2NNs LLC, D/B/A NEWR
PRODUCT TRIAL TERMS AND CONDITIONS (BETA
PHASE)
1. APPLICABILITY. These product trial
terms and conditions (these “Terms”) apply to the lease of
certain beta products (the ”Products”) by 2NNs LLC, d/b/a
Newr, an Indiana limited liability company (“Company”) to
customer set forth in the invoice to which these terms are
attached (“Customer”) for the purpose of a trial in order to
evaluate, test, review and/or promote (“Review”) the Products.
The accompanying invoice (the “Trial Confirmation” and
these Terms (collectively, this “Agreement”)) comprise the
entire agreement between the parties, and supersede all prior
or contemporaneous understandings, agreements,
negotiations, representations and warranties, and
communications, both written and oral. These Terms prevail
over any of Customer’s general terms and conditions of
purchase regardless of whether or when Customer has
submitted its purchase order or such terms. Fulfillment of
Customer’s order does not constitute acceptance of any of
Customer’s terms and conditions and does not serve to modify
or amend these Terms.
2. SECURITY DEPOSIT; PRODUCT TRIAL TERMS;
RETURN; FEEDBACK. Upon execution of the Trial
Confirmation, Customer shall pay a refundable security
deposit of the amount set forth on the Trial Confirmation (the
“Security Deposit”). Customer shall make all payments
hereunder in US dollars and via the method set forth on the
Trial Confirmation. Upon Customer’s receipt of the Products,
Customer shall have thirty (30) days to Review the Product
(the “Trial Period”). Upon expiration of the Trial Period,
Customer shall (a) notify Company if Customer seeks to
purchase the Production Product so that the full Security
Deposit can be applied towards the purchase price of the
Production Product once available or (b) return the Product
to Company within five (5) business days after the expiration
of the Trial Period, upon the shipping terms set forth in Section
3, for a full refund of the Security Deposit within ten (10)
business days of receipt of the Product by Company; provided,
however, that, solely in the event Customer returns the Product
to Company, Company shall be entitled to (i) retain any
amount of the Security Deposit upon evidence of misuse,
damage, or any other loss upon Company’s inspection of the
returned Product, or (ii) charge to Customer the entire
purchase price amount of the Product if the Product is not
returned within thirty (30) days of the expiration of the Trial
Period, or is lost, stolen, destroyed or otherwise damaged
beyond repair. Customer shall no obligation to provide
Company with ideas, suggestions, or proposals regarding the
Product (“Feedback”). However, if Customer submits
Feedback to Company, then Company is free to use such
Feedback irrespective of any other obligation or limitation
between the parties governing such Feedback. Customer
hereby assigns to Company, and on behalf of its employees,
contractors and/or agents, all right, title, and interest in, and
Company is free to use, without any attribution or
compensation to any party, any ideas, know-how, concepts,
techniques, or other intellectual property rights contained in
the Feedback, for any purpose whatsoever, although Company
is not required to use any Feedback.
3. DELIVERY; RETURN; TITLE AND RISK OF LOSS.
The Products will be shipped within a reasonable time after
Company’s receipt of the Security Deposit. Unless otherwise
agreed in writing by the parties, Company shall deliver the
Products to Customer’s location referenced in the Trial
Confirmation (the “Delivery Point”) using Company’s
standard methods for packaging and shipping such Products.
Company shall be responsible for all packing and shipment
costs (a) to the Delivery Point, and (b) return back to
Company’s location or other address referenced in the Trial
Confirmation or otherwise provided by the Company in
writing. Customer shall be responsible for returning the
Product at the end of the Trial Period, and Company shall
provide Customer a pre-paid box to return the Product. All risk
of loss passes to Customer upon delivery of the Products at the
Delivery Point and during the Trial Period. Customer agrees to
return the Product in the same condition Customer received the
Product (except for normal wear and tear).
4. RESTRICTION ON USE AND SALE; NO
WARRANTY. Customer acknowledges and agrees that the
Product is in a non-certified, beta phase and is intended solely
to evaluate, test, review, and promote the Product. Customer
agrees that Customer shall use the Product solely for its
intended purpose in accordance with the user instructions
provided by Company. Customer further acknowledges and
agrees that Customer shall be prohibited from selling or
otherwise transferring the Product to an end-user or other
third-party. THE PRODUCT IS PROVIDED AS-IS, WITH
NO EXPRESS OR IMPLIED WARRANTIES
WHATSOEVER WITH RESPECT TO THE PRODUCTS,
INCLUDING ANY (a) WARRANTY OF
MERCHANTABILITY; (b) WARRANTY OF FITNESS
FOR A PARTICULAR PURPOSE; OR (c) 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.
5. INDEMNIFICATION; LIMITATION OF LIABILITY.
Customer shall indemnify, defend, and hold harmless
Company and its members, managers, employees, agents,
affiliates, successors, and assigns (collectively, “Indemnified
Party”) against any and all losses, damages, liabilities,
deficiencies, claims, actions, judgments, settlements, interest,
awards, penalties, fines, costs or expenses of whatever kind,
including reasonable attorneys’ fees, incurred by Indemnified
Party arising out of or resulting from: (a) any claim by an end-
user of the Product to whom Customer sells or otherwise
transfers the Product; or (b) any claim by Customer, an end-
user of the Product, or any third-party if such party uses the
Product in a negligent or reckless manner or in any manner not
in strict conformance with any instructions provided by
Company. IN NO EVENT SHALL COMPANY BE LIABLE
TO CUSTOMER OR ANY THIRD PARTY FOR ANY
DIRECT DAMAGES (UNLESS CAUSED BY
COMPANY’S GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT) OR 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 COMPANY HAS BEEN ADVISED OF THE
2
POSSIBILITY OF SUCH DAMAGES, AND
NOTWITHSTANDING THE FAILURE OF ANY AGREED
OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN
NO EVENT SHALL COMPANY’S AGGREGATE
LIABILITY ARISING OUT OF OR RELATED TO THIS
AGREEMENT, WHETHER ARISING OUT OF OR
RELATED TO BREACH OF CONTRACT, TORT
(INCLUDING NEGLIGENCE), OR OTHERWISE,
EXCEED $500.
6. COMPLIANCE WITH LAW. Each party shall comply
with all applicable laws, regulations, and ordinances.
7. TERMINATION. In addition to any remedies that may be
provided under these Terms, Company may terminate this
Agreement with immediate effect upon written notice to
Customer: (a) if Customer (i) fails to pay any amount when
due under this Agreement, (ii) has not otherwise performed or
complied with any of these Terms, in whole or in part, or (iii)
becomes insolvent, files a petition for bankruptcy or
commences or has commenced against it proceedings relating
to bankruptcy, receivership, reorganization or assignment for
the benefit of creditors; or (b) at any time for any reason.
Customer may terminate this Agreement upon written notice
to Company is Company fails to materially perform its
obligations under this Agreement.
8. WAIVER. No waiver by Company of any of the
provisions of this Agreement is effective unless explicitly set
forth in writing and signed by Company. No failure to
exercise, or delay in exercising, any right, remedy, power, or
privilege arising from this Agreement operates or may be
construed, as a waiver thereof. No single or partial exercise of
any right, remedy, power, or privilege hereunder precludes any
other or further exercise thereof or the exercise of any other
right, remedy, power, or privilege.
9. CONFIDENTIAL INFORMATION. All non-public,
confidential or proprietary information of Company, including
but not limited to specifications, samples, patterns, designs,
plans, drawings, documents, data, business operations,
customer lists, pricing, discounts, or rebates, disclosed by
Company to Customer, 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 this Agreement is
confidential, solely for the use of performing this Agreement
and may not be disclosed or copied unless authorized in
advance by Company in writing. Upon Company’s request,
Customer shall promptly return all documents and other
materials received from Company. Company shall be entitled
to injunctive relief for any violation of this Section 9. This
Section 9 does not apply to information that is: (a) in the public
domain; (b) known to Customer at the time of disclosure; or
(c) rightfully obtained by Customer on a non-confidential basis
from a third party.
10. ASSIGNMENT. Customer shall not assign any of its
rights or delegate any of its obligations under this Agreement
without the prior written consent of Company. Any purported
assignment or delegation in violation of this Section 10 is null
and void. No assignment or delegation relieves Customer of
any of its obligations under this Agreement.
11. RELATIONSHIP OF THE PARTIES; NO THIRD-
PARTY BENEFICIARIES. The relationship between the
parties is that of independent contractors. Nothing contained
in this 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. This Agreement is for
the sole benefit of the parties hereto and their respective
successors and permitted assigns and nothing herein, express
or implied, is intended to or shall confer upon any other person
or entity any legal or equitable right, benefit, or remedy of any
nature whatsoever under or by reason of these Terms.
12. GOVERNING LAW. All matters arising out of or relating
to this Agreement are governed by and construed in
accordance with the internal laws of the State of Indiana
without giving effect to any choice or conflict of law provision
or rule (whether of the State of Indiana or any other
jurisdiction) that would cause the application of the laws of
any jurisdiction other than those of the State of Indiana. Any
legal suit, action, or proceeding arising out of or relating to this
Agreement shall be instituted in the state and federal courts
located in the State of Indiana, and each party irrevocably
submits to the exclusive jurisdiction of such courts in any such
suit, action, or proceeding.
13. NOTICES. All notices, requests, consents, claims,
demands, waivers, and other communications hereunder
(each, a “Notice”) shall be in writing and addressed to the
parties at the addresses set forth on the face of the Trial
Confirmation or to such other address that may be designated
by the receiving party in writing. All Notices shall be delivered
by personal delivery, nationally recognized overnight courier
(with all fees pre-paid), facsimile (with confirmation of
transmission), or certified mail (in each case, return receipt
requested, postage prepaid). Except as otherwise provided in
this Agreement, a Notice is effective only (a) upon receipt of
the receiving party, and (b) if the party giving the Notice has
complied with the requirements of this Section 13.
14. SEVERABILITY; AMENDMENT AND
MODIFICATION. If any term or provision of this Agreement
is invalid, illegal, or unenforceable in any jurisdiction, such
invalidity, illegality, or unenforceability shall not affect any
other term or provision of this Agreement or invalidate or
render unenforceable such term or provision in any other
jurisdiction. These Terms may only be amended or modified
in a writing which specifically states that it amends
these Terms and is signed by an authorized representative of
each party