LICENSEE’S INSTALLATION AND USE OF THE SOFTWARE/HARDWARE CONSTITUTES LICENSEE’S CONSENT TO BE BOUND BY THE LICENSE AGREEMENT (“AGREEMENT”) WITH BALANCE INNOVATIONS, LLC (“BALANCE INNOVATIONS”) SET FORTH BELOW. IF YOU ARE ACCESSING THIS SITE ON BEHALF OF A COMPANY OR CORPORATION, YOU REPRESENT AND AFFIRM THAT YOU HAVE THE AUTHORITY TO DO SO AND TO AGREE TO THE AGREEMENT ON BEHALF OF SUCH COMPANY; IN SUCH INSTANCE, THE TERM “LICENSEE” INCLUDES YOUR COMPANY, ITS AFFILIATES, AND THE OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES OR AGENTS OF ANY OF THEM.
1. Definitions. Capitalized terms not otherwise defined herein shall have the meanings set forth in this Section 1.
1.1 Affiliate. “Affiliate” means any entity controlled by, controlling, or under common control with a party to this Agreement.
1.2 Commencement Date. “Commencement Date” means the date on which the License Key is initially activated for a Licensed Software Installation.
1.3 Computer. “Computer” means a single-user PC system that is owned or operated by Licensee, is located at a Premises and on or with which the Licensed Software operates.
1.4 Derivative Work. “Derivative Work” means a work that is based upon the Licensed Software, such as a translation, or any other form in which the Licensed Software may be recast, transformed or adapted (including, without limitation, adaptations, elaborations, or other Modifications) which, as a whole, represents an original work of authorship, including, but not limited to, any revisions of the Licensed Software that use substantially the same or a recognizably similar audio/visual presentation or computer code(s) as used in the Licensed Software, including Updates, Releases, Versions and Modifications.
1.5 Documentation. “Documentation” means user manuals, Release notes, imbedded help, operating instructions and other information and materials provided by Balance Innovations to Licensee in written or electronic form relating to the installation, use and operation of the Licensed Software.
1.6 Error. “Error” means a verifiable and reproducible error, failure, malfunction, nonconformity or defect in the Licensed Software or the Documentation.
1.7 Hardware. “Hardware” is defined in Section 15 of this Agreement, and Hardware terms and conditions are found in Section 15.
1.8 License Key. “License Key” means the software security code generated by Balance Innovations at the time of each Licensed Software Installation.
1.9 Licensed Software. “Licensed Software” includes the following items delivered to Licensee by or on behalf of Balance Innovations, its contractors, VARs or agents hereunder: (a) the software provided by Balance Innovations, including all Derivative Works thereof, in whatever form (but excluding the source code version); (b) the Documentation; (c) all enhancements, Versions, Releases, Modifications, Updates, additions, translations, compilations, and other related software or documentation; and (d) all software, code, documentation, methods, or other items developed by Balance Innovations pursuant to a Statement of Work between Balance Innovations and Licensee.
1.10 Licensed Software Installation. A “Licensed Software Installation” occurs when the Licensed Software is installed at a Premises on one Computer and the License Key for that Licensed Software is initially activated by Balance Innovations.
1.11 Licensee. “Licensee” means the individual, organization or entity that is the grantee of the license described herein, and any subsidiaries, parent corporations, or affiliates controlled by or under common control with such grantee and any officers, directors, managers, employees or agents of any of them.
1.12 Modifications. “Modifications” means any change, improvement, enhancement, addition or translation (to other languages or other hardware or software environments) to or of the Licensed Software, or any Derivative Work based upon the Licensed Software or any software or Documentation in whole or in part based upon the Licensed Software and made by Balance Innovations, its contractors or agents hereunder. The current Modification Level is designated by a number (M) in the Licensed Software released to the Customer (e.g. Version v.r.M.u). Modifications are created within the current major Release level.
1.13 Order. “Order” means a written order for Licensed Software and/or services and/or hardware submitted to Balance Innovations by Licensee pursuant this Agreement.
1.14 Premises. “Premises” means: i) the place at which Licensee maintains its principal office, situated at the address set forth above; and ii) any other location(s) which Licensee uses for its own and/or its Affiliate store operations for which Licensee has received aLicense Key.
1.15 Professional Services. “Professional Services” means the services, if any, provided pursuant to any separate Statements of Work agreed by the parties, pursuant to Addendum C.
1.16 Release. "Release" means a new edition of the Licensed Software, which contains new functions or features. The current Release Level is designated by a number (R) in the Licensed Software released to the Customer (e.g. Version v.R.m.u). Releases are created within the current major Version level.
1.17 Statement of Work. “Statement of Work” or “SOW” means a narrative description of products and services to be supplied as part of a project by Balance Innovations to Licensee.
1.18 Update. “Update” means any change or addition that, when made or added to the Licensed Software, fixes bugs and may provide functionality enhancements, but does not change the overall utility or functional capability. The current Update Level is designated by a number (U) in the Licensed Software released to the Customer (e.g. Version v.r.m.U). Updates are created within the current major Release level.
1.19 Value Added Remarketer. “Value Added Remarketer” or “VAR” means the entity, if any, identified on the cover page of this Agreement and authorized by Balance Innovations to provide Licensee with product information, order assistance, training and installation, and Level 1 and 2 Software Support and Maintenance Services hereunder in lieu of Balance Innovations personnel.
1.20 Version. "Version" means an adaptation of the Licensed Software that contains substantial and significant changes in functionality or performance as compared to the previous version (if any), and which is designated by Balance Innovations by a number (X) on the left of the decimal point (e.g. Version X.1). The current Version Level is designated by a number (V) in the Licensed Software released to the Customer (e.g. Version V.r.m.u).
2. Grant of License
2.1 General License Rights. Subject to the terms and conditions set forth herein, Balance Innovations hereby grants to Licensee, as of the Commencement Date and for the agreed-upon period of time thereafter, a non-exclusive, non-transferable, revocable license to use the Licensed Software provided under this Agreement in any machine-readable form (i.e., not including source code) as follows:
a. to install one copy of the Licensed Software only on Computers owned or controlled by Licensee in each Premises for which Licensee has paid the appropriate fees; b. to use the Licensed Software solely to process the internal data of the Licensee at a Premises for Licensee’s business purposes for so long as all use of the Licensed Software is restricted to the number of Premises for which Licensee has paid the appropriate fees. Notwithstanding the foregoing, the Licensed Software may be used by Licensee on a substitute Computer at any Premises where the Computer on which the Licensed Software was installed is inoperative, or a Computer on which the Licensed Software is installed may be moved to a different Premises. The Licensee may be required to obtain a new License Key before the Licensed Software will be operative on a substitute computer or moved to a different Premises;
c. to use the Documentation in support of Licensee’s authorized use of the Licensed Software; and
d. to allow Licensee’s authorized employees and third party consultants, accountants and bookkeepers to Use the Licensed Software in support of Licensee’s operations so long as Licensee ensures that such use of the Licensed Software is in accordance with the terms of this Agreement.
2.2 Licensee acknowledges that certain third-party code may be provided with the Licensed Software and that the license terms accompanying such third party code will govern its use.
2.3 Restrictions. Licensee acknowledges that Licensee’s breach of any of the following restrictions shall constitute a material breach of this Agreement, entitling Balance Innovations to the right of immediate termination of this Agreement along with other rights it may have in law or equity. Licensee agrees that it shall not and shall not allow third parties to:
a. Copy or use or display the Licensed Software or Documentation except as specified in this Agreement;
b. Use the Licensed Software for third-party training, commercial time-sharing or service bureau use;
c. Allow access to the Licensed Software or the Documentation through Computer(s) located outside of any Premises, without Balance Innovations’ prior written consent;
d. Cause or permit the reverse engineering, decompilation, alteration, modification, disassembly, or translation of the Licensed Software, including creation of Derivative Works or combined works of/from the Licensed Software;
e. Request or permit anyone other than Balance Innovations, its authorized contractors, VARs or agents to provide any Support and Maintenance or Professional Services with respect to the Licensed Software;
f. Manipulate, alter or contaminate the data processed by the Licensed Software in any manner which may adversely affect the operations or results of the Licensed Software;
g. Rent, lease, lend, sell, give, sublicense, assign, pledge or otherwise provide or transfer the Licensed Software or Computer(s) on which the Licensed Software is installed to others without prior written consent of Balance Innovations; or
h. Copy, other than for its own internal use and distribution, the Documentation, without the express prior approval of Balance Innovations.
3. Licensee Obligations
3.1 Licensee shall be obligated to:
a. Ensure that the Licensed Software is used in a proper manner and only by competent, trained employees or by persons under their supervision;
b. Cooperate fully with Balance Innovations’ personnel and authorized contractors, remarketers and agents in the performance of the Maintenance and Support Services;
c. Secure and protect the Licensed Software in a manner consistent with the maintenance of Balance Innovations’ rights therein and to take appropriate action by instruction or agreement with its employees or contractors who are permitted access to the same to satisfy its obligations hereunder.
4. Orders and Shipment
The terms of this Agreement shall apply to all Orders submitted to Balance Innovations and supersede any different or additional terms on Licensee’s purchase orders. Licensee shall identify the Premises, Licensed Software and requested unit quantities, unit descriptions, requested Licensed Software Installation dates and other similar information. All Orders are subject to acceptance by Balance Innovations.
5. Professional Services
Balance Innovations’ Professional Services are available to Licensee upon request and based upon availability from Balance Innovations pursuant to a Statement of Work and Balance Innovations’ standard terms and conditions.
6. Charges, Payment and Taxes
6.1 License and Use Fees. For every license granted hereunder, Licensee shall pay the agreed upon price as stated in the Order. No credit on any fees shall be given Licensee for Premises that are closed or Computers that are unavailable temporarily or permanently; however, Computers that have the Licensed Software installed may be moved to different Premises with written notice to Balance Innovations.
6.2 Payment Terms. The pricing of all components and payment terms are set forth in the Order.
6.3 Failure to Pay
a. Licensee understands that, in the event payments are not made when due, access to the Licensed Software may be discontinued. If Licensee subsequently requests reinstatement of such services, Licensee must first pay all past due amounts, including any fees, charges or expenses incurred on Licensee’s behalf by Balance Innovations, whether previously invoiced or not, together with interest thereon as provided above, before services are reinstated.
b. Should Licensee fail to make any payment when due, Licensee shall indemnify Balance Innovations for expenses incurred in enforcing its rights of payment hereunder, including without limitation, costs of collection and reasonable attorney’s fees, plus default interest equal to the maximum statutory interest permitted by law, until the amounts are finally paid, computed on a daily basis.
7. Verification and Reporting
7.1 Licensee authorizes Balance Innovations, upon reasonable notice to Licensee, to enter any of Licensee’s Premises in order to inspect Licensee’s use of the Licensed Software -- including the right, upon reasonable notice to Licensee, to audit Licensee’s Computers, computer systems, the Licensed Software, and any other equipment or records of Licensee relating to Licensee’s use of the Licensed Software and Premises additions and changes -- to determine Licensee’s compliance with the terms and conditions of this Agreement. Any such inspection and/or audit shall be conducted during regular business hours at Licensee’s facilities and shall not unreasonably interfere with Licensee’s business activities. If an inspection/audit reveals that Licensee has underpaid fees to Balance Innovations, Licensee shall be invoiced for such underpaid fees. Audits shall be conducted no more than once in each 12-month period, beginning on the Commencement Date, for each Licensee Premises.
8.1 Ownership. Notwithstanding anything herein to the contrary, Licensee acknowledges and agrees that, as between Licensee and Balance Innovations, all right, title and interest in and to the Licensed Software, including without limitation all copyright, patent, and trade secret rights in the Licensed Software, is and shall remain in and with Balance Innovations.
8.2 Versions, Releases, Modifications and Updates. Balance Innovations may make available periodic Versions, Releases, Modifications and Updates to the Licensed Software to Licensee at no additional charge, provided Licensee has paid all amounts due as herein provided, and Licensee: i) is using the current Release or one of the two previous Releases of the Licensed Software; and ii) has provided Balance Innovations with either a copy of Licensee’s current point of sale operating system or the ability to test against such point of sale system; and iii) Licensee has notified Balance Innovations of any changes to such point of sale system that may affect the Licensed Software prior to implementation of the changes.
9. Disclaimer of Warranty
9.1 LICENSEE ACCEPTS THE SITE AND THE MATERIALS "AS IS," WITH ANY ERRORS AND DEFECTS. BALANCE INNOVATIONS MAKES NO EXPRESS OR IMPLIED WARRANTY OF ANY KIND WITH RESPECT TO THE SITE OR THE MATERIALS, AND SPECIFICALLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT.
10. Limitation of Liability
10.1 IN NO EVENT SHALL BALANCE INNOVATIONS BE LIABLE FOR PAYMENT OF ANY SPECIAL, INCIDENTAL, DIRECT, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR FOR THE LOSS OF PROFITS, GOODWILL, BUSINESS OPPORTUNITIES, USE OR REVENUE, WHETHER IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE) IN WARRANTY OR OTHERWISE, RESULTING FROM ITS PERFORMANCE UNDER THIS AGREEMENT, OR THE USE OF THE LICENSED SOFTWARE, INCLUDING, BUT NOT LIMITED TO DAMAGES ARISING FROM LOSS OF DATA OR PROGRAMMING, FAILURE TO REALIZE SAVINGS OR OTHER BENEFITS, AND DAMAGES TO EQUIPMENT, EVEN IF BALANCE INNOVATIONS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BALANCE INNOVATIONS’ TOTAL LIABILITY UNDER THIS AGREEMENT FOR ANY REASON, WHETHER IN TORT, CONTRACT, WARRANTY OR OTHERWISE, SHALL BE LIMITED ACTUAL DAMAGES NOT TO EXCEED TO THE AMOUNT ACTUALLY PAID BY LICENSEE TO BALANCE INNOVATIONS DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE OF THE EVENT GIVING RISE TO THE LIABILITY. NOTWITHSTANDING THE FOREGOING, IF SUCH LIABILITY ARISES AS THE RESULT OF THE FAILURE OR MALFUNCTION OF THE LICENSED SOFTWARE AT A PARTICULAR PREMISES, BALANCE INNOVATIONS’ LIABILITY SHALL BE LIMITED TO AMOUNTS PAID TO BALANCE INNOVATIONS IN RESPECT OF THAT SPECIFIC PREMISES FOR THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE OF THE EVENT GIVING RISE TO THE LIABILITY, AND SHALL NOT INCLUDE OTHER AMOUNTS PAID BY LICENSEE TO BALANCE INNOVATIONS DURING THAT PERIOD.
10.2 Licensee acknowledges that the Licensee has the final responsibility to review the functioning and suitability for Licensee's purposes of the Licensed Software and any changes supplied by Balance Innovations. Balance Innovations will not be liable for damages for configuration errors for hardware or software other than the Licensed Software. Licensee acknowledges that it is responsible for ensuring that proper backups of the Licensed Software and data are performed; that Licensee is responsible for the complete configuration of computer hardware and non-Balance Innovations software necessary to perform Licensee’s functions; and that Licensee is responsible to ensure correctness of data entry and that proper security procedures are in place for Licensee’s operations.
11.1 “Confidential Information” includes (a) the Licensed Software; (b) Balance Innovations’ proprietary hardware; (c) the terms and pricing under this Agreement; (d) any information disclosed in oral form, if identified as confidential at the time of disclosure; (e) any information of either party regarding: (i) computer software; (ii) computer hardware or systems; (iii) product or service information, product development plans, product strategy and product delivery systems; (iv) marketing information, including, without limitation, lists of potential or existing customers or suppliers, marketing plans and surveys; (v) financial and sales information; and (vi) business plans, policies, procedures and information; (f) information that the recipient knows or should know is confidential; (g) Trade Secrets of either party; and (h) all information clearly identified as confidential. This Confidentiality clause supersedes and replaces any previous Non-Disclosure Agreements between the parties hereto.
11.2 Obligations. Each party agrees: (i) to maintain Confidential Information confidential and not to disclose any of it to any third party without prior written permission of the disclosing party; (ii) to exercise the same degree of care and precautions that it employs with respect to its own confidential information, to prevent unauthorized disclosure of the Confidential Information; (iii) to instruct its employees or other persons allowed such access to comply with this Agreement; (iv) not to use Confidential Information for the benefit of anyone other than the disclosing party; and (v) that the Confidential Information remains the property of the disclosing party.
11.3 Exclusions. Neither party shall be obligated or required to maintain in confidence any information that: (i) was in the receiving party’s lawful possession prior to the disclosure and had not been obtained by the receiving party either directly or indirectly from the disclosing party; (ii) is independently developed by the receiving party without use of Confidential Information; or (iii) is required by law to be disclosed; provided, however, that the receiving party shall inform the disclosing party of such disclosure order and allow the disclosing party to object to such disclosure. Nothing in this Agreement precludes Balance Innovations from using any ideas, concepts, know-how, or techniques related to Licensee’s technology that are retained in the unaided memories of Balance Innovations’ employees with access to Licensee’s Confidential Information, provided that the employee has not intentionally memorized the Confidential Information for the purpose of retaining and subsequently using or disclosing it, but subject to any valid patents and copyrights of Licensee.
11.4 Licensed Software. Except as provided for in this Agreement, Licensee, its employees, or agents will not permit access to any Licensed Software including but not limited to Licensed Software listings, object code, manuals, Documentation or source code, in any form, without prior written consent from Balance Innovations, and then only under the following conditions: i) limited to Licensee’s employees who have a need to know and Licensee’s permission to view the Licensed Software and to contractors or agents of Licensee who have entered into confidentiality and non-disclosure agreements; and ii) for purposes specifically related to Licensee’s authorized use of the Licensed Software. Balance Innovations may include security modules in the Licensed Software to protect its license rights; and Licensee will not, and will not allow others to, modify, disable or remove such security modules.
12. Term and Termination
a. Unless terminated earlier pursuant to this Section 12, this Agreement shall continue so long as Licensee is current in payment of all applicable fees.
12.2 Termination for Breach
a. Balance Innovations may terminate this Agreement or any Licensed Software license hereunder effective upon thirty (30) days’ written notice to Licensee if Licensee commits any material breach of this Agreement that remains uncured during such notice period.
b. In the event of a threatened or actual breach by Licensee of Sections 2, 3 or 11 of this Agreement, monetary damages alone shall not be an adequate remedy, and Balance Innovations shall be entitled to injunctive, equitable, and other legal relief against such breach as may be awarded by a court of competent jurisdiction plus reasonable expenses (including attorneys’ fees and costs).
c. Licensee may terminate this Agreement or any license granted hereunder effective upon thirty (30) days’ written notice to Balance Innovations if Balance Innovations commits any material breach of this Agreement and fails to correct the breach or take reasonable action toward correcting the material breach within sixty (60) days of receipt of notice thereof. In the event of early termination permitted by this Section 12.2(c), Licensee shall be entitled to a refund of a pro-rata portion of the Annual Use Fee paid by Licensee for the year of such termination applicable to the time from the date of termination until the end of the period covered by the Annual Use Fee. Authorized copies of Licensed Software may be retained by Licensee and used subject to the terms of this Agreement.
12.3 Early Termination by Licensee. Except pursuant to Section ¬¬¬¬¬12.2(c), early termination by Licensee is not permitted.
12.4 Termination of Software Support and Maintenance Services
a. Balance Innovations reserves the right, upon ninety (90) days’ prior written notice, to terminate Software Support and Maintenance Services provided by BI Services for Licensed Software under this Agreement if:
(i) Balance Innovations ceases to make the Licensed Software commercially available;
(ii) Balance Innovations ceases generally to support the Licensed Software;
(iii) Licensee: i) is not using the current Release or one of the two previous Releases of the Licensed Software; or ii) has not provided Balance Innovations with either a copy of Licensee’s current operating system or the ability to test against such operating system; or iii) Licensee made changes to such operating system but has not notified Balance Innovations of any such changes that may affect the Licensed Software prior to implementation of the changes;
(iv) Licensee dissolves, or by order of a court of competent jurisdiction is directed to be dissolved;
(v) Licensee becomes bankrupt or has a receiver or manager appointed over any or all of its assets and such action either: i) results in the nonpayment of post petition Initial License Fees, Annual Fees or other properly invoiced amounts; or ii) results in a change of control of Licensee; or
(vi) Licensee sells or transfers or discontinues using the Computers on which the Licensed Software is installed.
b. In the event Balance Innovations ceases to support the current and one previous Release of the Licensed Software in any year this Agreement is in effect, Balance Innovations shall refund to Licensee, on a pro rata basis, the Annual Use Fee paid by Licensee for that year applicable to the time period during which such support is no longer available.
12.5 Effect of Termination
a. Except as noted herein, the Licensee shall not be entitled to a refund of any fees paid or a credit for any amounts due and payable under this Agreement.
b. Except for termination pursuant to Section 12.2(c), termination of this Agreement or any license granted under this Agreement shall not discharge Licensee from liability to Balance Innovations for payments due or otherwise owed or accumulating late fees. Licensee shall remain liable for the payment of all Initial License Fees and Annual Fees for the full Initial Term and/or full Renewal Term(s), as applicable.
c. Upon termination of this Agreement or any license granted hereunder, except as set forth in Section 12.2(c) above, Licensee agrees to promptly cease using and return to Balance Innovations upon written request, the original and all copies of the Licensed Software, whether in whole or in part, in any form, including partial copies and Versions, Releases, Modifications and Updates, and provide Balance Innovations with a written certificate signed by an officer of Licensee certifying that the Licensed Software and all such items described above have been returned to Balance Innovations, or destroyed, at Balance Innovations' option.
d. Termination of this Agreement or any license granted under this Agreement shall not discharge Licensee from liability for the protection of Balance Innovations’ proprietary rights or Confidential Information; nor shall termination limit either party from pursuing other remedies available to it, including injunctive relief. The parties’ rights and obligations under Sections 2.3, 4, 6, 7, 8.1, and 9 – 15 shall survive and continue after termination or expiration of this Agreement and shall bind the parties and their legal representatives, successors and permitted assigns.
12.6 No election of any remedy shall be construed as a waiver of or prohibition against any other remedy in the event of a breach hereunder.
13. Transfer and Assignment
13.1 This Agreement and any rights or obligations under this Agreement may not be assigned or otherwise transferred by Licensee without written consent of Balance Innovations. Notwithstanding the foregoing, Balance Innovations may transfer this Agreement, upon written notice to Licensee, pursuant to an acquisition, merger or other transfer of all or substantially all of the assets or operations of Balance Innovations. Further, Balance Innovations shall have the right to subcontract its duties hereunder. The rights and obligations of this Agreement shall bind and benefit any successors or assigns of the parties.
13.2 Any permitted transfer of the Licensed Software by Licensee shall not relieve Licensee of its obligations to Balance Innovations under this Agreement, and Licensee shall cause the transferee to assume in writing all obligations of the Licensee under this Agreement.
13.3 Transfer of this Agreement due to a change in control shall not affect payments due or otherwise owed by either party to the other.
14.1 Governing Law. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Kansas, without regard to conflict of laws principles.
14.2 Export Laws and Regulations. Licensee shall not export outside the United States, directly or indirectly, any products or related information without prior written consent of Balance Innovations.
14.3 Force Majeure. Balance Innovations shall not be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of strikes, shortages, riots, insurrection, fires, flood, earthquake, storm, explosions, acts of God, war, governmental action, labor conditions, material shortages, or any other cause beyond the reasonable control of such party.
14.4 Modifications to Agreement. Modifications and amendments to this Agreement shall be enforceable only if they are in writing and are signed by authorized representatives of both parties. In the event that the parties enter into a written Master Agreement, the Master Agreement shall control any conflicts between this Agreement and the Master Agreement
14.5 Waiver. No term or provision of this Agreement shall be deemed waived and no breach excused unless such waiver or consent is in writing and signed by the party claimed to have waived or consented. A waiver by either of the parties of any of the covenants, conditions or agreements to be performed by the other hereunder shall not be construed to be a waiver of any succeeding breach thereof.
14.6 No Agency. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture or other form of joint enterprise between the parties.
14.7 Headings. The headings in this Agreement are for reference purposes only and shall not be construed as a part of this Agreement.
14.8 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument. A facsimile, imaged, or electronic copy of this Agreement (including the electronic, facsimile or imaged signatures of the parties’ representatives thereon) shall for all purposes be deemed equivalent to an original (including the original signatures of the parties’ representatives thereon).
14.9 Notices. All notices, demands or consents required or permitted hereunder shall be in writing and shall be delivered by overnight delivery, facsimile (with confirmation copy by mail), or mailed by certified mail, return receipt requested, to the respective parties. Notice to Balance Innovations shall be sent to 11011 Eicher Drive, Lenexa, KS 66219. Notice to Licensee shall be sent to the address contained in the Order, or at Licensee’s principal place of business. Notice to either party shall be made at such other address as a party may from time to time specify. Such notices and other communications shall be deemed effective upon the earliest to occur of (i) five days after mailing, addressed and postage prepaid, return receipt requested, as aforesaid, (ii) one (1) business day after transmission by overnight delivery, or (iii) the day of receipt where receipt has been confirmed.
14.10 Severability. If any term or provision of this Agreement shall be held to be invalid, illegal or unenforceable in any respect or in any jurisdiction, such provision shall be limited and construed in such jurisdiction as if such invalid, illegal or unenforceable term or provision were not contained herein.
14.11 Entire Agreement. This Agreement, and any additional written Addenda subsequently executed by both parties, and any and all documents incorporated by reference herein, constitutes the complete, final and exclusive understanding between parties with respect to the subject matter hereof and supersedes and cancels any prior agreements or understandings between the parties relating to the subject matter hereof.
15. Hardware. If you purchase Hardware from Balance Innovations, the following terms and conditions apply to the hardware purchase and sale:
15.1 “Hardware” is defined as: i) the hardware manufactured by or for Balance Innovations that bears the Balance Innovations logo (“Logo Hardware”); and ii) other manufacturers’ hardware that is marketed by Balance Innovations (“OEM Hardware”). Logo Hardware may contain Licensed Software that is licensed to Licensee under the terms of the Master Agreement.
15.2 The terms of this Section 15 shall apply to all Orders submitted to Balance Innovations and supersede any different or additional terms on Licensee’s purchase orders. Licensee agrees to submit orders for Hardware in writing, stating the quantities and descriptions of Hardware required, applicable purchase prices and license fees, requested delivery dates and billing/shipping instructions. Balance Innovations, in its sole discretion, may accept or reject any order.
15.3 Balance Innovations’ Hardware quotations constitute an offer to sell Hardware upon these Terms and Conditions. Balance Innovations’ prices for Hardware may change from time to time, at Balance Innovations’ discretion. Hardware prices do not include shipping, handling, installation or insurance charges, which Licensee agrees to pay.
15.4 The Hardware Price quoted shall be paid by Licensee as follows: a) fifty percent (50%) of the Total Price attributable to Hardware upon placement of the order; and b) the remainder invoiced upon shipment of Hardware to Licensee.
15.5 Delivery. Balance Innovations shall make reasonable efforts to ship on or before the scheduled shipping date(s) reflected on Balance Innovations’ acknowledgment and/or invoice, but cannot be liable for any damages or penalties for delay in delivery or for failure to give notice of delay. Balance Innovations may ship Licensee’s order in one or more installment(s), which Licensee agrees to accept and pay for. Balance Innovations will pack all Hardware for shipping in accordance with standard commercial practices. All Hardware shall be shipped to Licensee F.O.B. point of shipment. Licensee is responsible for dealing with the carrier in the event of misdelivery, loss or damage; however, Balance Innovations will provide reasonable support to Licensee for any claims. Except for returns provided for under the Warranty provisions of this Agreement, Balance Innovations will not accept returns of Hardware, nor provide any allowance, credit or discount for Hardware Licensee may wish to return.
15.6 Inspection by Licensee. Licensee shall inspect all deliveries of Hardware as they are received and report to Balance Innovations within ten (10) calendar days after receipt any error, shortage, defect or nonconformity. Failure to so inspect and report shall constitute a waiver by Licensee of any claim or right against Balance Innovations with respect to any such error, shortage, defect or nonconformity.
15.7 Title. Licensee grants to Balance Innovations a security interest in the Hardware until final payment for the Hardware plus all related expenses and charges, including import duties and insurance, if applicable, have been paid to Balance Innovations. In order to perfect Balance Innovations’ security interest, Licensee agrees to execute all instruments that Balance Innovations, as the secured party, is required to file, or determines to be necessary to perfect or protect its security interest, in compliance with the Uniform Commercial Code (“UCC”) of any state or federal law. Payment in full of the Hardware price and related expenses noted in Section 3.1 will release the security interest on that Hardware. Notwithstanding the conveyance of title to the Hardware, in no event will title to the Licensed Software be conveyed to Licensee.
15.8 Warranty of OEM Hardware. The warranties and remedies for OEM Hardware are provided directly by the manufacturer and are passed through by Balance Innovations to the extent authorized. BALANCE INNOVATIONS DOES NOT PROVIDE ANY WARRANTIES FOR OEM HARDWARE AND HEREBY DISCLAIMS, ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY BALANCE INNOVATIONS, OR ITS RESELLERS OR OTHER DISTRIBUTORS OR CONTRACTORS WILL CREATE A WARRANTY OR INCREASE THE SCOPE OF THIS WARRANTY.
15.9 Limited Warranty of Logo Hardware. Balance Innovations warrants only to Licensee that Logo Hardware will be free of material defects and will function, under conditions of normal use, in accordance with the Documentation, for a period of thirty-six (36) months from the date of shipment (the “Warranty Term”). This warranty does not apply to any: a) OEM Hardware; b) Licensed Software; c) consumables; d) Hardware damaged by abuse, accident, act of God, misuse, misapplication, improper installation or shipment; or e) failures resulting from interconnection to products not supplied by Balance Innovations or from services not performed by Balance Innovations; or f) Licensee's failure to purchase all necessary Hardware and related Licensed Software. THEFOREGOING WARRANTY IS IN LIEU OF, AND BALANCE INNOVATIONS DISCLAIMS, ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY BALANCE INNOVATIONS, OR ITS RESELLERS OR OTHER DISTRIBUTORS OR CONTRACTORS WILL CREATE A WARRANTY OR INCREASE THE SCOPE OF THIS WARRANTY.
15.10 Warranty Service. FOR LOGO HARDWARE THAT DOES NOT COMPLY WITH THE ABOVE WARRANTY, LICENSEE’S EXCLUSIVE REMEDY, AND BALANCE INNOVATIONS’ ENTIRE LIABILITY, SHALL BE LIMITED TO BALANCE INNOVATIONS’ WARRANTY SERVICE, AS DESCRIBED IN THIS SECTION 15. Logo Hardware that does not comply with the above warranty and is returned by Licensee to Balance Innovations during the Warranty Term (as shown by appropriate documentation) will be repaired or replaced at Balance Innovations’ option, at no cost to Licensee. Warranty Service for Logo Hardware will consist of telephone support to determine the problem and replacement or repair of Hardware. Licensee will pay for freight and insurance to ship Logo Hardware returned to Balance Innovations, and Balance Innovations will pay for freight and insurance to ship repaired or replacement Logo Hardware to Licensee; provided, however, that if returned Logo Hardware is found not to be defective, Licensee will be responsible for all costs of freight and insurance associated with returning such Logo Hardware to Balance Innovations, as well as that associated with shipping returned or replacement Logo Hardware to Licensee. Logo Hardware returned by Licensee must be in the original, or substantially similar, packaging and container.
15.10.1 Any Logo Hardware returned by Licensee for exchange becomes Balance Innovations’ property and its replacement becomes the Licensee’s property. Replacement Hardware may not be new but will be in working order and equivalent to the item exchanged. The warranty period for the replacement Hardware shall be the longer of ninety (90) days from the date of repair or replacement or the remaining unexpired Hardware warranty period. Licensee agrees to ensure that returned Hardware sent to Balance Innovations is free of any legal obligations or restrictions that prevent its exchange and represents that all returned items are genuine and unaltered. If Balance Innovations cannot, or determines that it is not practical to, repair or replace the returned product, the price therefor paid by Licensee will be credited and applied to future orders. This Agreement will be deemed amended by the parties to maintain current item description and serial numbers of Balance Innovations Logo Hardware if replacement or credit for returned products occurs.
5.10.2 Where applicable, before Balance Innovations provides Warranty Service, Licensee agrees to: a) follow the problem determination, problem analysis, and Warranty Services request procedures that Balance Innovations provides; b) secure all programs and data contained in Hardware; and c) inform Balance Innovations of changes in the Hardware's location.
15.13 Support for or replacement of any Logo Hardware damaged due to incidents not covered by Warranty, such as accident, neglect, misuse, force majeure, or failure to provide suitable operating environment, including, but not limited to, appropriate power surge protectors, will be billed to Licensee on a time and materials basis. Post warranty services may be available at Balance Innovations' then-current prices.
15.14 Cancellation: Hardware orders canceled by Licensee after three (3) days from the date the Order is placed are subject to a cancellation charge of fifteen percent (15%) of the net value of the canceled portion of the order. Orders of non-standard products or special product configurations are not cancelable.
15.15 LIMITATION ON BALANCE INNOVATIONS’ LIABILITY WITH RESPECT TO ALL HARDWARE. LICENSEE ACKNOWLEDGES THAT NO GUARANTEES OR ASSURANCES HAVE BEEN MADE AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE HARDWARE OR SERVICES PROVIDED HEREUNDER. LICENSEE ACKNOWLEDGES THAT IT DOES NOT RELY ON, AND WAIVES ANY CLAIM RELATING TO, ANY RECOMMENDATION OR INSTRUCTION GIVEN TO LICENSEE BY BALANCE INNOVATIONS OR ANY OF ITS REPRESENTATIVES REGARDING THE SPECIFICATION, STORAGE, HANDLING OR USE OF HARDWARE PURCHASED AND SOLD HEREUNDER, WHICH RECOMMENDATION OR INSTRUCTION SHALL BE FOLLOWED BY OR ACTED UPON BY LICENSEE ENTIRELY AT LICENSEE’S OWN RISK. IT IS THE SOLE AND EXCLUSIVE RESPONSIBILITY OF LICENSEE TO DETERMINE THE SUITABILITY OF ANY AND ALL HARDWARE FOR LICENSEE’S INTENDED PURPOSES AND USES. BALANCE INNOVATIONS SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY DAMAGE TO OR DEFECT IN HARDWARE RESULTING DIRECTLY OR INDIRECTLY FROM EVENTS OCCURRING AFTER THE SHIPMENT OF SUCH HARDWARE BY BALANCE INNOVATIONS. LICENSEE ACKNOWLEDGES THAT BALANCE INNOVATIONS, ITS CONTRACTORS, VARS AND AGENTS, WILL NOT BE LIABLE FOR ANY DAMAGES, WHETHER DIRECT, SPECIAL, CONSEQUENTIAL OR OTHERWISE, TO LICENSEE OR TO ANY THIRD PARTY FOR THE FAILURE TO DELIVER HARDWARE OR FOR ANY DELAY OR ERROR IN DELIVERY OF LICENSED SOFTWARE OR FOR ANY OTHER DELAY EVENT WHATSOEVER.