Terms and Conditions
Updated 10.09.24
CUSTOMER PURCHASE AGREEMENT
This Customer Purchase Agreement (“Agreement”) is entered into by and between TFWD, LLC, a Nevada limited liability company, located at 400 South 4th Street, Suite 650, Las Vegas, Nevada 89101, on behalf of itself and its affiliates (“TFWD”), and the business entity listed in Customer Information Table below (“Customer”). TFWD and Customer may also be referred to individually as a “Party” or collectively as the “Parties.” This Agreement is effective on the date the last Party executes the Agreement (the “Effective Date”).
TFWD is a company that sells technology and communication Products and Services in consideration of the mutual covenants and agreements contained herein; TFWD desires to sell Products and Services to Customer and Customer desires to purchase Products and Services from TFWD, subject to the terms and conditions set forth below; and The purpose of this Agreement is to define the relationship between TFWD and Customer; and provide the specific terms and conditions relative to that relationship.
TERMS AND CONDITIONS
Definitions. Capitalized terms used in this Agreement shall have the meanings set forth in this Section or as otherwise defined in the text of the Agreement.
“Commitment” means the permissible data usage purchased as set forth in an Order.
“Hardware” means handsets, mobile phones, tablets, data devices, routers, accessories and other equipment or devices that enables mobile communication and that are supplied by TFWD or TFWD Authorized supplier to Customer pursuant to an Order. For purposes of clarity, the term “Hardware” (a) includes any items owned, manufactured or provided by or through a party other than TFWD, but that are sold or supplied by or through TFWD under this Agreement; and (b) excludes Software.
“Loss” or “Losses” means any and all claims, demands, actions, suits, proceedings, counteractions, causes of action, investigations, damages, losses, liabilities, fines, penalties, settlement payments, indemnification and contribution payments, costs and expenses, including attorneys’ fees and disbursements and costs and expenses of investigation, defense and settlement of claims, demands, actions, suits, proceedings, counteractions, causes of action and investigations and appeal of decisions or judgments rendered therein or with respect thereto
“Products” means technology and communication products, including Hardware, that are sold by TFWD pursuant to an Order and that are subject to a one-time payment from Customer.
“Quote” means a TFWD-supplied quotation.
“Quote Number” shall mean a unique quote number or other means of identifying a specific valid and binding Quote.
“Services” means technology and communication solutions and services, including, without limitation, wireless data and connectivity services, that are marketed sold by TFWD (itself, or in its capacity as a sales agent or reseller) pursuant to an Order that are subject to recurring charges due from Customer.
“Software” means the software, firmware, middleware and applications licensed by or through TFWD to Customer pursuant to an Order, whether embedded within Hardware, or for integration or use with other equipment, hardware, software or Products. For purposes of clarity, the term “Software” (a) includes any items owned or provided by or through a party other than TFWD, but that are sold, licensed or supplied by or through TFWD under this Agreement; and (b) excludes Hardware.
“VAST” means the TFWD product name for the Products and Services offered within this agreement and defined here as the “Products” and “Services”.
Products and Services. Pursuant to this Agreement, TFWD agrees to provide to Customer the Products or Services set out in one or more Orders to be issued by Customer and accepted by TFWD (as further described in Section 5, below). In connection with the Services, TFWD grants Customer a non-transferable and non-exclusive right during the applicable Service Term to access and use the Services according to the applicable Order and Product or Service descriptions, including prices, and according to the existing network coverage. Details and conditions regarding the Products and Services provided or sold by TFWD are contained in the applicable Order and/or the specific Service and Product description. Information regarding the availability of Services is always provided on a non-binding basis. Customer acknowledges that the Products and Services can only be supplied if all the contractual and technical conditions have been fulfilled.
Changes. From time to time, the terms related to the Services provided by TFWD to Customer may change pursuant to changes made by the Services provider. Customer acknowledges and understands that these changes shall only occur if there are changes by the Services provider, outside the control of TFWD. In the event changes are made, TFWD will notify Customer of the proposed changes, in writing unless there is a need for an emergency update due to underlying carrier change or changes in law (and not for elective changes made by Services provider) in which case notice will be provided as soon as reasonably practical. Customer shall have ten (10) business days to object to any proposed change and shall offer TFWD written explanation relative to any objection, which TFWD shall pass through to the Services provider. Thereafter, TFWD and Customer may resolve objections to any material changes and negotiate to a resolution.
Changes to Rates and Fees and Updates. Without limiting any of TFWD’s other rights to change rates and fees payable under this Agreement, where any rate or fee includes any pass-through costs (e.g., a charge or part of a charge that reflects charges or costs incurred by TFWD with any third person, including third- party interconnection), and the pass-through changes at any time, TFWD may alter the rate or fee accordingly with immediate effect. TFWD will give Company reasonable written notice of any change which is made to rates and fees payable by Company to TFWD. In addition, TFWD may, at its discretion, add new services and features or modify, replace, or enhance any of the Services or features listed on this Agreement. TFWD will provide Company notice of any such changes. The price for a new, modified, replaced, or enhanced service or feature will be set forth in the notice. If Company purchases any new, modified, replaced, or enhanced service or features after the date of the notice, the Company will be obligated to pay for that service and feature as set forth in the notice, unless the Parties otherwise agree in writing.
Certifications. Customer acknowledges and agrees that Customer must obtain PCS Type Certification Review Board (“PTCRB”) certification for all Hardware, including any connected products, prior to using the Services. In the event Customer’s connected products are not PTCRB certified, TFWD and/or Service Provider reserves the right to suspend the Services.
Term; Service Term.
Agreement Term; Renewal. The terms and conditions of this Agreement are effective as of the Effective Date and continue thereafter for a period of 12 months (“Initial Term”), unless terminated early pursuant to the terms of this Agreement. Following expiration of the Initial Term, this Agreement shall automatically renew for successive one-year terms (each a “Renewal Term”), unless either Party provides written notice of non-renewal at least thirty (30) days prior to expiration of the then-current Initial Term or Renewal Term, as applicable. Collectively, the Initial Term and any Renewal Term shall be referred to hereinafter as the “Term”.
Service Term and Renewal. The term for any Services ordered pursuant to this Agreement shall be set forth in the applicable Order (“Service Term”) and Customer shall pay all rates and charges for delivery of Services through the end of the applicable Service Term. Unless otherwise set forth in the applicable Order, the minimum Service Term is two (2) months. At the end of the initial Service Term for any Services, the Service Term shall automatically renew on a month-to-month basis at the same rates and charges, until terminated by either Party upon thirty (30) days’ prior written notice to the other Party. To the extent that the Service Term for any Services extends beyond the Agreement Term, then this Agreement shall remain in full force and effect for such Services until the expiration or termination of such Service Term.
Quotations. A Quote shall be binding upon TFWD for a period of fourteen (14) days from the date such Quote is given to Customer, and TFWD shall be obligated to provide the Products or Services as specified therein if Customer gives TFWD an Order for such Products or Services consistent with the Quote prior to the expiration of the fourteen (14) day period. TFWD shall have the right to extend, change, adjust, amend or rescind the quoted prices as of the fifteenth (15th) day after the date of a Quote. All quoted prices are quoted on an “as is” and “market” basis, and prices presented shall not be a determining factor for any future quoted Products or Services. All quoted prices are exclusive of taxes which may be chargeable or collected by TFWD from Customer in accordance with law. All quoted prices are in United States Dollars (“USD”).
Orders.
Order Process. To order any Products or Services, Customer shall execute an order document provided by TFWD (each, an “Order”). Customer shall provide accurate information for each Order and fulfilment of the preconditions for the proper processing of the Order and shall be liable for any costs or expenses associated with correcting any Order that was fulfilled based on Customer’s submission of inaccurate information. The terms and conditions of this Agreement, including terms and conditions defined within “Exhibit A – Service Order Agreement”, shall apply to each Order. In the event of any conflict with the terms and conditions of the Agreement and the terms provided in an Order, the Order shall control.
Order Cancellation and Amendment. Customer may not cancel Orders for Products once TFWD issues an Order Confirmation unless the Parties mutually consent to cancel an Order. Customer may not cancel an Order for Services once TFWD issues an Order Confirmation, however, Customer may terminate the Services at any time pursuant to Section 14 of this Agreement. If Customer wishes to add to an Order for Products after it has shipped, TFWD shall treat such additions as a second Order incurring additional shipping charges.
Billing. For purposes of this Agreement, TFWD will bill Customer for charges due under this Agreement.
Products. TFWD will bill all charges for Products prior to shipment, including shipping charges applicable to the purchase of such Products.
Services. Upon TFWD’s receipt of an Order for Services, TFWD will bill all monthly charges for Services one month in advance using a bill cycle date of the first day of the month unless postpaid billing is quoted. Customer’s monthly bill for Services may be higher than expected due to partial-monthy charges based on a bill cycle date on the first day of the month, equipment, full-month charges in advance, data usage and data overage usage charges. With respect to Services for connectivity plans, Customer will prepay for a set amount of data, as set forth in the applicable Order unless postpaid billing is quoted Monthly pricing for Services is subject to changes upon thirty (30) days’ notice to Customer. Customer understands the telecommunications services provided under this Agreement and any applicable Taxes (as defined below) thereto shall be billed to Customer.
Payment.
Products. Customer shall purchase Products pursuant to this Agreement on a pre-paid basis. TFWD may withhold shipment of Products until TFWD receives full payment for Products and may cancel an Order if Customer fails to submit payment for Products within ten (10) business days of the date of the applicable invoice
Services. Payment relative to an Order for Services shall be detailed in the Order and may be on a pre-paid basis or a recurring payment plan. TFWD may suspend or terminate Services or remaining balances to outstanding payments if Customer fails to fulfill its payment obligations by the bill due date specified in the applicable Order.
General Payment Terms. Unless otherwise set forth in an Order, Customer shall pay all amounts invoiced by TFWD within Fifteen (15) days of the date of the respective invoice. TFWD’s preferred means of payment is via ACH (automated clearing house).. Subject to applicable law, TFWD or its agents reserves the right to charge Customer all fees and costs required to process credit card or wire transfer transactions. If Customer provides credit or debit card information to TFWD, the Customer authorizes TFWD to charge the card until successful for all delinquent amounts owed, as permitted by applicable law. If payment is not received with-in Fifteen (15) day of the billing due date than TFWD reserves the right to suspend service
Bootstrap Connectivity. Customer agrees that any redundant, fallback, bootstrap, supplementary or otherwise non-primary connectivity provided to the Customer is provided as a courtesy and is at Services provider’s discretion to enable or disable. Customer also agrees that should this redundant, fallback, bootstrap, or supplementary usage exceed more than 5% of total monthly usage on a per-device basis, that Customer may be responsible for additional data usage costs at Services provider’s discretion according to the latest fallback connectivity pricing sheet maintained by TFWD.
Taxes. Customer is responsible for all sales and use taxes or any other taxes, surcharges, fees or duties (“Taxes”) assessed, imposed, or allowed for by federal, state or local laws on or with respect to the Products, Services, or Software purchased by Customer pursuant to this Agreement. The Parties agree that TFWD will add all applicable taxes, fees, and surcharges to each order as applicable to the situs and physical, affiliate, or economic nexus requirements of each jurisdiction Products, Services, or Software is shipped to or provided.
Receipt of Products and Services. Customer shall have three (3) days from the date of a confirmed receipt of Products, as substantiated by proof of delivery, to raise any claims of shortages, inaccuracies, or damages to TFWD. In the absence of any claim, the Order shall be deemed accepted by Customer. Customer’s failure to activate Products, if applicable, within a timely period after acceptance, not to exceed thirty (30) days, may result in deactivation or additional charges. Customer shall have thirty (30) days from the date of invoice to make claims on deficiencies relative to Services rendered by TFWD to Customer. If no claims are made within the defined period, the Services shall be deemed accepted by Customer.
Compliance with Laws. Each Party will comply with all applicable Laws and the Operating Regulations, governmental requirements, and industry standards, including those with respect to privacy, data protection, portability, jurisdictional nexus, HIPAA, or accountability, applicable to such Party or its personnel with respect to Software, Services, and Products in the performance of its obligations under this Agreement. The Parties agree to adhere to the Laws and Operating Regulations in place at the time of signing, during the term of this agreement, and for the term required by any governmental authority after the termination of this agreement. Neither Party will, nor permit any third parties to, export, re-export, or release, directly or indirectly, any Controlled Technology to any country or jurisdiction to which the export, re-export, or release of any Controlled Technology (a)is prohibited by applicable Law or (b)without first completing all required undertakings (including obtaining any necessary export license or other governmental approval). Non-compliance with any laws under the terms of this Agreement is a material breach of this Agreement. The Parties agree that TFWD or its agents may adjust pricing for changes in cost of compliance with future laws or regulations enacted by any government authority.
Title and Risk of Loss. TFWD shall deliver all Products Ex Works (Incoterms 2000) TFWD’s (or TFWD’s supplier’s) warehouse, whereby title to Products and risk of loss passes from TFWD to Customer at FOB. The Party discovering any loss or damage to Products shall promptly provide notice to the other Party.
Returns; Support. Hardware is only eligible for return in the event of a failure of the Hardware to perform any of the basic functions immediately upon Customer’s first use. To return any Hardware, Customer must promptly request a Return Material Authorization (“RMA”) from support@vast.global specific to the Product purchased. Customer must return the non-conforming Hardware within fourteen (14) days of receipt of the RMA. Following receipt of the non-conforming Hardware, TFWD, in its sole discretion, will repair or replace the Hardware or refund Customer for the non-conforming Hardware. Customer is responsible for all shipping charges associated with return of the Hardware to TFWD or authorized partner. Title to returned Hardware that is replaced shall pass to TFWD upon receipt of the returned Hardware, and title to replacement items shall pass to Customer upon shipment from TFWD or a TFWD authorized warehouse. CUSTOMER’S SOLE AND EXCLUSIVE REMEDY SHALL BE LIMITED TO PROVIDING CUSTOMER WITH A REPAIR, REPLACEMENT OR REFUND, AT TFWD’S OPTION, FOR ANY HARDWARE THAT IS RETURNED. Customer is not entitled to returns on Services rendered; however, Customer may contact TFWD or a authorized channel for support using the contact information supplied by TFWD.
Customer’s Obligations.
General Obligations. At all times, Customer shall:
only use, make use of, cause, allow or permit to be used, the Products and Services in accordance with the specifications contained in this Agreement, including the Acceptable Use Policy, below, and any reasonable instructions provided by TFWD and only for the purpose for which they were designed;
not use any networks to which Customer is provided access under this Agreement to offer or access any services apart from the Services provided under this Agreement, without the prior written agreement of TFWD;
not resell or offer access to the Products or Services to any third party, without the prior written consent of TFWD;
comply with TFWD’s reasonable requests for assistance in order to diagnose existing or potential faults in any Products or Services;
not use the Products or Services in a manner which will conflict with, compete with, undercut, destabilize or otherwise compromise any of TFWD’s current or future Products or Services supplied to its customers anywhere in the world; and
be responsible for Losses caused to TFWD, its suppliers or licensors or Agents by misuse of the Products or Services or Customer’s fraudulent or illegal activities.
Technical Requirements. Customer is fully responsible for any device and/or equipment used in connection with the Products or Services, whether provided by TFWD or supplied by any other third party. Customer must ensure that any device and/or equipment used in connection with the Products or Services is technically compatible with the Products and Services and that the device and/or equipment complies and is used in accordance with the applicable law. TFWD and its suppliers and licensors will not be liable for the improper use of any device and/or equipment used in connections with the Products or Services. Furthermore, Customer shall not use any device and/or equipment in connection with the Products or Services that interferes with the network delivering any of the Products or Services.
Harmful Code. Customer shall not introduce Harmful Code to the network delivering any of the Products or Services. “Harmful Code” means computer instructions, programming or other technological means whose purpose or effect is to disrupt, damage, interfere with any use of, or provide unauthorized access to any computer, systems, network, Products, Services, or other computer and communications facilities or equipment, including any code containing viruses, Trojan horses, worms, traps, spyware, back doors, disabling devices or like destructive code or code that self-replicates.
Additional Terms. Customer shall comply with third-party terms and conditions with respect to Customer’s use of the respective Products and Services. See Appendix A. The respective Order will identify the third-party terms and conditions applicable to the Products or Services in such Order, if applicable.
Acceptable Use.
Acceptable Use Policy. The rates and charges for Services assume acceptable usage of the Services by Customer. Customer’s use of the Services must be consistent with the Commitment, as agreed in the Order. Customer agrees to use, and to ensure that its users use, the Products and Services only as follows:
not fraudulently or in connection with a criminal offense;
not to send, knowingly receive, upload, download, or use any material which is offensive, abusive, indecent, defamatory, obscene or menacing, or in breach of copyright, confidence, privacy or any other rights;
not to cause annoyance, inconvenience or needless anxiety;
not in any way which in TFWD’s opinion is likely to be detrimental to the provision of the Services to Customer or any of TFWD’s other customer;
not in any way that adversely affects, disrupts or interferes with the network facilitating the use of the Services by Customer or any of TFWD’s other customers;
not in an unlawful manner, in contravention of any legislation, laws, license or third-party rights;
not to send any communications which are offensive, abusive, menancing, obscene, annoying, incite hatred, panic or anxiety or which are otherwise unlawful or to access, transmit, publish, display, advertise or make available material which infringes copyright of any other intellectual property right held in any country, is obscene or pornographic, contains threats of any kind, is defamatory in any way or breaches confidence, which is illegal or infringes any third party’s legal rights of any nature under the laws of any jurisdiction for any reason;
not to engage in or assist with, or enable others to engage in, illegal or fraudulent activities;
not to access or attempt to access the accounts, materials, information, computer systems, networks or devices owned or created by TFWD, through password mining or any other means;
not to violate, tamper with, or circumvent the encryption codes or technological protection measures of the Services;
not to solicit personal information from anyone under the age of 18;
not to monitor third parties without their permission;
not to: (i) modify, translate, adapt, merger, make derivative works of, disassemble, decompile, reverse compile, or reverse engineer any part of the Products or Services; (ii) access the Services in order to build similar applications or services; (iii) disrupt, overburden, or aid or assist in the disruption or overburdening of (1) any computer or server used to offer or support the Services, or (2) the enjoyment of the Services by any other person; (iv) institute, assist, or become involved in any type of attack, including, but not limited to, distribution of a virus, denial of service attacks upon the Services, or other attempts to disrupt the Services or any other person’s use or enjoyment of the Services; (v) attempt to gain unauthorized access to the Services, accounts registered to others, or to the computers, servers or networks connected to the Services; (vi) attempt to probe, scan or test the vulnerability of the Services or network, or breach any security or authentication measures; or (vii) avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by TFWD or any of bill providers to protect the Services.
not to access, transmit, publish, display, advertise or make available material that infringes copyright or any other intellectual property right held in any country, is obscene or pornographic, contains threats of any kind, is defamatory in any way or breaches confidence, which is illegal or infringes any third party’s rights of any kind; and
not in a way that does not comply with instructions TFWD has given to Customer at any time.
Violations. If Customer’s usage exceeds the Commitment, TFWD reserves the right to review the rates and charges applied to Customer’s use of the Services or to terminate the Services. Further, if Customer violates the Acceptable Use Policy, at TFWD’s option, TFWD may contact Customer to discuss changing Customer’s usage so that it conforms to the Acceptable Use Policy, suspend Services, or terminate this Agreement.
Suspension of Services.
TFWD shall use commercially reasonable efforts to provide the Services in accordance with the terms of this Agreement. However, the suspension of the Services will be possible, for reasons that fall outside the responsibility of the Customer, in the situations described below, in which case TFWD shall not be responsible or liable for any suspension. TFWD shall use commercially reasonable efforts to provide notice to Customer prior to the commencement of any suspension due to:
the Services being updated, under maintenance, improved, and/or altered;
the Services being repaired after a malfunction, fault, or damage;
TFWD’s suppliers and licensors suspending the services supplied to TFWD;
any government body, authority or regulatory organism requiring the suspension of the Services;
an emergency arising or TFWD having to take any other action that it reasonably considers necessary as a prudent provider of the Services;
TFWD dealing with an actual or suspected security breach, virus and/or any misuse of Services or threat to the network.
TFWD may at any time immediately suspend all or part of the Services it provides until further notice without incurring any liability:
if it is obliged to comply with an order, instruction or request of a governmental authority, or emergency services organization, or other competent administrative authority;
it needs to carry out work related to exceptional upgrading or maintenance of its facilities where those facilities must cease operation at or about the time;
in order to prevent damage or degradation of TFWD’s Service Provider or other contracting party’s network integrity which may be caused by whichever reason;
for a violation of TFWD’s or Service Provider’s Acceptable Use Policy or for other behavior that in TFWD’s reasonable discretion may be deemed to be illegal;
in order to protect TFWD, at its sole discretion, from legal liability which relates to a breach of obligation and/or warranties by Customer; or
in case of notifications or signs of fraud or abuse of service.
Termination.
By Customer.
Services. Unless otherwise noted in the Customer’s Order, Customer may terminate Services at any time, effective as of the end of the month, by notifying TFWD in accordance with Section 22.4 (Notice). TFWD will apply any monies collected as the last month of Services on the next full bill cycle. If Customer’s Services include wireless data services, all prepayment for such wireless data services that are unused will be refunded to Customer with-in Ninety (90) days after termination.
Agreement. If TFWD breaches the terms of the Agreement and TFWD fails to cure such breach within thirty (30) days after TFWD’s receipt of written notice of such breach from Customer, then the Agreement will automatically terminate; however, the Services will continue until the end of the effective billing cycle and the terms and conditions of the Agreement shall survive through the end of the billing cycle.
By TFWD.
Services. TFWD may terminate Services at any time by providing thirty (30) days’ prior notice to Customer in accordance with Section 22.41.4 (Notice). Notwithstanding the expiration of the 30-day termination notice period, TFWD will terminate the Services once the bill cycle in effect upon expiration of such 30-day termination period completes. TFWD will apply any monies collected as the last month of Services on the next full bill cycle. If Customer’s Services include wireless data services, all prepayment for such wireless data services that are unused will be returned to Customer with-in Ninety (90) days after termination.
Agreement. If Customer breaches the terms of the Agreement and Customer fails to cure such breach within thirty (30) days after Customer’s receipt of written notice of such breach from TFWD, then the Agreement, and any Services provided at that time, will automatically terminate. In addition, TFWD may terminate this Agreement without cause by providing thirty (30) days’ prior notice to Customer in accordance with Section 21.4 (Notice); however, the Services will continue until the end of the effective billing cycle and the terms and conditions of the Agreement shall survive through the end of the billing cycle.
Effect of Termination. Upon the termination or expiration of this Agreement for any reason, all rights and obligations of the Parties under this Agreement shall be extinguished, except that: (a) all accrued payment obligations (if any) hereunder shall survive such termination or expiration and shall be due and paid in accordance with the payment terms set forth herein; and (b) the rights and obligations of the Parties under those sections which by their meaning the Parties intend them to endure, shall survive. Promptly following termination of this Agreement, each Party shall return to the other Party or destroy and certify the destruction of all of the other Party’s Confidential Information.
Product Amendments. At any time, TFWD may modify the Products, provided such modification does not materially diminish or degrade the features and functionality of the Products, as applicable, available at the time such Products were purchased.
Warranties; Disclaimer. TFWD does NOT warrant that (i) Services and Products will meet Customer specific requirements, (ii) Services and Products will be uninterrupted, timely, secure, or error-free, (iii) the results that may be obtained from the use of Services and Products will be accurate or reliable, (iv) the quality of any Services, Products, information, or other material purchased or obtained by Customer through TFWD will meet Customer expectations, and (v) any errors in the Service or Products will be corrected. Services may be subject to sporadic interruptions and failures for a variety of reasons beyond TFWD’s control, including, but not limited to, cellular intermittency, service provider uptime, mobile notifications and carriers, among others. Customer acknowledges these limitations and agree that TFWD is not responsible for any damages allegedly caused by the failure or delay of the Services. Customer acknowledges that TFWD uses third party service providers to enable aspects of the Services and Products – such as, for example, but not limited to, data storage, synchronization, and communication through third-party servers, and mobile device notifications through mobile operating system vendors and mobile carriers, and that TFWD does not control and is not responsible for the acts or omissions of such third-party service providers.
Regulatory Compliance. TFWD and Customer must comply with the FCC’s CPNI rules and protect the confidentiality of CPNI. CPNI is defined by the FCC as information that relates to the quantity, technical configuration, type, destination and amount of use of a telecommunications service subscribed to by any customer of a telecommunications carrier and that is made available to the carrier by the customer solely by virtue of the carrier-customer relationship; and information contained in the bills pertaining to telephone exchange or toll service received by a customer of a carrier. Neither TFWD nor Customer may use any information for marketing purposes that are in violation of the Telecommunications Act of 1996. This Agreement shall be subject to all necessary approvals of local, state and federal regulatory agencies having jurisdiction over the provision of Services. If any provision of this Agreement does not comply with any law, ordinance or regulation of any regulatory authority, such provision shall to the extent possible be interpreted in such a manner as to comply with such law, ordinance or regulation, or if such interpretation is not possible, it shall be deemed amended to satisfy the minimum requirements thereof.
Indemnification.
Indemnification Obligation. Customer agrees to indemnify, defend, and hold TFWD and its agents, its suppliers and licensors, and its and their officers, directors, employees, representatives, attorneys, successors, and assigns (collectively, the “Indemnified Party”) harmless from and against any claims asserted by third parties, arising from Customer’s breach of this Agreement, infringement of intellectual property rights, willful misconduct, recklessness, fraud, unlawfulness, gross negligence, negligence or any other act or omission of Customer or Customer’s employees, agents or subcontractors or any injury, death or damage to real or personal property, caused or contributed to by Customer or its employees, agents, or subcontractors in the performance of its obligations under this Agreement, including any costs incurred for the defense against any such claims.
Procedure. The Indemnified Party shall promptly notify Customer after receipt of notice of any claim; provided that a delay in or failure by an Indemnified Party to provide such notice shall not relieve Customer of its obligations under this Section 19, except to the extent that such delay or failure materially prejudices Customer’s ability to defend such claim. Customer, at its sole expense, shall promptly assume the investigation and defense of such claim using counsel approved by TFWD. The Indemnified Party shall reasonably cooperate with Customer in the defense of such claim, including the settlement of the matter (subject to the requirements below). Customer shall keep TFWD (and the Indemnified Party, if other than TFWD) fully informed regarding the status of the claim, including any settlement proposals by the claimant. All material decisions regarding the claim (including the evaluation of any settlement proposals) shall be subject to TFWD’s approval. Customer shall be responsible for all costs and expenses of the investigation, defense and settlement of such claim, including the prompt reimbursement of the Indemnified Party’s reasonable out-of-pocket costs or expenses incurred in providing information and assistance in connection therewith. Notwithstanding the foregoing, if (a) a conflict of interest exists vis-a-vis the interests of Customer and the Indemnified Party, (b) Customer fails to promptly engage counsel satisfactory to TFWD, (c) Customer fails to diligently defend the Indemnified Party, or (d) the Indemnified Party reasonably concludes that there are legal defenses available to it that are different from or in addition to those asserted by the counsel engaged by Customer, the Indemnified Party shall be entitled to defend the claim with counsel of its own choosing at the expense of, for the account of and at the risk of Customer; provided, however, that the Indemnified Party shall engage counsel reasonably acceptable to Customer, take reasonable steps to monitor and control the fees and costs of counsel so chosen, and keep Customer reasonably informed of the status of such defense, including any settlement proposals by the claimant. In addition, the Indemnified Party may participate, in its sole discretion, in any claim under this Section 19 using its own counsel at its own expense.
Confidentiality.
Definition. “Confidential Information” means any information, whether written or verbal, that is provided by one Party to the other Party in connection with this Agreement and that would reasonably be considered to be confidential or proprietary, that is conspicuously labeled as “Confidential” or with words of similar import, or that is stated to be confidential or proprietary at the time of disclosure. Confidential Information may include, but is not limited to: (a) information regarding the business of the disclosing Party; (b) information that has or could have commercial value or other utility in the business in which the disclosing Party materially is engaged or in which it states that it contemplates engaging; (c) trade secrets, data, marketing plans, business plans, strategies, pricing, service offerings, forecasts, unpublished financial information, budgets, and projections; and (d) client, customer and provider identities, characteristics, and agreements. Confidential Information does not include information that: (i) is or becomes part of the public domain through any means other than a breach by the receiving Party of its obligations under this Agreement; (ii) is disclosed to the receiving Party on a non-confidential basis by an independent third party that is not, to the receiving Party’s actual knowledge, under an obligation of confidentiality to the disclosing Party; (iii) is developed independently by the receiving Party without reference to or reliance on the disclosing Party’s Confidential Information; or (iv) was in the receiving Party’s possession without obligation of confidentiality to the disclosing Party prior to receipt under this Agreement.
Obligations. Each Party agrees that it shall take prudent and reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the other Party. Without limiting the foregoing, each Party shall take at least those measures that it takes to protect its own confidential information of a similar nature, but in no case less than reasonable care (including, without limitation, all precautions the receiving Party employs with respect to its confidential materials of a similar nature). The receiving Party may disclose Confidential Information to its affiliates, agents, contractors, vendors, consultants and legal representatives, if they have a need to know and an obligation to protect the Confidential Information that is at least as restrictive as this Agreement. A Party receiving Confidential Information shall promptly notify the Party disclosing such Confidential Information of any use or disclosure of such Confidential Information in violation of this Agreement of which the receiving Party becomes aware.
Permitted Disclosure. Notwithstanding the provisions of this Agreement, the receiving Party may disclose Confidential Information (a) pursuant to an order or judgment of any court or governmental body, or (b) pursuant to any applicable law or regulation, provided that, in each case, the receiving Party gives reasonable advance notice to the disclosing Party in advance of such disclosure, if not prohibited by applicable law; seeks confidential treatment of such information from the entity to which the disclosure is made; and discloses only that information which is legally required to be disclosed.
LIMITATION OF LIABILITY.
General Limitation. NEITHER TFWD NOR ANY OF ITS DIRECTORS, EMPLOYEES, SHAREHOLDERS, AFFILIATES, AGENTS, VENDORS, REPRESENTATIVES, THIRD-PARTY INFORMATION PROVIDERS, MERCHANTS, SUPPLIERS, SERVICE PROVIDERS, OR LICENSORS (“TFWD PARTIES”) NOR CUSTOMER NOR ANY OF ITS DIRECTORS, EMPLOYEES, SHAREHOLDERS, AFFILIATES, AGENTS, OR REPRESENTATIVES (“CUSTOMER PARTIES”) SHALL BE LIABLE FOR ANY LOSS RESULTING FROM, ARISING OUT OF, OR RELATING TO ANY OF THE MATTERS CONTEMPLATED BY THIS AGREEMENT, EXCEPT AND IN ANY EVENT SUBJECT TO THE EXCLUSIONS AND LIMITATIONS SET FORTH HEREIN AND OTHER APPLICABLE PROVISIONS OF THIS SECTION ONLY FOR ANY LIABILITY OF A PARTY TO THE OTHER FOR LOSSES SUSTAINED BY THE OTHER THAT RESULT PRIMARILY AND PROXIMATELY FROM SUCH PARTY’S GROSS NEGLIGENCE OR WILLFUL OR INTENTIONAL MISCONDUCT OR BREACH OF THIS AGREEMENT. EACH PARTY HEREBY WAIVES, ALL RIGHTS OF RECOVERY AGAINST THE OTHER PARTY AND THE TFWD PARTIES OR CUSTOMER PARTIES, RESPECTIVELY, FOR ANY AND ALL LOSSES, CLAIMS, ACTIONS, AND CAUSES OF ACTION BY VIRTUE OF DAMAGE TO SUCH PARTY OR THE TFWD PARTIES OR CUSTOMER PARTIES, RESPECTIVELY, OR TO THEIR PROPERTY OR BUSINESS RESULTING FROM OPERATIONS OR OTHER ACTIVITIES ARISING IN CONNECTION WITH THIS AGREEMENT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS SECTION. IN NO EVENT SHALL TFWD OR ITS SUPPLIERS’ AGGREGATE LIABILITY TO CUSTOMER EXCEED AN AMOUNT EQUAL TO THE AMOUNTS PAID BY CUSTOMER DURING THE ONE (1) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT(S) GIVING RISE TO LIABILITY HEREUNDER.
TFWD Not Liable for Services Outages. NONE OF THE TFWD PARTIES SHALL BE LIABLE TO ANY OF THE CUSTOMER PARTIES OR ANY OTHER THIRD PARTY FOR ANY DAMAGES (INCLUDING SPECIAL, INCIDENTAL, AND CONSEQUENTIAL DAMAGES) OR OTHER LOSSES RESULTING FROM, BASED UPON, OR ARISING OUT OF ANY LOSS, DESTRUCTION, DEGRADATION, FAILURE, LOSS OF FUNCTIONALITY, INTERRUPTION, OR DEFICIENCY IN THE QUALITY OR RELIABILITY OF THE SERVICES, ANY OF THE SUBSYSTEMS OR COMPONENTS THEREOF, OR OTHER SERVICE PROVIDED BY ANY OF THE FOREGOING, EVEN IF SUCH ITEM OR EVENT RESULTS IN WHOLE OR IN PART FROM FAULT OR NEGLIGENCE (INCLUDING GROSS NEGLIGENCE) ON THE PART OF A TFWD PARTY OR ANY THIRD PARTY RECOMMENDED OR UNDER THE SUPERVISION OR CONTROL OF A TFWD PARTY.
Miscellaneous.
Applicable Law; Venue; Waiver of Jury Trial. This Agreement shall be interpreted, construed and governed by the laws of the State of Nevada, USA, other than such laws and case law that would result in the application of the laws of a jurisdiction other than the State of Nevada, USA. The United Nations Convention on Contracts for International Sales of Goods will not govern this Agreement and its terms and conditions. Any legal action brought under or in connection with the subject matter of this Agreement shall only be brought in the state and/or federal courts located in the city of Las Vegas, County of Clark, State of Nevada, USA. TFWD and Customer each submit to the exclusive jurisdiction of these courts and agree not to commence any legal action under or in connection with the subject matter of this Agreement in any other court or forum. TFWD and Customer each waive any objections relating to improper venue of any legal action brought under or in connection with the subject matter of this Agreement in the federal or state courts sitting in the city of Las Vegas, County of Clark, State of Nevada, USA, and agree not to plead or claim in such courts that any such action has been brought in an inconvenient forum. THE PARTIES HEREBY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY LITIGATION ARISING OUT OF OR RELATING TO THIS AGREEMENT.
Dispute Resolution. Each Party waives its right to a jury trial in any court action arising among the parties under this Agreement or otherwise related to this Agreement, whether made by claim, counterclaim, third party claim, or otherwise. If and only if this jury waiver is held to be unenforceable, the parties agree to binding arbitration for any dispute arising out of this Agreement or any claim arising under any federal, state or local statutes, laws, or regulations. The arbitration will be conducted in accordance with the arbitration rules promulgated under JAMS Las Vegas and utilize the Nevada Rules of Civil Procedure. The arbitrator will be required to furnish, promptly upon conclusion of the arbitration, a written decision, setting out the reasons for the decision. The arbitration decision will be final and binding on the parties, and the decision may be enforced by either party in any court of competent jurisdiction. The agreement of each party to waive its right to a jury trial will be binding on its successors and assigns. The prevailing party in any court proceeding or arbitration shall be entitled to reasonable attorney fees and costs, including reasonable expert fees and costs. Prior to initiating any lawsuit under this Agreement or relating to this Agreement, the Parties shall submit the dispute to mediation in Clark County, Nevada. Any party desiring to initiate this mediation provision shall provide ten (10) days’ written notice to the other Party and the Parties shall work to engage a mutually agreed upon mediator, with the Parties splitting costs equally. Should one Party not respond to a request for mediation within fourteen (14) business days, the non-responding Party shall be deemed to have waived this mediation provision. In the event the Parties cannot agree on a mediator, the Parties agree to submit the dispute to Advanced Resolution Management for the random assignment of a mediator. Any action filed without first attending the mandatory mediation shall subject the violating party to attorney fees and costs.
Force Majeure. TFWD shall not be liable or responsible to Customer, nor be deemed to have defaulted under or breach this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by or results from acts beyond its reasonable control, including, without limitation, earthquakes, fires, floods, epidemics, pandemic, government imposed shutdowns, acts of governmental authority in an applicable jurisdiction, national or regional emergency, shortage of adequate power or transportation facilities, embargoes or blockades in effect on or after the date of this Agreement, labor strikes, riots, civil unrest, war, terrorist acts, or acts of God (each a “Force Majeure Event”).
Assignment. Customer may not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of TFWD. TFWD may assign any of its rights or delegate any of its obligations to any third party. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves the assigning or delegating Party of any of its obligations under this Agreement. This Agreement shall bind and inure to the benefit of the Parties and their respective successors and permitted assigns.
Notice. All notices or other communications required under this Agreement shall be in writing, addressed to the applicable Party in accordance with the contact information set forth on the first page of this Agreement or as subsequently changed by a notice provided in compliance with this Section, and shall be deemed effectively given: (a) when received, if delivered by hand (with written confirmation of receipt) or if sent by a nationally recognized overnight courier (with delivery confirmation); or (b) on the date sent by email with confirmation of transmission, if sent during normal business hours of the recipient, and on the next business day, if sent after normal business hours of the recipient.
Severability. If any provision of this Agreement is declared or found to be illegal, unenforceable, or void by a court of law with jurisdiction, the Parties shall negotiate in good faith to agree upon a substitute provision that is legal and enforceable and is as nearly as possible consistent with the intentions underlying the original provision. If the remainder of this Agreement is not materially affected by such declaration or finding and is capable of substantial performance, then the remainder shall be enforced to the extent permitted by applicable law.
Waivers. No delay or omission by either Party to exercise any right or power will impair any such right or power or be construed to be a waiver thereof. A waiver by any Party of any of the covenants, conditions, or contracts to be performed by the other Party or any breach thereof shall not be construed to be a waiver of any succeeding breach thereof or of any other covenant, condition, or contract herein contained. No change, waiver, or discharge hereof shall be valid unless in writing and signed by an authorized representative of the Party against which such change, waiver, or discharge is sought to be enforced.
Remedies. Except as expressly provided otherwise in this Agreement, in addition to any remedies provided in this Agreement, the Parties shall have all remedies provided at law or in equity. The rights and remedies provided in this Agreement or otherwise under law shall be cumulative and the exercise of any particular right or remedy shall not preclude the exercise of any other rights or remedies in addition to, or as an alternative of, such right or remedy, except as expressly provided otherwise in this Agreement.
Entire Agreement; Amendments. This Agreement, including the Orders entered hereunder, constitutes the entire and exclusive statement of this Agreement with respect to its subject matter and supersedes any and all oral or written representations, understandings, or agreements relating thereto. Any other terms or conditions included in any quotes, purchase orders, invoices, acknowledgments, bills of lading, or other documents utilized or exchanged by the Parties shall not be binding unless and only to the extent that a written agreement signed by authorized representatives of the Parties after the Effective Date expresses the intent of the signing Parties to be bound thereby. This Agreement may be modified, supplemented or changed only by an agreement in writing which makes specific reference to this Agreement and is duly executed by both Parties. Customer agrees that this Agreement is not intended to confer and does not confer any rights, remedies, liabilities and/or obligations upon any person other than Customer or any related entity under common control of Customer.
Survival. The rights and obligations set forth in Sections 1, 8, 12, 13, 14, and 17-22 shall survive the expiration or termination of this Agreement for any reason.
Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together will constitute one and the same instrument.
IN WITNESS WHEREOF, the Parties have caused this CUSTOMER PURCHASE AGREEMENT to be duly signed and executed by a corporate officer or individual specifically designated in the bylaws or charter of the Party on the dates set forth below with the intention of becoming legally bound thereby effective as of the Effective Date.
EXHIBIT A
Customer hereby makes this Service Order Agreement (“Agreement”), pursuant to the terms of this Agreement and the TFWD Service Order Agreement – General Terms of Service” which are set forth at https://altaworx.com/terms/ (the “Terms of Service”), which are incorporated in full by this reference. THE TERMS OF SERVICE WILL BE PROVIDED TO CUSTOMER IN HARD COPY, BY MAIL, BY EMAIL, OR BY FAX, UPON CUSTOMER'S WRITTEN REQUEST. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE TERMS OF SERVICE MAY BE MODIFIED BY ALTAWORX, LLC. FROM TIME TO TIME, AND THAT ANY SUCH MODIFICATION SHALL BE BINDING UPON CUSTOMER. TFWD limits acceptance to the terms hereof and incorporated Terms of Service, and objects to and rejects any additional or different terms in the Customer’s purchase order or other acceptance. By signing below, Customer acknowledges and agrees that it has reviewed the Terms of Service (including with legal counsel and other professional advisors), to the extent it desired to do so, and shall be bound by and adhere to the Terms of Service. TFWD will use reasonable efforts to meet any estimated timelines or due dates for installation of the hardware and provision of the Services, however, installation is subject to TFWD scheduling and availability, any such stated installation dates are estimated and time shall not be of the essence with respect to the same. The individual signing this Agreement on behalf of Customer represents and warrants that he or she is duly authorized and has legal capacity to execute and deliver this Agreement. Customer represents and warrants to TFWD that the execution and delivery of the Agreement and the performance of Customer’s obligations hereunder have been duly authorized and that the Agreement is a valid and legal agreement binding on Customer and enforceable in accordance with its terms. If this Agreement is a "change" to an existing service being provided by TFWD, as marked above, then the fees set forth herein are in addition to the fees set forth in the parties original agreement. This Agreement will be deemed valid, binding, and enforceable against Customer upon the earlier of the following: (i) signature by Customer of this Agreement (whether or not signed by TFWD), (ii) acceptance of this Agreement by TFWD, or (iii) Customer’s acceptance of the installation of the hardware and use of the Services.
Contact Us
If you have any questions about these Terms and Conditions, You can contact us:
• By email: support@vast.global