESULT IN THE DOWNLOAD OR UPLOAD OF ANY CUSTOMER DATA.YOU ARE SOLELY RESPONSIBLE FOR CREATING BACKUPS OF THE CUSTOMER DATA.
9.2 HARDWARE WARRANTY. FOR A PERIODOF TWO (2) YEARS AFTER PURCHASE OF EACH DEVICE (THE “WARRANTY PERIOD”), NEOSPECTRAWARRANTS THAT: (A) SUCH DEVICE WILL BE FREE FROM DEFECTS IN WORKMANSHIP ANDMATERIAL; AND (B) SUCH DEVICE WILL MATERIALLY COMPLY WITH THE APPLICABLESPECIFICATIONS; AND (C) TITLE TO AND OWNERSHIP OF THE PHYSICAL EMBODIMENT OFSUCH DEVICE SHALL BE DELIVERED TO CUSTOMER FREE AND CLEAR OF ALL LIENS, CLAIMS,AND ENCUMBRANCES. NOTWITHSTANDING THEFOREGOING, THE FOREGOING WARRANTY SHALL NOT APPLY TO ANY DEFECTS ORNONCONFORMITIES THAT RESULT FROM (1) ANY MODIFICATIONS MADE TO A DEVICE BYCUSTOMER; (2) ANY USE OF A DEVICE WITH PRODUCTS OR SERVICES NOT PROVIDED BY NEOSPECTRA;(3) ANY USE OF A DEVICE IN A MANNER INCONSISTENT WITH THE APPLICABLESPECIFICATIONS; OR (4) ANY USE OF A DEVICE OTHER THAN IN CONJUNCTION WITHCUSTOMER’S PROPERLY LICENSED ACCESS TO THE NEOSPECTRA SOFTWARE AND SERVICES.
9.3 REMEDIES. IF, DURING ITSAPPLICABLE WARRANTY PERIOD, A DEVICE DOES NOT MEET THE WARRANTY REQUIREMENTSSET FORTH IN SECTION 9.2 (HARDWARE WARRANTY), NEOSPECTRA SHALL, AT ITSOPTION, EITHER REPAIR OR REPLACE SUCH DEVICE; PROVIDED, HOWEVER, THATCUSTOMER GIVES WRITTEN NOTICE OF SUCH NONCONFORMITY DURING THE WARRANTY PERIODAND PROVIDES REASONABLE COOPERATION TO NEOSPECTRA AS NECESSARY FOR NEOSPECTRATO DIAGNOSE AND CORRECT THE NONCONFORMITY. NOTWITHSTANDING THE FOREGOING, THE COSTS OF UNINSTALLING ANY DEFECTIVEDEVICE AND INSTALLING ANY CORRECTED OR REDELIVERED DEVICE WILL BE BORNE BYCUSTOMER AND NOT BY NEOSPECTRA. AS TOANY DEVICE THAT IS REPAIRED, REPLACED OR CORRECTED UNDER THIS SECTION, THEWARRANTY SET FORTH IN SECTION 9.2 (HARDWARE WARRANTY) SHALL CONTINUE TOAPPLY TO SUCH DEVICE FOR AN ADDITIONAL NINETY (90) DAYS FROM THE DATE SUCHREPAIRED, REPLACED OR CORRECTED DEVICE IS DELIVERED TO CUSTOMER. THIS SECTION STATES CUSTOMER’S SOLE ANDEXCLUSIVE REMEDY, AND NEOSPECTRA’S ENTIRE LIABILITY, FOR ANY DEVICE DEFECTS ORFAILURES OF A DEVICE TO PERFORM IN ACCORDANCE WITH ITS SPECIFICATIONS.
9.4 DISCLAIMERS. THE EXPRESSWARRANTY SET FORTH IN SECTION 9.2 (HARDWARE WARRANTY) IS PROVIDED IN LIEU OFALL OTHER WARRANTIES. NEOSPECTRADISCLAIMS ALL OTHER WARRANTIES IN CONNECTION WITH THE DEVICES AND THISAGREEMENT, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTIES OFMERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
10. LIMITATION OFLIABILITY. INNO EVENT SHALL NEOSPECTRA BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL,INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES, ORANY DAMAGES RESULTING FROM LOSS OF SALES, BUSINESS, PROFITS, DATA,OPPORTUNITY OR GOODWILL, UNDER ANY EQUITY, COMMON LAW, TORT, CONTRACT,ESTOPPEL, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, EVEN IF THE REMEDIESPROVIDED FOR IN THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE AND EVEN IFNEOSPECTRA KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF ANY OF THE FOREGOINGDAMAGES.
NEOSPECTRA’S TOTAL CUMULATIVE AGGREGATE LIABILITY FORANY CLAIM ARISING FROM OR RELATING TO THIS AGREEMENT OR THE DEVICES WILL NOTEXCEED THE TOTAL AMOUNTS PAID BY CUSTOMER TO NEOSPECTRA UNDER THISAGREEMENT. THIS LIMITATION IS CUMULATIVEAND SHALL NOT BE ENLARGED BY THEEXISTENCE OF MORE THAN ONE CLAIM. THEPARTIES ACKNOWLEDGE THAT THE TERMS OF THIS SECTION REFLECT THE ALLOCATION OFRISK SET FORTH IN THIS AGREEMENT AND THAT THE PARTIES WOULD NOT ENTER INTO THISAGREEMENT WITHOUT THESE LIMITATIONS OF LIABILITY.
11. Applicable law and Venue
11.1 Local Laws and Export Control. NeoSpectra controls and operates this Service from its location in the United States and is subject to U.S. export laws and regulations. NeoSpectra makes no representation that the Services are appropriate or available for use at other locations. If you use the Services from outside the U.S., you are solely responsible for compliance with all applicable laws, including, without limitation, export and import regulations of other countries.
11.2 Applicable law; Venue. These Terms shall be governed by and construed in accordance with the laws of the State of California and the United States without regard to the conflict of laws provisions therein that would require application of the laws of another state. The parties irrevocably submit to the exclusive jurisdiction of the courts of competent jurisdiction in SanMateo County, State of California.
12. Export Policy. You acknowledge that the Devices sold through the Webstore, and any Software, Services, or technology provided, downloaded, or used are subject to the customs and export control laws and regulations of the United States of America and may also be subject to the customs and export laws and regulations of the country in which the products are manufactured and/or received, and you agree to comply with all applicable laws. You agree, represent, and warrant that no Devices, Software, or Services will be accessed from, downloaded in, released in, carried to, transferred to, transshipped through, exported to, or re-exported (collectively "transferred") to any territory (or national resident thereof), person, entity, or organization to which such Devices, Software, and Services could not be transferred directly from the United States or by a U.S. person without a license, including without limitation to any person on the U.S. Treasury Department's List of Specially Designated Nationals or the U.S. Department of Commerce's Denied Persons List or Entity List.
NeoSpectra reserves the right to change the terms and conditions of these Terms at any time, and shall notify you by posting an updated version of these Terms. You are responsible for regularly reviewing these Terms. Your continued use of any Services after any such changes shall constitute your consent to such changes. Neither the rights nor obligation arising under these Terms are assignable by you, and any such attempted assignment or transfer shall be void and without effect. In the event that any provision of these Terms is found to be contrary to law, then such provision shall be construed as nearly as possible to reflect the intention of the parties, with the other provisions remaining in full force and effect. These Terms constitute the entire agreement between the parties pertaining to the subject matter hereof, and any and all written or oral agreements existing between the parties regarding the subject matter contained herein are expressly canceled. All waivers must be inwriting. Any waiver or failure to enforce any provision of these Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
Questions or additional information. If you have questions regarding these Terms, or wish to obtain additional information, please send an e-mail to [email@example.com]
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