GRAVWELL HARDWARE SALES TERMS AND CONDITIONS#

THESE GRAVWELL SALES TERMS (THESE “TERMS”) CONSTITUTE THE ENTIRE AGREEMENT BETWEEN GRAVWELL, INC. (“GRAVWELL”) AND THE CUSTOMER (“CUSTOMER”) IDENTIFIED ON THE APPLICABLE SALES QUOTATION REFERENCING AND INCORPORATING THESE TERMS FOR CUSTOMER’S PURCHASE OF THE GRAVWELL HARDWARE PRODUCT(S) SPECIFIC ON THE SALES QUOTATION (“HARDWARE”). GRAVWELL WILL NOT BE BOUND BY ANY TERMS OF CUSTOMER’S ORDER THAT ARE IN ADDITION TO OR INCONSISTENT WITH THE TERMS HEREIN. ACCEPTANCE BY CUSTOMER OF THESE TERMS WILL BE DEEMED MADE AT THE EARLIER OF CUSTOMER’S (1) ACCEPTANCE OR ACKNOWLEDGMENT OF RECEIPT OF THESE TERMS WITHOUT WRITTEN REJECTION THERETO, (2) PLACEMENT OF A PURCHASE ORDER WITH GRAVWELL THAT REFERS TO A VALID GRAVWELL QUOTATION WHICH QUOTATION REFERENCES THESE TERMS, OR FAILURE TO EXPRESSLY REJECT THESE TERMS IN SUCH PURCHASE ORDER, OR (3) FAILURE TO DELIVER TO GRAVWELL WRITTEN NOTICE OF ITS EXPRESS REJECTION OF THESE TERMS WITHIN FIVE (5) DAYS FOLLOWING RECEIPT OF GRAVWELL’S ORDER ACKNOWLEDGMENT THAT REFERENCES THESE TERMS IF CUSTOMER HAS EXPRESSLY REJECTED THESE TERMS IN THE PURCHASE ORDER PLACED BY CUSTOMER.

  1. Applicability. These Terms apply to all quotations, order forms, purchase orders, and acknowledgments relating to sales of Hardware by Gravwell to Customer. Acceptance of any Customer order by Gravwell is made only on the express condition that these Terms shall govern. Gravwell’s failure to object to provisions contained in any communication from Customer will not be deemed a waiver of any provision herein. Any additional or different terms proposed by Customer are hereby deemed material, are objected to, and are rejected by Gravwell unless specifically accepted in a hand-signed writing by an authorized representative of Gravwell.

  2. Orders

    1. Order Submission by Customer

      1. Sales Quote. With respect to each sale of Hardware, Gravwell will provide a quote for Customer’s purchase of the Hardware (“Sales Quotation”) to Customer containing a description of the Hardware offered to Customer, and the applicable pricing, quantity ordered, delivery destination, estimated shipment date, and other terms. Each order of Hardware will be subject to these Terms and any additional terms expressly contained in the applicable Sales Quotation.

      2. Purchase Orders. Upon Customer’s execution of the Sales Quotation, or Customer’s submission of a purchase order referencing the Sales Quotation, or the parties mutually execution of an order form or similar ordering document referencing the Sales Quotation (in each case, hereinafter, a “Purchase Order”).

    2. Purchase Order Approval. Customer acknowledges that where a Purchase Order is submitted by or on behalf of Customer in response to a Sales Quotation, such Purchase Orders are subject to approval and acceptance by Gravwell, which shall be deemed to occur on the earlier of (a) Gravwell’s written acknowledgement of the Purchase Order, (b) Gravwell’s issuance of an invoice to Customer for the purchase of the Hardware, or (c) the delivery of the Hardware to Customer. All other Purchase Orders shall be deemed accepted and approved upon execution by both parties.

    3. Price Changes. If Customer places an order for Hardware for delivery more than 3 months from the date of the Purchase Order, Gravwell reserves the right, by giving notice to the Customer at any time before delivery, to increase the price of such Hardware that has not been delivered to reflect any increase in the cost to Gravwell which is due to market conditions or any factor beyond the control of Gravwell (including without limitation any foreign exchange fluctuation, currency regulation, alteration of duties, change in legislation, significant increase in the costs of labor, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Hardware which is requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give Gravwell adequate information or instructions.

    4. Cancellations. Purchase Orders may not be cancelled by Customer, except with the agreement in writing of Gravwell, and provided that Customer indemnifies Gravwell in full against all loss (including without limitation loss of profit), costs (including without limitation the cost of all labor and materials used), damages, charges and expenses incurred by Gravwell as a result of cancellation.

    5. Changes. Gravwell reserves the right (but does not assume the obligation) to make any changes in the specifications for the Hardware which are required to conform with any applicable legislation or, where the Hardware is to be supplied to the Customer’s specification, which do not materially affect its quality or performance.

  3. Shipment and Delivery

    1. Shipping Terms. All Hardware will be packed for shipment and delivered using Gravwell’s standard methods for packaging and shipping to Customer or its carrier agent at Gravwell’s facility or its authorized subcontractors’ or distributors’ facilities, (the “Delivery Point”) at which time risk of loss and title will pass to Customer. Gravwell may make partial shipments, to be separately invoiced and paid for when due. Gravwell will use reasonable efforts to meet Customer’s requested delivery schedules for Hardware, but delay in delivery of any installment shall not relieve Customer of its obligation to accept the remaining deliveries. Upon delivery of all or part of any Hardware to the Delivery Point, such sales will be deemed final.

    2. Security. As collateral security for the payment of the Purchase Price (as defined in Section 4.1 below), Customer hereby grants to Gravwell a lien on and security interest in and to all of the right, title, and interest of Customer in, to, and under the Hardware, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Uniform Commercial Code.

    3. Delivery. Delivery dates and Hardware availability as set forth in the Sales Quotation or as otherwise communicated to Customer are estimates only. Gravwell will make reasonable efforts to deliver in accordance with these dates; however, Gravwell will not be liable for failure to deliver as estimated. The Hardware may be delivered by Gravwell in advance of the quoted delivery date by giving reasonable notice to the Customer. Gravwell may deliver the Hardware in separate installments. Customer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Hardware at Customer’s shipping address specified in the Sales Quotation. Customer is responsible for fees associated with not taking timely delivery of the Hardware, such as storage fees.

    4. Inspection.

      1. Customer shall inspect the Hardware within 2 business days of receipt (”Inspection Period”). Customer will be deemed to have accepted the Hardware unless it notifies Gravwell in writing of any Nonconforming Hardware (as defined below) during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Gravwell. “Nonconforming Hardware” means only the following: (i) the product shipped is different than identified in the Sales Quotation; or (ii) the product’s label or packaging incorrectly identifies its contents.

      2. If Customer timely notifies Gravwell of any Nonconforming Hardware, Gravwell shall, in its sole discretion, (i) replace such Nonconforming Hardware with conforming Hardware, or (ii) credit or refund the Purchase Price for such Nonconforming Hardware, together with any reasonable third-party shipping and handling expenses actually incurred and paid by Customer in connection therewith. Customer shall ship, at its expense and risk of loss, the Nonconforming Hardware to the Gravwell facility specified by Gravwell. If Gravwell exercises its option to replace Nonconforming Hardware, Gravwell shall, after receiving Customer’s shipment of Nonconforming Hardware, ship the replaced Hardware to Customer, at Customer’s expense and risk of loss, in accordance with the shipping and delivery terms set forth above in this Section 3.

      3. Customer acknowledges and agrees that the remedies set forth in Section 3.4(b) are Customer’s exclusive remedies for Nonconforming Hardware. Except as provided under Sections 3.4(b) and 7.2, all sales of Hardware to Customer are made on a one-way basis and Customer has no right to return Hardware purchased under these Terms to Gravwell.

  4. Price and Payment Terms

    1. Purchase Price. The purchase price for Hardware (“Purchase Price”) will be as set forth in the applicable Sales Quotation, which is valid for a period of 30 days, or such other period specified therein.

    2. Payment

      1. Invoices. Gravwell will invoice Customer upon acceptance and approval of the applicable Purchase Order as set forth in Section 2.2. The invoice will state the Purchase Price for all Hardware plus any freight, Taxes (as defined below), or other applicable costs paid by Gravwell to be reimbursed by Customer.

      2. Payment Date and Late Payment. Unless otherwise stated in the Sales Quotation, Customer will pay all invoices no later than 30 days after the date of the invoice. If Customer fails to make payment in full on the due date, Gravwell may charge interest on past due amounts at the lesser of 1.5% per month and the highest rate allowed by applicable law.

    3. Taxes. Unless otherwise stated in the applicable Sales Quotation, Purchase Prices do not include, and are net of, any governmental taxes, including but not limited to national, state, or local sales, value added and use taxes, customs duties and other governmental assessments (“Taxes”). If all or any part of any payment owed to Gravwell under these Terms is withheld, based upon a claim that such withholding is required pursuant to the tax laws of any country or its political subdivisions and/or any tax treaty between the U.S. and any such country, such payment shall be increased by the amount necessary to result in a net payment to Gravwell of the amounts otherwise payable under these Terms. Customer will be solely responsible for payment of all such Taxes and will indemnify and hold Gravwell harmless in the event of any claim related to Taxes.

    4. Shipping Fees. Unless otherwise stated in the applicable Sales Quotation, Purchase Prices are exclusive of delivery, packaging, packing, shipping, carriage, and insurance. Where Gravwell is required to arrange shipping and/or insurance, the cost of doing so shall be added to the Purchase Price.

  5. Compliance with Law. Customer shall at all times comply with all laws applicable to this Agreement, Customer’s performance of its obligations hereunder, and Customer’s use of the Hardware. Without limiting the generality of the foregoing, Customer shall (a) at its own expense, maintain all certifications, credentials, licenses, and permits necessary to conduct its business relating to the purchase or use of the Hardware and (b) not engage in any activity or transaction involving the Hardware, by way of shipment, use, or otherwise, that violates any law.

  6. Proprietary Rights.

    1. Gravwell Software and Proprietary Rights. Any and all Gravwell software that is pre-loaded, pre-installed, or otherwise installed or used on or in connection with the Hardware (hereinafter, the “Gravwell Software”) is subject to and governed by the Gravwell Software and Services Agreement available at https://docs.gravwell.io/software-license-agreement.html (the “Software and Services Agreement”) entered into between Gravwell and Customer. Nothing in these Terms conveys or grants to Customer any express or implied rights, licenses, title or interest in or to the Gravwell Software. For as long as any Gravwell Software is installed or deployed on the Hardware, Customer shall keep the Hardware free from all liens, attachments, encumbrances or judicial processes and shall not act, or fail to act, in any manner inconsistent with Gravwell’s rights, title and interest in and to the Gravwell Software, including, but not limited to, not transferring, selling, assigning, sublicensing, pledging, or otherwise disposing, encumbering, or suffering a lien or encumbrance upon or against any interest in the Hardware without Gravwell’s prior written consent. The Customer acknowledges that all intellectual property rights used by or subsisting in the Hardware are and shall remain the sole property of Gravwell or (as the case may be) the applicable third party rights owner.

    2. Third Party Software. The Hardware may contain certain third party software components, including, open source software, which are subject to certain third party licenses (collectively, “Third Party Software”). Such third party licenses are either provided to Customer at the time of sale or are provided to Customer in the form of a click wrap agreement upon deployment of the Hardware. Customer agrees to comply with the terms and conditions of any license or other terms and conditions with respect to the Third Party Software.

  7. Limited Warranty

    1. Limited Warranty. Subject to the terms and conditions herein, Gravwell warrants to Customer that the Hardware will be free from defects in material and workmanship under normal use and service for a period of 5 years from the date of delivery of the Hardware to the Delivery Point (the “Warranty Period”); provided that, for the entire duration of the Warranty Period, Customer maintains an active subscription to the Gravwell Software under the Software and Services Agreement. For the avoidance of doubt, the Warranty Period shall automatically terminate upon any termination or expiration, for any reason: (a) of Customer’s subscription to the Gravwell Software, or (b) of the Software and Services Agreement.

    2. Exclusions. The limited warranty under Section 7.1 does not apply, and Gravwell shall have no responsibility, obligations, or liability of any kind, where the Hardware have been: (a) subjected to abuse, misuse, neglect, negligence, accident, abnormal physical stress or environmental conditions, use contrary to any instructions issued by Gravwell, or improper testing, installation, storage, handling, repair, or maintenance, including, but not limited to, failure to house the Hardware in an environment that meets industry-standard requirements for server equipment, including but not limited to appropriate temperature, humidity, dust control, and physical security; (b) reconstructed, repaired, altered, or serviced by anyone other than Gravwell or its authorized representative; (c) used with any third-party product, hardware, or product that has not been previously approved in writing by Gravwell; (d) damaged or rendered defective by the use of parts not manufactured or sold by Gravwell; or (e) damaged due to electrical surges, fire, flood, excessive heat, or other external events beyond Gravwell’s control.

    3. Remedy. During the Warranty Period: (a) Customer shall notify Gravwell, in writing, of any alleged warranty claim detailing the alleged non-conformance within 30 days from the date Customer discovers, or upon reasonable inspection should have discovered, such alleged claim (but in any event before the expiration of the applicable Warranty Period); and (b) Customer must obtain a Return Material Authorization (”RMA”) from Gravwell and ship the relevant Hardware, Customer’s expense and risk of loss, within 10 days of receipt of the RMA to the Gravwell facility specified by Gravwell for inspection and testing by Gravwell. If Gravwell’s inspection and testing reveals, to Gravwell’s reasonable satisfaction, that such Hardware does not conform with the limited warranty set forth in Section 7.1, Gravwell shall in its sole discretion, and at its expense (subject to Customer’s compliance with this 7), either (i) repair or replace such Hardware, or (ii) credit or refund the Purchase Price of such Hardware less any applicable discounts, rebates, or credits. If Gravwell exercises its option to repair or replace, Gravwell shall ship to Customer, at Gravwell’s expense, the repaired or replacement Hardware. Gravwell shall have no obligation to accept return of any Hardware for which Gravwell has not issued an RMA. Any replacement Hardware will be warranted solely for the remainder of the original Warranty Period and will not extend the original warranty. Customer has no right to return for repair, replacement, credit, or refund any Hardware except as set forth in this 7.3. In no event shall Customer reconstruct, repair, alter, or replace any Hardware, in whole or in part, either itself or by or through any third party. THIS 7.3 SETS FORTH THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND GRAVWELL’S ENTIRE LIABILITY AND OBLIGATION FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN 7.1.

  8. Disclaimer of Warranties

EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY GRANTED IN SECTION 7.1, GRAVWELL AND ITS THIRD PARTY SUPPLIERS DISCLAIM ANY AND ALL, EXPRESS, IMPLIED, OR STATUTORY WARRANTY OF ANY KIND WITH RESPECT TO THE HARDWARE AND DOCUMENTATION, 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 ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. NEITHER GRAVWELL NOR ITS THIRD PARTY SUPPLIERS HAVE AUTHORIZED ANYONE TO MAKE ANY REPRESENTATIONS OR WARRANTIES OTHER THAN AS EXPRESSLY PROVIDED HEREIN. THE HARDWARE IS NOT FAULT TOLERANT AND IS NOT DESIGNED OR INTENDED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, INCLUDING WITHOUT LIMITATION, IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, WEAPONS SYSTEMS, DIRECT LIFE-SUPPORT MACHINES OR ANY OTHER APPLICATION IN WHICH THE FAILURE OF THE HARDWARE COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR PROPERTY DAMAGE (COLLECTIVELY, “HIGH RISK ACTIVITIES”). GRAVWELL EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY AND ANY OTHER LIABILITY FOR HIGH RISK ACTIVITIES.

  1. Liability Limitations

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL GRAVWELL’S CUMULATIVE LIABILITY UNDER THESE TERMS AND CONDITIONS WILL BE LIMITED TO THE AMOUNT PAID FOR THE HARDWARE TO WHICH THE CUSTOMER’S CLAIM RELATES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL GRAVWELL HAVE ANY OBLIGATION OR LIABILITY, WHETHER ARISING IN CONTRACT (INCLUDING WARRANTY), TORT (INCLUDING ACTIVE, PASSIVE OR IMPUTED NEGLIGENCE, STRICT LIABILITY OR PRODUCT LIABILITY) OR OTHERWISE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES, OR FOR ANY LOSS OF USE, LOSS OF DATA, BUSINESS INTERRUPTION, LOSS OF REVENUE, LOSS OF BUSINESS OR OTHER FINANCIAL LOSS ARISING OUT OF OR IN CONNECTION WITH THE SOFTWARE, HARDWARE OR SERVICES FURNISHED TO CUSTOMER BY GRAVWELL, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE PARTIES AGREE THAT THESE LIMITATIONS SHALL APPLY EVEN IF THIS AGREEMENT OR ANY LIMITED REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. CUSTOMER ACKNOWLEDGES AND AGREES THAT GRAVWELL’S AFFILIATES AND SUPPLIERS SHALL NOT HAVE ANY LIABILITY UNDER THESE TERMS.

  1. Confidentiality. All non-public, confidential, or proprietary information of Gravwell, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Gravwell 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 these Terms, is and shall be treated as confidential, and is solely for the Customer’s use of performing its obligations under these Terms and may not be disclosed or copied unless authorized in advance by Gravwell in writing. Upon Gravwell’s request, Customer shall promptly return all documents and other materials received from Gravwell. Gravwell shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) lawfully known to Customer at the time of disclosure; or (c) rightfully obtained by Customer on a non-confidential basis from a third party.

  2. Termination. In addition to any remedies that may be provided under these Terms, Gravwell may terminate this Agreement with immediate effect upon written notice to Customer, if Customer: (a) fails to pay any amount when due under this Agreement and such failure continues for 30 days after Customer’s receipt of written notice of nonpayment; (b) has not otherwise performed or complied with any of these Terms, in whole or in part, and fails to cure such nonperformance or non-compliance within 30 days following Gravwell’s notice to Customer thereof; or (c) 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. Sections 2.4, 2.5, 3, 4, 5, 6, 7.2, 8, 9, 10 and 12 shall survive any expiration or termination of these Terms in accordance with their respective terms.

  3. General Provisions

    1. Assignment. These Terms will bind and inure to the benefit of each party’s permitted successors and assigns. Customer may not assign these Terms, in whole or in part, without Gravwell’s written consent, which may be withheld in Gravwell’s sole discretion. Any attempt to assign these Terms without such consent will be null and void.

    2. Governing Law. These Terms shall be construed in accordance with and governed for all purposes by the laws of the State of California, excluding its choice of law provisions and each party consents and submits to the jurisdiction and forum of the state and federal courts in the Northern District of the State of California for all questions and controversies arising out of this Agreement and waives all objections to venue and personal jurisdiction in such forum for such disputes. The United Nations Convention on Contracts for the International Sale of Goods in its entirety is expressly excluded from this Agreement.

    3. Severability. If any provision of these Terms is found invalid or unenforceable, that provision will be enforced to the maximum extent permissible, and the other provisions of these Terms will remain in force.

    4. Force Majeure. Neither party will be responsible for any failure to perform due to causes beyond its reasonable control (each a “Force Majeure”), including, but not limited to, acts of God, war, riot, embargoes, acts of civil or military authorities, denial of or delays in processing of export license applications, fire, floods, earthquakes, accidents, strikes, fuel crises, labor disputes, shortage of materials, plague, epidemic, pandemic, outbreaks of infectious disease or any other public health crisis, including quarantine or other employee restrictions, provided that such party gives prompt written notice thereof to the other party. The time for performance will be extended for a period equal to the duration of the Force Majeure, but in no event longer than 60 days.

    5. Notices. Unless specified otherwise herein, all notices must be in writing and addressed to the attention of the other party’s legal department and primary point of contact, and will be deemed given: (a) when verified by written receipt if sent by personal courier, overnight courier, or when received if sent by mail without verification of receipt; or (b) when verified by automated receipt or electronic logs if sent by email. When sent by email, notices to Gravwell must be sent to legal@gravwell.io.

    6. Independent Contractors. The parties to these Terms are independent contractors. There is no relationship of partnership, joint venture, employment, franchise, or agency between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.

    7. Waiver. No failure of either party to exercise or enforce any of its rights under these Terms will act as a waiver of such rights.

    8. Export. Customer acknowledges that the laws and regulations of the United States of America and foreign jurisdictions may restrict the export and re-export of certain commodities and technical data of United States of America origin, including the Hardware. Customer agrees that it will not export or re-export the Hardware without the appropriate United States or foreign government licenses or permits.

    9. Entire Terms and Conditions. These Terms and the Software and Services Agreement are the complete and exclusive agreement between the parties with respect to the subject matter hereof, superseding and replacing any and all prior agreements, communications, and understandings (both written and oral) regarding such subject matter. Customer further agrees that all other preprinted terms and conditions (including but not limited to any terms and conditions of any Purchase Order or other document issued by Customer in connection with an order or purchase) are expressly excluded from these Terms and are rejected by Gravwell and are of no force or effect, unless otherwise expressly agreed by an instrument in writing signed by Gravwell. These Terms may only be modified, or any rights under it waived, by a written document executed by both parties.