KoolSpan® Master Purchase Agreement Terms and Conditions
FRAMEWORK AGREEMENT. This Agreement is a framework agreement. Customer may purchase products (“Products”) and services (“Services”), and license software (“Software”) (collectively, the “Products and Services”) as specified in one or more order forms (each an “Order”). Customers shall place Orders on KoolSpan’s then-current order form. All Orders shall be governed by the terms of this Agreement, even if such Orders fail to include a reference to this Agreement. Any terms or conditions appearing on the face or reverse side of any Order from Customer shall not be binding on KoolSpan, unless KoolSpan expressly agrees in a separate writing to be bound by such terms and conditions. Each Order together with this Agreement shall constitute an agreement between the Parties.
PRODUCTS AND SERVICES PROVIDED.
Orders. KoolSpan shall (a) sell the Products, if any, listed on the Orders to the Customer for the prices set forth on the Orders; (b) license the Software, if any, listed on the Orders for the licensing fees set forth on the Orders; and (c) provide the Services, if any, listed on the Orders to the Customer for the monthly recurring charges (“MRC”) set forth on the Orders.
Use of Products and Services Governed By EULA. All use of the Products and Services shall be governed by the terms of the KoolSpan End-User License Agreement (“EULA”), posted on KoolSpan’s website (https://koolspan.com/terms-and-conditions/) and incorporated into this Agreement by this reference as updated from time-to-time by KoolSpan.
Access to KoolSpan TrustChip Developer Portal. Customer’s license to (a) access the KoolSpan TrustChip Developer Portal (“Portal”); (b) install and use the TrustChip Developer Kit (“TDK”); and (c) sell and distribute the applications created by Customer using the TDK (“Customer Applications”) shall be governed by the terms of the KoolSpan TrustChip Developer Kit License Agreement (“Developer Agreement”), posted on the Portal and incorporated into this Agreement by this reference as updated from time-to-time by KoolSpan.
Not for Resale. Unless the Parties otherwise agree in writing, Customer’s purchase of the Products and Services indicated in Orders shall be for Customer’s own internal use and not for resale to third parties.
Compliance with Laws. Customer shall be solely responsible for its actions and the actions of its employees while using the Products and Services. Customer agrees to abide by all local, state, national, and international laws and regulations applicable to Customer’s use of the Products and Services, including, without limitation, all intellectual property and privacy laws.
Export. The Products may contain encryption that may be subject to specific governmental export approval. Customer shall comply with all applicable export control laws of the United States government concerning the exporting, importing and re-exporting of Products and Software and documentation, including but not limited to Export Administration Regulations Sec. 740.17.
INTELLECTUAL PROPERTY RIGHTS. KoolSpan and its licensors shall retain all right, title and interest in the Products and Services throughout the world including without limitation, patent, copyright and trade secret rights. Except as expressly set forth in the EULA and the Developer Agreement, neither this Agreement, nor any license of Products and Services hereunder shall be construed as granting to the Customer any license or other right in or to any patent, copyright, trademark, trade secret, or other proprietary right of KoolSpan or its licensors including derivative works thereto.
SUPPORT AND MAINTENANCE.
Ongoing Support Charges. If MRC is listed on Orders, KoolSpan shall provide Services to Customer so long as Customer continues to pay the ongoing MRC. The Services include customer support as set forth in ‘Customer Support’, and may include the operation and maintenance of Relay Servers (as defined in the EULA). KoolSpan shall use commercially reasonable efforts to make the Relay Servers available 24 hours a day, 7 days a week, except for: (a) planned downtime, or (b) any unavailability caused by events of Force Majeure.
Customer Support. So long as Customer continues to pay the ongoing MRC, KoolSpan shall use commercially reasonable efforts to provide telephone and email support to Customers during KoolSpan’s normal working hours, excluding holidays and weekends.
Software Maintenance. KoolSpan provides two types of software upgrades: Maintenance Releases and Major Enhancement Releases.
“Maintenance Releases” combine defect resolution and modifications to the existing core features purchased by the Customer. Maintenance Releases may include, but are not limited to, improvements in functionality, performance, bug fixes and upgrades to embedded or integrated components. So long as a Customer continues to pay the ongoing MRC to KoolSpan, Customer shall be entitled to receive each new Maintenance Release at no additional charge, when and as it is made generally available to other customers. KoolSpan will continue to offer Maintenance Releases for its latest major release and the previous major release.
From time to time, KoolSpan will introduce a Major Enhancement Release. “Major Enhancement Releases” include new product offerings or significantly new feature sets that improve the existing Product and Services. Major Enhancement Releases may not be provided free of charge to Customers.
ORDERS, INVOICES, PAYMENT AND SHIPPING.
Acceptance of Orders. KoolSpan may accept or reject any Order, in whole or in part, at its sole discretion provided however that KoolSpan shall accept (“Acceptance” or “Accepts”) or reject the Order and notify Customer of such Acceptance or rejection within five (5) business days of receipt of the Order. In the event that KoolSpan has not notified Customer of its decision or has not expressly asked Customer for an extended decision period within such given timeframe, the Order shall NOT be deemed accepted.
Lead Time. KoolSpan shall use reasonable efforts to ship Products ordered by Customer within five business days after Acceptance. Acceptance for Orders of more than 100 units or custom Orders shall specify a lead time (“Lead Time Orders”). If a lead time is not specified in the Acceptance of a Lead Time Order, Customer shall contact KoolSpan to arrange a lead time which shall be communicated by KoolSpan in writing.
Shipment. Unless Customer specifically requests otherwise, KoolSpan may make partial shipments of Customer’s Orders, to be separately invoiced and paid for when due.
Risk of Loss. All Products purchased by Customer from KoolSpan shall be shipped F.O.B. KoolSpan’s shipping dock to Customer’s address as identified in the Order. Customer will pay all freight charges for shipments pursuant to KoolSpan’s standard delivery policy unless otherwise specified in the Order. KoolSpan’s standard delivery policy is to ship domestic Orders using Federal Express’ standard 2nd day delivery service and to ship international Orders using Federal Express’ International Economy delivery service. Any additional charges for expedited delivery requested by Customer will be paid by Customer.
Payment. KoolSpan shall invoice Customer: (a) for Products and Software upon shipment; and (b) for MRC, monthly in advance of Services on the first day of each month. Customer shall pay KoolSpan’s invoices net thirty (30) days (the “Due Date”).
Delinquent Accounts. Any payment not made by Customer by the Due Date shall be subject to interest from the Due Date through the date paid, at a rate of one and one-half percent (1½%) per month, or the maximum rate allowable at law, if less. Repeated failure to pay any fees or other charges or amounts due to KoolSpan on or before the Due Date shall be a breach of this Agreement (“Failure to Pay”). KoolSpan shall be entitled to recover reasonable attorney’s fees and other collection costs for all unpaid amounts hereunder following a Failure to Pay.
Taxes. All prices for Products and Services are exclusive of taxes. Customer shall pay all foreign, federal, state, municipal and other governmental excise, sales, use, property, customs, value added, gross receipts and other taxes, fees and duties of any nature now in force or enacted in the future that are assessed upon the Products and Services excluding United States taxes based on KoolSpan’s income. To receive a sales tax exemption, Customer must provide the necessary information to KoolSpan and provide KoolSpan with a valid tax exemption certificate at the time Customer’s Order is submitted to KoolSpan for those states where deliveries are to be made.
Changes in MRC. Except as specifically set forth in an Order denoting a fix price period for MRC, KoolSpan reserves the right to modify its price for the MRC by providing Customer with at least sixty (60) days’ prior written notice.
Title and Security Interests in Products. (a) For Domestic Orders: Once full payment has been made for the Products to KoolSpan, KoolSpan warrants that Customer shall acquire good and clear title to the Products being purchased hereunder, free and clear of all liens and encumbrances. Customer shall cooperate in executing any applicable U.C.C. financing statements necessary for KoolSpan to maintain a security interest in the Products, but KoolSpan shall only file such statements if Customer does not timely pay for the Products as set forth herein. In the event that KoolSpan files any U.C.C. financing statements and Customer subsequently pays full the amount due, KoolSpan shall promptly file applicable U.C.C. termination statements. (b) For International Orders: Customer shall acquire good and clear title to the Products upon delivery of the Products to the shipping carrier at KoolSpan’s shipping dock.
TERM. This Agreement shall commence as of the Effective Date, and unless earlier terminated as provided herein, shall continue for a period that ends with the expiration or termination of the last existing Order or so long as the Customer continues to pay the MRC (the “Term”).
Confidential Information. “Confidential Information” means any information, in whatever form received by one party (the “Disclosing Party”) from the other (the “Receiving Party”) that is identified in writing as being proprietary or confidential to the Disclosing Party. Confidential Information includes the terms and conditions of this Agreement, and the Products and Service. Confidential Information shall not include information which (a) is or becomes publicly available through no act or omission of the Receiving Party; (b) is rightfully received from a third party without an obligation of confidence; (c) is independently developed by the Receiving Party without reference to Confidential Information; or (d) is required to be disclosed in accordance with a judicial or governmental order or decree, provided that the Receiving Party provides prompt notice of the order or decree to the Disclosing Party and reasonably cooperates with the Disclosing Party to limit the disclosure and use of the Confidential Information.
Rights in Confidential Information. The Receiving Party will hold any Confidential Information in strict confidence for a period of three (3) years from termination of this Agreement and will use such Confidential Information only in accordance with the terms of this Agreement. The Receiving Party shall limit the use of, and access to, the Confidential Information to its employees or agents whose use of or access to the Confidential Information is necessary to carry out the intent of this Agreement. The Receiving Party shall, by appropriate means, prevent the unauthorized disclosure, publication, display or use of any Confidential Information. Without limiting the generality of the foregoing, the Receiving Party shall require all employees, agents, or contractors who shall have access to the Confidential Information to execute, prior to such access, a non-disclosure agreement providing for at least the same protection of the Confidential Information as is provided for by this Agreement.
Destruction or Return of Confidential Information. Upon expiration or termination of this Agreement for any reason, each Party shall promptly return to the other Party, or, if requested, destroy all copies of the other Party’s Confidential Information. All copies, notes or other derivative material relating to the Confidential Information shall be promptly returned or destroyed, as agreed, and no such material shall be retained or used by the Receiving Party in any form or for any reason.
Products and Services. All warranties for Products and Services shall be as set forth in the EULA.
TrustChip Developer Kit. All warranties to the Portal and TDK shall be as set forth in the Developer Agreement;
DISCLAIMER OF WARRANTIES. EXCEPT FOR THOSE WARRANTIES SET FORTH ABOVE, KOOLSPAN EXPRESSLY DISCLAIMS, ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. KOOLSPAN SPECIFICALLY DISCLAIMS ANY WARRANTY THAT THE OPERATION OF THE PRODUCTS AND SERVICES WILL BE UNINTERRUPTED OR ERROR FREE.
INDEMNIFICATION. Customer shall defend, indemnify and hold harmless KoolSpan, its licensors, and their collective employees, officers and directors, suppliers, successors, affiliates, agents and assigns (collectively the “Indemnitees”) from any claims, damages, losses and expenses (including, without limitation, attorney fees and costs) incurred by any Indemnitee in connection with all claims, suits, judgments and causes of action for injury, death or damage arising in connection with the presence, use or non-use of the Products and Services unless caused by KoolSpan.
LIMITATION OF LIABILITY. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. EXCEPT FOR INDEMNITY AND CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT, EACH PARTY’S MAXIMUM LIABILITY TO THE OTHER FOR ANY DAMAGES FOR ANY DEFAULT OR OTHER LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE BASIS FOR SUCH LIABILITY, SHALL NOT EXCEED AN AMOUNT EQUAL TO ALL AMOUNTS PAID OR PAYABLE TO KOOLSPAN UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT WHICH CAUSED THE DAMAGES, PROVIDED THAT, AS TO CUSTOMER, SUCH LIABILITY SHALL BE IN ADDITION TO CUSTOMER’S OBLIGATION TO PAY AMOUNTS PAYABLE, BUT UNPAID, PURSUANT TO THIS AGREEMENT.
For Breach or Insolvency. Either Party may terminate this Agreement upon thirty (30) days’ prior written notice if the other has (a) materially failed to comply with any of the terms and conditions of this Agreement and fails to cure its non-compliance within such thirty (30) day period; or (b) become insolvent, has filed for bankruptcy, or has been declared insolvent or bankrupt.
For Convenience. Unless otherwise specified in an Order, either Party may for convenience, upon thirty (30) days’ written notice to the other Party, terminate this Agreement or any Order (except for any customized TrustChip Orders).
Failure to Pay. KoolSpan may suspend or terminate Customer’s access to the Services, at its sole option, with or without notice to Customer, if any payment is not paid within five (5) days past the Due Date.
Publicity and Press Release. The Parties agree that each may issue a press release announcing the completion of this Agreement. Each party shall have the right to review, modify and approve the text of the release, provided however each party’s approval shall not be unreasonably withheld. KoolSpan may use Customer’s name and logo in KoolSpan’s customer lists which may be posted on KoolSpan’s website.
Assignment. This Agreement and the rights and obligations hereunder may not be assigned, delegated, sublicensed or transferred without the prior written consent of the other Party. Notwithstanding the foregoing, either Party shall be free to assign its rights and obligations hereunder (in whole or in part) to a successor or Affiliate at any time or to a third party in connection with a sale by such Party of a part of its business to that third party.
Force Majeure. Neither Party shall be liable to the other Party or shall be subject to termination of this Agreement by the other Party for any delay, nonperformance, loss or damage (other than for failure to pay any amount when due) because of reasons beyond its reasonable control including, but not limited to, acts of God, acts of government, war, riots, civil unrest, terrorism, power failures, communication systems failures, accidents in transportation or other causes beyond the reasonable control of the respective Party (“Force Majeure”).
General Provisions. A failure or delay of either Party to this Agreement to enforce any of the provisions of this Agreement shall in no way be construed to be a waiver of such provisions. In the event that any provision of this Agreement shall be held to be invalid, the remaining provisions of this Agreement shall be unimpaired and the invalid provisions shall be replaced by a mutually acceptable provision. No modification of this Agreement shall be binding unless signed by the Parties. The Parties agree that where the context of any provision indicates an intent that it shall survive the termination of this Agreement, then it shall so survive. This Agreement shall not create, or in any way be interpreted as a joint venture, partnership or formal business organization of any kind. Under no circumstances shall any personnel of either Party be considered to be an employee or agent of the other Party. There are no intended third party beneficiaries of any provision of this Agreement. Damages shall be an inadequate remedy in the event of a breach by either Party to this Agreement and that any such breach by either Party will cause the other Party great and irreparable injury and damage. Accordingly, both Parties agree that the Party claiming breach shall be entitled, without waiving any additional rights or remedies otherwise available to it at law or in equity or by statute, to injunctive and other equitable relief. This Agreement constitutes the entire understanding between the Parties concerning the subject matter hereof and supersede all prior discussions, agreements and representations, whether oral or written and whether or not executed by the Parties. This Agreement may be signed in multiple counterparts and delivered by electronic means. The English language version of this Agreement shall control. All notices required hereunder shall be in writing and transmitted to the address for Official Notices shown on the Cover Page via email, courier, or US Mail. Notices shall be effective upon the date of confirmed delivery or at such time as delivery is refused by addressee upon presentation. This Agreement shall be governed by the laws of the State of Maryland without regard to its conflict of laws provisions and the Parties irrevocably agree to submit to the jurisdiction of the federal and state courts located in the State of Maryland.