TIMING EQUIPMENT SALES AND LEASE AGREEMENT TERMS
Last updated January 05, 2022
THESE TIMING EQUIPMENT SALES AND LEASE AGREEMENT TERMS AND CONDITIONS form part of the agreement for the purchase or lease as set forth in the SCHEDULE to which they are referenced (the “Agreement”) and are entered into by and between Active and Client. Active and Client are hereinafter collectively referred to as “Parties,” or individually as a “Party.” Your relationship with Active and your use of Active’s products and services (including your purchase or leasing of Timing Products) are subject to the terms and conditions set forth herein and are between you and Active. In order to use the Timing Products, you (referred to herein as “Client”) must first agree to this Agreement. You represent and warrant that you have the necessary and full right, power, authority, and capability to accept this Agreement, to bind your organization, and to perform your obligations hereunder. You can accept this Agreement by: (a) clicking to accept or agree to this Agreement, where this option is made available to you by Active in the user interface for any Timing Product; (b) where a link to this Agreement appears in an order form, Schedule or other document provided to you by Active, by signing such document; (c) by signing this Agreement, if there is a designated area to sign; or (d) by actually using the Timing Products. In the case of (d), you understand and agree that Active will treat your use of the Timing Products as acceptance of this Agreement from that point onwards. You may not use the Timing Products and may not accept this Agreement if (i) you are not of legal age to form a binding contract with Active, or (ii) you are a person barred from receiving the Timing Products under the laws of the United States or other countries, including the country in which you are resident or from which you use the Timing Products. You may not use the Timing Products if you do not accept this Agreement. By accepting this Agreement, you agree as follows:
1 Sale and Purchase of the Timing Product. Client shall purchase from Active and Active shall sell and, if applicable, deliver to Client as follows:
1.1 Timing Products Defined. Timing Products, including the type, quantity, and other characteristics, are identified in the Schedule, each as executed by the Parties and attached hereto (the “Timing Product”), and may include RFID tag readers (“Readers”). Certain of the Timing Products operate with software, computer instructions, operating information, programs, and related data (the “Timing Products Software”) and your purchase includes only the purchase of a limited license to use the Timing Products Software solely for the purpose of recording and relaying timing results and strictly subject to and in accordance with the terms and conditions herein and any additional terms for the specific Timing Products Software.
1.2 Delivery, Title and Risk of Loss. Unless physically picked up by Client at the location designated by Active, or as otherwise indicated in the Schedule, Timing Products will be shipped Ex Works to the shipping address on approximately the “Estimated Ship By Date,” as such address and date are indicated in this Agreement. Title to, and the risk of loss, injury, or destruction of any Timing Product, from any cause whatsoever shall pass to Client upon the following, as applicable (a) if picked up by Client, upon Client taking possession of the Timing Products, or (b) if shipped to Client, upon Active placing the Timing Products into transit for delivery to Client.
1.3 Firm Order and Order Changes. Client’s execution of this Agreement constitutes a firm order to purchase the Timing Products and is not cancellable, and Client agrees that it shall in fact purchase the Timing Products. No change order is effective unless agreed to by both Parties in a signed writing (signed by an authorized representative of each Party). The Parties acknowledge and agree that any change may affect or delay the delivery and/or the Purchase Price of the Timing Product. Active shall not be liable for any delays whatsoever that occur in the delivery due to changes requested by Client.
1.4 Client Materials. If Client is ordering Timing Products that include any images, photographs, text, graphics and other materials submitted or otherwise requested by Client (collectively, “Client Materials”), the following terms and conditions shall apply: (a) Client retains ownership of Client Materials and grants Active and its designees a worldwide, transferable, sub-licensable, royalty-free, license to use, reproduce, distribute (through multiple tiers), create derivative works of and publicly display such Client Materials solely in connection with Active’s performance under this Agreement, including, without limitation, the production or provision of any custom Timing Product or service ordered by Client; (b) Client represents and warrants that Client owns or otherwise possesses all necessary rights with respect to the Client Materials, and that the Client Materials do not and will not infringe upon, misappropriate, or otherwise violate any copyright, trade secret right or other intellectual property or other property right of any third party; and (c) that the Client Materials are not unlawful, fraudulent, threatening, abusive, libelous, defamatory, obscene or otherwise objectionable.
1.5 Variations in Color, Scale and Resolution. Client acknowledges that order specifications for Timing Products, including those pertaining to color, text, imagery, imprinting Client Materials or other customization, can only be approximated and not guaranteed. Orders may experience variations in color, scale and resolution for many reasons, including, without limitation, as a result of the differing color palette utilized in Client Materials and Active’s manufacturing capabilities, the size of the Timing Products and the nature of the manufacturing and assembly process and materials. Active will not accept returns or provide refunds based on any variations described in this Section.
2 Purchase Price; Payment. . The Purchase Price to be paid by Client to Active for Timing Product shall be a fixed price specified below payable as follows:
2.1 Purchase PriceClient shall pay the Purchase Price indicated in the Schedule in U.S. Dollars (unless stated otherwise), plus any and all applicable Taxes (as defined below) and Shipping Costs (as defined below). Client hereby authorizes Active to charge the debit card or credit card on file with Active for all payments and fees due under this Agreement. If a card is not on file with Active, Client will mail a check or money order, payable to Active Network, LLC, to Active Network, LLC, 5850 Granite Pkwy, Suite 1200, Plano, TX 75024. All returned checks will be subject to a returned check fee of $50.00.
2.2 Taxes and Other Costs. Client shall be responsible for and shall pay (a) all applicable taxes, including but not limited to sales, use, excise, withholding, assessments, stamp, transfer, value-added, duties, tariffs, export charges, import charges, and other taxes or assessments imposed by any foreign, federal, provincial, state, or local governmental authority upon or applicable to any sale to Client of Timing Products under this Agreement (collectively, “Taxes”) (unless Client provides Active with a valid tax exemption certificate or resellers certificate that exempts a sale from such taxes), and (b) all costs and charges for transportation, brokerage, freight, handling, shipping, packing (including any containers), customs, and insurance related to the Timing Products (collectively, “Shipping Costs”). Client shall be responsible for and procure insurance, at Client’s expense, on all Timing Products during transit to the shipping address. Client agrees to pay the Purchase Price despite any customs or delivery issues.
3 Inspection and Acceptance. Within twenty-four (24) hours of receipt of Timing Products, Client must inspect, in a reasonable, non-intrusive manner, each Timing Product (the “Inspection Period”). Client acknowledges that the Inspection Period is a reasonable and sufficient amount of time to inspect each and all Timing Products and that all Timing Products will be deemed accepted by Client upon expiration of the Inspection Period. Such acceptance constitutes Client’s acknowledgement that the Timing Products are in good order and condition and that Client is satisfied with same in all respects.
4 Limited Warranty for Readers Only.
4.1 Limited Warranty. Active warrants that the Readers will be free from material defects in material and workmanship for the twelve (12) month period following the later of either the date of invoice or the date of shipment by Active. Active’s sole obligation under this limited warranty shall be, at Active’s election, to repair or replace the Reader. Any repair or replacement does not adjust the original warranty period. The remedy set forth in this Section is Client’s sole remedy for warranty claims, and is expressly in lieu of all other remedies that may be available to buyer at law or in equity. This limited warranty shall be null and void if the Reader (a) has been modified, altered or repaired other than by Active; (b) is damaged by accident, neglect or misuse, including, without limitation, by failing to (i) conduct regular maintenance or cleaning, or (ii) exercise caution to protect the Reader from adverse temperature, humidity and storage conditions, or physical abuse of the Reader; (c) is damaged as a result of any other unusual physical, electrical or other stress or exposure beyond normal use; or (d) has been tampered with or subjected to any intentional misconduct. In order to exercise Client’s warranty rights, Client must pack the Reader in the original packing carton or equivalent. Damage in transit is the Client’s responsibility and may be cause to void the warranty claim. Client shall be responsible for all shipment charges for delivery to Active and return to Client. Active is not responsible for any damage to or loss of data or removable data storage media.
4.2 No Other Warranties. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, THE READERS ARE PROVIDED ON AN “AS IS” BASIS. THE WARRANTIES, IF ANY, SET FORTH HEREIN ARE IN LIEU OF, AND ACTIVE, ITS LICENSORS AND SUPPLIERS EXPRESSLY DISCLAIM TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION, ANY (a) WARRANTY THAT THE READERS ARE ERROR-FREE, ACCURATE, SECURE OR RELIABLE; (b) WARRANTY THAT THE READERS WILL OPERATE WITHOUT INTERRUPTION; (c) WARRANTY THAT ALL ERRORS WILL BE CORRECTED OR WILL COMPLY WITH ANY LAW, RULE OR REGULATION; (d) IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT; (e) IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE; AND (f) WARRANTY THAT THE READERS WILL MEET CLIENT’S REQUIREMENTS.
5 Disclaimer of Warranty/Limitation of Liability.
5.1 Disclaimer of Warranty for Any Other Timing Products or Timing Products Software. EXCEPT FOR THE LIMITED WARRANTY FOR READERS IN SECTION 4, ACTIVE MAKES NO WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO THE TIMING PRODUCTS OR ANY TIMING PRODUCTS SOFTWARE, AND DISCLAIMS ANY AND ALL WARRANTIES, GUARANTEES OF CONDITION OR PERFORMANCE, AND REPRESENTATIONS OF ANY KIND, INCLUDING, WITHOUT LIMITATION, THE TIMING PRODUCTS’ CONDITION AND THE CONDITION OF ANY TIMING PRODUCTS SOFTWARE, AND ANY OF THE QUALITY, DESIGN, CAPACITY, DURABILITY, PERFORMANCE, MATERIAL, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, COURSE OF DEALING, USAGE OF TRADE AND NON-INFRINGEMENT OF THE TIMING PRODUCTS AND ANY TIMING PRODUCTS SOFTWARE. CLIENT IS PURCHASING THE TIMING PRODUCTS AND ANY TIMING PRODUCTS SOFTWARE ON AN “AS-IS, WHERE IS” BASIS AND “WITH ALL FAULTS,” INCLUDING PATENT AND LATENT DEFECTS, WITHOUT ANY RECOURSE WHATSOEVER. FURTHERMORE, THE CLIENT HAS HAD A FAIR OPPORTUNITY TO EXAMINE THE TIMING PRODUCTS AND HAS INSPECTED OR WAIVED THE OPPORTUNITY TO INSPECT SUCH.
5.2 Limitation of Liability. CLIENT ASSUMES ALL LIABILITY RELATED TO THE USE OF THE TIMING PRODUCTS AND ANY TIMING PRODUCTS SOFTWARE AND ACTIVE SHALL NOT BE LIABLE FOR USE OF THE TIMING PRODUCTS AND ANY TIMING PRODUCTS SOFTWARE BY CLIENT OR ANY THIRD PARTY. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, ACTIVE’S TOTAL AGGREGATE LIABILITY TO CLIENT FOR ALL CLAIMS RELATED THE TIMING PRODUCTS AND ANY TIMING PRODUCTS SOFTWARE REGARDLESS OF THE FORM OF ACTION SHALL IN NO EVENT EXCEED THE PURCHASE PRICE PAID TO AND RETAINED BY ACTIVE FOR THE SPECIFIC TIMING PRODUCT OR ANY TIMING PRODUCTS SOFTWARE GIVING RISE TO CLIENT’S CLAIM. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, ACTIVE SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, ECONOMIC, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, WHETHER FORESEEABLE OR NOT, THAT ARE IN ANY WAY RELATED TO THIS AGREEMENT, THE BREACH THEREOF, THE USE OR INABILITY TO USE THE TIMING PRODUCTS AND ANY TIMING PRODUCTS SOFTWARE, THE RESULTS GENERATED FROM THE USE OF THE TIMING PRODUCT AND ANY TIMING PRODUCTS SOFTWARE, THE QUALITY OF THE TIMING PRODUCT AND ANY TIMING PRODUCTS SOFTWARE, ANY DEFECT IN THE TIMING PRODUCT AND ANY TIMING PRODUCTS SOFTWARE, FAILURE OF THE TIMING PRODUCT AND ANY TIMING PRODUCTS SOFTWARE TO PERFORM AS EXPECTED, THE SERVICES RELATED TO THE TIMING PRODUCT AND ANY TIMING PRODUCTS SOFTWARE, THE USE OR INABILITY TO USE RESULTS OF THE TIMING PRODUCT AND ANY TIMING PRODUCTS SOFTWARE, ANY TRANSACTIONS RESULTING FROM THIS AGREEMENT, LOSS OF GOODWILL OR PROFITS, LOST BUSINESS HOWEVER CHARACTERIZED, LOSS OF USE OR FOR THE DAMAGE, INJURY, OR LOSS OF LIFE OR PROPERTY, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, AND/OR FROM ANY OTHER CAUSE WHATSOEVER, EVEN if RESULTING FROM THE USE OF TIMING PRODUCTS OR ANY TIMING PRODUCTS SOFTWARE OR DEFECTS IN, OR INEFFICIENCY OF, THE TIMING PRODUCTS AND ANY TIMING PRODUCTS SOFTWARE. THE PARTIES FURTHER AGREE THAT EACH AND EVERY PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS EXPRESSLY INTENDED TO BE SEVERABLE AND INDEPENDENT OF ANY OTHER PROVISION SINCE THOSE PROVISIONS REPRESENT SEPARATE ELEMENTS OF RISK ALLOCATION BETWEEN THE PARTIES AND SHALL BE SEPARATELY ENFORCED.
6 Termination .
6.1 Automatic Termination. Active shall be entitled to terminate, without notice, this Agreement and the duties and obligations hereunder in the event that: (a) Client becomes insolvent or seeks protection, voluntarily or involuntarily, under applicable bankruptcy laws; (b) a receivership is appointed on behalf of Client; or (c) Client materially breaches any of the terms and conditions of this Agreement.
6.2 Effect of Termination . In the event that Client has ordered Timing Products or requested custom manufactured Timing Products and has not rendered payment therefore, upon termination of this Agreement, Client shall remain responsible for the payment of, and agrees to pay, the Purchase Price of any such Timing Products that Active has commenced manufacture of, has acquired component parts and equipment for, or has incurred other costs and expenses for as a result of this Agreement.
7 Confidentiality .
7.1 Active and Client acknowledge and agree that Client shall have access to and receive Proprietary Information, as defined below, as a result of this Agreement. Client shall and shall cause its agents, employees, parents, subsidiaries, officers, directors, or contractors, if any, and all other persons acting, directly or indirectly, on or for the behalf of Client: (a) to keep all Proprietary Information confidential and not to disclose such, either directly or indirectly, to any third party, and (b) not to use any such Proprietary Information for any purpose other than performance hereunder or as otherwise authorized without a prior written consent, duly executed by Active. The obligations in this Section shall not apply to any information that Client (i) knows about prior to the execution of this Agreement except any information which is the subject of unexpired confidentiality obligations; (ii) information that is publicly known, or becomes publicly known, through no breach by Client; and (iii) information that is rightfully obtained by Client from any third party who has no duty of confidentiality under this Agreement or any other confidentiality obligations. Proprietary Information that is required to be released by operation of a legal proceeding, pursuant to a binding court order or government regulation, shall not be subject to the obligations of this Section 7 provided that the Client promptly delivers a copy of such order or action to Active and reasonably cooperates with Active if Active elects to contest such disclosure or seek an appropriate remedy, such as, without limitation, a protective order. Client agrees to take all reasonably necessary steps, and to prepare and execute all necessary documents, to protect and prohibit the disclosure of Active Information under this Section 7 using commercially reasonable efforts and a standard of care at least equal to the care used by Client to protect its own confidential or proprietary information. Client shall immediately notify Active of any information that comes to its attention which might indicate that there has been an actual or potential loss or disclosure of confidentiality with respect to the Proprietary Information. In the event of a breach or threatened breach of the confidentiality obligations in this Section, Client acknowledges and agrees that it would be difficult to measure the damage to Active from such breach, that injury to Active from such breach would be impossible to calculate, and that monetary damages would not suffice as an adequate remedy for such breach. Accordingly, Active, in addition to any and all other rights (at law or in equity) which may be available, shall have the right of injunctive relief and other appropriate equitable remedies to restrain any such breach or threatened breach without the necessity of posting a bond.
7.2 Proprietary Information Defined. . "Proprietary Information" means all information, intellectual property, and proprietary rights of Active or any subsidiary or affiliate of Active, embodied in or related to the Timing Products and any Timing Products Software, including, without limitation: (a) all inventions (whether patentable or unpatentable and whether or not reduced to practice), all improvements thereto, and all patents and patent applications claiming such inventions; (b) all trademarks, service marks, trade dress, logos, trade names, fictitious names, brand names, brand marks, and corporate names, together with all translations, adaptations, derivations, and combinations thereof and including all goodwill associated therewith, and all applications, registrations, and renewals in connection therewith; (c) all copyrightable works, all copyrights, and all applications, registrations, and renewals in connection therewith; (d) all mask works and all applications, registrations, and renewals in connection therewith; (e) all trade secrets (including, without limitation, research and development, know-how, formulas, compositions, manufacturing and production processes and techniques, methodologies, technical data, designs, drawings, and specifications); (f) all computer software, including, without limitation, data, source, and object codes, and related documentation; (g) all copies and tangible embodiments of proprietary rights of Active (regardless of the form or medium on which stored or located), or similar intangible personal property which have been or are developed or created in whole or in part by Active; (h) Active manufactured goods, parts, embodiments, modules, designs, samples, or other subparts of the Timing Products and any Timing Products Software and related documentation (regardless of the form or medium on which stored or located); (i) business practices, arrangements, research, studies, procedures, and sales, cost, and pricing information; (j) financial data and information; (k) production, distribution, and sales methods; (l) marketing data, methods, plans, and efforts; (m) the identities of actual and prospective customers, contractors, distributors, and suppliers; (n) the terms of contracts, agreements, and arrangements with customers, contractors, distributors, and suppliers; (o) the needs and requirements of, and Active’s course of dealing with, actual or prospective customers, contractors, distributors, and suppliers; (p) customer, contractor, distributor, and supplier information; and (q) purchasing history and requirements. Failure by Active to mark any of the Proprietary Information proprietary shall not affect its status as Proprietary Information under the terms of this Agreement.
8 Ownership and Restrictions. The ownership rights, title, and interest of Active with respect to Proprietary Information and any modifications, alterations, changes, derivatives, enhancements, improvements and derivative works thereof are and shall remain the sole and exclusive property of Active. Client will not (directly or indirectly), nor permit, assist, facilitate, procure, or enable any third party to, do any of the following: (a) decompile, disassemble, reverse engineer, duplicate, or otherwise replicate the Timing Products, any Timing Products Software or any other Proprietary Information; (b) copy or otherwise reproduce the Proprietary Information without the prior written approval of Active; (c) design around or create derivative works or any other modifications of Timing Products, any Timing Products Software or any other Proprietary Information; (d) transfer, disclose, or provide access to Proprietary Information to third parties who are not bound by the terms of this Agreement unless authorized to do so in writing by Active, or (e) resell any of the Timing Products without Active’s prior written consent. Client agrees to use the Readers only with timing chips or tags provided by Active. Nothing in this Agreement shall constitute or be deemed to constitute a transfer or assignment of any intellectual property rights owned by Active. Under no circumstances shall Client have any rights, title, or claim over any intellectual property owned by Active. Client may use the Timing Products only if paid for in full and for the purpose for which they were intended and supplied.
9 Indemnification . Client agrees to release, protect, defend, indemnify, and hold harmless Active, its subsidiaries, affiliates, members, managers, officers, directors, employees, agents, contractors, assignees, and representatives from and against, and to reimburse Active with respect to, any and all claims, demands, causes of action, losses, damages, costs, and expenses (including attorney’s fees and expenses), of every kind and character, without regard to the cause or causes thereof, relating to, resulting from, or arising out of, or in connection with this Agreement, including, without limitation, any order, sale, delivery, use, repair, replacement, operation, or performance of the Timing Products or any Timing Products Software, any Client Materials, or any breach of any of Client’s representations or warranties herein, whether separately or in connection with any other equipment or products or for any other cause.
10 Relationship of the Parties . This Agreement shall not create and nothing in this Agreement shall be construed to designate the relationship of employer and employee, principal and agent, a partnership, or a joint venture between the Parties. Neither Party shall have the right or authority to assume or create any obligations on behalf of the other Party, express or implied, nor to have any rights to the assets, business interests, or property of the other Party, except as expressed herein.
11 Lease Terms.
11.1 Applicability. If an order form, Schedule or other document indicates that Client is leasing the Timing Products, then the terms in this Section 11 apply. If Client does not lease the Timing Products from Active, then the terms in this Section 11 are to be disregarded. In the event of a conflict between the terms in this Section 11 and the remainder of the Agreement, the terms in this Section 11 will control.
11.2Definitions. “Lease Fee” means the lease fee indicated in the applicable order form, Schedule or other document for such Timing Products; “Lease Term” has the meaning set forth in Section 11.7 (Lease Term and Order Pricing); “Transferee” has the meaning set forth in Section 11.8 (Assignment).
11.3 Lease of Timing Products. Active agrees to lease to Client, and Client agrees to lease from Active, the Timing Products, as listed in the applicable order form, Schedule or other document. The Timing Products will at all times be and remain the personal property of Active and Client will have no right, title, or interest in the Timing Products except as expressly set forth in this Agreement. Client will keep the Timing Products free and clear of all liens, security interests, adverse claims and encumbrances. Customer agrees that Active or any Transferee may prepare and file or record with any appropriate filing office, at Active’s cost, appropriate UCC financing statements, including amendments or continuations to such statements, as determined by Active or a Transferee.
11.4 Use of Timing Products . Client shall use the Timing Products solely in the conduct of its business under the terms of this Agreement, in a manner and for the use contemplated by the manufacturer thereof. Client shall use all Timing Products with reasonable care to prevent excessive wear and tear and/or damage to any Timing Products. Without the prior written consent of Active, in no event shall Client permit any Timing Product (i) to be used or possessed by any persons other than the named Client, (ii) to be subject to any liens or security interests of any third party, (iii) to be moved to a location other than as set forth in the applicable order form, Schedule or other document. Furthermore, Client will not make or allow to be made any alterations or additions, whether temporary or permanent in nature, to the Timing Products. Active will not be responsible for loss or damage due to alterations or additions to, misuse or improper use of, negligent handling of, or improper maintenance of the Timing Products. In the event of any failure or defect in any manner whatsoever of the Timing Products leased from Active during the initial Lease Term, Client shall, at Active’s expense, return such Timing Products to Active’s premises. Active shall be responsible, at Active’s expense, for the initial delivery to Client of any leased Timing Products as well as the delivery back to Client of any repaired or replaced Timing Products leased from Active.
11.5 Security Interest. Client hereby grants to Active a security interest in the Timing Products to secure full and timely performance of all obligations owing by Client to Active under this Agreement or any other agreement between Client and Active, including, without limitation, full and timely payment of all amounts from time to time owing by Client to Active hereunder or thereunder. Client agrees that, upon Active’s request, Client will execute and deliver to Active any and all documents that Active may from time to time request to more fully evidence or perfect the security interest granted hereby. The Parties further agree that this Agreement constitutes a security agreement.
11.6 Invoicing and Payment . Client shall pay the Lease Fee indicated in the applicable order form, Schedule, or other document in U.S. Dollars (unless stated otherwise), plus any and all applicable Taxes and Shipping Costs. Client hereby authorizes Active to charge the debit card or credit card on file with Active for all payments and fees due under this Agreement. If a card is not on file with Active, Client will mail a check or money order, or via ACH/Bank transfer payable to Active Network, LLC, to Active Network, LLC, 5850 Granite Pkwy, Suite 1200, Plano, TX 75024. All returned checks will be subject to a returned check fee of $50.00. Unless otherwise stated in applicable order form, Schedule, or other document, fees are due net thirty (30) days from the invoice date. Client will provide complete and accurate billing and contact information to Active and will promptly notify Active of any changes to such information. Any terms and conditions that are included in an Active Schedule, invoice, order form, or other document shall, to the extent of any conflict, supersede the terms and conditions in this Agreement and shall be binding upon Client.
11.7Lease Term and Order Pricing . The term of each Timing Product leased under a Timing Equipment Sales and Lease Agreement shall be called a “Lease Term”. The Lease Term will be included in the applicable Schedule, invoice, order form, or other document.
11.8 Assignment. Neither this Agreement nor any lease hereunder may be assigned by Client (whether by operation of law or otherwise) without Active’s prior written consent. Active and any Active transferee may without notice to or consent of Client transfer, assign, grant a security interest in, or sell to any person (e.g. a financial institution) (“Transferee”) all or any portion of Active’s (or such Transferee’s) right, title and interest in and to any Timing Product and the Agreement, including the right to receive payments thereunder. Client acknowledges and agrees that: (a) no such Transferee will be required to assume, or be deemed to have assumed, any of the obligations of Active hereunder; (b) any such assignment or transfer will not be deemed to materially change Client’s duties or obligations hereunder; (c) Client’s obligation to Transferee under the Agreement will be unconditional and not subject to any abatement, reduction, defense, offset or counterclaim for any reason whatsoever. Active may subcontract any of its obligations under the Agreement and may perform those obligations through personnel employed by, or under contract with, Active, without notice to Client.
12 Miscellaneous.
a. Entire Agreement; Binding; No Reliance; Modification. This Agreement represents the entire agreement between the Parties with respect to the subject matter hereof and, except as otherwise specifically provided herein, shall be binding upon and inure to the benefit of the Parties hereto and their respective permitted successors and assigns. This Agreement prevails over all quotations, terms and conditions, purchase orders, and all sales confirmations between Active and Client. The failure or delay of a Party to enforce any provision of this Agreement will not constitute a waiver of such Party’s right to thereafter enforce such provision or to enforce any other provision at any time. Any modification, amendment, supplement to or waiver of any provision of this Agreement must be in writing and signed by each Party.
b. Notice. All notices and requests in connection with this Agreement will be given to the respective Parties in writing, to Client at the address in the Schedule and to Active at 5850 Granite Pkwy, Suite 1200, Plano, TX 75024, and will be deemed given as of the first business day following the day the notice is sent via overnight courier. Notice may also be deposited in the mail, postage pre-paid, certified or registered, return receipt requested, and addressed to the Parties as indicated on the face of this Agreement or such other address of which the Party gives notice in accordance herewith, and receipt of any such notice will be deemed to be effective as of the third business day following such deposit.
c. Force Majeure. If Active is prevented from, fails to, or is delayed in performance hereunder due to acts or failures of Client, fire, flood, earthquake, water, wind, lightning, or other acts of God, war (declared or undeclared), interruption of transportation or infrastructure (tangible and intangible), embargo, accident, explosion, strike, lockout, inability to obtain materials or utilities, civil disturbance, governmental order, regulations, or restrictions, or any other cause beyond Active’s reasonable control, Active will be excused from performance hereunder to the extent and for the duration, and a commercially reasonable time thereafter, of such prevention.
d. Severability; Reformation. If any provision of this Agreement is held to be unenforceable by a court of competent jurisdiction for any reason whatsoever, (a) the validity, legality, and enforceability of the remaining provisions of this Agreement (including without limitation, all portions of any provisions containing any such unenforceable provision that are not themselves unenforceable) will not in any way be affected or impaired thereby, and (b) to the fullest extent possible, the unenforceable provision will be deemed modified and replaced by a provision that approximates the intent and economic effect of the unenforceable provision and this Agreement will be deemed amended accordingly.
e. Governing Law; Exclusive Venue. This Agreement, and the validity, construction, and enforcement hereof, shall be governed by and construed in accordance with the laws of the State of Texas (without regard to any conflicts of law rules that would result in the application of the law of any other jurisdiction). Client and Active agree that venue for any litigation between the Parties shall be exclusively in the state district court of Dallas County, Texas, or the United States District Court for the Northern District of Texas, Dallas Division (provided the amount in controversy exceeds the minimum jurisdictional limit required to file in federal court), and Client and Active agree to submit to personal jurisdiction therein; provided, however, that the foregoing shall not be construed to limit the rights of Client or Active to enforce a judgment or order from either of these courts in another jurisdiction. THE PARTIES HERETO IRREVOCABLY WAIVE ANY AND ALL RIGHTS TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
f. Attorneys’ Fees. In any action or suit to enforce any right or remedy under this Agreement or to interpret any provision of this Agreement, the prevailing Party shall be entitled to recover its costs, including reasonable attorneys’ fees, reimbursement of fees attributable to staff corporate counsel, and court costs.
g. Compliance with Laws. Client represents and warrants that, in connection with its respective activities conducted under this Agreement, it will comply with the U.S. Foreign Corrupt Practices Act of 1977, as amended, the U.K. Bribery Act of 2010, as amended, and the Convention on Combating Bribery of Foreign Public Officials and has not and will not make or receive, directly or indirectly, any payments or gifts, or offers or promises of payments or gifts or things of value in exchange for anything that may arise out of this Agreement in a manner that would violate these laws and rules or any other applicable anti-corruption or anti-bribery laws or regulations. Furthermore, Client represents and warrants that in exporting, re-exporting, transferring, or re-transferring any Timing Products purchased under this Agreement it will comply with all applicable export control laws and regulations, including, without limitation, the International Traffic in Arms Regulations, Export Administration Regulations, Foreign Trade Regulations, and all regulations promulgated by the Office of Foreign Assets Control, and the U.S. Department of the Treasury, as well as such laws of the country or territory in which the Timing Products are provided or used by Client pursuant to this Agreement. Client shall at all times strictly comply with all applicable laws, regulations and government orders, now or hereafter in effect, relating to the performance of its activities under this Agreement. Client shall notify Active in writing immediately upon the occurrence of any event that would render the representations, warranties and covenants contained herein incorrect.
h. Assignment.This Agreement may not be transferred or assigned in whole or in part by Client without the express written consent of Active. Active, at its option, may transfer or assign this Agreement without the consent of Client to any third-party, company, or entity. This Agreement will apply to and bind the Parties and the respective heirs, legal representatives, permitted successors, and permitted assigns of the Parties.
i. Interpretation. The provisions of this Agreement shall not be construed strictly for or against either Party, and any rule of construction to the effect that ambiguities are to be resolved against the drafter shall not be applied in the construction or interpretation of this Agreement. When referring to any party, the plural shall include the singular (and vice versa) and reference to any gender shall include all genders. The headings in this Agreement are for purposes of easy reference and shall not be considered a part of this Agreement or in any way modify, amend, or affect its provisions.
j. Survival Sections 1(b), 3, 4, 5, 6(b), 7, 8, 9, 11, and this Section 12, along with all unpaid payment obligations and such other section(s) that should reasonably survive the termination, expiration, or cancellation of this Agreement shall survive the termination, expiration, or cancellation of this Agreement.