Terms of Sale
ESTIMOTE BEACON AND STICKER PURCHASE TERMS AND CONDITIONS
Estimote Beacons (“Beacons”) from Estimote, Inc. (“Estimote”) are sold in quantities of three (3) or twenty five (25). Estimote Stickers (“Stickers”) are sold in quantities of ten (10). The 3-Beacon Pack, 25-Beacon Pack, and 10-Sticker Pack come bundled with the Estimote Software Development Kit (“SDK”). The Beacons, Stickers, SDK, 3-Beacon Pack, 25-Beacon Pack, and 10-Sticker Pack are referred to individually and collectively as a “Product” or as “Products” and may include repair or other professional services referred to individually and collectively as a “Service” or as “Services”).
Customer may place an order for an Estimote Beacon Pack or a pre-order for an Estimote Sticker Pack (“Order”) through Estimote’s estimote.com website (“Website”). Each Order is complete when Estimote ships the Products. Please note that shipments of Sticker Packs are not expected to begin until Fall 2014 and that Customer will not be charged for the Order until the Sticker Packs are shipped. Customer agrees that any terms and conditions inconsistent with or in addition to the terms and conditions set forth in this Agreement, including without limitation any Purchase order terms and conditions purported to be imposed by customer, are rejected and null and of no effect, even if Estimote accepts, acknowledges or ships Products in response to a customer purchase Order.
Customer may pay for an Order either by credit card or by wire transfer. If Customer elects to pay by credit card, (i) Customer will submit credit card payment details at the time an Order is placed through the Website and (ii) Customer’s credit card will be charged for the Products and for shipping at the time of shipment of the Orde. If Customer elects to pay by wire transfer, (i) Customer will provide invoice instructions to Estimote at the time an Order is placed through the Website, (ii) Estimote will invoice Customer for the Products and for shipping upon receipt of the Order, and (iii) Customer will pay Estimote by wire transfer within thirty (30) days of receipt of the invoice for such Order unless other payment terms are agreed upon in writing by Estimote and Customer prior to shipment.
Estimote will ship an Order upon either (i) successful processing of a credit card payment for such Order or (ii) receipt of a wire transfer payment for such Order. Estimote may, however, at its sole discretion, ship an Order prior to receipt of payment for an Order. As stated above, shipments of Sticker Pack Orders will begin later this Fall. Shipments are FCA (Incoterms 2010) Estimote’s facility ("point of origin"). Title to the Beacons and risk of loss will pass to Customer upon delivery to the carrier at the point of origin. For shipments outside the United States, Customer is responsible for clearing the goods for import and paying all formalities, duties, taxes, and other charges upon import. Scheduled shipment dates, if any, are estimates only, and Estimote is not liable for any loss or damage or penalty resulting from delay.
4. ACCEPTANCE OF PRODUCTS
If the Products shipped by Estimote do not function to Customer’s satisfaction, Customer may contact Estimote via e-mail at email@example.com within thirty (30) days of delivery of an Order to arrange for either (i) replacement of the Product by Estimote within a commercially reasonable time period or (ii) a refund of the Beacon Pack or Sticker Pack purchase price, less shipping costs. If Customer requests a refund, Estimote may send Customer a prepaid return shipping label in which case Customer agrees to return the Products in order to receive the refund. If Customer does not contact Estimote within thirty (30) days of delivery of an Order, the Products delivered shall be deemed accepted by Customer.
5. SDK LICENSE
Subject to the terms and conditions of this Agreement, Estimote grants to Company a personal, limited, nonexclusive, nontransferable license to use the SDK and modify the sample code included with the SDK ("Sample Code") only for the purpose of development of Applications designed to function only with the Beacons (the "Purpose").
Customer shall not, and shall not permit others to:
use the SDK for any purpose other than for the Purpose set forth in Sub-section 5(a) of this Agreement;
reproduce, in whole or in part, the Software Development Kit; except as expressly provided in Sub-section 5(a) with respect to the Sample Code, modify, translate, reverse engineer, decompile, disassemble or otherwise attempt (y) to defeat, avoid, bypass, remove, deactivate or otherwise circumvent any software protection mechanisms in the Software Development Kit or the Beacons or components thereof, including without limitation any such mechanism used to restrict or control the functionality of the SDK or the Beacons, or (z) to derive the source code or the underlying ideas, algorithms, structure or organization from the SDK or the Beacons or components thereof;
except as expressly provided in Sub-section 5(a) with respect to the Sample Code, alter, adapt, modify or translate the SDK in any way for any purpose, including without limitation error correction; and
distribute, rent, loan, lease, transfer, use in a service bureau or grant any rights in the SDK or modifications thereof in any form to any person except to the extent expressly permitted under this Agreement or with the prior written consent of Estimote.
Customer is not entitled to Services unless Customer has ordered and paid for Services as provided in an Order.
7. INTELLECTUAL PROPERTY
All intellectual property rights in and to the Products, including all patent rights, copyrights, trademarks, trade secrets or other proprietary rights therein shall be and remain the sole property of Estimote.
8. WARRANTY DISCLAIMER
ESTIMOTE DOES NOT MAKE, AND HEREBY EXPRESSLY DISCLAIMS, ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE PRODUCTS OR SERVICES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, ACCURACY, RELIABILITY, AND NON‐INFRINGEMENT. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS SO THE FOREGOING LIMITATIONS MAY NOT APPLY TO CUSTOMER. ESTIMOTE DOES NOT WARRANT THAT THE OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE OR THAT THE PRODUCTS WILL MEET CUSTOMER’S OR ANY THIRD PARTY’S EXPECTATIONS.
9. LIMITATION OF LIABILITY
WHETHER UNDER ANY WARRANTY, CONTRACT, TORT, NEGLIGENCE OR OTHER LEGAL OR EQUITABLE THEORY, THE FOLLOWING WILL APPLY TO ESTIMOTE AND ITS AFFILIATES AND ALL PRODUCTS, INCLUDING SOFTWARE, AND SERVICES OF ESTIMOTE IN ALL CIRCUMSTANCES (EXCEPT WITH RESPECT TO BODILY INJURY OR DEATH OF A PERSON): (A) ESTIMOTE WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUES, LOSS OF PROFITS OR LOSS OR INACCURACY OF DATA; AND (B) ESTIMOTE’S CUMULATIVE LIABILITY FOR ANY AND ALL DAMAGES IS LIMITED TO AMOUNTS PAID TO ESTIMOTE BY CUSTOMER FOR THE PARTICULAR PRODUCTS AND/OR SERVICES WITH RESPECT TO WHICH A CLAIM IS MADE. ESTIMOTE HAS AGREED WITH CUSTOMER THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSION MAY NOT APPLY TO CUSTOMER.
10. ARBITRATION/CHOICE OF LAW/VENUE
Any dispute which arises out of, relates to or concerns this Agreement (other than those arising under Section 7 – Intellectual Property) may, at the sole option of Estimote, be resolved by arbitration administered by the American Arbitration Association under its commercial arbitration rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. All arbitration hearings shall be conducted in New York, New York. Each party shall bear its own costs, fees and expenses associated with any arbitration, except that the parties agree to split equally the costs and expenses of the arbitrator or panel and the conduct of the arbitration itself. In the event that Estimote does not elect to submit a dispute under this Agreement to arbitration, the parties agree to jurisdiction and venue for claims or actions arising under this Agreement in the state or federal courts located in New York, New York, USA, and that any such disputes will be governed by the laws of the State of New York as such laws are applied to agreements entered into and to be performed entirely within New York between New York residents.
Customer may not assign any rights or delegate any duties under this Agreement and any attempt to do so is void and without effect. This Agreement is the parties’ entire agreement relating to the subject matter hereof and supersedes all prior or contemporaneous oral or written communications, proposals, representations and warranties, and prevails over any conflicting or additional terms of any communication between the parties relating to its subject matter. No modification to this Agreement will be binding unless in writing and signed by an authorized representative of each party. Any express waiver or failure to exercise promptly any right under this Agreement will not create a continuing waiver or any expectation of non‐enforcement. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. To the extent that any and all provisions of this Agreement shall exclude or limit any statutory liability which, according to mandatory provisions of Applicable Law cannot be contractually excluded or limited by mutual agreement of the parties, then such provision shall be given only such effect, if any, as is permitted by the Applicable Law. Neither Customer nor Estimote will be responsible for any failure or delay in its performance under this Agreement, excluding Customer’s payment obligations, due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, war, terrorism, riot, or natural disaster