This Agreement sets forth the terms and conditions on which Scantinel may make available to Customer certain lidar sensors, gateways or other hardware products (“Hardware”) and Software (defined below) as expressly identified in a quote, order form, statement of work, or other ordering document that (a) is signed by or otherwise expressly agreed to by the Parties and (b) expressly references and incorporates this Standard Customer Agreement (each, an “Order Form”). Each Order Form is non-cancellable, subject to the terms of, and is deemed incorporated into, this Agreement. Any conflict between an Order Form or Sections 1–8 of this Agreement (the “Standard Terms”) will be resolved according to the following order of precedence: (1) the Order Form and (2) the Standard Terms. “Technology” refers to Hardware and Software to the extent ordered under the applicable Order Form.

USE AND PROVISION OF SCANTINEL TECHNOLOGY

1.1. Intellectual Property and Licenses

a. License Grant for Software.

Subject to Customer’s compliance with this Agreement, Scantinel hereby grants Customer a non-exclusive, non-transferable, non-sublicensable, perpetual, worldwide license to use the object code version of computer programs incorporated, installed, embedded or otherwise provided by Scantinel for use in connection with the Hardware (the “Software”) provided under the terms of this Agreement in accordance with all applicable Documentation and the restrictions set forth in this Agreement (including the applicable Order Form). This license grant in this Section 1.1.(a) is the “Software License.”

b. License Grant for SDKs.

If an Order Form indicates that Customer will receive a license to an SDK, then, subject to Customer’s compliance with this Agreement and the applicable limitations in this Agreement, Scantinel hereby grants to Customer, during the applicable License Term, a non-exclusive, perpetual, non-transferable, non-sublicensable right and license under Scantinel’s rights in the Licensed SDK to (i) use the object code libraries, application programming interfaces (each, an “API”), and Documentation specified in the Licensed SDK solely to enable applications and (ii) modify any sample code included within the Licensed SDK in accordance with the Documentation included in the Licensed SDK and subject to any restrictions and limitations specified in that Documentation.

c. Intellectual Property.

All intellectual property rights, including but not limited to copyrights, trademarks, trade secrets, and patents, developed or used in connection with this Agreement shall remain the exclusive property of Scantinel, unless otherwise explicitly agreed in writing in an Order Form. Scantinel grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such intellectual property solely for the purpose of utilizing products provided under this Agreement.
Documentation. To the extent Technology is accompanied by any Scantinel-provided user manuals, help files, specification sheets, KPI reports or other documentation, in whatever form, relating to that Technology that are generally provided by Scantinel to its customers in connection with the Technology (“Documentation”), Scantinel hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable right and license under Scantinel’s rights in the Documentation to use such Documentation solely to enable Customer to exercise its rights under the applicable license(s) as set forth in this Agreement.

1.2. Hardware

a. Shipment and Title.

Scantinel reserves the right in its sole discretion to allocate inventories and current production of Hardware when it determines such allocation is necessary and to ship a Hardware order in installments. Partial shipments may be invoiced as made. Scheduled shipping dates are approximate only and Scantinel may ship up to two weeks in advance of or after the scheduled shipping date. Transportation charges will be collected from Customer, or if prepaid by Scantinel, will be subsequently invoiced to Customer. All sales of Hardware are FCA (Incoterms 2020) Customer’s point of delivery. All risk of ownership and, subject to Customer’s payment of all applicable fees, title to Hardware pass to Customer at the time of delivery. Customer grants Scantinel a purchase money security interest in the Hardware to secure Customer’s payment of the purchase price for the Hardware. Customer authorizes Scantinel to file financing statements or other instruments with the appropriate authorities to perfect or protect Scantinel’s security interest. Upon delivery of the Hardware, Customer will be deemed to have accepted the Hardware unless within 90 days of delivery (“Inspection Period”), Customer rejects any or all of the Hardware (or licensed Software) that are not strictly in conformance with the requirements of this Agreement or the applicable Order Form, including Documentation, and Customer will notify Scantinel in writing of such rejection within the Inspection Period. At Customer's election and at Scantinel's risk and expense, all such Hardware will be returned to Scantinel for immediate refund, repair, replacement, or other correction and redelivery to Customer within such reasonable time as Customer may require. All actual and documented costs, expenses, and loss of value incurred by Customer as a result of or in connection with nonconformance and repair, replacement, or other correction may be recovered from Scantinel by equitable price reduction, set-off, or credit against any amounts which may be owed to Scantinel under this Agreement, the applicable Order Form or otherwise.

1.3. Rescheduling

a. Milestone and delivery dates are binding. Customer may reschedule a Hardware shipping date one time, provided that written notice is provided to Scantinel at least 30 calendar days prior to the originally scheduled shipment date and that the rescheduled shipping date falls within the same calendar quarter.

1.4. Perpetual Licenses

Perpetual Licenses. The following terms apply to Perpetual Licenses (Licenses granted on a perpetual basis):

i. Software licensed as a Perpetual License is limited to use by one of the following (each a “Single User License”): (1) a human person that directly logs into Software on a personal computer (“PC”); (2) nonhuman devices sold to Customer under this Agreement (e.g., Electronic Control Units, sensors, etc.) or software system; or (3) third-party application that indirectly uses or accesses Software (including the exchange of data with Software). For avoidance of doubt, each single direct/indirect access to or direct/indirect use of Software requires a separate Single User License.

ii. Any qualification system or training system may be used by Customer’s authorized representatives for training, testing, sandbox use, or conflict resolution, provided that such training, testing, sandbox use, or conflict resolution is not used for production purposes. The number of Single User Licenses will be set forth in the Order Form.

1.5. Evaluation Software or SDK. 

If an Order Form indicates that Customer will receive Software for evaluation or proof-of-concept purposes, then Customer may use that Software or SDK only for the purpose of evaluating the functions and performance of that Software or SDK, solely for the designated time period of the evaluation or trial, and subject to any additional usage restrictions specified on the applicable Order Form. Customer acknowledges that evaluation or proof-of-concept versions of Software or SDKs may be automatically disabled upon expiration of the designated trial period (at the end of which Customer’s right to use that Software or SDK under the applicable Order Form also expires), and any data stored in or in connection with that Software may become unavailable at that time. If an “Evaluation License” is indicated on the applicable Order Form with respect to any Software or SDK, notwithstanding anything to the contrary in this Agreement, all Software subject to that evaluation license is delivered “AS-IS,” without any express or implied warranties, and no warranties or maintenance obligations will apply to Scantinel. SCANTINEL HEREBY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THAT SOFTWARE OR SDK, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THAT SOFTWARE OR SDK.

1.6. Restrictions.

Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, Customer will not, and will not permit or authorize third parties (or other persons not authorized by this Agreement) to: (a) rent, lease, or otherwise use Technology or Documentation; (b) use Technology to provide services to third parties (e.g., as a service bureau); (c) use Technology for any benchmarking activity or in connection with the development of a competitive product; (d) circumvent or disable any security or other technological features or measures of Technology or use the product in a manner that Scantinel reasonably believes poses a threat to the security of Scantinel-controlled computer systems; (e) modify, translate, reverse engineer, decompile, disassemble, or otherwise derive the source code or the underlying ideas, algorithms, structure, or organization from Software or Firmware (except that if such a prohibition is not permitted pursuant to applicable law, Customer will provide Scantinel written notice prior to undertaking any such reverse engineering, and shall give Scantinel a reasonable amount of time to provide any interface or other information required by law prior to commencing such activities); or (f) use or access any Technology in a manner that materially impacts or burdens Scantinel or Scantinel’s servers and other computer systems, or that interferes with Scantinel’s ability to make available any products or services to any third party.

1.7. Third-Party Software. 

To the extent that Software or an SDK includes or is accompanied by third-party software or other products (e.g., cloud hosting instances or data analysis tools) that Scantinel provides to Customer or that is otherwise identified in the Documentation as being required to properly use such Software (“Third-Party Software”), the Third-Party Software and their use by Customer are subject to all license and other terms that accompany such Third-Party Software so long as all such terms are provided in advance to Customer in writing. Customer will abide by and comply with all such terms. Software may include code and components licensed under an open source license.

1.8. Compliance with Laws. 

Customer will use Technology, SDKs, and Documentation in compliance with all applicable laws and regulations.

1.9. Protection against Unauthorized Use. 

Customer will use commercially reasonable efforts to prevent any unauthorized use of Technology and Documentation and will immediately notify Scantinel in writing of any unauthorized use of which Customer becomes aware. Customer will immediately terminate any unauthorized use by persons having access to Technology or Documentation through Customer.

1.10. Feedback. 

If Customer provides any feedback to Scantinel concerning the functionality and performance of Technology or any Documentation (including identifying potential errors and improvements), Customer hereby assigns to Scantinel all right, title, and interest in and to the feedback, and Scantinel is free to use the feedback without payment or restriction. If Scantinel provides any feedback to Customer concerning the functionality and performance of Customer’s system or any component thereof, including without limitation its autonomous robots, Scantinel hereby assigns to Customer all right, title, and interest in and to the feedback, and Customer is free to use the feedback without payment or restriction.

2. FEES AND PAYMENT

2.1. Payment of Fees. 

In consideration of the grant of the applicable license(s) pursuant to this Agreement, Customer will pay Scantinel the fees and any other amounts owing under this Agreement as specified in the applicable Order Form, including, where applicable, any early termination fees specified on the Order Form. Unless otherwise specified in such Order Form, Customer will pay all undisputed amounts due within 30 calendar days of the date of receipt of the applicable invoice. Any undisputed amount not paid when past due and not paid within thirty (30) days of the date of notice of such past due amounts from Scantinel will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. With respect to Software licensed on a basis other than as a Perpetual License, the license fees due for additional subscription terms, volume usage, or other license fee arrangements are due as specified on the Order Form or, where applicable or if not otherwise specified, Scantinel’s then-current price list for the applicable Software.

2.2. Taxes. 

Other than income taxes imposed on Scantinel, Customer will bear all taxes, tariffs, duties, and other governmental charges (collectively, “Taxes”) resulting from this Agreement. Any such Taxes imposed upon Scantinel will be invoiced to Customer for payment. Customers will pay any additional Taxes as are necessary to ensure that the net amounts received by Scantinel after all such Taxes are paid are equal to the amounts to which Scantinel would have been entitled in accordance with this Agreement if such additional Taxes did not exist.

3. MAINTENANCE AND SUPPORT

3.1. Maintenance Duties. 

For so long as Customer is current in the payment of all applicable fees and is otherwise in compliance with this Agreement, Scantinel will provide Maintenance and Support (defined below) for the Software as specified in this Section 3.

3.2. Maintenance and Support Services. 

“Maintenance and Support” means that, for a period of three (3) months following Customer’s acceptance of the Technology (the “Free Maintenance and Support Term”), Scantinel will use commercially reasonable efforts to provide the following to Customer: telephone assistance with respect to the Software, including (i) clarification of functions and features of the Software; (ii) clarification of Documentation pertaining to the Software; (iii) guidance in the operation of the Software; and (iv) error verification, analysis and correction to the extent possible by telephone. Following the Free Maintenance and Support Term, Scantinel shall provide the Maintenance and Support, if ordered under a purchase order, at a price and terms to be mutually agreed upon. Such price shall, in no event, exceed Scantinel's standard price for the provision of similar services.

3.3. Exclusions. 

Maintenance and Support does not include services requested as a result of, or with respect to, the following, and any services requested as a result thereof will be billed to Customer at Scantinel’s then-current rates: (a) accident; unusual physical, electrical or electromagnetic stress; neglect; misuse; failure of electric power, air conditioning or humidity control; failure of rotation media not furnished by Scantinel; operation of the Software with other media not meeting or not maintained in accordance with the manufacturer’s specifications; or causes other than ordinary use; (b) improper installation by Customer or use of the Software that deviates from any operating procedures established by Scantinel in the applicable Documentation; (c) actual or attempted modification or alteration of or addition to Software undertaken by persons other than Scantinel or its authorized representatives; or (d) software or technology of any party other than Scantinel.

3.4. Responsibilities of Customer. 

Scantinel’s Maintenance and Support obligations, as may be applicable, are subject to Customer doing the following: (a) provide supervision, control, and management of the use of the Software; (b) implement procedures for the protection of information and the implementation of backup facilities if there are errors or malfunction of the Software; (c) document and promptly report all errors or malfunctions of the Software to Scantinel; (d) take all steps necessary to carry out procedures for the rectification of errors or malfunctions within a reasonable time after those procedures have been received from Scantinel; (e) maintain a current backup copy of all programs and data; and (f) properly train its personnel in the use and application of the Software and the equipment on which it is used.

4. TERM AND TERMINATION

4.1. Term. 

This Agreement, with respect to the applicable Order Form, will take effect on the date specified in the Order Form (or, if no date is specified, the date of the second of Scantinel’s and Customer’s respective signatures (or other indication of acceptance) on the Order Form) (the “Effective Date”) and will remain in force until terminated in accordance with this Agreement (the “Term”).

4.2. Order Term. 

Unless earlier terminated in accordance with this Agreement or the applicable Order Form, each Order Form will be in effect for the initial term specified in such Order Form (“Order Term”).

4.3. Termination for Material Breach. 

Either Party may terminate this Agreement or one or more Order Forms if the other Party does not cure its material breach of this Agreement or the applicable Order Form(s) within 30 calendar days of receiving written notice of the material breach from the non-breaching Party. Termination in accordance with this Section 4.3 will take effect when the breaching Party receives written notice of termination from the non-breaching Party, which notice must not be delivered until the breaching Party has failed to cure its material breach during the 30-calendar day cure period. Notwithstanding the foregoing, Scantinel may immediately terminate this Agreement upon notice to Customer if Scantinel reasonably believes that Customer has violated this Agreement or has otherwise taken any action that threatens or challenges Scantinel’s intellectual property rights, including rights in and to any Technology. Without limiting any other provision of this Section, if Customer fails to timely pay any fees, Scantinel may, without limitation to any of its other rights or remedies, suspend access to Software or performance of Maintenance and Support under the relevant Order Forms the Customer’s payment default refers to until it receives all amounts due.

4.4. Post-Termination Obligations. 

If this Agreement is terminated for any reason, (a) Customer will pay to Scantinel any fees or other amounts that have accrued prior to the effective date of the termination, and (b) any and all liabilities accrued prior to the effective date of the termination will survive.

4.5. Survival. 

Notwithstanding anything to the contrary herein, Sections 1, 1.6, 1.8, 1.9, 1.10, 2.1, 2.2, 4.1, 4.4, 4.5, 5.3, 6, 7, and 8 will survive termination or expiration of this Agreement.

5. WARRANTIES AND DISCLAIMER

5.1. Limited Warranties.

Scantinel hereby warrants, for the benefit of Customer only, that Technology will materially conform to the applicable Documentation (the “Warranty”) for a period of one (1) year after the applicable Technology is first made available to Customer (the “Warranty Period”), provided that the Warranty will not apply to failures to conform to the applicable Documentation to the extent such failures arise, in whole or in part, from any modification of the Technology by Customer or any third party or any combination of the applicable Technology with APIs, other software or hardware, or other technology not provided by Scantinel under the applicable Order Form.

If any defect or error covered by the Warranty occurs, Customer will provide Scantinel with sufficient detail to allow Scantinel to reproduce the defect or error. If notified in writing by Customer during the Warranty Period, Scantinel will, at its sole option, either (a) correct such error or defect in the applicable Technology, at no cost to Customer and within a reasonable time, by issuing corrected instructions, a restriction, or a bypass or (b) accept return of the applicable Technology and refund any fees that may have been previously paid by Customer in connection with the Software, and Customer’s right to use Software will terminate; or (c) if Hardware, replace the defective Hardware. The foregoing sentence sets forth Customer’s sole and exclusive remedy for Scantinel’s breach of the warranty described in the first sentence of this Section 5. Scantinel is not responsible for any defect or error not reported during the Warranty Period or any defect or error caused by any Software that Customer has modified, misused, or damaged.

5.2. Mutual Warranties

Each Party represents and warrants to the other that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such Party in accordance with its terms and (b) no authorization or approval from any third party is required in connection with such Party’s execution, delivery, or performance of this Agreement.

5.3. Disclaimer. 

Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 5 OR AN ORDER FORM OR ADDENDUM, SCANTINEL MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. SCANTINEL EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. SCANTINEL DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE TECHNOLOGY. SCANTINEL DOES NOT WARRANT THAT TECHNOLOGY, DOCUMENTATION, OR ANY APPLICABLE MAINTNENANCE AND SUPPORT OR OTHER SERVICES ARE ERROR-FREE OR THAT OPERATION OF TECHNOLOGY OR PROVISION OF ANY SERVICES WILL BE SECURE OR UNINTERRUPTED. SCANTINEL DOES NOT WARRANT THAT ANY INFORMATION PROVIDED BY TECHNOLOGY OR DOCUMENTATION, OR IN CONNECTION WITH ANY SERVICES, IS ACCURATE OR COMPLETE OR THAT ANY SUCH INFORMATION WILL ALWAYS BE AVAILABLE. SCANTINEL EXERCISES NO CONTROL OVER, AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF, CUSTOMER’S USE OF TECHNOLOGY OR DOCUMENTATION OR RECEIPT OF ANY SERVICES.

a. Scantinel must keep confidential all designs, writings, documents, models, films, blocks, die-cuts, plans, specifications, blueprints, equipment systems, drafts, samples, fabrication materials, models, data carriers, prototypes, illustrations, drawings, calculations, knowledge, and any other documents or materials made available to it by Customer (collectively, including any copies or duplicates thereof, the “Documents”). Scantinel shall not allow third parties (including sub-suppliers) access to Documents without Customer’s prior written consent. Scantinel must refrain from using Documents for any purpose other than those agreed to by Customer in writing. 

b. All of the Documents and Confidential Information (including but not limited to copies, sketches or notes) must be returned to Customer without undue delay upon request by Customer, but in no event later than the termination or completion of the Order. Customer is entitled to request return of the Documents and Confidential Information at any time. Scantinel must comply with any such request as it has absolutely no rights of retention of (or liens on) the Documents and Confidential Information.

c. Anything produced by Scantinel either from the Documents, the Confidential Information, any item originating from (or commissioned by) Customer, or from any information designated as confidential, may only be used by the Scantinel for the purpose allowed in the Order. Scantinel may not, without Customer’s prior written consent, offer or deliver such to any third party.

6. INDEMNIFICATION

6.1 By Scantinel.

Scantinel will: (a) at its expense, either defend Customer from or settle any claim, proceeding, or suit (“Claim”) brought by a third party against Customer alleging that Customer’s use of Technology as permitted pursuant to this Agreement infringes or misappropriates any patent, copyright, or trademark, subject to Section 6.3, and (b) indemnify Customer from and pay the applicable Losses (defined below). Scantinel will have no obligation under this Section 6 for any infringement or misappropriation to the extent that it arises out of or is based upon any of the following (the “Excluded Claims”): (i) use of Technology in combination with other products or services not provided by Scantinel if such infringement or misappropriation would not have arisen but for such combination; (ii) Technology having been provided to comply with designs, requirements, or specifications required by or provided by Customer, if the alleged infringement or misappropriation would not have arisen but for the compliance with such designs, requirements, or specifications; (iii) use of Technology for purposes not intended or outside the scope of the license granted to Customer; (iv) Customer’s failure to use Technology in accordance with instructions provided by Scantinel, if the infringement or misappropriation would not have occurred but for such failure; or (v) any modification of Technology not made or authorized in writing by Scantinel where such infringement or misappropriation would not have occurred absent such modification.

6.2 Mitigation; Limited Remedy.

If Scantinel becomes aware of, or anticipates, a Claim subject to Section 6.1, Scantinel may, at its option: (a) modify the applicable Technology so that it becomes non-infringing or substitute a functionally equivalent product; (b) obtain a license to the third-party intellectual property rights giving rise to the Claim; or (c) terminate the affected Order Form(s) on written notice, in which case Customer must cease using the applicable Technology and return the applicable Technology to Scantinel (at Scantinel’s expense) and, upon Scantinel’s receipt of such Technology, Scantinel will refund to Customer a pro-rata amount of the fees (based on three-year straight-line basis) for any Hardware or Perpetual Licenses. Sections 6.1 and 6.2 state Scantinel’s sole and exclusive liability, and Customer’s sole and exclusive remedy, for the actual or alleged infringement, misappropriation, or other violation of any third-party intellectual property right by any Technology.

6.3 Procedures.

A Party’s obligations as the indemnifying Party (“Indemnitor”) with respect to a Claim for which the indemnified Party (“Indemnitee”) is indemnified under this Section 6 (an “Indemnified Claim”) are subject to Indemnitee doing the following: (a) providing Indemnitor prompt written notice of the Indemnified Claim; (b) granting Indemnitor full and complete control over the defense and settlement of the Indemnified Claim; (c) providing assistance in connection with the defense and settlement of the Indemnified Claim as Indemnitor may reasonably request; and (d) complying with any settlement or court order made in connection with the Indemnified Claim. Indemnitee will not defend or settle the Indemnified Claim without Indemnitor’s prior written consent. Indemnitee will have the right to participate in the defense of the Indemnified Claim at its own expense and with counsel of its own choosing, but Indemnitor will have sole control over the defense and settlement of the Indemnified Claim. “Losses” means: (i) all damages, costs, and attorneys’ fees finally awarded against Indemnitee pursuant to the Indemnified Claim; (ii) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Indemnitee in connection with the defense of the Indemnified Claim (other than attorneys’ fees and costs incurred without Indemnitor’s consent after Indemnitee has accepted defense of the Indemnified Claim); and (iii) all amounts that Indemnitor agrees to pay to any third party to settle the Indemnified Claim.

7 LIMITATIONS OF LIABILITY

7.1 Disclaimer of Indirect Damages.

NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, NEITHER PARTY WILL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO CUSTOMER FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES, INCLUDING LOST PROFITS OR LOSS OF BUSINESS, ARISING OUT OF OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT, EVEN IF SCANTINEL IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.

7.2 Cap on Liability.

UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S TOTAL LIABILITY OF ALL KINDS, IN AGGREGATE, ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO SCANTINEL UNDER THE ORDER FORM WITH RESPECT TO WHICH THE LIABILITY AROSE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).

7.3 Independent Allocations of Risk. 

EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY SCANTINEL TO CUSTOMER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 7 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.

8. MISCELLANEOUS

8.1 Entire Agreement. 

This Agreement, including all exhibits, is the final and complete expression of the agreement between these Parties regarding the subject matter hereof. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement, except that this Agreement does not supersede any prior nondisclosure or comparable agreement between the Parties executed prior to this Agreement being executed, nor does it affect the validity of any agreements between the Parties relating to other products or services of Scantinel that are not described in an Order Form and with respect to which Customer has executed a separate agreement with Scantinel that remains in effect. No employee, agent, or other representative of Scantinel has any authority to bind Scantinel with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the Parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. This Agreement may be changed only by a written agreement signed by an authorized agent of the Party against whom enforcement is sought. Scantinel will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by Customer in any purchase order, receipt, acceptance, confirmation, correspondence, or otherwise, unless Scantinel specifically provides a written acceptance of such provision signed by an authorized agent of Scantinel.

8.2 Non-assignment; Binding Agreement.

Neither this Agreement nor any rights under this Agreement may be assigned or otherwise transferred by either Party in whole or in part, whether voluntary or by operation of law, including by way of sale of assets, merger or consolidation, without the prior written consent of the other Party. Either Party may assign this Agreement in connection with a change of control or to the direct or indirect acquirer of a majority of such Party’s stock or assets relating to the applicable Technology. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the Parties and their respective successors and assigns.

8.3 Relationship. 

Scantinel will be and act as an independent contractor (and not as the agent or representative of Customer) in the performance of this Agreement.

8.4 Notices.

Any notice required or permitted under the terms of this Agreement or required by law in connection with this Agreement (each, a “Notice”) must be provided in writing to the other Party at the applicable address specified on the Order Form through one of the following methods: (a) in person; (b) by certified or registered mail, or air mail, as appropriate, return receipt requested; (c) by nationally recognized overnight courier service; or (d) via email (and, if receipt is not confirmed within two business days, supplemented by one of the methods specified in (a), (b), or (c) of this section). Notices will be considered to have been given: (i) at the time of actual delivery in person, (ii) three business days after deposit in the mail as set forth above, (iii) one business day after delivery to an overnight courier service, or (iv) for email, the earlier of the date receipt is acknowledged by recipient and the date the supplemental Notice would otherwise be deemed given in accordance with this section. Either Party may change its address for Notice by providing Notice of the change in accordance with this section. If an individual named as the recipient for Notices to a Party ceases to work in the role specified or ceases to work for a Party and that Party fails to notify the other Party of an alternative individual, delivery of Notices marked to the attention of an individual in the same or equivalent role at that Party is deemed compliant with the Notice obligations.

8.5 Limitation on Claims.

No action arising out of any breach or claimed breach of this Agreement, or transactions contemplated by this Agreement may be brought by either Party more than one year after the cause of action has accrued. For purposes of this Agreement, a cause of action will be deemed to have accrued when a Party knew or reasonably should have known of the breach or claimed breach.

8.6 Use of Brand Name.

Customer acknowledges that Scantinel may desire to use its name in press releases, product brochures, and financial reports indicating that Customer is a customer of Scantinel, and Scantinel may use Customer’s name in that manner, subject to Customer’s consent, which consent will not be unreasonably withheld.

8.7 No Warranties. 

No employee, agent, representative, or affiliate of Scantinel has authority to bind Scantinel to any oral representations or warranty concerning Technology. Any written representation or warranty not expressly contained in this Agreement will not be enforceable.

8.8 Force Majeure.

Each Party will be excused from any delay or failure in performance hereunder, other than the failure to make payments when due, caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to acts of God, earthquake, labor disputes and strikes, riots, war and governmental requirements, any kind of pandemics (statements/recommendations by the Foreign Office/WHO are considered indicative, e.g. such as for COVID-19) or epidemics (each a “Force Majeure Event”). The obligations and rights of the Party so excused will be extended on a day-to-day basis for the period of time equal to that of the relevant Force Majeure Event; provided however that (i) the affected Party gives prompt written notice to the other Party and takes commercially reasonable steps to mitigate the effects of the applicable Force Majeure Event, and (ii) after a delay of ninety (90) calendar days or more after the affected Party’s notice, either Party may terminate this Agreement or Order Form upon written notice to the other given in accordance with the notice provisions hereof.

8.9 Waiver.

Any waiver of the provisions of this Agreement or of a Party’s rights or remedies under this Agreement must be in writing to be effective. Failure, neglect, or delay by a Party to enforce the provisions of this Agreement or its rights or remedies at any time, will not be construed and will not be deemed to be a waiver of such Party’s rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice such Party’s right to take subsequent action. No exercise or enforcement by either Party of any right or remedy under this Agreement will preclude the enforcement by such Party of any other right or remedy under this Agreement or that such Party is entitled by law to enforce.

8.10 Severability. 

If any term, condition, or provision in this Agreement is found to be invalid, unlawful, or unenforceable to any extent, the Parties will endeavor in good faith to agree to such amendments that will preserve, as far as possible, the intentions expressed in this Agreement. If the Parties fail to agree on such an amendment, such invalid term, condition, or provision will be severed from the remaining terms, conditions and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law.

8.11 Export. 

Customer will comply with all applicable export and import laws, rules, and regulations in connection with Customer’sactivities under this Agreement. Customer acknowledges that it is Customer’s responsibility to obtain any required licenses to export and re-export Technology. Technology, including technical data, are subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Customer represents and warrants that Technology is not being and will not be acquired for, shipped, transferred, or re-exported, directly or indirectly, to proscribed or embargoed countries or their nationals and persons on the Table of Denial Orders, the Entity List or the List of Specifically Designated Nationals, unless specifically authorized by the U.S. Government for those purposes.

8.12 U.S. Government Restricted Rights.

The Software is commercial computer software, as that term is defined in 48 C.F.R. §2.101. Accordingly, if the Customer is the U.S. Government or any contractor therefor, Customer will receive only those rights with respect to the Software and Documentation as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other U.S. Government licensees and their contractors.

8.13 Counterparts.

This Agreement may be executed in counterparts, each of which so executed will be deemed to be an original and those counterparts together will constitute one and the same agreement.

8.14 Governing Law. 

This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Delaware without regard to any conflict of law principles applied therein that would result in the application of the laws of another jurisdiction, and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods.

8.15 Interpretation. 

For purposes of this Agreement, (a) the words “include,” “includes” and “including” will be deemed to be followed by the words “without limitation”; (b) the words “such as”, “for example” “e.g.” and any derivatives of those words will mean by way of example and the items that follow these words will not be deemed an exhaustive list; (c) the word “or” is used in the inclusive sense of “and/or” and the terms “or,” “any,” and “either” are not exclusive; (d) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole; (e) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (f) whenever the context may require, any pronouns used in this Agreement will include the corresponding masculine, feminine or neuter forms, and the singular form of nouns and pronouns will include the plural, and vice versa. The headings set forth in this Agreement are for convenience of reference purposes only and will not affect or be deemed to affect in any way the meaning or interpretation of this Agreement or any term or provision hereof. References to “$” and “dollars” are to the currency of the United States of America. Any law defined or referred to herein means such law as from time to time amended, modified or supplemented, including (in the case of statutes) by succession of comparable successor laws.