BOUNCE IMAGING, INC. TERMS AND CONDITIONS OF SALE
These terms and conditions are a legal agreement (these “Terms and Conditions”) between you (together with the business entity, if any, that you represent, “you”, “your” or “Customer”) and Bounce Imaging, Inc. (“BOUNCE IMAGING” or “we”, “us” or “our”), establishing terms and conditions under which you will purchase the Product and/or Services. The date you first agree to or first accept these Terms and Conditions is referred to herein as the “Effective Date.” BEFORE YOU CLICK ON THE “I AGREE” BUTTON, SUBMIT A PURCHASE ORDER, OR USE A BOUNCE IMAGING PRODUCT OR SERVICE, CAREFULLY READ THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY CLICKING ON THE “I AGREE” BUTTON, SUBMITTING A PURCHASE ORDER, OR USING A BOUNCE IMAGING PRODUCT OR SERVICE, YOU AND THE GOVERNMENT, NON-PROFIT, OR COMMERCIAL ENTITY, AS APPLICABLE, THAT YOU REPRESENT ARE AGREEING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE GOVERNMENT, NON-PROFIT, OR COMMERCIAL ENTITY YOU REPRESENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THEN DO NOT CLICK “I AGREE” AND YOU WILL NOT BE PERMITTED TO PURCHASE THE PRODUCT, OR DO NOT SUBMIT A PURCHASE ORDER OR USE ANY BOUNCE IMAGING PRODUCT OR SERVICE.
- Certain Definitions. “Products” means BOUNCE IMAGING’s tactical throwable camera, the Sensors and Accessories and Device Software. “Sensors and Accessories” mean the audio or other sensors and accessories incorporated into or included with the tactical throwable camera. “Order” means an order for Products submitted by the Customer through the Website (as defined below) or otherwise. “Device Software” means any software embedded within, or distributed by BOUNCE IMAGING for use in connection with the Products; for clarity the “Device Software” excludes Mobile App software (as defined below). “Services” means any services provided by BOUNCE IMAGING in connection with the Product. Any downloadable software applications (“Mobile App”) that we offer for use on certain smartphones and other devices set forth on our Website (the “Permitted Devices” shall be subject to these Terms and Conditions). Customer shall use our Mobile Apps solely on Permitted Devices for use in connection with our Product.
- Separate Terms for Website. Customer’s use of the BOUNCE IMAGING website (www.bounceimaging.com) and its subdomains (collectively, the ”Website“)shall be subject to our Terms of Service(www.bounceimaging.com) that are set forth on our Website.
- Quotation and Pricing. Pricing information with respect to Products and/or Services that we publish on our Website shall be regarded as provisional and may be changed at any time. Pricing with respect to Products or Services shall be final only upon BOUNCE IMAGING’s written (electronic or on paper) acceptance of an Order. The publication of BOUNCE IMAGING’s price list on our Website or otherwise does not constitute an offer to sell or license at the prices set forth therein. Placement of an Order by Customer shall constitute a binding commitment on Customer to purchase the Products at the applicable price. BOUNCE IMAGING reserves the right to reject Orders for any reason. Customer shall be responsible for any costs for shipping, insurance, taxes, duties, and other related fees. Whether before or after acceptance of an Order, BOUNCE IMAGING may, without approval from or notice to Customer, make changes to Products that do not adversely affect performance or function.
Purchase and Payment. Customer agrees that all purchases of Products and/or related Services, are subject to these Terms and Conditions. Payment in full by Customer of the Products and/or Services shall be a condition precedent to delivery or performance by BOUNCE IMAGING of such Products and/or Services, unless otherwise set forth on our Website. BOUNCE IMAGING uses a third party payment service in lieu of directly processing your credit card information. By submitting your credit card information, you grant BOUNCE IMAGING the right to store and process your information with the third party payment service, which we may change from time to time; you agree that BOUNCE IMAGING will not be responsible for any failures of the third party to adequately protect such information. All financial matters regarding your information are subject to the conditions of the third party payment service provider’s terms of service. You acknowledge that we may change the third party payment service and move your information to other service providers that encrypt your information using secure socket layer technology (SSL) or other comparable security technology.
Device Software License; Restrictions. With respect to any Device Software and Mobile Apps provided by BOUNCE IMAGING to Customer, Customer and BOUNCE IMAGING intend and agree that such Device Software and Mobile Apps are being licensed and not sold, and that the words “purchase”, “sold” or similar or derivative words are understood and agreed to mean “license” and that the word “customer” or similar or derivative words is understood and agreed to mean “licensee”. The Device Software and Mobile Apps may incorporate certain components licensed from third parties under free or open source license agreements. The terms of such licenses apply to such components. Such license terms are included with the Device Software and Mobile Apps and are available from BOUNCE IMAGING upon Customer’s request. Customer is hereby granted a non-exclusive, non-assignable, non-sublicensable and nontransferable limited license (“License“) by BOUNCE IMAGING, to use the Device Software and Mobile Apps solely in connection with use of the hardware Products for internal non-commercial applications and not for commercial purposes, and not for resale of the Products, unless expressly authorized in a writing signed by BOUNCE IMAGING; provided that with respect to components incorporated in the Device Software or Mobile Apps that are subject to open source license agreements the terms of such licenses shall apply to the applicable components of the Device Software and Mobile Apps. The Device Software and Mobile Apps are supplied and licensed only in machine-readable object code form, except with respect to certain components, if any, covered by an open source license that requires the disclose of the source code to such component. The Device Software and Mobile Apps are each a “commercial item,” as that term is defined in 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, U.S. Government Customers acquire the Device Software and Mobile Apps with only those rights set forth in these Terms and Conditions. Customer agrees that it will not copy, alter, adapt, improve, modify, decode, decompile, disassemble, reverse engineer, reproduce, disclose, publish, sell, transfer, assign, lease, rent, sublicense, export, provide third party access to, or otherwise distribute any Products, Device Software or Mobile Apps, as applicable, to any third party, in whole or in part, except with respect to certain components, if any, covered by an open source license, and in such event only to the extent such license applies and requires that such use be permitted with respect to the applicable components. Customer shall not use the Products or Mobile Apps for any purpose that is unlawful or prohibited by these Terms and Conditions. Customer agrees that the obligations with respect to Customer in this paragraph shall survive termination of the License for any reason.
Device Software and Mobile Apps Updates. BOUNCE IMAGING may make updates to the Device Software and Mobile Apps available to Customer from time to time, in BOUNCE IMAGING’s sole discretion. Such updates as provided by BOUNCE IMAGING shall be deemed Device Software or Mobile Apps, as applicable, for purposes of Section 5.
Product Support. BOUNCE IMAGING may make certain support Services available for purchase from time to time in accordance with the pricing and the terms set forth on our Website at such time and subject to Section 3.
Intellectual Property of BOUNCE IMAGING or Third Parties. All patent, copyright, trade mark, or other intellectual property rights relating to the Products, Device Software and Mobile Apps are and shall remain vested in BOUNCE IMAGING or its licensors and nothing in these Terms and Conditions shall be construed as granting to Customer a license to such intellectual property rights, except for the License set forth in Section 5.
Risk of Loss and Delivery. Delivery of Products shall be shipped to the address set forth in the applicable Order, EXW BOUNCE IMAGING’s facility in the United States (Incoterms 2010), freight prepaid upon transfer to a common carrier. Upon delivery to Customer, except for title to the Device Software and Mobile Apps which shall remain with BOUNCE IMAGING at all times, title to the Products shall pass to Customer. Without limiting Customer’s rights pursuant to the express warranty set forth herein, the Products will be deemed accepted when delivered. BOUNCE IMAGING may ship Products under an Order in one or more installment(s), unless Customer and BOUNCE IMAGING agree not to make partial shipments under the applicable Order. Where the Products are delivered in installments, each delivery shall constitute a separate contract and failure by BOUNCE IMAGING to deliver any one or more of the installments to Customer in accordance with these Terms and Conditions shall not entitle Customer to treat the applicable Order as a whole as repudiated.
Returns; Refunds. Customer may be permitted to return Products to BOUNCE IMAGING for a certain period of time after the purchase of such Products for a refund to the extent expressly set forth on our Website from time to time. Except as expressly set forth on our Website as updated from time to time, BOUNCE IMAGING has no obligation to provide refunds or credits, but may grant them in certain circumstances, as a result of specific refund guarantee promotions, or to correct any errors made by BOUNCE IMAGING, in each case in BOUNCE IMAGING’s sole discretion. When returning Products, it is Customer’s responsibility to take reasonable care to see that the Products are not damaged in transit and are received by us at our address as displayed on our Website. All refunds are subject to any shipping, return and exchange policies set forth on our Website
11. Customer Indemnity. Customer shall indemnify and hold harmless BOUNCE IMAGING with respect of any claim which may be made against BOUNCE IMAGING (a) arising in connection with any breach by Customer of any provision contained in these Terms and Conditions, including any breach of any representation or obligation hereunder; or (b) arising from Customer’s use of the Products and/or Mobile Apps.
12. Termination and Default. If Customer breaches these Terms and Conditions, BOUNCE IMAGING may, without limiting its other legal or equitable remedies, terminate or suspend any or all of its obligations and licenses granted to Customer under these Terms and Conditions.
13. Limited Warranty. Subject to the limitations set forth in these Terms and Conditions, BOUNCE IMAGING warrants to Customer that for a period of one (1) year from the date that BOUNCE IMAGING ships the Product to Customer (the “Warranty Period”), the Products (excluding the Sensors and Accessories), under normal use and conditions within the parameters (such as the maximum height and distance of each throw of the Product and number of times the Product is thrown and other parameters) set forth on our Website (the “Use Parameters”), will operate in substantial conformance with applicable BOUNCE IMAGING specifications set forth on the Website that are current as of the Effective Date. THE SENSORS AND ACCESSORIES ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY OR, REPRESENTATION OF ANY KIND, EITHER, EXPRESS OR IMPLIED, EXCEPT FOR ANY EXPRESS WARRANTIES PROVIDED BY THE MANUFACTURER OF THE APPLICABLE SENSORS AND ACCESSORIES. BOUNCE IMAGING does not warrant that the Product or Mobile Apps will display or detect by video, audio or other sensors all persons, objects or sounds within any specific range of the Product relating to Customer’s use of the Product, whether for law enforcement purposes or otherwise. BOUNCE IMAGING does not warrant that the Device Software or Mobile Apps are free of all defects. Customer’s exclusive remedy for breach of warranty concerning Products will be repair or replacement of the defective portion thereof or a refund to Customer, in BOUNCE IMAGING’s sole discretion. Parts or components may be replaced as deemed necessary solely at BOUNCE IMAGING’s discretion, with the returned part or components becoming the property of BOUNCE IMAGING. BOUNCE IMAGING does not warrant that Products will work in combination with third-party hardware or software, operate uninterrupted or error free, or that non-material defects will be corrected. The warranty set forth in this Section 13 does not apply to any defect caused by Customer or its agents using the applicable Products not in accordance with the Use Parameters or using the applicable Products for a purpose or in a manner other than that for which they were designed, or any other abuse, misuse, or neglect of the Products by Customer or its agents.
14. Warranty and Remedy Limitations. The warranties and remedies set forth in these Terms and Conditions are non-transferable, and effective only with respect to the original purchaser of the applicable Product. The warranties and remedies set forth in these Terms and Conditions do not apply to the Mobile Apps or any Product or any part thereof that (a) has been modified, or repaired by non-BOUNCE IMAGING authorized personnel or by using non-BOUNCE IMAGING authorized components, procedures, or programs; (b) has been damaged by accident, shipment, handling, abuse, misuse, modifications, misapplication, or a failure to exercise due caution in cleaning, maintenance, or operation; (c) was not used in accordance with the Use Parameters; or (d) does not comply with the warranty requirements because such Product was used for a purpose or in a manner other than that for which it was designed. If Customer fails to give notice of a warranty claim during the applicable Warranty Period, Customer waives such warranty claim. BOUNCE IMAGING and its suppliers are not obligated to provide service, upgrades, updates, improvements, or enhancements to BOUNCE IMAGING’s Products or Mobile Apps. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 13 OF THESE TERMS AND CONDITIONS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PRODUCTS, MOBILE APPS AND SERVICES ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY OR, REPRESENTATION OF ANY KIND, EITHER, EXPRESS OR IMPLIED, IN FACT OR BY LAW, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, QUALITY, OR FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR COURSE OF DEALING.
15. Disclaimer and Limitations on Damages.
CUSTOMER AGREES THAT IN NO EVENT WILL BOUNCE IMAGING OR ITS SUPPLIERS, LICENSORS, OR REPRESENTATIVES BE LIABLE TO CUSTOMER OR ANYONE ELSE, FOR INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR FOR LOST PROFITS OR REVENUE, LOSS OF USE OF THE PRODUCTS, MOBILE APPS OR RELATED MATERIALS, LOSS OF DATA, THE COST OF RECOVERING SUCH PRODUCTS, RELATED MATERIALS OR DATA OR, THE COST OF ANY SUBSTITUTE PRODUCTS OR MATERIALS, ARISING FROM ANY BREACH OF THESE TERMS AND CONDITIONS, OR THE SALE, LICENSE, USE OF, OR INABILITY TO USE THE PRODUCTS OR MOBILE APPS, OR RELATED MATERIALS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE.
- IN NO EVENT SHALL BOUNCE IMAGING OR ITS SUPPLIERS, LICENSORS, OR REPRESENTATIVES BE LIABLE TO CUSTOMER OR ANYONE ELSE, FOR ANY INFORMATION OR CONTENT OBTAINED FROM OR THROUGH THE PRODUCT. BOUNCE IMAGING SHALL NOT BE LIABLE FOR any decisions made or actions taken by Customer OR ANYONE ELSE based on information OR CONTENT obtained from or through the Product.
C. in no event shall Bounce Imaging’s aggregate liability arising in connection with a product, MOBILE APP or service exceed the amounts paid to BOUNCE IMAGING for such product, MOBILE APP or service.
D. CUSTOMER UNDERSTANDS THAT THE RISKS OF LOSS HEREUNDER ARE REFLECTED IN THE PRICES OF THE PRODUCTS, MOBILE APPS AND SERVICES AND THAT THESE TERMS AND CONDITIONS WOULD HAVE BEEN DIFFERENT IF THERE HAD BEEN A DIFFERENT ALLOCATION OF RISK.
16. Liability. The remedies set forth in these Terms and Conditions are the sole and exclusive remedies for any breach of any obligation by BOUNCE IMAGING or its suppliers, licensors, or representatives hereunder.
17. Force Majeure and Allocation. If either party’s performance under these Terms and Conditions (except payment of monies due) is prevented, restricted, or interfered with by reason of casualty, accident, fire, strikes or labor disputes, terrorist acts, inability to procure materials or components, power or supplies, war or other violence, compliance with any law, order, proclamation, regulation, ordinance, demand or requirement of any government agency or intergovernmental body (including, without limitation, those related to infringement), production delays, or any other act, circumstance, or condition whatsoever beyond such party’s or its suppliers’ or licensors’ reasonable control, the party whose performance is prevented, restricted, or interfered with, upon notice to the other party, shall be excused from such performance to the extent of such prevention, restriction, or interference. BOUNCE IMAGING may allocate its available supply of Products among any or all of its customers, including the internal requirements of BOUNCE IMAGING and its affiliates, on such basis as it may deem fair and practical, without liability for any failure to comply with the provisions of these Terms and Conditions.
18. Export. The Products and Mobile Apps may be subject to United States export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Customer must comply strictly with all such regulations that are now or later in effect. Customer certifies that it will not export or re-export the Products or Mobile Apps furnished under these Terms and Conditions unless it complies fully with all laws and regulations relating to such export or re-export, including but not limited to the customs and export control laws and regulations of the United States and the country in which the Products or Mobile Apps are received and/or re-exported. Customer acknowledges that it is Customer’s sole responsibility to comply with and abide by those laws and regulations.
19. Modifications. These Terms and Conditions may only be modified by a written (electronically or on paper) amendment or agreement agreed to by authorized representatives of BOUNCE IMAGING and Customer; provided that if BOUNCE IMAGING posts an amended version of these Terms and Conditions on its Website, such amended terms and conditions shall apply with respect to all Orders placed by Customer after the date such terms and conditions were posted on the Website.
20. Severability. If any provision of these Terms and Conditions is found to be unenforceable, the remaining provisions shall remain in full force and effect, and any unenforceable provision shall be replaced by a legally effective provision that comes as close as possible to the purpose of the unenforceable provision.
21. No Waiver. Failure on any occasion by either party to enforce any term of these Terms and Conditions shall not prevent enforcement on any other occasion.
22. Notices. All notices and other communications hereunder shall be in writing and shall be sent by registered mail, postage prepaid, or overnight courier (with proof of delivery), to the following parties’ respective addresses, subject to the right of either party to change its address by written notice: (1) If to BOUNCE IMAGING:
Attn: Bounce Imaging, Inc. 114 Western Avenue Batten Hall Boston, MA 02163 and (2) If to Customer: the address set forth on the Purchase Order.
23. Governing Law. These Terms and Conditions are governed by and shall be construed in accordance with the laws of the Commonwealth of Massachusetts without reference to its principles of conflict of laws. Customer consents to the exclusive personal jurisdiction and venue of the courts of the Commonwealth of Massachusetts for all litigation which may be brought with respect to or arising out of the terms of and the transactions and relationships contemplated by these Terms and Conditions. The parties hereby expressly disclaim the application of the United Nations Convention on Contracts for the International Sale of Products.
24. Priority. To the extent that these Terms and Conditions conflict with any terms under the Terms of Service, these Terms and Conditions shall control.
25. Terms of Sale. The sale or license of the Products shall be governed by these Terms and Conditions. Customer accepts, without qualification, these Terms and Conditions regardless of any of the following: (i) Customer issues or assigns a purchase order (PO) for the purchase of the Products; (ii) Customer accepts any of the Products under the PO; (iii) Customer pays for any of the Products through our Website and/or under the PO, or (iv) Customer downloads Bounce Imaging apps onto a mobile device or other platform.
26. General Terms and Conditions of Sale. These Terms and Conditions constitutes the entire agreement between the parties and supersedes all previous communications, whether oral or written with respect to the subject matter of these Terms and Conditions, provided that Customer’s acceptance, if any, of our Terms of Service shall not be superseded by these Terms and Conditions. To the extent that the terms of these Terms and Conditions conflict with the terms of the Terms of Service, the terms of these Terms and Conditions shall prevail. Any change to these Terms and Conditions may be made only upon mutual agreement of BOUNCE IMAGING and Customer in writing, signed by an authorized officer of both parties.
These Terms and Condition are not assignable by Customer and any attempt by Customer to assign any rights, duties or obligations arising hereunder shall be void. These Terms and Conditions shall be binding on each party’s successors and assigns. No Order which has been accepted by BOUNCE IMAGING may be canceled by the Customer except with the agreement in writing of BOUNCE IMAGING and on terms acceptable to BOUNCE IMAGING. Customer shall indemnify BOUNCE IMAGING in full against all losses (including consequential loss), costs, damages, charges and expenses incurred by BOUNCE IMAGING as a result of any such cancellation. BOUNCE IMAGING’s employees or agents are not authorized to make any verbal representations concerning the Products, Mobile Apps and/or Services. In entering into these Terms and Conditions, Customer acknowledges that they are not relying on any such verbal representations (that have not been confirmed by BOUNCE IMAGING in writing). Any suggestions or advice given by BOUNCE IMAGING or its employees or agents to Customer or its employees or agents as to the application or use of the Products. Mobile Apps and/or Services which is not contained in the written operating instructions provided by BOUNCE IMAGING, is acted upon by Customer entirely at Customer’s own risk. If BOUNCE IMAGING discontinues production of any Products ordered by the Customer, prior to delivery, BOUNCE IMAGING shall give notice of the fact in writing to the Customer (but shall not be liable for any resultant loss or damage to the Customer), whereupon the Customer will have the option, to be exercised within thirty days of the date of such notice, either to take equivalent BOUNCE IMAGING products or services (if available from BOUNCE IMAGING) or to cancel its Order, provided that BOUNCE IMAGING or the Customer shall have no further liability with respect to such Order. In the case of Products produced by BOUNCE IMAGING or Services provided by BOUNCE IMAGING in accordance with the Customer’s specifications, the Customer shall be responsible for the suitability and accuracy of such specifications. The failure of BOUNCE IMAGING to enforce its rights under these Terms and Conditions shall not be construed as a waiver of any rights or remedies of BOUNCE IMAGING. If any provision of these Terms and Conditions is held by a court of law of competent jurisdiction to be legally unenforceable, all other provisions shall remain in full force and effect to the maximum extent permitted by applicable law. Version: August 26, 2015 © 2015 Bounce Imaging, Inc.