These Master Terms and Conditions (“Master Terms”) are entered into between Oppna Digital LLC, DBA Oppna Digital (“Oppna Digital”) and the Customer named in the Order (defined below) and are effective as of the effective date set forth in the Order (the “ Effective Date”).
1. Applicability and Scope.
1.1. Master Terms. These Master Terms are the general terms and conditions established by the parties to govern the provision by Oppna Digital and receipt by Customer of any hardware or other goods (“Goods”), professional services (“Services”), software as a service (“SaaS Solutions”), or licensed software (“Licensed Software”) specifically identified in the Order (collectively, the “Products”). References herein to the “Agreement” shall mean these Master Terms, the Order, all Schedules (defined below), and any attachments explicitly incorporated in the Order or Schedules. The Agreement contains the only terms which govern and comprises the entire agreement between the parties’ in any way related to the provision and receipt of the Products, superseding all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. The Agreement prevails over any of Customer’s general terms and conditions of purchase regardless whether or when Customer has submitted or submits its purchase order or such terms. Fulfillment of the Order does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend these Terms.
1.2. Order. As used herein, “Order” means the document(s), regardless of how named or designated, executed by both parties, incorporating by reference these Master Terms and the applicable Schedules, and describing Customer’s specific order information, including descriptions and details of applicable Products ordered and to be provided, fees, milestones and deadlines. Following the parties’ execution of the initial Order, the parties may, from time-to-time, execute additional Orders contemplating the provision and receipt of new Products or an expansion of the Products provided under a prior Order.
1.3. Schedules. These Master Terms shall incorporate by reference the terms and conditions found in (a) each of the Schedules attached to these Master Terms and which are indicated on the Order by identification of corresponding Products (e.g., if Licensed Software is provided for in the Order, the Licensed Software Schedule attached hereto will apply and be incorporated herein), and (b) any other Schedule executed by the parties from time-to-time under these Master Terms.
1.4. Third Party Software. Customer’s use of any software (including documentation) owned by an entity other than Oppna Digital, as indicated in the applicable Order, and which is to be provided or licensed to Customer on a pass-through basis (“Third-Party Software”), including as part of the Licensed Software or incorporated in the SaaS Solutions, shall be subject to, and Client shall comply with the terms of any applicable end user license agreement. ANY REPRESENTATIONS, WARRANTIES OR INDEMNIFICATION OBLIGATIONS OF OPPNA DIGITAL RELATED TO THE PRODUCTS UNDER THE AGREEMENT SHALL NOT APPLY WITH REGARD TO THIRD PARTY SOFTWARE.
2. Price and Payment.
2.1. Price. Customer shall purchase or license the Products from Oppna Digital at the prices (the “Prices”) set forth in the Order. All Prices are exclusive of all freight/shipping charges and all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any local, state or federal governmental authority on any amounts payable by Customer. Customer shall be responsible for all such charges, costs and taxes; provided that Customer shall not be responsible for any taxes imposed on, or with respect to, Oppna Digital’s income, revenues, gross receipts, personal or real property, or other assets.
2.2. Payment.
(a) Customer shall pay all Prices in accordance with the terms set forth in the Order or, if applicable terms are not provided in the Order, within thirty (30) days of receiving an invoice from Oppna Digital. Customer shall make all payments in US dollars and in accordance with such payment instructions as may be provided by Oppna Digital from time-to-time.
(b) Customer shall, at Oppna Digital’s option, pay interest on all late payments at the lesser of the rate of one percent (1%) per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall reimburse Oppna Digital for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under the Agreement or at law (which Oppna Digital does not waive by the exercise of any rights hereunder), Oppna Digital shall be entitled to suspend the delivery, provision or performance of any Products if Customer fails to pay any amounts when due under the Agreement and such failure continues for ten (10) days following written notice thereof.
3. Term and Termination.
3.1. Term. The term of these Master Terms shall commence on the Effective Date and shall continue in full force and effect until the expiration or termination of all Schedules, unless otherwise terminated earlier as provided herein.
3.2. Termination. Either party may terminate the Agreement including all Schedules and Products provided thereunder immediately upon written notice in the event that the other Party commits a non-remediable material breach of the Agreement, or if the other party fails to cure any remediable material breach or provide a written plan of cure acceptable to the non-breaching party within thirty (30) days of being notified in writing of such breach, except for a monetary breach which shall have a ten (10) day cure period. Where a party has a right to terminate the Agreement, the non-breaching party may at its discretion either terminate the Agreement or the applicable Schedule and all Products provided in connection with such Schedule. Schedules that are not terminated shall continue in full force and effect under these Master Terms.
3.3. Post-Termination Obligations. Promptly following termination of the Agreement or a Schedule, Customer shall certify that it has returned or destroyed all copies of the Confidential Information (defined below) of Oppna Digital, and Customer shall have no further rights to the same. Termination of the Agreement for any reason shall not excuse Customer’s obligation to pay in full any and all amounts due, nor shall termination by Oppna Digital result in a refund of fees paid. Customer shall use its commercially reasonable efforts to remove all Customer Data from any Licensed Software or SaaS Solutions prior to termination of the Agreement or applicable Schedule. Client may engage Oppna Digital to assist Customer in removing such Customer Data at Oppna Digital’s then-standard rates. If any Customer Data remains in the Licensed Software or SaaS Solutions more than thirty (30) days after the effective date of termination, Oppna Digital may, in its sole discretion and without notice, delete any and all Customer Data.
4. Confidentiality.
4.1. Definition. “Confidential Information” means all non-public, confidential or proprietary information of each party hereto, including any specifications, designs, plans, intellectual property, finances, documents, data, software or applications (including any source code, object code and algorithms relating thereto, all methods or concepts utilized therein, development level documentation, and all similar technical information pertaining to the same), business operations, suppliers, customers, and customer lists, pricing, discounts or rebates, disclosed by one party to the other party, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the Agreement. All information or materials related to the Products and the terms of (but not the existence of) the Agreement are the Confidential Information of Oppna Digital.
4.2. Exclusions. “Confidential Information” does not include information that the non-disclosing party can establish: (a) is in the public domain; (b) was known to the non-disclosing party at the time of disclosure; (c) was rightfully obtained by the non-disclosing party on a non-confidential basis from a third party; or (d) has been independently developed by the non-disclosing party without reference to any Confidential Information of the disclosing party.
4.3. Obligations. Each party will protect the other party’s Confidential Information from unauthorized use or dissemination and use the same degree of care that each such party uses to protect its own confidential information, but in no event less than a reasonable amount of care. Neither party will use Confidential Information of the other party for purposes other than those necessary to directly further the purposes of the Agreement. Neither party will disclose to third parties Confidential Information of the other party without prior written consent of such other party. The disclosing party shall be entitled to seek injunctive relief for any violation of this Section 4.
4.4. Compelled Disclosure. If the non-disclosing party is compelled by applicable law to disclose any Confidential Information then, to the extent permitted by applicable law, the non-disclosing party shall: (a) promptly notify the disclosing Party in writing of such requirement so that the disclosing Party can seek a protective order or other remedy; and (b) provide reasonable assistance to the disclosing Party in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the disclosing Party waives compliance or, after providing the notice and assistance required under this Section 4.4, the non-disclosing party remains required to disclose any Confidential Information, the non-disclosing party shall disclose only that portion of the Confidential Information that the non-disclosing party is legally required to disclose.
5. Intellectual Property.
5.1. Goods and Licensed Software and SaaS Solutions. Title to any Goods shall pass as set forth in the attached Sale of Goods Schedule. All Intellectual Property Rights or interests related to any Licensed Software and related documentation are set forth in the attached Licensed Software Schedule. All Intellectual Property Rights or interests related to any SaaS Solutions and related documentation are set forth in the attached SaaS Solutions Schedule. All rights related to the Licensed Software, SaaS Solutions and related documentation not expressly granted in the Agreement are reserved by Oppna Digital and its licensors.
5.2. Deliverables. Except with regard to any Goods and Licensed Software, SaaS Solutions and related documentation, which are addressed as set forth in Section 5.1, all Intellectual Property Rights, all goodwill associated therewith, and all other rights in and to all technology, data, analytics, documents, software, work product and other information or materials that are delivered to Customer under the Agreement or generated, prepared or processed by or on behalf of Oppna Digital in the course of performing in connection with the Agreement (collectively, the “Deliverables”) shall be the property of Oppna Digital. Oppna Digital hereby grants Customer a license to use the Deliverables and all Intellectual Property Rights therein free of additional charge and on a non-exclusive, worldwide, fully paid-up, royalty-free basis to the extent necessary to enable Customer to use the Products for the purposes contemplated by the Agreement.
5.3. Customer Data. Notwithstanding anything in the Agreement to the contrary, Customer is and shall remain the sole owner of all right, title and interest in and to the Customer Data, including all Intellectual Property Rights therein. Customer grants Oppna Digital a non-exclusive and royalty-free license to use Customer Data, equipment, software or other materials of Customer solely for the purpose of performing Oppna Digital’s obligations under the Agreement.
5.4. Aggregated Statistics. Notwithstanding anything to the contrary in the Agreement, Oppna Digital may monitor Customer’s use of the Licensed Software and SaaS Solutions and collect and compile Aggregated Statistics. As between Oppna Digital and Customer, all right, title, and interest in Aggregated Statistics, and all Intellectual Property Rights therein, belong to and are retained solely by Oppna Digital. Customer acknowledges that Oppna Digital may compile Aggregated Statistics based on Customer Data input into the Licensed Software or SaaS Solutions. Customer agrees that Oppna Digital may use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Customer or Customer’s Confidential Information. “Aggregated Statistics” means data and information related to Customer’s use of the Licensed Software and SaaS Solutions that is used by Oppna Digital in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Licensed Software or SaaS Solutions.
6. Customers Acts and Omissions. If Oppna Digital’s performance of its obligations, including the provision of any Products, under the Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants, or employees, Oppna Digital shall not be deemed in breach of its obligations under the Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay. Customer shall be responsible for any data, materials, and information that Customer provides, generates, transfers or makes available to Oppna Digital in connection with the Agreement, regardless of format (“Customer Data”), and shall ensure that such Customer Data is accurate and that it has all required rights, including Intellectual Property Rights (defined below) and authority to permit the collection, storage, retrieval, disclosure or other processing of Customer Data as contemplated by the Agreement.
7. WARRANTIES IN SCHEDULES. EXCEPT FOR ANY WARRANTIES EXPLICITLY SET FORTH IN AN APPLICABLE SCHEDULE WITH REGARD TO A PARTICULAR PRODUCT, OPPNA DIGITAL MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. CUSTOMER ACKNOWLEDGES THAT USE OF OR CONNECTION TO THE INTERNET PROVIDES THE OPPORTUNITY FOR UNAUTHORIZED THIRD PARTIES TO CIRCUMVENT SECURITY PRECAUTIONS AND ILLEGALLY GAIN ACCESS TO CUSTOMER DATA. ACCORDINGLY, OPPNA DIGITAL CANNOT AND DOES NOT GUARANTY THE PRIVACY, SECURITY OR AUTHENTICITY OF ANY INFORMATION SO TRANSMITTED OVER OR STORED IN ANY SYSTEM CONNECTED TO THE INTERNET.
8. Indemnification.
8.1. Oppna Digital Indemnification. Oppna Digital shall indemnify, defend and hold harmless Customer and its directors, officers, employees, permitted successors and permitted assigns from and against all claims, losses and liabilities, including reasonable attorney’s fees (collectively, “ Losses”), resulting from any third-party claim, suit, action or proceeding (each, an “Action”) caused by the infringement or misappropriation of any U.S. Intellectual Property Rights of a third party in connection with the Licensed Software or SaaS Solutions, excluding any Third Party Software. However, Oppna Digital shall have no obligations under this Section with respect to Losses to the extent arising out of: (a) use of the Products that does not conform with the terms of the Agreement; (b) any Customer Data or any materials or equipment provided or utilized by Customer in combination with the Products; or (c) any modifications or changes made to the Products or Deliverables by or on behalf of any person other than Oppna Digital. “ 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.
8.2. Infringement Remedies. If any portion of the Licensed Software or SaaS Solutions, excluding any Third Party Software, is or in Oppna Digital’s opinion is likely to be, claimed to infringe, misappropriate or otherwise violate any third party Intellectual Property Rights, or if Customer’s use of the Licensed Software or SaaS Solutions, excluding any Third Party Software, is enjoined or threatened to be enjoined, Oppna Digital shall, at its option: (a) procure for Customer the right to continue using the applicable Licensed Software or SaaS Solutions; (b) replace or modify the same so it becomes non-infringing; or (c) Oppna Digital shall terminate the applicable license or service and shall refund to Customer (i) with respect to any perpetual license to the Licensed Software, the license fees for the affected Licensed Software, less 1/12 thereof for each month or portion thereof since the original Effective Date, or (ii) with respect to SaaS Solutions and/or limited term Licensed Software licenses, the pre-paid portion of the SaaS Solutions or term license fees paid to Oppna Digital for the affected Licensed Software or SaaS Solutions. SECTIONS 8.1 AND 8.2 STATE OPPNA DIGITAL’S ENTIRE OBLIGATION TO CUSTOMER AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM OF INFRINGEMENT.
8.3. Customer Indemnification. Customer shall indemnify, defend and hold harmless Oppna Digital and its directors, officers, employees, agents, permitted successors and permitted assigns from and against all Losses, resulting from any Action arising out of or related to: (a) the Customer Data; (b) Customer’s or its users use or misuse of the Products (including in violation of the Agreement); or (c) Customer or any user infringing or misappropriating the Intellectual Property Rights of a third party or violating applicable law.
8.4. Procedure. Each party shall promptly notify the other party in writing of any Losses for which such party believes it is entitled to be indemnified pursuant to this Article 8. The party seeking indemnification (the “Indemnitee”) shall cooperate with the other party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall immediately take control of the defense and investigation of such Losses and shall employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section will not relieve the Indemnitor of its obligations under this Section except to the extent that the Indemnitor can demonstrate that it has been prejudiced as a result of such failure. In any defense under this Section, Indemnitor shall not make any admission, statement of liability or wrongdoing of any nature, acknowledgement, or make any statement that imposes any obligation on Indemnitee or other representation on behalf of or about Indemnitee without the express prior written permission of Indemnitee. The Indemnitor must obtain the prior written consent of the Indemnitee before entering into any settlement of any Action or ceasing to defend any Action. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. If the Indemnitor has assumed the defense pursuant to this Section, then the Indemnitee, at any time when it believes in good faith that (i) it has additional defenses available to it which are different or in addition to those available to the Indemnitor, or its interests are adverse to the interests of the Indemnitor’s, (ii) the Indemnitor has failed or is failing to use reasonable efforts to reasonably prosecute or defend such claim, (iii) such claim for indemnification relates to or arises in connection with any criminal proceeding, indictment, or investigation in which the Indemnitee has been named, or entails injunctive relief, in each case, may assume the defense and otherwise deal with such proceeding in good faith with counsel of its choice and seek indemnification therefor in accordance with this Section, as applicable.
9. Limitation of Liability.
9.1. Waiver of Damages. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
9.2. Limitation of Liability. IN NO EVENT SHALL OPPNA DIGITAL’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO OPPNA DIGITAL FOR THE PRODUCTS UNDER THE AGREEMENT DURING THE PRECEDING TWELVE (12) MONTHS.
9.3. Exclusions. The limitations of liability set forth in Sections 9.1 and 9.2 shall not apply to: (a) liability resulting from gross negligence or willful misconduct; (b) any indemnification obligations hereunder; or (c) any beach of Sections 4 (Confidentiality) or 5 (Intellectual Property).
9.4. Third Party Software and Hardware. WITH RESPECT TO ANY THIRD PARTY SOFTWARE, GOODS OR CONTENT PROVIDED TO CUSTOMER UNDER THE AGREEMENT, INCLUDING ANY MODULES OF THE SAAS SOLUTIONS THAT MAY CONTAIN THIRD PARTY SOFTWARE OR CONTENT, CUSTOMER AGREES THAT (a) OPPNA DIGITAL MAY ADD AND/OR SUBSTITUTE FUNCTIONALLY EQUIVALENT PRODUCTS FOR ANY THIRD PARTY SOFTWARE OR GOODS IN THE EVENT OF UNAVAILABILITY, END-OF-LIFE, OR CHANGES TO SOFTWARE OR GOODS REQUIREMENTS; (b) THE PROVISION OF THIRD PARTY CONTENT IS SUBJECT TO AVAILABILITY FROM THIRD PARTY CONTENT PROVIDERS AND OPPNA DIGITAL SHALL HAVE NO LIABILITY SHOULD SUCH CONTENT BECOME UNAVAILABLE FOR ANY REASON OR IS NO LONGER AVAILABLE UNDER REASONABLE COMMERCIAL TERMS; (c) OPPNA DIGITAL MAKES NO WARRANTY WITH RESPECT TO ANY THIRD PARTY SOFTWARE GOODS OR CONTENT; (d) CUSTOMER’S SOLE REMEDY WITH RESPECT TO SUCH THIRD PARTY SOFTWARE GOODS OR CONTENT SHALL BE PURSUANT TO THE THIRD PARTY’S WARRANTY, IF ANY, TO OPPNA DIGITAL, TO THE EXTENT PERMITTED BY THE APPLICABLE THIRD PARTY; and (e) AS BETWEEN THE PARTIES, THIRD PARTY SOFTWARE, GOODS AND CONTENT ARE MADE AVAILABLE ON AN “AS IS, AS AVAILABLE” BASIS.
10. General.
10.1. Relationship. The relationship between the parties is that of independent contractors. Nothing contained in the Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
10.2. Government Users. If Customer is or is deemed to be a U.S. Government agency, Customer agrees that the Licensed Software and SaaS Solutions are a commercial item that have been developed at private expense and not under a Government contract. Government rights relating to the Licensed Software and SaaS Solutions are limited to those rights specifically applicable to Customer under this Agreement, which is binding on Government users in accordance with Federal Acquisition Regulation 48 C.F.R. Section 12.212 for non-defense agencies and/or Defense FAR Supplement 48 C.F.R. Section 227.7202-1 for defense agencies.
10.3. Marketing. Oppna Digital may include “Powered by Express Image Digital” in the footer of the software, as well as reference Customer in its sales presentations and promotional and marketing materials and may market its role in providing the Products hereunder. Within reason, Customer will accommodate Oppna Digital’s requests, including but not limited to access for onsite photography of Product(s), content and/or data points for case studies, and joint press releases.
10.4. Force Majeure. Neither party shall incur any liability to the other party on account of any loss, claim, damage or liability to the extent resulting from any delay or failure to perform all or any part of the Agreement (except for payment obligations), if and to the extent such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control and without any negligence on the part of the party seeking protection under this Section (“Force Majeure Events”). Such events, occurrences, or causes shall include, without limitation, acts of God, strikes, lockouts, riots, acts of war, terrorism, earthquake, pandemics, fire or explosions. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.
10.5. Notices. All notices, requests, consents, claims, demands, waivers and other communications under the Agreement have binding legal effect only if in writing and addressed to a party at the address set forth in the Order (or to such other address or such other person that such party may designate from time to time). Notices sent in accordance with this Section will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by e-mail with confirmation of transmission and if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours; and (d) on the third (3rd) day (excluding Sundays and holidays) after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
10.6. Interpretation. For purposes of the Agreement: (a) the words “include,” “includes” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to the Agreement as a whole; and (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa. Unless the context otherwise requires, references in the Agreement: (i) to sections, exhibits, schedules, attachments and appendices mean the sections of, and exhibits, schedules, attachments and appendices attached to, the Agreement; and (ii) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof. The parties intend the Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments and appendices referred to herein are an integral part of the Agreement to the same extent as if they were set forth verbatim herein. The headings in the Agreement are for reference only and do not affect the interpretation of the Agreement. To the extent any terms and conditions of these Master Terms conflict with the terms and conditions of any Schedule, the provisions of these Master Terms shall control unless the applicable Schedule expressly states the intent to supersede the Master Terms. In the event of a conflict between an Order and these Master Terms and/or a Schedule, the Master Terms and/or the applicable Schedule shall prevail, provided, however, that such standard variable terms such as price, quantity, license and scope of use details, payment terms, shipping instructions and the like shall be specified on each Order.
10.7. Invalid Terms. If any term or provision of the Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of the Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
10.8. Amendment. The Agreement, and each of the terms and provisions hereof, may only be amended, modified, waived or supplemented by an agreement in writing signed by each party. No failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from the Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
10.9. Assignment. Except as explicitly contemplated herein, neither party may assign, transfer or delegate any or all of its rights or obligations under the Agreement, without the prior written consent of the other party; provided that a party may assign the Agreement and/or its rights and obligations hereunder to any third party that purchases such party’s business, regardless of whether such purchase is structured as a purchase of all or substantially all of the party’s assets or a purchase (whether directly or by way of merger) of a majority of the outstanding equity securities of the party. Any attempted assignment, transfer or other conveyance in violation of the foregoing shall be null and void. The Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. Notwithstanding the foregoing, Customer acknowledges that Oppna Digital Digital may, without further approval, utilize and engage subcontractors and third-party suppliers in connection with the fulfillment of Oppna Digital’s obligations hereunder.
10.10. Survival. The provisions set forth in Sections 2.2, 3.3, 4, 5, 7, 8, 9 and 10, and any other right or obligation of the parties in the Agreement that, by its nature, should survive termination or expiration of the Agreement, will survive any expiration or termination of the Agreement.
10.11. Governing Law. The Agreement and all matters arising out of or relating to the Agreement are governed by, and construed in accordance with, the laws of the State of Minnesota. Any legal suit, action or proceeding arising out of or relating to the Agreement must be instituted in the state courts of the State of Minnesota, located in the City of St Paul, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
10.12. No Third-Party Beneficiaries. Except as may be explicitly set forth in an Order (e.g., Customer is procuring Products on behalf of multiple affiliated entities), nothing in the Agreement confers any legal or equitable right, benefit or remedy upon any person other than Oppna Digital and Customer. Moreover, nothing in the Agreement creates any obligation, duty or liability upon any person other than Oppna Digital and Customer. If Customer is entering the Agreement for use of the Products by or on behalf of one or more other persons (including its affiliates), then Customer represents, warrants and covenants that it has the authority to bind such persons to the Agreement and that Customer and all such persons shall be liable under the Agreement
10.13. Counterparts. The Agreement may be executed in counterparts, each of which is deemed an original, but all of which together constitutes one and the same agreement. Delivery of an executed counterpart of the Agreement electronically or by facsimile shall be effective as delivery of an original executed counterpart of the Agreement.
SALE OF GOODS SCHEDULE
This Sale of Goods Schedule (this “Schedule”) is entered between Express Image Digital LLC, DBA Oppna Digital and the Customer identified in the applicable Order and is effective as of the effective date of the Order. This Schedule is subject to the Master Terms to which it is attached. All capitalized terms used but not defined herein shall have the meaning assigned to them in the Master Terms.
1. Goods/Hardware. Any Goods identified in the Order will be provided by Oppna Digital in accordance with this Schedule.
2. Delivery.
2.1 The Goods will be delivered within the time period committed in the Order, or if no specific deadline for delivery is provided in the Order, within [A1] a reasonable time after Oppna Digital’s receipt of the fully executed Order, subject to availability of finished Goods. Oppna Digital may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Customer. Unless otherwise agreed in writing, by the parties, including in the Quote, Oppna Digital shall deliver the Goods FOB to the Customer location set forth in the quote [A2] (the “Delivery Point”) using Oppna Digital’s standard methods for packaging and shipping such Goods. Unless specified otherwise in the Quote (a) Customer shall take delivery of the Goods immediately upon delivery to the Delivery Point, and (b) Customer shall be responsible for all loading/unloading costs and provide equipment and labor reasonably suited for receipt of the Goods at the Delivery Point .[A3]
2.2 The quantity of any installment of Goods as recorded by Oppna Digital on dispatch from Oppna Digital’s place of business is conclusive evidence of the quantity received by Customer on delivery unless Customer provides evidence proving the contrary. If delivery of the intended quantity remains possible, Oppna Digital’s liability for such non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time. Except as provided under this Schedule, all sales of Goods to Customer are made on a one-way basis and Customer has no right to return Goods purchased under this Agreement to Oppna Digital.
3. Title and Risk of Loss. Title and risk of loss passes to Customer upon delivery of the Goods at the Delivery Point. As collateral security for the payment of the purchase price of the Goods, Customer hereby grants to Oppna Digital a lien on and security interest in and to all of the right, title and interest of Customer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Uniform Commercial Code under the state laws which govern this Schedule.
4. Acceptance and Rejection. Customer shall inspect the Goods within one (1) business day after delivery and Customer shall inspect Licensed Software within three (3) business days after installation (the “Inspection Period”). Customer will be deemed to have accepted the Goods and the Licensed Software unless it notifies Oppna Digital in writing and within the applicable Inspection Period of any failure of the Goods or the Licensed Software to comply with the specifications and requirements related thereto as set forth in the Order and any other documentation provided by Oppna Digital which details technical specifications applicable to the Goods and/or the Licensed Software (collectively, the “Specifications”). If Customer timely notifies Oppna Digital Digital of any non-conforming Goods and/or Licensed Software as set forth in the preceding sentence, Oppna Digital shall, in its sole discretion, (a) with respect to Goods, replace such non-conforming Goods with conforming Goods or repair such non-conforming Goods to make them conforming and with respect to Licensed Software correct such non-conforming Licensed Software to make them conforming; or (b) credit or refund the Price for the non-conforming Goods and/or non-conforming Licensed Software. Customer acknowledges and agrees that the remedies set forth in this Section 4 are Customer’s exclusive remedies for the delivery of non-conforming Goods and Licensed Software. Except as provided under this Section 4, all sales of Goods and Licensed Software to Customer are made on a one-way basis and Customer has no right to return Goods or Licensed Software to Oppna Digital.
5. Limited Warranty.
5.1 If the Goods are manufactured by Oppna Digital, then Oppna Digital warrants to Customer that for a period of one (1) year from the date of shipment of the Goods, that such Goods will materially conform to the Specifications and will be free from material defects in material and workmanship.
5.2 Section 5.1 shall not apply to any Goods or portion of the Goods manufactured by a third party (“Third Party Goods”). However, Oppna Digital will use reasonable efforts to ensure that Customer is informed of any applicable third-party manufacturer’s warranties and to transfer any such warranties to Customer where necessary and possible.
5.3 OPPNA DIGITAL MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO ANY THIRD PARTY GOODS AND, EXCEPT AS SET FORTH IN SECTION 5.1, AND NOTWITHSTANDING ANY TERMS OF THE ORDER TO THE CONTRARY, OPPNA DIGITAL MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
PROFESSIONAL SERVICES SCHEDULE
This Professional Services Schedule (this “Schedule”) is entered between Express Image Digital LLC, DBA Oppna Digital and the Customer identified in the applicable Order and is effective as of the effective date of the Order. This Schedule is subject to the Master Terms to which it is attached. All capitalized terms used but not defined herein shall have the meaning assigned to them in the Master Terms.
1. Services . Any Services identified in the Order will be provided by Oppna Digital in accordance with this Schedule. Oppna Digital shall be responsible for securing, managing, scheduling, coordinating and supervising Oppna Digital personnel, including its subcontractors, in performing the Services.
2. Term and Termination. The parties’ rights and obligations under this Schedule commence on the date specified in the Order and continue for the term set forth in the Order, upon expiration of which this Schedule shall terminate. This Schedule and any Services provided in connection herewith may be terminated for cause by either party in accordance with Section 3.2 of the Master Terms. Section 4 of this Schedule shall survive termination.
3. Customer Obligations . With respect to the Services, Customer shall (a) cooperate with Oppna Digital in all matters relating to the Services and provide such access to Customer’s premises, and such accommodations and other facilities as may reasonably be requested by Oppna Digital, for the purposes of performing the Services; (b) respond promptly to any Oppna Digital request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Oppna Digital to perform Services in accordance with the requirements of this Agreement; (c) provide such Customer Data as Oppna Digital may reasonably request to carry out the Services in a timely manner and ensure that such Customer Data is complete and accurate in all material respects; and (d) except as provided in the Order, obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services .
4. Limited Warranty .
4.1 Oppna Digital warrants to Customer that it shall perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Schedule.
4.2 EXCEPT AS SET FORTH IN SECTION 4.1, AND NOTWITHSTANDING ANY TERMS BETWEEN THE PARTIES (INCLUDING THE ORDER) TO THE CONTRARY , OPPNA DIGITAL MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
SOFTWARE LICENSE SCHEDULE
This Software License Schedule (this “Schedule”) is entered between Express Image Digital LLC, DBA Oppna Digital and the Customer identified in the applicable Order and is effective as of the effective date of the Order. This Schedule is subject to the Master Terms to which it is attached. All capitalized terms used but not defined herein shall have the meaning assigned to them in the Master Terms.
1. Licensed Software. Any Licensed Software identified in the Order will be licensed in accordance with this Schedule. “Licensed Software” includes any updates, upgrades, improvements, modifications or developments provided by Oppna Digital from time-to-time, including in accordance with the Order or separate agreement of the parties.
2. Term and Termination. The parties’ rights and obligations under this Schedule commence on the date specified in the Order and continue for the term set forth in the Order, upon expiration of which this Schedule shall terminate. This Schedule and any Licensed Software provided in connection herewith may be terminated for cause by either party in accordance with Section 3.2 of the Master Terms. Sections 4 and 7 of this Schedule shall survive termination.
3. Grant. Subject to Customer’s payment of the fees set forth in the Order and compliance with the terms hereof, for the term of the Order or such other period of time as may be explicitly set forth in the Order [A4] , Oppna Digital hereby grants Customer a non-exclusive, non-sublicensable, non-transferable license to (a) install, run and use the Licensed Software in accordance with then-current Documentation; and (b) use any user manuals, handbooks, guides and other documentation related to the Software and provided or made available by Oppna Digital from time-to-time (“Documentation ”), in either case solely: (i) for Customer’s internal business purposes; (ii) on the hardware or devices provided to Customer by Oppna Digital or third-party suppliers authorized by Oppna Digital (“Authorized Devices”); and (iii) at or for the benefit of the Customer location(s) set forth in the Order (the specified locations), including use by Customer’s visitors and customers at such locations as may be contemplated by the Order.
4. Use Restrictions.
4.1. Use Responsibility. Without expanding the scope of Section 3, Customer shall only grant access to the Licensed Software on the Authorized Devices to: (a) those employees whose duties include managing the Authorized Devices and/or viewing analytics provided from the Authorized Devices; and (b) Customer’s visitors and customers using the Authorized Devices at such locations as may be contemplated by the Order. Customer is responsible and liable for all uses of the Licensed Software and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Schedule.
4.2. Restrictions. Customer shall not use the Licensed Software or Documentation for any purposes beyond the scope of the license and rights granted in this Schedule and the Order. Without limiting the foregoing and except as otherwise expressly set forth herein, Customer shall not at any time, directly or indirectly: (i) copy, modify, or create derivative works of the Licensed Software or the Documentation, in whole or in part; (ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Licensed Software (except in connection with customer/visitor use as set forth in Section 3(b) or the Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Licensed Software, in whole or in part; (iv) remove any proprietary notices from the Licensed Software or the Documentation; or (v) use the Licensed Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any person, or that violates any applicable law.
4.3. Reservation of Rights. Oppna Digital reserves all rights related to the Licensed Software and Documentation except as expressly granted to Customer in this Schedule. Except for the limited rights and licenses expressly granted under this Schedule, nothing in any terms between the parties grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any Intellectual Property Rights or other right, title, or interest in or to the Licensed Software or Documentation, all of which shall, as between the parties, be owned exclusively by Oppna Digital, notwithstanding any terms to the contrary in the Order. Except in connection with customer/visitor use as set forth in Section 3(b), the Licensed Software, Documentation and all information and materials related thereto shall be the Confidential Information of Oppna Digital. Upon termination of this Schedule, Customer shall immediately discontinue use of the Licensed Software, Documentation and all information and materials related thereto and shall delete, destroy or return all copies of the same and certify to Oppna Digital that such deletion, destruction or return has been completed.
5. Delivery. Following Oppna Digital’s receipt of the fully executed Order and any up-front payment required under the Order, Oppna Digital shall provide Customer a copy of the Licensed Software and Documentation in the format set forth in the Order or, if no format is specifically identified, in such other format as may be reasonably determined by Oppna Digital.
6. Customization and Updates. Oppna Digital shall provide any customization, development and implementation/installation services as may be specifically identified in the Order in connection with the Licensed Software. New or updated versions of the Licensed Software may be provided by Oppna Digital from time-to-time, provided that Oppna Digital is under no obligation to develop any future programs or functionality unless specifically set forth in the Order.
7. Limited Warranty.
7.1. Oppna Digital warrants to Customer that for a period of thirty (30) days from the date the Licensed Software is delivered to Customer (or the date the Licensed Software was installed if Oppna Digital has contracted to install the Licensed Software under the Order), that the Licensed Software (specifically excluding any Third-Party Software) will be free of any material failure to comply in all material respects in accordance with the then-current Documentation (each such failure, an “Error”).
7.2. If the Licensed Software does not perform as warranted in Section 7.1, Oppna Digital shall use commercially reasonable efforts to correct such Errors, as Customer’s exclusive remedy for any claim under such warranty. Provided that any warranty claim is reasonably determined by Oppna Digital to be Oppna Digital’s responsibility, Oppna Digital shall, within thirty (30) days of its receipt of Customer’s written notice of an Error during the warranty period, (i) correct such Error; (ii) provide Customer with a plan reasonably acceptable to Customer for correcting the Error; or (iii) if neither (i) nor (ii) can be accomplished with reasonable commercial efforts from Oppna Digital, then Oppna Digital or Customer may terminate the license for the affected Licensed Software and Customer will be entitled to a refund of the license fees paid in advance for the affected Licensed Software. THE PRECEDING WARRANTY CURE SHALL CONSTITUTE OPPNA DIGITAL’S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY FOR CURE OF THE WARRANTY SET FORTH IN SECTION 7.1. IF CUSTOMER ELECTS NOT TO TERMINATE THE LICENSE FOR THE AFFECTED PORTION OF THE LICENSED SOFTWARE, CUSTOMER WAIVES ALL RIGHTS FOR THE APPLICABLE WARRANTY CURE SET FORTH HEREIN.
7.3. OPPNA DIGITAL MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO ANY THIRD PARTY GOODS AND, EXCEPT AS SET FORTH IN SECTION 7.1, AND NOTWITHSTANDING ANY TERMS BETWEEN THE PARTIES (INCLUDING THE ORDER) TO THE CONTRARY, OPPNA DIGITAL MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
SAAS SOLUTIONS SCHEDULE
This SaaS Solutions Schedule (this “Schedule”) is entered between Express Image Digital LLC, DBA Oppna Digital and the Customer identified in the applicable Order and is effective as of the effective date of the Order. This Schedule is subject to the Master Terms to which it is attached. All capitalized terms used but not defined herein shall have the meaning assigned to them in the Master Terms.
1. SaaS Solutions . Any SaaS Solutions identified in the Order will be provided in accordance with this Schedule. “SaaS Solutions” includes any updates, upgrades, improvements, modifications or developments thereto provided by Oppna Digital from time-to-time, including in accordance with the Order or separate agreement of the parties.
2. Term and Termination . The parties’ rights and obligations under this Schedule commence on the date specified in the Order and continue for the term set forth in the Order, upon expiration of which this Schedule shall terminate. This Schedule and any SaaS Solutions provided in connection herewith may be terminated for cause by either party in accordance with Section 3.2 of the Master Terms. Sections 4 and 6 of this Schedule shall survive termination.
3. Grant .
3.1. Subject to Customer’s payment of the fees set forth in the Order and compliance with the terms hereof, for the term set forth in the Order, Oppna Digital hereby grants Customer the right to access and use the SaaS Solutions in accordance with then-current Documentation solely: (a) for Customer’s internal business purposes; and (b) at or for the benefit of the Customer location(s) set forth in the Order (the specified locations), including use by Customer’s visitors and customers at such locations as may be contemplated by the Order. Oppna Digital shall provide Customer the necessary passwords and network links or connections to allow Customer to access the SaaS Solutions.
3.2. Subject to the terms and conditions contained in this Agreement, during any period when Oppna Digital is providing Customer a right to access and use the SaaS Solutions as set forth in Section 3.1, Oppna Digital hereby grants to Customer a non-exclusive, non-sublicenseable, non-transferable license to use any user manuals, handbooks, guides and other documentation related to the SaaS Solutions and provided or made available by Oppna Digital from time-to-time (“Documentation”) solely: (a) for Customer’s internal business purposes; and (b) at or for the benefit of the Customer location(s) set forth in the Order (the specified locations), including use by Customer’s visitors and customers at such locations as may be contemplated by the Order.
4. Use Restrictions .
4.1. . Without expanding the scope of Section 3, Customer shall only grant access to the SaaS Solutions to: (a) those employees whose duties include managing the deployment and use of the SaaS Solutions; and (b) Customer’s visitors and customers using the devices provided to Customer by Oppna Digital or a third-party supplier authorized by Oppna Digital at such locations as may be contemplated by the Order. Customer is responsible and liable for all uses of the SaaS Solutions and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Schedule.
4.2. Restrictions. Customer shall not use the SaaS Solutions or Documentation for any purposes beyond the scope of the license and rights granted in this Schedule and the Order. Without limiting the foregoing and except as otherwise expressly set forth herein, Customer shall not at any time, directly or indirectly: (i) copy, modify, or create derivative works of the SaaS Solutions or the Documentation, in whole or in part; (ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the SaaS Solutions (except in connection with customer/visitor use as set forth in Section 3.1(b)) or the Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the SaaS Solutions, in whole or in part; (iv) remove any proprietary notices from the SaaS Solutions or the Documentation; or (v) use the SaaS Solutions in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any person, or that violates any applicable law.
4.3. Reservation of Rights. Oppna Digital reserves all rights related to the SaaS Solutions and Documentation except as expressly granted to Customer in this Schedule. Except for the limited rights and licenses expressly granted under this Schedule, nothing in any terms between the parties grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any Intellectual Property Rights or other right, title, or interest in or to the SaaS Solutions or Documentation, all of which shall, as between the parties, be owned exclusively by Oppna Digital, notwithstanding any terms to the contrary in the Order. Except in connection with customer/visitor use as set forth in Section 3.1(b) and 3.2(b), the Licensed Software, Documentation and all information and materials related thereto shall be the Confidential Information of Oppna Digital. Upon termination of this Schedule, Customer shall immediately discontinue use of the SaaS Solutions, Documentation and all information and materials related thereto and shall delete, destroy or return all copies of the same and certify to Oppna Digital that such deletion, destruction or return has been completed.
5. Customer Responsibilities . Except as explicitly provided in the Order, Customer is solely responsible for obtaining and maintaining at its own expense, all equipment needed to access the SaaS Solutions, including but not limited to Customer’s internet access.
6. Limited Warranty . Oppna Digital warrants that the SaaS Solutions will conform in all material respects to any service levels set forth in the Order when accessed and used in accordance with the Documentation. Oppna Digital does not make any representations or guarantees regarding uptime or availability of the SaaS Solutions unless specifically identified in the Order. The remedies set forth in the Order are Customer’s sole remedies and Oppna Digital’s sole liability under the limited warranty set forth in this Section 6. THE FOREGOING WARRANTY DOES NOT APPLY, AND OPPNA DIGITAL STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.