APPLICABILITY. These product trial terms and conditions (these “Terms”) apply to the lease and use 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 (digital invoice processed via Company’s Stripe account) (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.
SECURITY DEPOSIT; PRODUCT TRIAL TERMS; RETURN; FEEDBACK. Upon execution of the Trial Confirmation, Customer shall pay a refundable or transferable 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 a Production Product so that the full Security Deposit can be transferred and 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.
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 communicated in writing by Company, 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 either a) pre-paid shipping label, b) pre-paid box, or c) reimbursement to Customer, for the return of 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).
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.
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 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.
COMPLIANCE WITH LAW. Each party shall comply with all applicable laws, regulations, and ordinances.
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.
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.
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.
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.
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.
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.
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.
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.