- 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 and the risk of loss and title to Devices passes from NeoSpectra to you upon shipment from our facility or warehouse. 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 Return of Devices. [Add language about how returns are handled, such as conditions, RMA process, etc.]
- 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.
- 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 [insert URL to NeoSpectra Portal website] (the “Portal Site”). Subject to the terms and conditions of this Agreement (including Licensee’s obligation to pay all applicable Charges), NeoSpectra grants to Customer the right to access and use the Services during the Term (as defined in Section 4) 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 that your password is no longer confidential. NeoSpectra reserves the right to require you to alter your password if NeoSpectra believes that your password is no 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.
- 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 by [insert ways to terminate subscriptions] 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.
- 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.
4.2 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 or terminate 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.
- Intellectual Property Rights
5.1 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 in these 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.
5.2 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.
- 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 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.
- Warranties. The Software and Services are provided by NeoSpectra on an “as-is” basis. NeoSpectra and its suppliers disclaim all express, implied, or statutory warranties relating to the Software and Services, including but not limited to, merchantability, fitness for a particular purpose, title, and non-infringement. NeoSpectra does not warrant that use of the Software and Services will be uninterrupted or error-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 warranties with respect to the Software and Services, all such warranties are limited in duration to ninety (90) days from the date of the respective receipt (for Software) or usage (for Services).
You understand and agree that the submission of any Customer Data to NeoSpectra through the Services is done at your own discretion and risk and that you will be solely responsible for any loss or damage to such Customer Data or any damage to your computer system or loss of data that may result in the download or upload of any Customer Data. You are solely responsible for creating back-ups of the Customer Data.
- Limitation of Liability. In no event shall NeoSpectra’ aggregate cumulative liability exceed the amount paid by you to NeoSpectra in the twelve (12) month period immediately preceding the event giving rise to such claim. NeoSpectra will not be liable for any indirect, incidental, consequential, special, exemplary, or punitive damages resulting from the use or provision of the NeoSpectra Products even if NeoSpectra has been advised of the possibility of such damages. The foregoing disclaimers, waivers and limitations shall apply notwithstanding any failure of essential purpose of any limited remedy.
- Applicable law and Binding Arbitration
10.1 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.
10.2 Applicable law. 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.
10.3 Binding Arbitration. NeoSpectra and you agree to arbitrate all disputes and claims between the two parties (the "Parties"). This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to:
- Claims arising out of or relating to any aspect of the relationship between the Parties, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory;
- Claims that arose before this or any prior agreement between the Parties (including, but not limited to, claims relating to advertising);
- Claims that are currently the subject of purported class action litigation in which Customer is not a member of a certified class; and
- Claims that may arise after the termination of any agreement between the Parties.
Notwithstanding the foregoing, either party may bring an individual action in small claims court. You agree that, by accepting these terms and conditions, Customer and NeoSpectra are each waiving the right to a trial by jury or to participate in a class action. The transaction between the Parties evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision shall survive termination of the agreement entered into by the Parties.
A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute ("Notice"). The Notice to NeoSpectra should be addressed to: NeoSpectra Systems Inc., [address for notices] ("Notice Address"). The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). If NeoSpectra and Customer do not reach an agreement to resolve the claim within thirty (30) days after the Notice is received, Customer or NeoSpectra may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by NeoSpectra or Customer shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or NeoSpectra is entitled. You may download a form Notice here [insert URL to form notice].
After NeoSpectra receives notice at the Notice Address that Customer has commenced arbitration, it will promptly reimburse Customer for Customer's payment of the filing fee (if Customer is unable to pay this fee, NeoSpectra will pay it directly upon receiving a written request at the Notice Address). The arbitration will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by these terms and conditions, and will be administered by the AAA. The AAA Rules are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by writing to the Notice Address. All issues are for the arbitrator to decide, including the scope of this arbitration provision, but the arbitrator is bound by the terms of these terms and conditions. Unless NeoSpectra and Customer agree otherwise, any arbitration hearings will take place in the county (or parish) of Customer's billing address. If Customer's claim is for Ten Thousand U.S Dollars (US$10,000) or less, NeoSpectra agrees that Customer may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If Customer's claim exceeds Ten Thousand U.S Dollars (US$10,000), the right to a hearing will be determined by the AAA Rules. Except as otherwise provided for herein, NeoSpectra will pay all AAA filing, administration, and arbitrator fees for any arbitration initiated in accordance with the notice requirements above. If, however, the arbitrator finds that the substance of Customer's claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all such fees will be governed by the AAA Rules. In such case, Customer agrees to reimburse NeoSpectra for all monies previously disbursed by it that are otherwise Customer's obligation to pay under the AAA Rules.
If, after finding in Customer's favor in any respect on the merits of Customer's claim, the arbitrator issues Customer an award that is:
- Equal to or less than the greater of (a) Two Thousand U.S. Dollars (US$2,000) or (b) the maximum claim that may be brought in small claims court in the county of your billing address, and
- Greater than the value of NeoSpectra' last written settlement offer made before an arbitrator was selected, then NeoSpectra will:
- Pay Customer the greater of (a) Two Thousand U.S. Dollars (US$2,000) or (b) the maximum claim that may be brought in small claims court in the county of Customer's billing address ("the premium") instead of the arbitrator's award; and
- Pay Customer's attorney, if any, twice the amount of attorneys' fees, and reimburse any expenses that Customer's attorney reasonably accrues for investigating, preparing, and pursuing your claim in arbitration (the "Attorney Premium").
If NeoSpectra did not make a written offer to settle the dispute before an arbitrator was selected, Customer and Customer's attorney will be entitled to receive the premium and the Attorney Premium, respectively, if the arbitrator awards Customer any relief on the merits. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees, expenses, and the premium and the Attorney Premium at any time during the proceedings and upon request form either party made within fourteen (14) days of the arbitrator's ruling on the merits.
The right to attorneys' fees and expenses set forth above supplements any right to attorneys' fees and expenses Customer may have under applicable law. Thus, if Customer would be entitled to a larger amount under the applicable law, this provision does not preclude the arbitrator from awarding Customer that amount. However, Customer may not recover duplicative awards of attorneys' fees or costs. Although under some laws NeoSpectra may have a right to an award of attorneys' fees and expenses if it prevails in arbitration, NeoSpectra agrees that it will not seek such an award.
The arbitrator may award injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. Customer and NeoSpectra agree that each may bring claims against the other only in Customer's or its individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. Further, unless both Customer and NeoSpectra agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void.
11 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 in writing. 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 address for questions or additional information]