TERMS OF SALE
The purchase of the Products by any person or entity ("Customer") is governed solely by this agreement ("Agreement" or "Terms of Sale") which consists of the purchase terms and conditions as set out herein below. The Agreement shall be effective and binding on the Customer once the Customer places a Purchase Order for the Products through the Website.
MobStac and the Customer may hereinafter be collectively referred to as the "Parties" and individually as a "Party".
- SCOPE OF THIS AGREEMENT. The purchase and use of the starter kit, which shall consist of 3 (three) beacons (collectively, “Products”), the SDK (as defined below) and the access to the cloud platform called “Beaconstac”, is governed solely by this Agreement and other documents which may be executed by the Parties in this regard.
- PURCHASE ORDER. The Customer shall place a purchase order on MobStac for the Products it requires (“Purchase Order”) through MobStac’s website, viz. www.beaconstac.com (“Website”). The Purchase Order shall contain delivery terms, including place and schedule of delivery and such other information as may be required to enable delivery. Each Purchase Order shall be irrevocable and non-cancelable. Once a Purchase Order is accepted by MobStac, the terms thereof may not be varied, unless it is otherwise mutually agreed by the Parties. The Purchase Order shall be governed by the terms hereof and shall form a part of this Agreement. Unless otherwise specifically provided for in a Purchase Order, the terms and conditions of this Agreement shall prevail over any conflicting terms and conditions that may be set out in a Purchase Order.
- PAYMENT. The Customer shall pay for a Purchaser Order either by credit card. If the Customer elects to pay via credit card, then: (i) the Customer will submit the credit card payment details at the time the Purchase Order is placed through the Website; and (ii) the Customer’s credit card will be charged for the Products and for shipping at the time of shipment of the Products.
- SHIPMENT. Once the payment pursuant to a Purchase Order is duly completed as set out in Clause 3 above, MobStac will ship the Products to the Customer. Shipments of the Products shall be made FCA (Incoterms 2010) MobStac’s or its affiliate’s facility (“Point of Origin”). Notwithstanding the foregoing, title to the Products and risk of loss will pass to Customer upon delivery to the carrier at the Point of Origin. For shipments outside the United States, the Customer shall be responsible for clearing the Product shipment for import and shall pay applicable duties, taxes and other charges, if any, upon import. The Customer acknowledges and agrees that the scheduled shipment dates mentioned in the invoice, if any, are purely indicative, and MobStac shall not liable for any loss, damage or penalty on account of such delay.
- ACCEPTANCE OF PRODUCTS. If the Products supplied by MobStac do not function to according to its specifications and any documentation provided thereto, then the Customer may contact MobStac via the contact information provided herein within 15 (fifteen) days of delivery of the concerned Product, failing which, the Products delivered shall be deemed accepted by the Customer. Accordingly, MobStac may, at the Customer’s option, arrange for either: (i) replacement of the Product within a commercially reasonable time period; or (ii) a refund of the Product, less shipping costs.
- GRANT. Subject to the terms and conditions of this Agreement, MobStac grants to Company a nonexclusive, nontransferable, royalty-free license to use the software development kit (“SDK”) supplied along with the Products for the limited purpose of availing of software as a service from MobStac’s proprietary software in conjunction with the Products (“Purpose”).
RESTRICTIONS. The SDK and Beaconstac and its respective structure, organization and source code constitute valuable trade secrets of MobStac and/or its licensors. All worldwide intellectual property rights in the SDK, are the exclusive property of MobStac and/or its licensors and the same shall not in any way be construed as being transferred to the Customer. Accordingly, the Customer shall not, and shall not permit a third party to:
- use the SDK and/or access Beaconstac for any purpose other than for the Purpose;
- use, copy, adapt, modify or create derivative works of the SDK and/or Beaconstac;
- reverse-engineer, disassemble, or decompile the SDK and/or Beaconstac or otherwise attempt to determine its underlying source code;
- sell, lease, sublicense, rent, lend or provide any portion of the SDK and/or Beaconstac to any third party or allow the use of the SDK and/or access Beaconstac by, or for the benefit of any person other than its Customers; and/or
- 6.2.5. use the SDK and/or Beaconstac in a service bureau, out-sourcing or other arrangement to process or administer data on behalf of any third party, except as expressly authorized herein.
- INTELLECTUAL PROPERTY. All intellectual property rights in and to the Products, SDK and Beaconstac, including all patent rights, copyrights, trademarks, trade secrets or other proprietary rights therein shall be and remain the sole property of MobStac.
- WARRANTY DISCLAIMER. SUBJECT TO APPLICABLE LAW, MOBSTAC DOES NOT MAKE, AND HEREBY EXPRESSLY DISCLAIMS, ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE PRODUCTS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, ACCURACY, RELIABILITY, AND NON‐INFRINGEMENT. FURTHER, MOBSTAC DOES NOT WARRANT THAT THE OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE OR THAT THE PRODUCTS WILL MEET CUSTOMER’S OR ANY THIRD PARTY’S EXPECTATIONS.
- INDEMNIFICATION. Each Party hereby agrees to indemnify the other, from and against, any and all claims, causes of action, and liabilities (including reasonable attorney’s fees) which arise directly from the other Party’s breach of this Agreement, applicable law, or, the other Party’s negligent or wilful misconduct.
- LIMITATION OF LIABILITY. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFITS OR BUSINESS), HOWSOEVER ARISING, WHETHER UNDER CONTRACT, TORT OR OTHERWISE, EVEN IF INFORMED ABOUT THE POSSIBILITY OF THE SAME. FURTHER, EACH PARTY’S LIABILITY SHALL NOT EXCEED THE AMOUNT PAID BY THE CUSTOMER TO MOBSTAC.
- EFFECTIVE DATE & TERMINATION. This Agreement will be effective as of the date hereof and shall remain valid unless terminated in accordance with this Clause 11. This Agreement may be terminated by either Party with cause, i.e., if the other Party is in breach of the terms and conditions hereof or any applicable law and fails to remedy the same within 10 (ten) days of receipt of a written notice to that effect from the Party not in breach. Notwithstanding anything stated herein and subject to Clause 6 above, the Customer will be entitled to access Beaconstac through the Products for a period of 12 (twelve) months from the date hereof. Thereafter, the Customer may pay the applicable fees, in the manner set out in Clause 3 above, so as to enable the Customer to renew its access to the Beaconstac.
EFFECTIVE DATE & TERMINATION.
- ASSIGNMENT. Neither Party shall assign or transfer any of the rights or responsibilities set forth herein without the prior written consent of the other Party hereto, and any purported attempt to do so shall be deemed void.
- NOTICES. In any case where a notice or another form of communication is to be given or made pursuant to any provision of this Agreement, such notice or communication shall be issued to the Party at the addresses provided hereinabove. Either Party may, at any time change, the abovementioned address by giving written notice of such change of address to the other Parties.
- WAIVER. Either Party's failure to exercise any of its rights hereunder shall not constitute or be deemed a waiver or forfeiture of any such rights.
- ENTIRE AGREEMENT. This Agreement is the entire agreement between the Parties as to the matters set forth herein and supersedes any such prior agreement or communication. Any subsequent waiver or modification of this Agreement, or any part of it, shall only be effective if reduced to writing and signed and dated by both Parties.
- GOVERNING LAW & JURISDICTION. The Agreement shall be governed by and construed in accordance with the substantive laws of the State of New York. The courts at New York City shall have exclusive jurisdiction with respect to any dispute arising hereunder.