PURCHASE/LEASE & LICENSE TERMS AND CONDITIONS
1. Purpose. The party whose details are set out in the order form and/or commercial proposal which these Terms and Conditions of Lease and License (these “Terms and Conditions”) accompany (the “Order Form” and the “Client”, respectively) receives in lease from Aquaticode Ltd (“Company”) such number of Company’s fish sorting machines (“Machines”) and such services (including licenses and/or subscriptions) to Company’s Smolt Sorting AI platform (the “Services”) for the purpose as set out in the Order Form, subject to the terms set out in the Order Form and these Terms and Conditions. In any event of contradiction between these Terms and Conditions and the Order Form, the provisions of the Order Form shall prevail.
2. Duration. The Machine(s) leased to the Client for the duration needed to fulfill the purpose set in the Order Form, as of the acceptance of the Machines, as described on Section 5 below.
3. Delivery.The Machines shall be delivered at the agreed place and time as set forth in the Order Form. Risk pass to Client upon delivery by the Company.
4. Installation and Training.Company shall be responsible to install and train those personal designated by the Client, as set out in the Order Form.
5. 5.Fees; Payment Terms Fees and other consideration to Company are set out in the Order Form. If such are not stated, then all fees and payments due to Company are payable in advance, within 15 days of invoice date. All payments to Company will be made without set-off, deduction or withholding of any kind. Without derogating from any other remedy afforded to Company, Company may immediately suspend access to the Services and/or any other service provided to Client for as long as any fees due to Company remain unsettled. Unless otherwise stated in the Order Form, all prices and fees are in US Dollar and exclusive of any taxes (including withholding, import, VAT and other taxes), customs charges, or other charges or levies, other than taxes on Company’s net income.
6. Support. Company will provide those support services subscribed to in the Order Form. If none, then during the period starting from the date of the installation until the end of the Lease, Company will provide to Client remote assistance and support within the business days and hours observed by the Company to reasonably enable Client to use the Machine and the Services for its internal business purposes and evaluation use.
7. Beta Trial. Notwithstanding Section 8 below, Client leases the Machine and subscribes to Company’s Services under a private Beta Trial. Accordingly, the Machine and the Services are in a development phase and may contain bugs, defects and/or non-conformities, and are made available to the Client for user testing without assurance of the result of the Services. The foregoing has been priced into the lease price of the Machine and the applicable subscription fees of the Services. Client will not demand a reduction in, or return of, payments or disparage the Company or its products or services due to dissatisfaction or non-suitability with Client’s requirements or expectations. For the avoidance of doubt, the content of this section does not supersede any payment, milestone, or performance metric, separately agreed in the Commercial Offer.
8. Limited Warranty.Subject to the full and timely payment of all fees due to Company, according to the terms of this Terms and Conditions, Company warrants that for the duration of the Lease, (a) the Machine(s) shall materially comply with and conform to the specifications published by the Company in writing under the commercial offer and attached to the Order Form; (b) the software accompanying the Machine(s) will be free from material programming errors, and (c) the Services shall be available to the Client and conform with their published specifications (the “Warranty”). The Warranty is void in the event that a Machine has been: (i) subject to misuse, negligence, and/or operation outside the environmental specifications for the Machine or extraordinary heat, cold or humidity, fire, electrical irregularity, vandalism, or improper installation, maintenance by anyone other than Company, or; (ii) modified, customized, repaired or altered by anyone other than Company or its authorized service providers, or (iii) combined with, or installed on products, or equipment other than as detailed in the written specifications published by Company; or (v) damaged by causes beyond the reasonable control of Company. Normal wear and tear is not covered by the Warranty. No other warranties are provided, express or implied.
9. Warranty Remedies. Warranty claims must be made in writing within the Warranty period set out above. Claims received after the lapse of such warranty periods shall not be accepted. The Company may require the use the Company’s form warranty claim document and provide reasonable evidence along with the claim (such as photos, description of the claimed defect, etc.). Client’s sole and exclusive remedy, and the Company’s sole and exclusive liability for a breach of the Warranty shall be: (i) in case of a defect of the Machine, that the Company, at its sole option and cost, and solely following confirmation of a defect or failure of a component to perform as warranted, shall either repair or replace the nonconforming Machine component within a reasonable time or fully return the price paid for the Machine as well as pro-rata refund of the Annual License Fee payments to date, upon receipt of the machine back at the company’s facilities. Such return of the Machine shall be at the Company’s sole cost. The return of the price will be within 21 days from the date the company has received the machine back at its facilities; or (ii) in case of material failure of availability of the Services exceeding 72 hours, to credit Client for the period in which the Services were unavailable by allowing free use for the same period of time after the end of the applicable subscription term.
10. Ownership. The ownership of the Machine(s) is and shall remain of the Company. Other than the License granted under Section 12 herein, no other right or interest whatsoever are granted to Client, and Company retains all such rights.
11. License.Subject to the other terms herein and the payment of the applicable license fees and the consideration for the lease of the Machine(s), Company grants Client a limited, revocable, non-exclusive, non-transferable, non-assignable and non-sub-licensable license to use the Machine(s) and Services in conjunction with the Machine(s) for Client’s business purposes, under the Machine and Services specifications, and Company’s SaaS service terms as in effect from time to time (the “License”), for the lease period set out in the Order Form. If no License subscription period is set out in the Order Form, the duration License shall be granted for a 3-month term and expires thereafter unless renewed upon both parties’ written consent upon such fees and other terms as may be agreed. The License is provided to Client only, and Client must not allow any party other than its legal affiliates and Client’s own personnel to make any use of the License, whether for consideration or without consideration.
12. Restrictions. Client shall not do any use of the machines except as explicitly provided herein or in the Order Form, including (and shall not allow others to): (i) reverse engineer, disassemble, decompile, modify or alter, create derivative works of or reproduce the Machine, the Services or any part included therewith or any part thereof (including any algorithms, ideas or programming); (ii) (iii) develop methods to enable unauthorized parties to use the Machine(s) or Services (whether for or not for any consideration therefor); provide, lease, lend, use for timesharing, or service bureau purposes or otherwise use or allow others to use the Machine(s) or Services to or for the benefit of third parties; (vii) use the Machine(s) or the Services for any illegal or immoral purpose; or (iv) permit or encourage any third party to do any of the foregoing.
13. Intellectual Property. All right, title and interest in and to all intellectual property rights (whether patentable or not, registered or not, or otherwise) in the Machine(s), Services, products, services, technology, material and documentation of the Company reside solely with the Company (and/or its licensees, if applicable). Any feedback provided to Company will belong solely to Company without any right to royalties or other consideration for its use. Client obtains no right to Company’s products, services and technology other than the limited right to make use of the licenses expressly granted to it hereunder during the term of the applicable subscription and subject to the timely payment of all associated fees. All images generated by the Machine, the Services or other products or services of the Company, and any information generated when fishes are analyzed by the Services are the property of the Company. Client retains all right, title and interest in and to its intellectual property embodied in any fish it sorts or analyzes through the Services, and grants Company a free, perpetual, worldwide, transferable, sub-licensable license to make use of the data generated by the Machine and/or the Services for Company’s internal business purposes such as development and training of the machine learning capabilities of its products and services.
14. Indemnification. Company will indemnify Client and hold Client harmless from and against any direct damages and losses, arising out of a third-party claim in which it is found by a competent court that Client’s use of the Company’s products or services in compliance with these Terms and Conditions infringes upon the registered intellectual property in the United States of that third party; Company’s indemnification undertaking is conditioned on Client providing a written notice within 10 days of receiving a claim, allowing Company to assume the defense, negotiations and all related proceedings, reasonably cooperate and assist Company with the defense, at the Company’s cost and not settling any claim or admitting any liability or wrongdoing without Company’s prior written consent. Company will be entitled to settle, compromise or pursue the defense of any such claim at its sole discretion. The Company’s indemnification undertaking shall not apply to the extent that the infringement claim arises from the use of the products or services in a manner for which they were not intended, or not in compliance with the documentation or instructions provided by Company, including the terms hereof, or not installing and using the most recent updates made available, or where the infringement results from the alteration or modification of a product or service, or the combination thereof with any software, hardware, system, services or application not provided by Company, or removal, alteration or modification of any notices or trademarks. Company may also, in its sole discretion and expense, procure for Client the right to continue using the infringing product or service, replace it with a non-infringing alternative or modify it so that it becomes non-infringing, or terminate Client’s use and fully refund Client the purchase price or subscription fee, as applicable. THE FOREGOING IS IN LIEU OF ANY WARRANTIES OF NON-INFRINGEMENT AND ACTS A SOLE REMEDY AND COMPANY’S SOLE LIABILITY FOR ANY INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS ARISING OUT OF OR IN CONNECTION WITH COMPANY’S PRODUCTS AND/OR SERVICES.
15. Termination. Company may terminate this Agreement (including Client’s subscription for Services) with immediate effect in case of a material breach of these Terms and Conditions, unless cured within 14 days of written notice (if curable). Client may terminate this Agreement at any time for convenience, but will not be entitled to any refunds. Upon termination or expiry, all rights and licenses granted to the Client hereunder shall immediately terminate and the Machine shall be returned to the Company, at Client’s expense.
17. Confidentiality. For the purposes of this Agreement, “Confidential Information” means any information, data and knowledge, regardless of form or storage medium, which is delivered or disclosed, directly or indirectly (whether before or after the date hereof) by or on behalf of either party (the “Disclosing Party”) to the other party (the “Receiving Party”), or that comes to the Receiving Party’s knowledge in the framework of this Agreement, in writing, orally, through visual means, or by observation, analysis, inspection or other study of such information, data or knowledge. For avoidance of doubt, Company’s technology, source code, and any other technology constitute Company’s Confidential Information. Confidential Information shall not include any information which (i) was publicly known and made generally available in the public domain through no breach of confidentiality by the Receiving Party; (ii) is rightfully in Receiving Party’s possession free of any obligation of confidence prior to the time of disclosure by the Disclosing Party; (iii) is disclosed to the Receiving Party on a non-confidential basis by a person who is not bound by confidentiality towards the Disclosing Party and is not otherwise prohibited from transmitting the information to the Receiving Party; or (iv) is developed by and on behalf of the Receiving Party independently of and without use of, reference to or basis on any of the Disclosing Party’s Confidential Information; all as can be demonstrated by evidence in writing. Confidential Information does not have to be marked or designated in any manner whatsoever in order to gain protection under this Agreement or under law. All Confidential Information furnished under this Agreement by the Disclosing Party is and shall at all times remain the property of that party. Receiving Party shall hold and maintain the Disclosing Party’s Confidential Information in confidence, taking at least the same measures it takes to protect its own Confidential Information but in any case not less than reasonable care, will not use, copy, distribute and/or disseminate any Confidential Information for any purpose (whether for its own uses and/or or whether for third parties and/or whether for commercial use or not) other than for the purpose of carrying out its obligations hereunder, and will not disclose any Confidential Information to any third parties or to any of its employees, except only to those of its employees who are required to have the Confidential Information and who are bound by written obligations of confidentiality and non-use no less stringent than those contained in this Agreement prior to any such disclosure. In the event that Receiving Party becomes legally compelled pursuant to a binding order of a competent court to disclose any contents of the Confidential Information, it may do so; provided, however, that Receiving Party (i) promptly notifies the Disclosing Party prior to any such disclosure, to the extent practicable or legally permissible; (ii) cooperates with the Disclosing Party in any attempts it may make to obtain a protective order or other assurance that confidential treatment be accorded to the Confidential Information, and (iii) if disclosure is required, (a) furnish only that portion of the Confidential Information that in Receiving Party’s counsel’s opinion Receiving Party is compelled to disclose, and (b) take all reasonable measures to obtain reliable assurance that confidential treatment will be afforded the Confidential Information. All documents and other tangible objects containing or representing Confidential Information, and all copies thereof which are in the possession of the Receiving Party or under its control, shall be and remain the property of the Disclosing Party and shall be promptly returned (or at the Disclosing Party’s election, destroyed) to the Disclosing Party upon its written request and such return (or destruction, if requested by the Disclosing Party) confirmed in writing promptly thereafter, save that Receiving Party may retain one copy of the Confidential Information for archive and compliance purposes.
18. Exclusion of Warranties.OTHER THAN COMPANY’S EXPRESS WARRANTIES SET OUT IN THESE TERMS AND CONDITIONS, THE MACHINE, THE SERVICES AND ANY OTHER PRODUCTS AND SERVICES OF COMPANY ARE PROVIDED “AS IS” AND WITH ALL FAULTS, AND ALL OTHER WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE OR ARE EXPRESSLY DISCLAIMED. THE COMPANY DOES NOT WARRANT THAT THE MACHINE WILL BE FREE FROM DEFECTS OR THAT USE OF THE MACHINE OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. THE COMPANY IS NOT RESPONSIBLE, AN HAS NO LIABILITY FOR ANY HARDWARE, SOFTWARE, OR OTHER ITEM OR SERVICE PROVIDED BY ANY PERSON OR ENTITY OTHER THAN THE COMPANY. NO ORAL OR WRITTEN INFORMATION OR ADVICE BY THE COMPANY WILL CREATE A WARRANTY. COMPANY’S PRODUCTS ARE NOT INTENDED AND ARE NOT SUITABLE FOR USE IN PHARMACEUTICAL PROCESSES OR ANY FDA-REGULATED APPLICATION, OR FOR USE IN SITUATIONS OR ENVIRONMENTS WHERE FAILURE, DELAY, OR ERROR PROVIDED BY THE COMPANY’S PRODUCTS OR SERVICES COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE DAMAGE.
19. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES, LOST DATA, LOSS OF GOODWILL, LOSS OF BUSINESS OR LOST PROFITS, UNDER ANY LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, EQUITY OR CONTRACT) AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT DEROGATING FROM ANY OF THE FOREGOING, THE TOTAL AGGREGATE LIABILITY UNDER THIS AGREEMENT, IF ANY, OF THE COMPANY, ITS LICENSORS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND SUPPLIERS, TO LICENSEE, ITS END USERS OR ANY OTHER PERSON OR ENTITY, IN CONNECTION WITH THE MACHINE(S), ANY UPDATE OR DELIVERABLE OR ANY SERVICES BY OR ON BEHALF OF THE COMPANY OR THIS AGREEMENT, WILL BE LIMITED TO THE CONSIDERATION ACTUALLY RECEIVED BY COMPANY FOR THE MACHINE(S) AND SERVICES PROVIDE BY IT HEREUNDER DURING THE SIX (6) MONTHS PERIOD PRECEDING THE CAUSE OF ACTION. ALL LIMITATIONS AND EXCLUSIONS APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY WARRANTY OR REMEDY.
20. Force Majeure. Company shall not be liable for any failure to perform due to any cause beyond its reasonable control, including but not limited to fire, flood, storm, severe weather, earthquake, war, armed hostilities, terror incidents, civil unrest, riot, insurrection, labor grievance, strike, lockout, outbreak of disease, epidemic (including COVID-19), pandemic, destruction of production facilities, unavailability of material, failure of supply chain, and failure or lack of transportation. The Company shall notify the Client on such circumstances and update the time schedule accordingly.
21. Entire Agreement; Amendments and Waivers. These Terms and Conditions, together with the Order Form and its exhibits, constitute the entire agreement between the parties with respect to the subject matter hereof, supersede and govern in conflict with any prior discussion negotiation, proposal, correspondence or memorandum, and may not be amended except by a written instrument executed by both Parties. No failure or delay in the exercise of any right hereunder shall impair such right or be construed as a waiver of, or acquiescence in, any breach of any representation, warranty, covenant or agreement herein, nor shall any single or partial exercise of any such right preclude other or further exercise thereof or of any other right. Any waiver will only be granted in writing.
22. Remedies Cumulative; Assignment and Relationship.Client may not assign, pledge or transfer in any manner, any of its rights or obligations under this Agreement. Unless where expressly provided otherwise, all rights and remedies of each party will be cumulative, and the exercise of one or more rights or remedies will not preclude in and as of itself the exercise of any other right or remedy available to each party, under any legal theory. The relationship between the parties is that of independent contractors, and nothing contained herein shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties. The Company may assign or transfer any of its rights hereunder provided that Client’s rights will not be adversely affected.
23. Governing Law and Venue. This Agreement shall be governed by and construed in accordance with laws of New-York, without regard to the conflict of law rules thereof. The competent state and federal courts of New-York shall have exclusive jurisdiction over any disputes between the parties hereto, whether in law or equity, arising out of or relating to this Agreement and the parties consent to and agree to submit to the exclusive jurisdiction of such courts. The United Nations Convention on Contracts for the International Sale of Goods does not apply.
24. Notices; Electronic Signatures. Except as otherwise provided herein, all communications hereunder shall be in writing. Electronic signature or delivery of documents or signatures by facsimile, email or in electronic form (including by scanned .pdf image) shall be as effective as delivery of an original manually executed document.
25. Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other authority to be invalid or unenforceable, the remainder of the terms of this Agreement (or portions thereof) shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and such invalid, void or unenforceable term shall be deemed to be replaced by a valid or enforceable (as the case may be) term which comes closest to expressing the parties’ original intenti.