Membership Terms & Conditions:
As used in this SmartPalate Membership Equipment Service and Use Agreement and SmartPalate Software License (this “Agreement”): (i) the term “SPI” means SmartPalate International, LLC, a Utah limited liability company; (ii) the term “User” means the individual or entity identified as the “User” above; (iii) the term “Equipment” means all of the equipment described in the “Membership Components” section of the distributed Membership documents, as the same may be replaced pursuant to the terms of this Agreement; and (iv) the term “Software” means an object code version of the software described in the “Description of Sub-Licensed Software” section above, as the same may be updated, corrected and/or revised from time to time during the Term.
By accepting delivery of the Equipment and a copy of the Software, User shall be deemed to have agreed to this Agreement in whole, without any modification (except for any modification accepted and agreed to by SPI in writing), regardless of whether User has signed this Agreement in the space provided in the Membership documents.
1. Use of Equipment and Software; Non-Transferability and Non-Assignability by User.
(a) SPI hereby agrees to allow User to maintain physical possession of, and use, the Equipment, subject to the terms of this Agreement. User shall use the Equipment solely in connection with the operation of its own business, in a careful and proper manner, and in a manner that complies with all applicable federal, state and local laws.
(b) SPI hereby grants to User a limited, non-transferable right and license to: (i) install the Software on up to 3 company computers; and (ii) use the Software solely in connection with its use of the Equipment. SPI acknowledges and agrees that the foregoing right and license may be used by User to support an unlimited number of custom SmartPalate tongue-to-palate contact reading devices, so long as such devices are used with the Equipment.
(c) User shall not, without the prior written consent of SPI, transfer, convey, delegate or assign any right, interest or obligation it may have under this Agreement, or the permission granted to User by SPI to maintain physical possession of and use the Equipment or the Software, to any third party. Any breach by User of its obligations under this Section 1 shall be a material default by User of its obligations hereunder, as a result of which all rights and interests in or to the Equipment and the Software granted pursuant to this Agreement shall immediately revert to and vest in SPI and SPI may, notwithstanding any other provision of this Agreement to the contrary, terminate this Agreement immediately, by providing written notice to User.
2. Term and Termination.
(a) This Agreement shall become effective on the Effective Date set forth above and shall continue in full force and effect until the earlier of: (i) the nth monthly anniversary, where n represents the membership term listed above (the “Term”), of the last day of the calendar month in which the Effective Date occurs (the “Expiration Date”); and (ii) the date on which this Agreement is terminated pursuant to the terms of Section 1(c), 2(b) or 3(d).
(b) In addition to the rights granted to SPI pursuant to the terms of Sections 1(c) and 3(d), if there is a default by a party (the “Breaching Party”) in the performance of any of its obligations under this Agreement and such default shall continue for a period of thirty (30) days after receipt of written notice thereof (setting forth in reasonable detail the nature of the default) from the other party (the “Non-Breaching Party”), then the Non-Breaching Party shall have the right to terminate this Agreement immediately upon written notice to the Breaching Party. In addition to the foregoing, the Non-Breaching Party may terminate this Agreement immediately upon written notice to the Breaching Party upon the second default by the Breaching Party of any obligation under this Agreement.
(c) Within a 15 day period of the expiration date or termination of this Agreement: (i) using the original boxes and materials in which the Equipment was packed when it was delivered to User, User shall return the Equipment to SPI (the cost of which shall be borne by User, if this Agreement is terminated by SPI pursuant to the terms of Section 1(c), Section 2(b) or Section 3(d); the cost of which shall be borne by SPI, if this Agreement expires or is terminated in any other manner); and (ii) User shall immediately cease all use of the Software, and permanently delete the Software from any computer onto which User caused it to be installed.
(d) User shall return the Equipment to SPI in good condition and working order, ordinary wear and tear excepted. User shall reimburse to SPI, upon receipt from SPI of a demand for such payment, those costs reasonably incurred by SPI in repairing the Equipment returned by User to SPI so that it meets the foregoing standard.
(e) This agreement will auto renew 30 days prior to the expiration date. Such auto renewal will follow the same terms and conditions of this agreement. User must notify SPI in writing 30 days prior to the expiration date if they wish to terminate the agreement and avoid the auto renewal.
3. Payment.
(a) User hereby authorizes SPI to effect, on or within five (5) days of the Effective Date, a payment on the credit card, information with respect to which is set forth above (the “Card”), in an amount equal to the Monthly Membership Rate set forth above, multiplied by a fraction, the numerator of which is the number of days remaining, from the Effective Date, in the calendar month in which the Effective Date occurs less 14 days, and the denominator of which is the total number of days in the calendar month in which the Effective Date occurs.
(b) User further authorizes SPI to effect, within five (5) days of the tenth day of each calendar month during the Term, a payment on the Card in an amount equal to the Monthly Membership Rate Amount set forth above less any applicable Student Integration Discounts.
(c) Upon any termination or expiration of this Agreement, all amounts owed by one party to the other pursuant to the terms hereof shall immediately become due and payable. In addition, if this Agreement is terminated by SPI pursuant to the terms of Section 1(c), 2(b) or 3(d), User hereby irrevocably authorizes SPI to effect a payment on the Card in an amount equal to the product of: (i) the Monthly Membership Rate; multiplied by (ii) the number of full calendar months that fall between the date of such termination and the Expiration Date; multiplied by (iii) 20%, 40%, or 60% respective to where the termination date falls in equal thirds of the total number of calendar months in the term.
(d) Upon any dishonor of any charge on the Card effected by SPI pursuant to the terms of this Agreement, SPI shall have the right to: (i) immediately terminate this Agreement; (ii) avail itself of any and all available legal and equitable remedies; and (iii) seek reimbursement from User for all costs and fees (including, without limitation, legal fees and court costs) incurred by SPI in connection with SPI’s attempts to collect any such payment.
4. Title; Taxes; Risk of Loss.
(a) User acknowledges and agrees that title in and to the Equipment and the Software shall remain vested exclusively in SPI at all times during the Term, and that User shall have no rights in or to the Equipment or the Software, except pursuant to the terms of Section 1. User acknowledges and agrees that this is not a lease-to-own agreement, and that at no future date is it anticipated or intended that User will assume ownership of the Equipment or the Software.
(b) SPI, as the owner of the Equipment, shall pay all personal property taxes and assessments that may be levied or assessed against the Equipment.
(c) Notwithstanding the provisions of Sections 4(a) and 4(b), all risk of loss of and damage to the Equipment that is not expressly covered by SPI’s Service Obligations (as defined below) passes to User upon the delivery of the Equipment to User. If the Equipment suffers any loss or damage after delivery to User that is not expressly covered by SPI’s Service Obligations (such Equipment being referred to as “Damaged Equipment”):
(i) User shall immediately notify SPI of the loss or damage such Damaged Equipment has sustained.
(ii) Following receipt by SPI of any such notice from User, SPI, in its commercially reasonable discretion, may either repair (using new or remanufactured parts) or replace (with a new or remanufactured unit) such Damaged Equipment.
(iii) If SPI elects to replace any Damaged Equipment pursuant Section 4(c)(ii): (A) SPI shall ship to User the replacement item (which shall be deemed to be “Equipment” under this Agreement, and shall be deemed to replace the Damaged Equipment for purposes of this Agreement), at User’s cost and expense; (B) if requested by SPI, User shall ship back to SPI, using (if possible) the packing materials used to ship such replacement Equipment to User, and at User’s cost and expense, the Damaged Equipment being so replaced; and (C) User shall pay to SPI, upon receipt of a demand from SPI for such payment, an amount equal to the then-current full retail price of the Equipment used to replace the Damaged Equipment.
(iv) If SPI elects, pursuant to Section 4(c)(ii), to repair any Damaged Equipment: (A) User shall follow the reasonable instructions and requests of SPI in arranging for shipping such Damaged Equipment to SPI, all of the costs of which shall be paid for by User; (B) User shall pay to SPI, upon receipt of a demand from SPI for such payment, an amount equal to the costs incurred by SPI in so repairing the Damaged Equipment; and (C) all costs associated with shipping such repaired Damaged Equipment back to User shall be paid for by User.
(v) Each piece of Equipment that replaces a piece of Damaged Equipment, and each piece of Damaged Equipment, shall at all times remain the sole property of SPI, and User shall have no right or title thereto, or interest therein, except pursuant to the terms of this Agreement.
5. No Additional License Granted. User acknowledges and agrees that, except as expressly set forth herein, this Agreement does not create in User, and does not constitute an assignment or license of, any rights of SPI (or its suppliers or licensors) in or to any copyrights, trademarks, trade secrets, patents or other intellectual property of SPI (or its suppliers or licensors).
6. Risk of Use; Release from Liability. User acknowledges and agrees that inherent in the use of the Equipment and Software are numerous risks, including, by way of example, risks that the Equipment is not suited for the treatment of any particular individual or condition, risks that the Equipment may aggravate an existing physical condition, or create new physical problems, risks that the Equipment will be misused or mishandled in a manner that aggravates or causes physical conditions, and risks that the Equipment is not installed or operated properly. User acknowledges and agrees that User has sufficient knowledge and experience to determine whether the use of the Equipment on any given individual is appropriate. Accordingly, User hereby acknowledges and agrees that: (i) SPI, as the manufacturer(s) of the Equipment and owner of the Software, hereby expressly disclaim any and all representations and warranties concerning the safety, efficacy or appropriateness of the Equipment and Software for any particular patient or other user, or to treat any particular condition; (ii) User hereby expressly assumes all risks associated in any manner with any use of the Equipment or Software, and agrees to ensure that measures are taken to ensure that the Equipment and Software are installed and used or operated properly; and (iii) User hereby releases SPI from any and all liability and responsibility directly or indirectly arising out of any use of the Equipment or Software by User or any third party (other than SPI or its employees, agents or representatives), and agrees to indemnify and hold SPI harmless from and against any and all costs, claims, fees and expenses incurred by or asserted against SPI that directly or indirectly arise out of or relate to any use of the Equipment or Software by User or any third party (other than SPI or its employees, agents or representatives).
7. Maintenance Obligations and Limitations.
(a) During the Term, SPI shall ensure that the Equipment and Software are free from material defects in materials and workmanship, and remain in a good, operable condition, as follows:
(i) Following receipt by SPI of a notice from User that there is a problem with the Equipment (which notice shall be delivered by User to SPI in a manner reasonably requested by SPI, including, by way of example, that such notice be in writing) (such Equipment being referred to herein as “Defective Equipment”), SPI, at its sole option, shall, within a commercially reasonable period of time, either repair (using new or remanufactured parts) or replace (with a new or remanufactured unit) such Defective Equipment.
(ii) If SPI elects to replace any Defective Equipment pursuant to the foregoing paragraph: (A) SPI may ship to User the replacement item (which shall be deemed to be “Equipment” under this Agreement, and shall be deemed to replace the Defective Equipment for purposes of this Agreement), at SPI’s cost and expense; and (B) User shall ship back to SPI, using (if possible) the packing materials used to ship such replacement Equipment to User, but at User’s cost and expense, the Defective Equipment being so replaced.
(iii) SPI shall provide to User copies of any and all updates, corrections and revisions to the Software as soon as practicable after it determines, in its sole discretion, that any such update, correction or revision is ready for release.
SPI’s obligations under this Section 7(a) are referred to herein as the “Service Obligations”.
(b) Each replacement piece of Equipment used by SPI to meet its Service Obligations, and each piece of Defective Equipment, shall at all times remain the sole property of SPI, and User shall have no right or title thereto, or interest therein, except pursuant to the terms of this Agreement.
(c) SPI’s Service Obligations shall not apply to any Equipment or Software any defect or problem with respect to which is, in whole or in part, the result or arises out of: (i) any alteration made to the Equipment or Software by User or any third party; (ii) User’s or any third party’s negligence or intentionally wrongful acts; (iii) any misuse or abuse by User or any third party, including any failure to operate or maintain the Equipment or Software in accordance with any instructions or specifications provided by SPI; (iv) any failure of equipment not covered by the provisions of Section 7(a); (v) any attachment, use or integration of any item or program that is not part of the Equipment, Software or specifically approved, in writing, by SPI; (vi) any improper use of or failure to use supplies, or any use of supplies that do not meet any specifications provided by SPI; (vii) any causes external to the Equipment or Software, such as fire damage, water damage, electrical power fluctuations or failure; (viii) acts of God or other types of catastrophic damage; or (ix) any repairs attempted or made by User or a third party and not authorized by SPI. SPI reserves the right to refuse all Service Obligation claims that cannot be substantiated as falling under the terms of this Section 7. In addition, if SPI determines that any Equipment or Software is not defective due to reasons within the terms of its Service Obligations or the defect is otherwise outside of the coverage provided by this Section 7, SPI reserves the right to recover all related expenses at SPI’s then-current prices for such services, and SPI shall have no obligation or liability to User for failure to repair the allegedly defective or warranted Equipment or Software.
8. LIMITATION OF LIABILITY.
(a) SPI’S ENTIRE LIAILITY, AND USER’S SOLE AND EXCLUSIVE REMEDY AGAINST SPI, UNDER THIS AGREEMENT AND IN CONNECTION WITH THE USE OF THE EQUIPMENT, WHETHER FOR BREACH OF CONTRACT, INCLUDING BREACH OF THE LIMITED WARRANTY, LATE DELIVERY OR NON-DELIVERY, NEGLIGENCE, INFRINGEMENT, STRICT LIABILITY IN TORT OR OTHERWISE, INJURY OR DEATH OF USER, ANY PATIENT, OR OTHER USERS OF THE EQUIPMENT, OR OTHER TORTS, SHALL BE, FOR EACH PARTICULAR PIECE OF EQUIPMENT TO WHICH THE LOSS OR DAMAGE PERTAINS, SPI’S REFUND TO USER OF THAT PORTION (AS REASONABLY DETERMINED BY SPI) OF THE MONTHLY MEMBERSHIP RATE PAID BY USER IN CONNECTION THEREWITH. IN NO EVENT SHALL SPI BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS, REVENUE, BUSINESS, DATA, OR USE, OR LOSS OF ANY OPPORTUNITY OR GOODWILL, EVEN IF SPI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL SPI BE LIABLE FOR ANY DAMAGES CAUSED BY DELAY IN DELIVERING ANY EQUIPMENT HEREUNDER.
(b) USER ACKNOWLEDGES AND AGREES THAT THE RELEASE FROM LIABILITY, EXCLUSION OF REMEDIES AND LIMITATION OF LIABILITY IN SECTIONS 6, 7 AND 8 OF THIS AGREEMENT ARE A BARGAINED-FOR ALLOCATION OF RISK AND LIABILITY, AND USER AGREES TO RESPECT SUCH ALLOCATION OF RISK AND LIABILITY. USER ACKNOWLEDGES THAT SPI WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THE RELEASE FROM LIABILITY, EXCLUSION OF REMEDIES AND LIMITATION OF LIABILITY SET FORTH IN SECTIONS 6,7 AND 8 OF THIS AGREEMENT.
9. ASSIGNMENT. SPI may transfer and assign any of its rights in and to the Equipment and/or Software, and may transfer and assign any of its rights and delegate any of its obligations under this Agreement, to any third party. SPI and such third party shall provide written notification of any such transfer and assignment to User as soon as practicable after the effective date thereof; provided, however, that in no event shall User be responsible for, and User shall receive full credit under this Agreement for, any payment made to SPI after the effective date of any such transfer and assignment but prior to receipt of such written notification.
10. GENERAL. This Agreement constitutes the entire agreement between SPI and User with respect to the subject matter hereof, and supersedes all prior written and oral proposals, understandings, letters of intent, agreements and representations, all of which are merged herein. This Agreement supersedes any contemporaneous or prior proposal, representation, agreement or understanding between the parties. This Agreement shall be governed by and construed in accordance with the laws of the State of Utah (excluding its rules regarding conflicts of laws), including but not limited to all matters of construction, validity, performance and enforcement. User hereby voluntarily submits to, consents to, and waives any defense to, the exclusive jurisdiction of courts located in the State of Utah as to all matters relating to or arising from this Agreement. Any amendment to or modification of this Agreement shall be in writing and executed by each of the parties. This Agreement and the rights and obligations expressed in this Agreement shall not be abrogated, prejudiced or affected by the granting of time, credit or any indulgence or concession: (i) by either party to the other party or to any other person; (ii) by the exercise by either party of any of its rights hereunder; or (iii) by any compromise, release, abandonment, waiver, variation, relinquishment or renewal of any rights of either party. Neither party shall be deemed to have waived any of its rights, powers or remedies under this Agreement unless it approves such waiver in writing. If any provision hereof is for any reason determined to be invalid, such provision shall be deemed modified so as to be enforceable to the maximum extent permitted by law consistent with the intent of the parties as herein expressed, and such invalidity shall not affect the remaining provisions of this Agreement, which shall continue in full force and effect. The individual signing this Agreement on behalf of User represents and warrants that he/she is duly authorized representative of User, and that this Agreement, as duly executed by him/her, represents the binding obligation of User, enforceable in accordance with its terms (except as such enforcement may be limited by applicable law).
