These terms (“Terms”) apply to all Products, Software and/or Services purchased by or on behalf of customer (the legal person who agrees to buy the Products, Software and/or Services from Tactile Technology) (“Customer”) direct from Tactile Technology Corporation Limited (“Tactile Technology”) for its internal use only and to the exclusion of all other terms and conditions. These Terms together with Tactile Technology’s Order Documents and Service Documents (as defined below) form a legally binding contract between Customer and Tactile Technology for the purchase of Products, Software and Services (“the Agreement”). These documents will apply in following order of priority: (1) Order Documents; (2) Service Documents and (3) these Terms. If Customer and Tactile Technology have a separate agreement in place for the purchase of Products, Software or Services, that agreement shall apply instead of these Terms.
“Confidential Information” means collectively information of the disclosing party that is not generally known to the public, such as software, product plans, pricing, marketing and sales information, customer lists, “know-how,” or trade secrets, which may be designated as confidential or which, under the circumstances surrounding disclosure, ought to be treated as confidential.
“Deliverables” means tangible and intangible materials including reports, studies, base cases, drawings, findings, manuals, procedures and recommendations prepared by Tactile Technology or its suppliers, licensors in the course of providing the Services.
“Tactile Technology-branded” means IT hardware, software and related products and services which are marked with the Tactile Technology logo or sold under the Tactile Technology brand and components thereof, excluding (1) Third Party Products and (2) any parts or components added after delivery of the Products or through Tactile Technology’s custom factory integration service.
“Intellectual Property Rights” means any patent, copyright, database right, moral right, design right, registered design, trade mark, service mark, domain name, metatag, utility model, unregistered design or, where relevant, any application for any such right, or other industrial or intellectual property right subsisting anywhere in the world and any intellectual property rights in know-how, documentation, and techniques associated with the Deliverables or Materials.
“Materials” means all content and other items included with or as part of the Products, Services, Software, or Deliverables, such as text, graphics, logos, button icons, images, audio clips, information, data, photographs, graphs, videos, typefaces, music, sounds, and software.
“Order Documents” means the quotation and/or the order confirmation and/or the invoice sent by Tactile Technology to Customer which describes the Products, Software and Services purchased by Customer under the Agreement as well as Prices, payment terms and other provisions.
“Prices” means the gross price payable for the Products, Software and/or Services including the charges set out in clause 3.2.
“Products” means computer hardware and related products supplied by Tactile Technology under the Agreement.“Services” means the services provided by Tactile Technology as described in any Service Documents.
“Service Descriptions” means descriptions of services found at http://www.tactiletechnology.com/services/
“Service Documents” means the Service Descriptions available at http://www.tactiletechnology.com/services/ Statements of Work and any other mutually agreed documents describing Services, Software or Deliverables.
“Software” means any software, library, utility, tool, or other computer or program code, in object (binary) or source-code form, as well as related documentation, provided by Tactile Technology to Customer. Software includes software (1) provided by Tactile Technology and locally installed on Customer’s hardware and/or equipment or (2) made available by Tactile Technology and accessed by Customer through the internet or other remote means (such as websites, portals, and “cloud-based” solutions).
“Statement of Work” means any mutually agreed statement of work describing specific Services and/or Deliverables as agreed between Customer and Tactile Technology.
“Third Party Products” means any non Tactile Technology-branded products, software, or services.
3. Ordering, Prices, Payment
3.1 Any quotes issued by Tactile Technology shall be valid for 30 days unless stated otherwise in the quote.
3.2 Prices for the Products, Software and Services shall be stated in the Order Documents or Service Documents issued by Tactile Technology. Where deliveries occur in instalments or phases Tactile Technology may need to adjust Prices for Products, Software or Services due to changes in exchange rates, taxes, duties, freight, levies and purchase costs. Quotes provided by Tactile Technology exclude value added tax, sales tax, governmental fees and any other applicable taxes, levies, and shipping charges unless expressly set out in the quote. Such charges are payable by Customer in addition to the prices quoted and may appear as separate items on the Order Documents. If the Customer is eligible for tax exemptions, it shall provide Tactile Technology with a valid certificate of exemption or other documentary proof of exemption.
3.3 Payment for Products, Software or Services must be received by Tactile Technology prior to Tactile Technology shipping the Products or providing the Software or Services to Customer or, if agreed in writing, within the time period noted on the Order Documents, or if not noted, within 30 days from the date of the invoice. Payment shall be made to the account indicated by Tactile Technology (as may be amended from time to time.) Time for payment shall be of the essence. Customer’s payment terms are subject to credit checking by Tactile Technology. Tactile Technology shall be entitled to charge interest on overdue amounts at a rate of 3 per cent above the Bank of England base rate calculated on a daily basis (both before and after judgement) until actual payment is made in full. If any sum due from the Customer to Tactile Technology under the Agreement is not paid by the due date for payment then (without prejudice to any other right or remedy available to Tactile Technology), Tactile Technology shall be entitled to cancel or suspend its performance of the Agreement or any order including suspending deliveries of the Products and/or Software and suspending provision of the Services until arrangements as to payment or credit have been established which are satisfactory to Tactile Technology. Tactile Technology may invoice parts of an order separately.
3.4 All payments made or to be made by Customer to Tactile Technology under this Agreement shall be made free of any restriction or condition and without any deduction or withholding (except to the extent required by law) on account of any other amount, whether by way of set-off or otherwise.
3.5 Tactile Technology may invoice electronically and the parties agree to make the necessary arrangements to enable such electronic invoicing to take place.
3.6 Tactile Technology will include all charges on the next invoice where possible, and in any event as soon as we can. Invoices shall be deemed to have been accepted by you if you do not present a written objection, identifying clearly the disputed invoice and the reasons why it is challenged, to us within six (6) months of the date of the invoice. If such objection is made we shall both make all reasonable efforts to resolve such dispute promptly. Provided you comply with these requirements in presenting your objection, if we fail to respond to that objection within thirty (30) days after its receipt by us, the objection will be deemed to have been accepted by us. We will accordingly amend the relevant invoice either with an appropriate credit to you or you shall be liable to pay the balance (if any) of the amended invoice within seven (7) days of its receipt by you.
4. Changes to Products, Software or Services
Changes in a Product, Software, or Service may occur after a Customer places an order but before Tactile Technology ships the Product or Software or performs the Service, and Products and Software or Services Customer receives might display minor differences from the Products, Software, or Services Customer orders but they will meet or exceed all material functionality and performance of the Products, Software or Services that were originally ordered.
5.1 Tactile Technology shall deliver the Products to Customer’s location as set out in the Order Documents. Delivery dates are non-binding and time for delivery shall not be of the essence. If no delivery dates are specified, delivery shall be within a reasonable time. Delivery of Products may be made in instalments. Tactile Technology shall not be liable for any loss (including loss of profits), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Products (even if caused by Tactile Technology’s negligence), nor will any delay entitle Customer to terminate or rescind the Agreement. Tactile Technology shall only be liable for any non-delivery of Products if Customer gives written notice to Tactile Technology within 7 days of the date when the Products would, in the ordinary course of events, have been delivered.
5.2 The Products shall be at the risk of Customer or its representative from the time of delivery. Tactile Technology retains all title to the Products until full payment for such Products is received by Tactile Technology from Customer. Therefore, until full payment is received, Customer will (1) hold the Products on a fiduciary basis as Tactile Technology’s bailee and shall not pledge or in any way charge by way of security for any indebtedness any of the Products (2) ensure that the Products remain readily identifiable as Tactile Technology’s property (3) not destroy, deface or obscure any identifying mark or packaging on or relating to the Products (4) maintain the Products in satisfactory condition and keep them insured [on Tactile Technology’s behalf] for their full price against all risks to the reasonable satisfaction of Tactile Technology. On request Customer shall produce the policy of insurance to Tactile Technology. Customer grants Tactile Technology, its agents and employees an irrevocable licence at any time to enter without restriction any premises where the Products are or may be stored without prior notice in order to inspect them, or, where Customer’s right to possession has terminated, to recover them. Tactile Technology shall be entitled to maintain an action against Customer for the price of the Products notwithstanding that title to and property in the Products has not passed to Customer.
5.3 Customer shall inspect the Products to identify any missing, wrong or damaged Products or packaging, and notify Tactile Technology of any such issues which would be apparent on reasonable inspection and testing of the Products within 7 days of the date of delivery of the Products. Where the defect or failure would not be so apparent within 7 days of the date of delivery, Customer shall notify Tactile Technology in writing of any defects or other failure of the Products within a reasonable time. If Customer does not comply with the notiGication requirements in this clause, Customer shall not be entitled to reject the Products; Tactile Technology shall have no liability for such defect or failure, and Customer shall be bound to pay for the Products as if they had been delivered in accordance with the Agreement. Tactile Technology shall, at its discretion, repair or replace Products rejected in accordance with this clause.
5.4 If for any reason Customer does not accept delivery of any of the Products when they are ready for delivery, or Tactile Technology is unable to deliver the Products on time because Customer has not provided appropriate instructions, documents, licences or authorisations then the Products will be deemed to have been delivered, risk passing to Customer (including for loss or damage caused by Tactile Technology’s negligence) and Tactile Technology may:
5.4.1 store the Products until actual delivery and Customer shall be liable for all related costs and expenses (including without limitation storage and insurance); or
5.4.2 sell the Products at the best price readily obtainable and (after deduction of all reasonable storage and selling expenses) charge Customer for any shortfall below the Price for the Products.
6. Services, Software provided by Tactile Technology in connection with the provision of the Services & Deliverables
6.1 Tactile Technology shall provide Services, Software, or Deliverables to Customer in accordance with the Service Documents. Tactile Technology may, at its option, propose to renew the Service and the Software licence by sending Customer an invoice or, subject to prior notification, continuing to perform the Service or make the Software available to Customer. Customer is deemed to have agreed to such renewal of the Service and Software licence by paying such invoice by its due date or by continuing to order Services or use the Software.
6.2 All Intellectual Property Rights embodied in the Materials and Deliverables shall belong solely and exclusively to Tactile Technology, its suppliers or its licensors except as expressly granted in this Agreement.
6.3 Subject to payment in full for the applicable Services, Tactile Technology grants Customer a non-exclusive, non- transferable, royalty-free right to use the Materials and Deliverables solely (1) in the country or countries in which Tactile Technology delivers the Services, (2) for its internal use, and (3) as necessary for Customer to enjoy the beneGit of the Services as stated in the applicable Service Documents.
6.4 Tactile Technology may cancel or suspend its performance of the Services or Customer’s access or any user access to the Software provided by Tactile Technology in connection with the provision of the Services where Tactile Technology is required to do so (1) by law, (2) by order of a court of competent jurisdiction, or (3) when Tactile Technology has reasonable grounds to believe that Customer (or Customer’s users) are involved in any fraudulent or other illegal activities in connection with the Agreement.
6.5 It may be necessary for Tactile Technology to carry out scheduled or unscheduled repairs or maintenance, or remote
patching or upgrading of the Software provided by Tactile Technology in connection with the provision of the Services and which is installed on Customer’s computer system(s) (“Maintenance”), which may temporarily degrade the quality of the Services or result in a partial or complete outage of the Software. Any degradation or interruption in the Software or Services during such Maintenance shall not give rise to a refund or credit of any fees paid by Customer.
6.6 Customer agrees that the operation and availability of the systems used for accessing and interacting with the Software provided by Tactile Technology in connection with the provision of the Services (including telephone, computer networks and the internet) or to transmit information can be unpredictable and may from time to time interfere with or prevent access to, use or operation of the Software. Tactile Technology shall not be liable for any such interference with or prevention of Customer’s access to, use or lack of operation of the Software.
6.7 During the performance of the Services or in connection with Customer’s use of the Software provided by Tactile Technology in connection with the provision of the Services, it may be necessary for Tactile Technology to obtain, receive, or collect data or information, including system specific data (collectively, the “Data”). Customer grants to Tactile Technology a non-exclusive, worldwide, royalty-free, perpetual, irrevocable licence to:
6.7.1 use, compile, distribute, display, store, process, reproduce, or create derivative works of the Data solely for the purposes set out in clause 6.7;
6.7.2 a licence to aggregate the Data with other data for use in an anonymous manner for Tactile Technology’s marketing and sales activities; and
6.7.3 a right to copy and maintain such Data on Tactile Technology’s servers (or the servers of its suppliers) during the term of this Agreement.
6.8 Customer represents and warrants that it has obtained all rights, permissions, and consents necessary to use and transfer the Data within and outside of the country in which Customer is located in connection with Tactile Technology’s performance of the Services or Customer’s use of the Software.
7.1 Where the Services purchased consist of repair of Tactile Technology-branded Products, such Services shall be those repair services that are necessary to fix a defect in materials or construction of any Products covered by this Agreement. Preventive maintenance is not included and Tactile Technology shall not be responsible for repairs of Tactile Technology- branded Products caused by problems with Software or Customer provided Third Party Products. Unless expressly stated in a Service Document, Services do not include repair of any Products or Product component that has been damaged as a result of (1) work carried out by anyone other than Tactile Technology or its representatives (2) accident, misuse, or abuse of the Product or Product component (such as, without limitation, use of incorrect line voltages or fuses, use of incompatible devices or accessories, improper or insufGicient ventilation, or failure to follow operating instructions) by anyone other than Tactile Technology or its representatives; (3) the moving of the Product from one geographic location or entity to another; or (4) an act of nature, including without limitation, lightning, Glooding, tornado, earthquake, or hurricane. Parts used in repairing or servicing Products may be new, equivalent-to-new, or reconditioned.
7.2 Customer authorises Tactile Technology to use or access any Customer provided Third Party Products as necessary or as requested by Customer in Tactile Technology’s performance of the Services, including without limitation, copying, storing, and reinstalling a backup system or data. Customer shall defend, indemnify, and hold Tactile Technology harmless from any third party claim or action arising out of Customer’s failure to provide such authorisation (including without limitation, obtaining appropriate licenses, Intellectual Property Rights, or any other permissions, regulatory certiGications, or approvals associated with technology, software, or other components).
8.1 Software is subject to separate software licence agreements accompanying the software media and any product guides, operating manuals, or other documentation presented to Customer during the installation or use of the Software. 8.2 In the absence of licence terms accompanying the Software, Tactile Technology grants Customer a non-exclusive licence to access and use the Software provided by Tactile Technology. Software provided or made available to Customer by Tactile Technology in connection with the provision of the Services may be used only during the term of the Services and solely as necessary for Customer to enjoy the benefit of the Services.
8.3 For Software provided by Tactile Technology in connection with the provision of the Services, the following clauses shall apply:
8.3.1 Customer may not: (1) copy (save for making a back up copy), adapt, licence, sell, assign, sublicense, or otherwise transfer or encumber the Software; (2) use the Software in a managed services arrangement; or (3) use the Software in excess of the authorised number of licensed seats for concurrent users, sites, or other criteria specified in the applicable Service Documents.
8.3.2 Customer is prohibited from (1) attempting to use or gain unauthorised access to Tactile Technology or to any third party’s networks or equipment; (2) attempting to probe, scan, or test the vulnerability of Software or a system, account, or network of Tactile Technology or any of its customers or suppliers; (3) interfering or attempting to interfere with service to any user, host, or network; (4) transmitting unsolicited bulk or commercial messages; (5) restricting, inhibiting, or otherwise interfering with the ability of any other person, regardless of intent, purpose, or knowledge, to use or enjoy the Software (except for tools with safety and security functions); or (6) restricting, inhibiting, interfering with, or otherwise disrupting or causing a performance degradation to any Tactile Technology (or Tactile Technology’s suppliers’) facilities used to deliver the Services.
8.4 Customer grants Tactile Technology, or an agent designated by Tactile Technology, the right to perform an audit of its use of the Software during normal business hours. Customer agrees to cooperate with Tactile Technology in such audit and to provide reasonable access to all records related to the use of the Software. The audit will be limited to veriGication of Customer’s compliance with the terms of usage relating to such Software under this Agreement.
9.1 Subject to clause 9.3, Tactile Technology warrants that Tactile Technology-branded Products shall (1) conform to their product specification and (2) be free from material defects for a period of 12 months from the date of the invoice (“Warranty Period”) and (3) that Tactile Technology-branded spare parts shall be free from defects for 90 days from the date of delivery or for the remainder of the Warranty Period, if longer. Performance of any one of the options set out at clause 9.3 below shall constitute an entire discharge of Tactile Technology’s liability under the warranties given in this clause 9.1.
9.2 All warranties, conditions and other terms implied by law are to the fullest extent permitted by law, excluded from this Agreement.
9.3 Tactile Technology shall at its own discretion, repair or replace Tactile Technology-branded Products that do not comply with the warranties set out in clause 9.1 provided Tactile Technology is notified in writing of the alleged defect within 7 days of the time when Customer discovers or ought to have discovered the defect and in any event within the Warranty Period. If Tactile Technology elects to replace Tactile Technology-branded Products or parts pursuant to the warranties set out in clause 9.1, Tactile Technology shall deliver the replacement Products or parts to Customer at Tactile Technology’s own expense at the address to which the defective Tactile Technology-branded Products were delivered and the legal, equitable and beneGicial title to the defective Products or parts which are being replaced shall (if it has vested in Customer) re-vest in Tactile Technology. Customer shall make any arrangements as may be reasonably necessary to deliver up to Tactile Technology the defective Products which are being replaced and Tactile Technology shall be entitled to charge Customer if such defective Product or parts are not returned on request.
9.4 Tactile Technology warrants that (1) the Services and Deliverables shall conform to the Service Documents and (2) the Services shall be performed with reasonable skill and care during the applicable service period.
9.5 Tactile Technology warrants that for a period of 90 days from the date of delivery Tactile Technology-branded Software will be capable of functioning in all material respects in accordance with the relevant speciGications provided (1) Customer notifies Tactile Technology of any error or defects in the Software within 14 days of the time when Customer discovers or ought to have discovered the error or defect and (2) Customer provides Tactile Technology with documented examples of such error or defect. Tactile Technology provides no assurance or warranty that the Software will be free from minor errors. Tactile Technology’s sole responsibility in respect of the warranty given in this clause 9.5 and Customer’s sole remedy shall be the correction of any failure of the Tactile Technology-branded Software so that it functions in material respects in accordance with the relevant speciGications.
9.6 Tactile Technology shall not be liable under the warranties given in this clause 9 in respect of:
9.6.1 any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow Tactile Technology’s instructions (whether oral or in writing), misuse or alteration, modification, adjustment or repair of the Products and/or Software without Tactile Technology’s approval;
9.6.2 if the total Price for the Products and/or Software has not been paid by the due date for payment;
9.6.3 for any Products, Software, Deliverables parts, materials or equipment not manufactured or produced by Tactile Technology, in respect of which Customer shall only be entitled to the beneGit of any such warranty or guarantee as is given by the manufacturer or supplier to Tactile Technology to the extent that they are assignable by Tactile Technology to Customer;
9.6.4 any Software, Deliverables and Products manufactured, produced or provided by Tactile Technology pursuant to the Agreement in accordance with any design, specification, instruction or recommendation made to Tactile Technology by Customer;
9.6.5 any type of defect, damage or wear speciGically excluded by Tactile Technology by notice in writing; and/or
9.6.6 if Customer makes any further use of the Products and/or Software after giving notice pursuant to clause 9.3.
9.7 Tactile Technology does not warrant that the Products, Software, Deliverables or Services will function (1) with any speciGic conGiguration not provided by Tactile Technology or (2) to produce a speciGic result even if the configuration or result has been discussed with Tactile Technology.
10.1 Neither party excludes or limits liability to the other party for (1) death or personal injury resulting from negligence, (2) fraud or (3) fraudulent misrepresentation or (4) any other liability that cannot be excluded by law.
10.2 Neither party shall be liable for:
10.2.1 special, indirect or consequential loss or damages;
10.2.2 loss of profit, income or revenue;
10.2.3 loss of use of Customer’s system(s) or networks;
10.2.4 loss of goodwill or reputation;
10.2.5 loss of, corruption of or damage to data or software; or
10.2.6 recovery of data or programs.
10.3 Tactile Technology’s total liability to Customer howsoever arising out of or in connection with the Agreement whether for negligence or breach of contract or otherwise shall not exceed 125% of the Price payable by Customer under the Agreement for Products, Software, Deliverables and/or Services.
11. High Risk Activities
Customer acknowledges that the Products, Software, Deliverables and Services are not designed or intended for use in hazardous environments requiring fail safe performance, including without limitation, in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, weapons systems, life support machines, or any other application in which the failure of the Products, Software, Deliverables or Services could lead directly to death, personal injury, or severe physical or property damage (“High Risk Activities”). Tactile Technology expressly disclaims any express or implied warranty of Gitness for High Risk Activities.
Each party must treat all Confidential Information received from the other party as it would treat its own confidential information generally, but with no less than a reasonable degree of care.
13.1 Tactile Technology shall defend and indemnify Customer against any third-party claim or action that Tactile Technology-branded Products, Software, Deliverables or Services prepared or produced by Tactile Technology and delivered pursuant to this Agreement infringe or misappropriate that third party’s Intellectual Property Rights enforceable in the country in which Tactile Technology delivers and the Customer is authorised to receive such Products, Software, or Services (“IPR Claim”). If Tactile Technology receives prompt notice of an IPR claim that, in Tactile Technology’s reasonable opinion, is likely to result in an adverse ruling, then Tactile Technology shall at its option, (1) obtain a right for Customer to continue using such Products, Deliverables or Software or allow Tactile Technology to continue performing the Services; (2) modify such Products, Deliverables, Software, or Services to make them non- infringing; (3) replace such Products, Deliverables, Software, or Services with a non-infringing equivalent; or (4) refund any pre-paid fees for the allegedly infringing Services that have not been performed or provide a reasonable depreciated or pro rata refund for the allegedly infringing Product, Deliverable or Software.13.2 Notwithstanding clause 13.1, Tactile Technology shall have no obligation under clause 13.1 for any IPR Claim arising from (1) modiGications of Tactile Technology-branded Products, Deliverables, Software, or Services that were not performed by or on behalf of Tactile Technology; (2) the combination, operation, or use of such Products, Deliverables, Software, or Services in connection with a third party product, software, or service (the combination of which causes the claimed infringement); or (3) Tactile Technology’s compliance with Customer’s written specifications or directions, including the incorporation of any software or other materials or processes provided by or requested by Customer.
13.3 Clauses 13.1 and 13.2 set out Customer’s sole and exclusive remedies for any IPR Claim.
13.4 Customer shall defend and indemnify Tactile Technology against any third party claim or action arising out of (1) Customer’s failure to obtain any appropriate licence, Intellectual Property Rights, or other permissions, regulatory certiGications, or approvals associated with technology or data provided by Customer, or (2) associated with software or other components directed or requested by Customer to be installed or integrated as part of the Products, Deliverables, Software or Services; (3) Customer’s breach of Tactile Technology’s proprietary rights as stated in this Agreement; or (4) any inaccurate representation regarding the existence of an export licence; or (5) any allegation made against Tactile Technology due to Customer’s breach or alleged breach of applicable export laws, regulations, or orders.
14.1 Either party may terminate this agreement in respect of a service by giving the other party not less than thirty (30) days notice in writing to take effect at the end of either the first of any subsequent minimum term for the relevant service. Where a service has a notice period greater than thirty (30) days then this amount of notice must be provided on that service.
14.2 Either party may (without prejudice to any other rights or remedies it may have against the other party) terminate this Agreement by notice in writing immediately if the other party:
14.2.1 commits a material breach of the Agreement and fails to remedy such breach within 30 days of written notice; or
14.2.2 ceases, or threatens to cease, to carry on business or, becomes insolvent.
14.3 Tactile Technology may terminate this Agreement with immediate written notice if Customer:
14.3.1 fails to pay undisputed sums properly due to Tactile Technology in accordance with the Agreement;
14.3.2 Customer breaches or Tactile Technology reasonably suspects Customer has breached export control laws;
14.3.3 Customer breaches any IPR obligations, warranties and indemnities set out in the Agreement.
14.4 On termination of this Agreement, all rights and obligations of the parties relating to the Products, Services and/or Software relevant to the specific Order Documents under the Agreement will automatically terminate except for rights of action accruing prior to its termination
14.5 The following clauses shall survive termination of the Agreement and continue to bind the parties, their successors and assigns: 1 (Introduction); 2 (Definitions); 3.3 (Payment); 5 (Products); 6 (Services, Software & Deliverables); 7 (Services); 9 (Warranties); 10 (Liability); 11 (High Risk Disclaimer); 12 (Confidentiality); 13 (Indemnities); 14 (Termination); 15 (Force Majeure); 16 (Export Compliance); 17 (Data Privacy); 18 (WEEE Compliance); and 19 (General).
15. Force Majeure
Neither party shall be liable to the other for any failure to perform any of its obligations (except payment obligations) under this Agreement during any period in which such performance is delayed by any circumstances beyond a party’s reasonable control including, without limitation, Gire, Glood, war, embargo, strike, riot, or the intervention of any governmental authority (“Force Majeure Event”) provided that the delayed party shall provide the other party with prompt written notice of the Force Majeure Event. The delayed party’s time for performance shall be excused for the duration of the Force Majeure Event, but if the Force Majeure Event lasts longer than 30 days, then the other party may immediately terminate, in whole or in part, this Agreement by giving written notice to the delayed party.
16. Export Compliance
16.1 Customer acknowledges that the Products, Deliverables, Software, and Services provided under this Agreement, (which may include technology and encryption), (1) are subject to U.S. and European customs and export control laws, (2) may be rendered or performed in countries outside the U.S. or Europe, or outside of the borders of the country in which Customer or Customer’s Products are located, and (3) may also be subject to the customs and export laws and regulations of the country in which the Products, Deliverables, Software, or Services are rendered or received. Under these laws and regulations, Products, Deliverables, Software, and Services purchased under this Agreement may not be sold, leased or otherwise transferred to restricted end-users or to restricted countries. In addition, the Products, Deliverables, Software and Services may not be sold, leased or otherwise transferred to, or utilized by, an end-user engaged in activities related to weapons of mass destruction, including but not necessarily limited to, activities related to the design, development, production or use of nuclear materials, nuclear facilities, or nuclear weapons, missiles or support of missile projects, or chemical or biological weapons. Customer agrees to abide by those laws and regulations.
16.2 Customer represents that any software provided by it and used as part of the Products, Deliverables, Software, or Services contains no encryption or, to the extent that it contains encryption, such software is approved for export without a licence. If Customer cannot make the preceding representation, Customer agrees to provide Tactile Technology with all of the information needed for Tactile Technology to obtain export licences from the U.S. government or any other
applicable national government and to provide Tactile Technology with such additional assistance as may be necessary to obtain such licenses. Notwithstanding the foregoing, Customer is solely responsible for obtaining any necessary licenses relating to the export of software. Tactile Technology also may require export certiGications from Customer for Software.16.3 Tactile Technology’s acceptance of any order for Products, Deliverables, Software, or Services is contingent on the issuance of any applicable export license required by the U.S. Government or any other applicable national government. Tactile Technology shall not be liable for delays or failure to deliver Products, Deliverables, Software, or Services resulting from Customer’s failure to obtain such licence or to provide such certiGication.
16.4 Customer agrees to indemnify, defend and hold Tactile Technology harmless from any third party claims, demands, or causes of action against Customer’s breach or alleged breach of the applicable export laws
17. Data Privacy
In this section 17, the terms “data controller”, “data processor”, “personal data” and “processing” shall be as deGined in the European Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data (“Directive”) as amended or superseded from time to time.
17.1 To the extent Customer and Tactile Technology are data controllers for the purpose of any personal data processed under or in connection with this Agreement, each party shall comply with the provisions and obligations imposed by the Directive to the extent required by that legislation of each party. As data controller, Customer conGirms that it has obtained all necessary authorisations for lawful processing, prior to passing personal data to Tactile Technology.
17.2 To the extent Tactile Technology processes personal data as a data processor for Customer under or in connection with this Agreement, Tactile Technology shall ensure appropriate protection is in place to safeguard such personal data. Tactile Technology shall use its reasonable efforts to assist Customer to comply with its obligations, as data controller, to respond to requests for access to Customer records made by individuals to whom the personal data relates, subject to the payment by Customer of Tactile Technology’s reasonable professional charges for the time engaged by Tactile Technology staff in so doing.
17.3 Customer authorises Tactile Technology to collect, use, store and transfer the personal data Customer provides to Tactile Technology for the purpose of performing Tactile Technology’s obligations under this Agreement and for any additional purposes described, pursuant to the Agreement.
17.4 Tactile Technology may, in the normal course of business, make worldwide transfers of personal data on its corporate systems, to other entities, agents or subcontractors in the same group of companies, or to other relevant business partners who may have incidental access to personal data. When making such transfers, Tactile Technology shall ensure appropriate protection is in place to safeguard personal data transferred under or in connection with this Agreement. 17.5 Tactile Technology shall not be liable for any claim brought by Customer or a data subject arising from any action or omission by Tactile Technology to the extent that such action or omission resulted from compliance by Tactile Technology with Customer’s instructions.
18. WEEE Compliance
Tactile Technology takes responsibility for compliance with the Waste Electrical and Electronic Equipment Directive 2002/96/EC (“WEEE”), including without limitation: reporting of equipment placed on the market, payment of ECO-fees to the appropriate authority where required and take back of product at Tactile Technology provided collection facilities in accordance with WEEE as transposed in national legislation. Products deposited at collection facilities will be recycled by Tactile Technology in accordance with WEEE. Customer shall be responsible for returning products at its cost to Tactile Technology’s designated collection facilities as per Tactile Technology’s WEEE recycling .
19.1 Notices given under the Agreement must be in writing and shall be effective when delivered to the other party’s legal officer at the address stated on Tactile Technology’s invoice.
19.2 Neither party may assign or transfer this Agreement without the prior written consent of the other party except that (1) no consent is required by Tactile Technology to assign to its affiliated companies and (2) Tactile Technology may subcontract its obligations under the Agreement but shall remain liable and responsible to Customer for such obligations.19.3 This Agreement constitutes the entire agreement between the parties and each party acknowledges that in entering into this Agreement it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out in this Agreement. Nothing in the Agreement shall limit or exclude any liability for fraud or fraudulent misrepresentation.
19.4 Any changes to this Agreement or to any order placed pursuant to it shall not be valid or binding unless it is in writing and agreed by parties. If any provision of this Agreement should be found to be void or unenforceable, such provision will be struck out or modified to the extent necessary to comply with the law, and the remainder of this Agreement shall remain in full force and effect.
19.5 A waiver by either party of a breach of the Agreement or delay or failure to enforce a right under the Agreement shall not constitute a waiver of any subsequent breach of the Agreement.
19.6 A person who is not a party to the Agreement shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Agreement.
19.7 The Agreement and any non contractual obligations shall be interpreted according to English law and the English courts shall have exclusive jurisdiction.
19.8 The parties agree that the United Nations Convention on Contracts for the International Sale of Goods 1980 (Vienna Convention) shall not apply to the Agreement.