GENERAL TERMS

        

These General Terms (the “General Terms”), including the Order to which these General Terms are attached, define the relationship of Compology and Customer set forth on the Order and apply to the Subscription Services, the Equipment, and the Support Services (if any) which Customer has purchased from Compology as set forth in the Order.  In addition to these General Terms, all applicable addendum, schedules, and other documents, including Customer’s Order, attached hereto are hereby incorporated herein by reference. The parties understand and agree that addenda, schedules, or other documents signed by the parties and referencing these General Terms for the provision of additional services and products may be entered from time to time during the Term by the parties.

 

1. Defined Terms

Affiliated Entities” means the service providers, licensors, licensees, vendors, and independent contractors of Compology.

Customer Data” shall mean the data collected, used, processed, stored, or generated as the result of Customer’s use of the System.  Customer Data is and shall remain the sole and exclusive property of Customer.

Equipmentmeans the equipment ordered from or provided by Compology as set forth on the Order.

Softwaremeans the object code version of any software to which Customer is provided access as part of the Subscription Services, including any Updates or new versions.

Start Datemeans the first day of the month in which Compology begins billing Customer for the Subscription Services and is set forth in the Order.

Subscription Servicesmeans the proprietary Software which is hosted by Compology and made available to Customer via the Internet and is specified in the Order.

System” means the Subscription Services and the Equipment.

Updates” means any patch, bug fix, release, version, modification, or successor to the Subscription Services.

2. Subscription Services

(a) Right to Use. If Customer purchased Subscription Services, then Compology hereby grants to Customer a limited, nonexclusive, revocable, non-sublicensable, non-assignable, royalty-free, worldwide right to access and use the Subscription Services solely for its internal business operations subject to these General Terms during the Term.  Customer acknowledges that these General Terms are a services agreement and Compology will not be delivering copies of Software to Customer as part of the services provided. Compology shall provide Updates to the Subscription Services to ensure: (a) the functionality of the Subscription Services is available to Authorized Users (as defined below); and (b) the functionality of the Subscription Services in accordance with the description, representations and warranties set forth herein.  The Subscription Services includes unlimited storage for Customer’s Data used in connection with the Subscription Services. Although Compology and its Affiliated Entities may offer other products and services that complement or work in conjunction with the Subscription Services, no rights are granted to such products and services unless expressly set forth herein.

(b) Authorized Users.  Subject to these General Terms, Compology grants Customer a nonexclusive, non-assignable, royalty-free, and worldwide right for 50 authorized users (each, an “Authorized User”) to access and use the Subscription Services.  Customer shall be solely responsible for the acts and omissions of the Authorized Users when using the Subscription Services and Compology shall not be liable for any loss of data or functionality, and in Customer’s network or systems, caused directly or indirectly by an Authorized User.  Customer shall inform each Authorized User that such Authorized User is subject to these General Terms and is responsible for ensuring that its employees, independent contractors, and Authorized Users comply with these General Terms. Company shall have no obligation to provide support, other services, or other remedies to any Authorized User except as set forth herein.  Although Authorized Users will have access to the Subscription Services, only Customer is entitled to any of the rights, remedies or benefits under these General Terms. Customer is likewise subject to, and Compology may enforce against Customer, all of the covenants, obligations, restrictions, limitations, acknowledgements, consents, representations, warranties, waivers and releases included in these General Terms.  Customer may delegate certain rights and administrative responsibilities to one or more of its employees or agents, but Customer remains responsible for all activity occurring hereunder.

(c) Log-In Information; Access.  Compology will provide Customer with usernames and passwords (“Log-In Information”) which enable each Authorized User to access and use the Subscription Services.  Log-In Information may be used only by the assigned Authorized User and may not be transferred or shared without Compology’s consent.  Customer and each Authorized User are responsible for maintaining the confidentiality of the Log-In Information and are responsible for all activities occurring under such Log-In Information.  Customer shall take reasonable steps to prevent unauthorized access to the Subscription Services, including without limitation by protecting its Log-In Information and Customer shall immediately notify Compology of any unauthorized use of an Authorized User’s Log-In Information or any other breach of security with respect to Log-In Information.      

(d) Control and Location of Services.  The method and means of providing the Subscription Services shall be under the control, management, and supervision of Compology and its Affiliated Entities, giving due consideration to the requests of Customer.  Compology, or its Affiliated Entities, will host and maintain the Subscription Services, subject to Section 4(c) and Section 6 herein. Compology, and its Affiliated Entities, will remotely review and monitor all use of the Subscription Services to provide the Subscription Services to Customer and to ensure compliance with these General Terms.  Compology, and its Affiliated Entities, may use tools, scripts, software, metadata analysis and utilities (collectively, the “Tools”) to monitor and administer the Subscription Services and to help resolve Customer’s service requests.  Information collected by the Tools may be used to assist in managing Compology’s, and its Affiliated Entities’, product and service portfolio, to help Compology, and its Affiliated Entities, address deficiencies in its product and service offerings, and for license and Subscription Services management.

(e) Prohibitions on Use. Customer shall use the Subscription Services only for lawful purposes in connection with its business and in accordance with the instructions provided by Compology and solely for Customer’s internal business purposes.  In using the Subscription Services, Customer agrees not to engage, directly or indirectly, in any of the following prohibited actions: (a) use or launch any automated system, including without limitation, “robots,” “spiders,” “offline readers,” or other methods that access the Subscription Services in a manner that sends more messages to the servers than a human interaction can reasonably produce; (b) use any portion of the Subscription Services as a destination linked from any unsolicited bulk or unsolicited commercial messages; (c) attempt to interfere with or compromise the integrity or security of the Service or decipher transmissions to or from the servers running the Subscription Services or attempt to collect or harvest any personally identifiable information and account names from the Subscription Services; (d) intentionally upload viruses, worms, or other software agents through the Subscription Services; (e) conduct fraud, hide or attempt to hide Customer’s (or an Authorized User’s) identity; or (f) bypass the measures that Company may use, consistent with these General Terms Agreement, to restrict access to the Subscription Services.

(f) RestrictionsCustomer shall not, and shall not permit anyone to: (a) copy or republish the Software or the Subscription Services, (b) make the Subscription Services available to any person other than Authorized Users, (c) use or access the Subscription Services to provide service bureau, time-sharing or other computer hosting services to third parties, (d) modify or create derivative works based upon the Subscription Services, (e) remove, modify or obscure any copyright, trademark or other proprietary notices contained in the software used to provide the Subscription Services or on the Equipment, (f) reverse engineer, decompile, or disassemble the System, (g) access the Subscription Services in order to build a similar product or competitive product, (h) license, sell, rent, lease, transfer, sublicense, or grant any rights in or commercially exploit the Subscription Services in any form to any other party or attempt to do any of the foregoing or cause or permit any third party to do or attempt to do any of the foregoing. except as expressly permitted herein; or (i) engage in or authorize any copying, reselling or distribution of the Subscription Services except as expressly permitted herein.

(g) Functionality of Subscription Services. Compology may upgrade, modify, replace, or reconfigure the Subscription Services at any time provided that any such revision shall not materially reduce the functionality of the Subscription Services.  [If any such revision, upgrade, modification, replacement, or reconfiguration materially reduces the functionality or availability of the Subscription Services, Customer may terminate these General Terms without cause within thirty (30) days of the effective date of such revision, upgrade, modification, replacement, or reconfiguration.]  Notwithstanding the above, upon twenty (20) days prior written notice, Company may withdraw a product, service, or Software from the market. If Compology adds new functions or new features to the Subscription Services, such functionality or new features shall be available to Customer; provided that additional fees may be applicable for such increased functionality or new features.  During the Term, the Compology Services Network (as defined below) may undergo changes caused by either Compology or Compology’s Affiliated Entities. Such changes may require Company to purchase new or supplemental hardware (e.g., Equipment) and/or software upgrades hereunder to continue receiving the Subscription Services. Any failure to purchase such new or supplemental hardware and/or software upgrades may limit Customer’s ability to continue receiving the Subscription Services and may constitute a material default under these General Terms.

(h) Not Applicable.  If Customer did not purchase Subscription Services from Compology as set forth in the Order, then this Section 2 is not applicable.

3Equipment

Customer shall purchase the minimum number of Equipment specified on any Order.  The purchase of such Equipment may be financed by Compology, in its sole discretion, pursuant to a separate agreement with Customer.  At any time during the Term and at Compology’s sole discretion, Compology may, at no charge to Customer replace or substitute any Equipment used by or for Customer with new or different Equipment of any brand, model or version, from any source or manufacturer, provided that such replacement or substitute equipment provides like features and functionality.

4. Technical Support

(a) Technical Support.  Authorized Users may request technical support regarding the Subscription Services via electronic mail at support@compology.com twenty-four (24) hours per day, seven (7) days per week.  Compology shall respond to such requests within twenty-four (24) hours. Compology will deliver Updates to the Subscription Service at no additional charge. Compology will use commercially reasonable efforts to keep the Subscription Services available via website access on a twenty-four (24) hours per day, seven (7) days per week basis, subject to occasional scheduled downtime for maintenance purposes during non-working hours and downtime for unforeseen maintenance and service upgrades for short periods of time.  Customer shall provide access, information, and support as Compology may reasonably require in the process of resolving any failure in the Subscription Services to function in accordance with the description, representations, and warranties set forth herein.

(b) Support ExclusionsCompology is not obligated to provide support to the extent such support is needed for support was created in whole or in part by:

(i) the acts, omissions, negligence or willful misconduct of Customer or Authorized Users, including any unauthorized modifications of the Subscription Services or its operating environment?

(ii) any failure or defect of Customer’s, an Authorized User’s, or a third party’s equipment, Software, facilities, third party applications, or internet connectivity (or other causes outside of Compology’s firewall)?

(iii) Customer’s or an Authorized User’s, use of the Subscription Services other than in accordance with the Subscription Service’s documentation? or

(iv) a force majeure event as set forth in Section 14(c) below.

(c) Availability; Accessibility; Connectivity.

(i) Compology does not guarantee network availability between Customer and Compology’s hosting servers, as such availability can involve numerous third parties and is beyond the control of Compology.  Compology will not be liable for any downtime in the Subscription Services caused in whole or part by a third party data center provider nor for any downtime that Customer experiences as a result of Customer or its Authorized Users’ own network connectivity issues.  If Customer experiences a Subscription Services outage and is unable to access the Subscription Services, Customer must immediately contact Compology’s help desk, providing any/all necessary information that may assist Compology in determining the cause of the outage.

(ii) Compology’s provision of the Subscription Services hereunder utilizes third party network services, such as communications networks (e.g., Internet Service Providers, cellular carriers, GPS satellites). When using the Subscription Services, data is transmitted through, and Compology configures and manufactures its Equipment and Software based upon, such networks (the “Compology Software Network”). Compology is not liable for any outages or breaks in coverage in the Compology Services Network that cause the Subscription Services to be unavailable.  The Subscription Services will not be available to any Equipment is installed or located in an area that is not covered by the Compology Software Network

5. Services

Compology may provide the Subscription Services Training, Installation Services, Support Services, or Professional Services set forth below to Customer as provided in the Order or upon Customer’s written request (collectively, the “Services”).  The fees and prices for such Services are set forth on the Order.

(a) Subscription Services TrainingCompology will provide initial Subscription Services training within 10 business days of the Start Date (“Subscription Services Training”). 

(b) Installation ServicesCustomer shall purchase the installation services specified on the Order which shall consist of either Tech Days or Installation Management Services (collectively, the “Installation Services”).  The method and means of planning, scheduling and performing the required Installation Services shall be under the control, management, and supervision of Compology and its Affiliated Entities, giving due consideration to any requests from the Customer.  Compology will recommend a strategy to the Customer that balances work speed, management overhead and cost based on Customer preferences. If no preference is provided, Compology will optimize the Installation Services for speed of completion. Customer grants Compology the right to modify its containers or other property for the purpose of installing, moving and maintaining the Equipment. This includes, but is not limited to drilling multiple holes, using bolts or rivets and adding markings, such as stickers, painted numbers or other unique identifiers to the containers. In certain circumstances the physical design or condition of containers may require Compology to modify the container structure or form factor. Before making such modifications Compology will get approval from Customer.  If any containers or vehicles into which Equipment will be installed are not owned by Customer, Customer shall be responsible for obtaining permission for the installation of the Equipment into such containers or vehicles.

(i) Tech DaysTech Days” are days when Compology’s technicians visit Customer’s locations, sites, and facilities to install the Equipment and set up the Subscription Services.  The estimated number of Tech Days needed for installation of the Equipment is based on the number of installations to be performed at Customer’s various locations, sites, and facilities and will be set forth in the Order.  The agreed upon number of Tech Days must be used consecutively with appropriate pauses for weekends and holidays. If the number of Tech Days in insufficient to complete installation of all Equipment, Customer may purchase additional Tech Days at the prices then in effect.

(ii) Installation Management ServicesInstallation Management Services” includes training of Customer’s personnel on proper installation and activation procedures for the Equipment and coordinating with Customer’s personnel to ensure an efficient, high-quality installation of Equipment by Customer’s personnel.  

(c) Support ServicesCompology will provide support services to repair, maintain, or service the Equipment as needed or requested by Customer (“Support Services”).  In general, Compology will complete Customer’s requested action within three business days of receiving the request from Customer via email at support@compology.com or via the in app Intercom.  In the case where the action cannot be completed within five days, Compology will work jointly to develop a suitable arrangement for executing the action.  Customers may request expedited next day service by contacting Compology Support before 3:00 pm PST with their request via email at support@compology.com or via the in app Intercom.  Based on installation location, volume of work, required schedule or any other consideration Compology may decline to provide Support Services for specific requests or projects.

(d) AccessCustomer shall provide commercially reasonable information and assistance to Compology to enable Compology to provide Support Services.  Such information and assistance shall include, but not be limited to (i) access to Customer’s software systems to the extent necessary to install and deploy the Subscription Services and (ii) a contact person with the qualifications necessary to assist in the deployment and ongoing use of the Subscription Services and any Support Services provided to Customer.  If any Compology personnel performing Support Services (“Service Technician”) are unable to access or locate the Equipment needing such Support Services, such Service Technician will call the phone number indicated for the Customer contact when making the request for Support Services.  If the Service Technician is unable to make contact with the Customer contact within 20 minutes, the Service Technician will vacate Customer’s premises and the requested Support Services will not be performed. Customer will be charged the fees the in effect, or agreed to in advance with Customer when the Support Services were requested, for all Support Services requested but not completed because the Service Technician was unable to locate or access the Equipment requiring such Support Services.

(e) Professional ServicesCompology personnel are available for special projects and consulting services.  The terms and conditions of engagements will be defined separately.

6. Customer Assistance; Requirements

Customer acknowledges that Compology’s ability to deliver the Subscription Services and Support Services in the manner provided in these General Terms depends upon the accuracy and timeliness of the information provided by Customer.  Customer is solely responsible for providing, installing and maintaining at its own expense all equipment, facilities and services necessary, including to enable the Authorized Users to access and use the Subscription Services, including without limitation, all computer hardware and software, network system, communication service, wiring, communication lines and internet access.  Customer acknowledges that to function properly, the System requires a dedicated, high- speed (1 MB/sec minimum) Internet service.

7. Ownership

Subject to the limited rights granted herein, Compology, and as applicable its Affiliated Entities, shall own all right, title and interest, including all copyright, patent, trademark, trade secret rights, and other intellectual property rights therein, in (i) the System, (ii) any deliverables provided by Compology to Customer in connection with the System, and (iii) any modifications, improvements, derivatives, Updates, upgrades, releases, and versions of the System and such deliverables, and all copies, in any form, of all or any part thereof (“Compology Property”), including, any feedback, suggestions made by Customer, or input provided by a Customer, Authorized User, or any person permitted access to the Compology Property which are incorporated into subsequent versions of the Compology Property.

8. Customer Data

(a) Use of Customer DataSubject to the terms of these General Terms, Customer hereby grants to Compology a limited, non-exclusive license to copy, collect, process, store, generate, and display the Customer Data to the extent necessary to provide the Subscription Services and to monitor and improve the performance of the System.  

(b) Aggregate DataCompology shall use Aggregate Data to provide analytics, information, forecasts, extrapolations, and projections to Customer, its Affiliated Entities, and others.   Compology may use, reproduce, sell, publicize, or otherwise exploit such Aggregate Data in any way, in its sole discretion. “Aggregate Data” means and includes information gathered from Customer Data that is aggregated and anonymized to remove personally identifiable information.

(c) Data Security

(i) Without limiting Compology’s obligation of confidentiality as described herein, Compology shall establish and maintain a data privacy and information security program, including physical, technical, administrative, and organizational safeguards, that is designed to: (A) ensure the security and confidentiality of the Customer Data; (B) protect against any anticipated threats or hazards to the security or integrity of the Customer Data; (C) protect against unauthorized disclosure, access to, or use of the Customer Data; (d) ensure the proper disposal of Customer Data; and, (D) ensure that all employees, agents, and subcontractors of Compology, if any, comply with all of the foregoing

(ii) As a part of the Subscription Services, Compology shall maintain a backup of Customer Data for an orderly and timely recovery of such data in case the Subscription Services are interrupted    In the event of any act, error or omission, negligence, misconduct, or breach by Compology that comprises or is suspected to compromise the security, confidentiality, or integrity of Customer Data or the physical, technical, administrative, or organizational safeguards put in place by Compology that relate to the protection of the security, confidentiality, or integrity of Customer Data, Compology shall, as applicable: (i) notify Customer as soon as practicable; (ii) cooperate with Customer in investigating the occurrence; and (iii) perform or take any other actions required to comply with applicable law as a result of the occurrence.

9. Pricing and Payment

(a) FeesCustomer shall be responsible for and shall pay to Compology the fees set forth in the Order during the Term.  Any sum due to Compology for the Subscription Services and Equipment for which payment is not otherwise specified in the Order shall be due and payable upon Customer’s receipt of Compology’s invoice.  Unless otherwise set forth in these General Terms or the Order, all fees are non-refundable. Any terms and conditions set forth in any Customer purchase order shall be for convenience only and shall not be binding upon the parties.   Any amounts not paid when due shall bear interest at the rate of one and one half percent (1 ½%) percent per month, or the maximum legal rate if less. Fees are exclusive of any taxes, levies, or duties imposed by taxing authorities and Customer is responsible for payment of all such taxes, levies, or duties.

(b)  Suspension for Non-PaymentCompology reserves the right to suspend access to or delivery of the Subscription Services and/or provision of any Equipment or Support Services if Customer fails to timely pay any amounts due to Company under these General Terms.  

(c) Minimum CommitmentThe Subscription Services are provided for the minimum commitment specified on any Order and the pricing provided to Customer is based on such minimum commitment (the “Minimum Commitment”).  Such Minimum Commitment may include, but is not limited to, the Initial Term, a defined geographic area, the Services to be provided, and/or the number of Authorized Users, pieces of Equipment, containers, vehicles, or other particulars.  Customer may add to or increase the Minimum Commitment set forth in any Order, but may not decrease such Minimum Commitment without the prior written consent of Compology. Any such increases or additions to the Minimum Commitment shall be set forth in writing in an amended or additional Order and the fees for such additions or increases shall be the fees then in effect.  

10. Term, Termination and Renewals

(a) TermThe term of these General Terms shall begin on the Start Date and continue for the duration of the Term specified on the Order (the “Initial Term”). Following the Initial Term, these General Terms shall automatically renew for successive renewal terms which are equal in length to the Initial Term (each a “Renewal Term” and together with the Initial Term the “Term”) until such time as either party provides the other party with written notice of termination delivered at least sixty (60) days prior to the last day of the then current Term.

(b) Termination for CauseEither party may terminate these General Terms immediately if the other party materially breaches any of its duties or obligations hereunder and such breach is not cured, or the breaching party is not diligently pursuing a cure to the non-breaching party’s sole satisfaction, within thirty (30) calendar days after written notice of the breach by the non-breaching party.

(c) Termination for InsolvencyIf either party (i) files for bankruptcy, (ii) is declared insolvent, or is the subject of any proceedings related to its liquidation, insolvency or the appointment of a receiver or similar officer for it, (iii) makes an assignment for the benefit of all or substantially all of its creditors, or (iv) enters into an agreement for the composition, extension or readjustment of substantially all of its obligations, then the other party may, by giving written notice to the first party, terminate these General Terms as of a date specified in such notice; provided, however, that neither party shall have the right to terminate these General Terms so long as the other continues to perform without interruption or a noticeable diminution in its performance hereunder.

(d) Effect of TerminationUpon the termination of these General Terms, (i) Customer shall pay to Compology all undisputed amounts due and payable hereunder, if any; (ii) Compology shall cease providing the Subscription Services and; and (iii) Customer agrees to remove and return all Compology property (f any) from Customer’s premises, containers, and vehicles on a schedule agreed to  by Compology. Any Equipment owned by Customer and installed on Customer’s premises may continue to transmit information and data to Compology unless Customer removes such Equipment. If these General Terms are terminated for any reason other than as set forth in Section 10(a) or (b), then all fees payable for the remainder of the then current Term shall become immediately due and payable.

(e) SurvivalSections 1, 7, 8(b), 10, 11, 12, 13, and 14 shall survive any termination or expiration of these General Terms.

11. Confidential Information

(a) Confidential Information.  For the purposes of these General Terms, the term “Confidential Information” shall mean all information and documentation of a party that:  (a) has been marked “confidential” or with words of similar meaning, at the time of disclosure by such party; (b) if disclosed orally or not marked “confidential” or with words of similar meaning, was subsequently summarized in writing by the disclosing party and marked “confidential” or with words of similar meaning; or (c) should reasonably be recognized as confidential information of the disclosing party.  Customer Data shall be treated by Compology as Confidential Information) The term “Confidential Information” does not include any information or documentation that was: (i) already in the possession of the receiving party without an obligation of confidentiality; (ii) developed independently by the receiving party, as demonstrated by the receiving party, without violating the disclosing party’s proprietary rights; (iii) obtained from a source other than the disclosing party without an obligation of confidentiality; or, (iv) publicly available when received, or thereafter became publicly available (other than through any unauthorized disclosure by, through, or on behalf of, the receiving party).   

(b) Nondisclosure of Confidential InformationThe parties agree to hold all Confidential Information in strict confidence and not to copy, reproduce, sell, transfer, or otherwise dispose of, give or disclose such Confidential Information to third parties other than employees, agents, or subcontractors of a party who have a need to know in connection with these General Terms or to use such Confidential Information for any purposes whatsoever other than the performance of these General Terms.  The parties agree to advise and require their respective employees, agents, and subcontractors of their obligations to keep all Confidential Information confidential. The receiving party may disclose Confidential Information of the other party, including Customer Data, to the extent such disclosure is required by law or order of a court of other governmental authority; provided that the receiving party shall use reasonable efforts to promptly notify the disclosing party prior to such disclosure to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure.

(c) Remedies for Breach of Obligation of ConfidentialityEach party acknowledges that breach of its obligation of confidentiality may give rise to irreparable injury to the other party, which damage may be inadequately compensable in the form of monetary damages.  Accordingly, a party may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies which may be available.

12. Representations and Warranties

Each of Customer and Compology represent and warrant that (a) it is a business duly incorporated, validly existing, and in good standing under the laws of its state of incorporation; (b) it has all requisite corporate power and authority to execute, deliver, and perform its obligations under these General Terms; and (c) the execution, delivery, and performance of these General Terms has been duly authorized by it and these General Terms constitute the legal, valid, and binding agreement of it and is enforceable against it in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganizations, moratoriums, and similar laws affecting creditors’ rights generally and by general equitable principles.

13. Disclaimers: Warranty; Indemnification; Limitation of Liability

(a) Equipment Warranty.  Compology warrants that for a period of one year from the date of purchase by Customer the Equipment will be free from manufacturing defects.  Compology shall, at its option and at its expense (and as Customer’s sole and exclusive remedy for breach of any warranty), repair, replace or issue a credit for any Equipment found to have a manufacturing defect during the warranty period.   Performance of the Equipment will be monitored by Compology such that Compology is able to (i) notify Customer of faulty Equipment; or (ii) dispatch its Service Technician to investigate the nature of any fault with any Equipment. The warranty provided herein is non-transferrable.

(i) All warranty obligations will cease upon the earlier of the expiration of the warranty period set forth above or the return (at Customer’s request) of any defective Equipment. ALL CLAIMS FOR BREACH OF WARRANTY MUST BE RECEIVED BY COMPOLOGY NO LATER THAN THIRTY (30) DAYS AFTER THE EXPIRATION OF THE WARRANTY PERIOD.

(ii) Opening, modifying any enclosure, casing, or other protective covering on any Equipment, tampering with any Equipment, changing the functionality of any Software installed with the Equipment, installing any Equipment in a non-authorized manner will void the warranty.  Compology is not responsible for and does not warrant against any Equipment that has been damaged caused by the environment, negligence, misuse, vandalism or theft. Damaged Equipment or Equipment which is lost, missing, misplaced, or stolen will be replaced by Compology and Compology will bill the Customer for the cost of such replaced Equipment and any Services provided by Compology to replace or install such Equipment.

(b) Disclaimers.  EXCEPT AS EXPLICITLY SET FORTH HEREIN, THE SYSTEM IS DELIVERED “AS IS,” AND COMPOLOGY MAKES NO REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE AND NON-INFRINGEMENT.  CUSTOMER ACKNOWLEDGES THAT CUSTOMER IS RESPONSIBLE FOR DETERMINING THE APPROPRIATENESS OF THE SYSTEM FOR CUSTOMER’S INTENDED APPLICATION AND USE. COMPOLOGY DOES NOT WARRANT THAT THE SYSTEM WILL OPERATE ERROR FREE AND WILL NOT BE LIABLE FOR CORRUPTION OR ERASURE OF CUSTOMER DATA TRANSMITTED OR RECEIVED OR STORED ON ANY THIRD PARTY OR INTERNET SERVICE PROVIDER SYSTEM WHICH IS BEYOND ITS CONTROL.  COMPOLOGY WILL NOT BE LIABLE TO CUSTOMER FOR ANY CLAIMS, LOSSES OR DAMAGES WHICH MAY BE SUFFERED BY CUSTOMER RESULTING FROM THE LOSS OF CUSTOMER DATA, INABILITY TO ACCESS THE INTERNET, OR INABILITY TO TRANSMIT OR RECEIVE INFORMATION, CAUSED BY DELAYS, NON-DELIVERY, OR SERVICE INTERRUPTIONS DUE TO CIRCUMSTANCES NOT IN THE DIRECT CONTROL OF COMPOLOGY SUCH AS, BUT NOT LIMITED TO, CUSTOMER’S EQUIPMENT CAPABILITIES, TELECOMMUNICATIONS FAILURES OR INTERNET SERVICE PROVIDER LIMITATIONS  OR FAILURES.  

(c) Indemnification.

(i) Mutual Indemnification.  Subject to the limitations set forth in this Section 13, each party agrees to indemnify and save harmless the other party, its officers, directors, agents, and employees from and against any and all liabilities, damages, losses, expenses, claims, demands, suits, fines or judgments (each a “Claim” and collectively, the “Claims”), including, reasonable attorneys’ fees, costs, and expenses incidental thereto, arising from (a) any breach of their respective representations or warranties or covenants under these General Terms; or (b) bodily injury (including death) or damage to tangible personal or real property; provided however the foregoing indemnity set forth in this  Section 13(c)(i) shall not apply to the extent that the applicable Claim results from the acts or omissions of any of the party seeking indemnification.

(ii) Proprietary Rights Indemnification.  Compology agrees to indemnify, defend, and hold harmless Customer from and against any and all Claims, including reasonable attorneys’ fees, costs, and expenses incidental thereto, which may be suffered by, incurred by, accrued against, charged to, or recoverable from Customer, by reason of, arising out of or relating to a Claim that the Subscription Services infringe or misappropriate any patent, copyright, trade secret, trademark, or other proprietary right.  Compology shall have no liability for any claim based on any modification of the Subscription Services not authorized by Compology, or use of the Subscription Services other than in accordance with these General Terms. If any Claim is made, or in Compology’s reasonable opinion is likely to be made, Compology may, at its sole option and expense, procure for Customer the right to continue use of the Subscription Services, modify the Subscription Services in a manner that does not materially impair the functionality, or terminate these General Terms and repay to Customer prepaid fees for Subscription Services not yet provided.  

(iii) Indemnification Procedures.  A party seeking indemnification under this section shall (A) promptly notify the other party of the Claim, provided that failure to give or delay in giving such notice shall not relieve the indemnifying party of any liability it may have to the other party except to the extent that the defense of the Claim is prejudiced thereby; (B) give the indemnifying party sole control of the defense and settlement of the Claim; and (C) reasonably cooperate with the indemnifying party in defending against or settling a Claim; provided, however, that the indemnifying party shall reimburse such party for all reasonable out-of-pocket costs incurred by the other party (including, without limitation, reasonable attorneys’ fees and expenses) in providing such cooperation.

(d) Limitation of LiabilityNOTWITHSTANDING ANY OTHER PROVISION SET FORTH HEREIN, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, AND / OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST PROFITS, DATA, OR USE OF THE SYSTEM, INCURRED BY EITHER PARTY OR ANY THIRD PARTY IN CONNECTION WITH THESE GENERAL TERMS; PROVIDED, HOWEVER, THAT THE FOREGOING EXCULPATION OF LIABILITY SHALL NOT APPLY WITH RESPECT TO DAMAGES INCURRED AS A RESULT OF THE WILLFUL MISCONDUCT OF A PARTY.  NEITHER PARTY’S AGGREGATE LIABILITY FOR DAMAGES UNDER THESE GENERAL TERMS, WHETHER BASED ON AN ACTION OR CLAIM IN CONTRACT, EQUITY, NEGLIGENCE, TORT, OR OTHERWISE FOR ALL EVENTS, ACTS, OR OMISSIONS UNDER THESE GENERAL TERMS SHALL NOT EXCEED THE FEES PAID OR PAYABLE UNDER THESE GENERAL TERMS DURING THE TWELVE (12) MONTHS PRECEDING THE DATE OF THE CLAIM.

14. General

(a) Relationship of Parties. The parties are independent contractors under these General Terms and no other relationship is intended, including a partnership, franchise, joint venture, agency, employer/employee, fiduciary, master/servant relationship, or other special relationship.  Neither party shall act in a manner which expresses or implies a relationship other than that of independent contractor, nor bind the other party.

(b) Governing Law.  These General Terms shall for all purposes be governed by and interpreted in accordance with the laws of the State of California and the parties agree to submit to the non-exclusive jurisdiction of the state and federal courts in the Northern District of California.  The United Nations Convention for the International Purchase and Sale of Goods shall not apply.

(c) Force Majeure; Excused Performance.  Neither party shall be liable for delays or any failure to perform the Services or these General Terms due to causes beyond its reasonable control.  Such delays include, but are not limited to, fire, explosion, flood or other natural catastrophe, governmental legislation, acts, orders, or regulation, strikes or labor difficulties, to the extent not occasioned by the fault or negligence of the delayed party.  Any such excuse for delay shall last only as long as the event remains beyond the reasonable control of the delayed party. However, the delayed party shall use its best efforts to minimize the delays caused by any such event beyond its reasonable control. The delayed party must notify the other party promptly upon the occurrence of any such event, or performance by the delayed party will not be considered excused pursuant to this section, and inform the other party of its plans to resume performance.

(d) No Waiver. The failure of either party at any time to require performance by the other party of any provision of these General Terms shall in no way affect that party’s right to enforce such provisions, nor shall the waiver by either party of any breach of any provision of these General Terms be taken or held to be a waiver of any further breach of the same provision.

(e) Notices.  All notices, requests, demands and other communications hereunder shall be effective if in writing and delivered personally or sent by electronic mail, Federal Express or other priority delivery service, or by certified or registered mail, postage prepaid, to the applicable party at the addresses indicated on the signature page of these General Terms.  Unless otherwise specified herein, such notices or other communications shall be deemed effective (a) on the date delivered, if delivered personally, (b) two (2) business days after being sent, if sent by Federal Express or other priority delivery service, (c) on the date of delivery if delivered sent by electronic mail during normal business hours of the recipient and on the next business day if after normal business hours of the recipient, and (d) five (5) business days after being sent, if sent by registered or certified mail.  Either party may specify another address by giving notice as provided in this Section 14(e) to the other party. A copy of all notices sent to Compology shall be sent to Alisa Won, Esq., Sideman & Bancroft LLP, One Embarcadero Center, Twenty-Second Floor, San Francisco, California 94111, and electronic mail (awon@sideman.com).

(f) Assignment of Agreement.  Neither party may assign its rights or obligations hereunder without the prior consent of the other party; provided however that, a party may assign these General Terms in connection with a merger or acquisition of the assigning party, to an entity that acquires all or substantially all of the assigning party’s assets or its business that is the subject hereof, or to any subsidiary or parent company.

(g) Counterparts;  These General Terms may be executed in two or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument.  These General Terms shall become binding when one or more counterparts, individually or taken together, shall bear the signatures of all the parties. Each counterpart may be delivered by e-mail (as a .pdf, .tif or similar attachment), which transmission shall be deemed delivery of an originally executed counterpart hereof.

(h) Entire Agreement; Amendment.  These General Terms and its attached exhibits constitute the entire agreement between the parties and supersede any and all previous representations, understandings, or agreements between Customer and Compology as to the subject matter hereof.  Regardless of the preceding sentence, the parties understand and agree that any non-disclosure agreement entered by the parties prior to the Effective Date shall remain in full force and effect. Any waiver, amendment or other modification of any provision of these General Terms will be effective only if in writing and signed by the parties.

(i) Severability.  If for any reason a court of competent jurisdiction finds any provision of these General Terms to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of these General Terms will continue in full force and effect.

(j) Publicity. Each party may use the other party’s name or mark, identify the business relationship between parties and/or share business metrics, such as Compology’s service benefits, on their respective websites and/or marketing materials.