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Unless there is an agreement in place between Stoneware, Inc. (“Stoneware”) and Customer, this Sales Agreement (the“Agreement”), including associated warranty statements, license agreements, and any applicable attachments, is thesole and complete agreement between Customer and Stoneware regarding the Products or Services purchasedhereunder. Any additional or different terms in any order or communication from Customer shall not be binding onStoneware unless signed by an authorized representative of Stoneware.Customer accepts the terms of this Agreement by ordering against a quotation that references this Agreement or byusing the Products or allowing Stoneware to perform the Services. A Product or Service becomes subject to thisAgreement when Stoneware accepts Customer’s order by making the software Product available to Customer orproviding the Service. Confirmation of receipt of Customer’s order shall not mean Stoneware has accepted Customer’sorder.
1.1 “Product” shall mean any Stoneware-branded or third-party software that Stoneware provides to Customer underthis Agreement. Products include computer software programs (whether pre-loaded or provided separately) and relatedlicensed materials such as documentation.
1.2 “Service” is the performance of a task; provision of advice or assistance; or access to a resource, such as access toan information database that Stoneware makes available to Customer.
2. Prices and Payment
2.1 Payment is due upon receipt of invoice unless agreed otherwise in writing between the parties. Any amounts notreceived by Stoneware within thirty (30) days of receipt of invoice shall be overdue. Customer shall pay a late paymentfee of the lesser of one and one half percent (1.5%) per month or the maximum rate permitted by law on the overduebalance of the invoice amount. Customer shall pay any applicable sales, use or similar taxes, fees or duties unlessCustomer provides exemption documentation to Stoneware. Customer is responsible for taxes, if any, on Products fromthe date Stoneware delivers such Products to Customer, or, on Services, on the date the Services are provided byStoneware. No other discounts, quantity entitlements, or promotions apply unless agreed in writing by Stoneware.Delivery charges, if applicable, will be as specified in an invoice.
2.2 If Stoneware makes an error in pricing information, Stoneware may nevertheless refuse or cancel an order placed fora Product or Service quoted at such price, even if Stoneware has confirmed the receipt of Customer’s order or otherwisecharged the Customer.
2.3 Unless otherwise agreed in writing by the parties, (a) Stoneware may invoice Customer upon receipt of a valid orderfor Products or Services and (b) the Services under any such order must be used during the term stated in the order (orone (1) year if no term is provided in the order). Any unused Services at the end of the term of the applicable order (orone (1) year if no term is stated in the order) shall be forfeited. Stoneware shall not owe Customer any refund for suchunused Services.
2.4 In the event of overpayment on Customer’s account, Stoneware will apply the overpayment in the following manner.Overpayment will first be applied to any unpaid balances currently existing on the account. Should there be remainingoverpayment following such application, that amount will then be applied to any future balances due within the twelve(12) month period following the date of the overpayment. Remaining overpayment amounts greater than ten dollars($10.00) but less than one hundred dollars ($100.00) will then be refunded following the aforementioned subsequenttwelve-month period. In the event that a remaining overpayment is ten dollars ($10.00) or less, Stoneware, in its solediscretion, may elect to not issue a refund of such amount and Customer hereby agrees that it relinquishes the right toany such funds.
3. ReturnsIf Customer acquired a Product and paid a software license fee, but does not agree to the terms of this Agreement orapplicable software license terms, Customer shall promptly uninstall, cease all use of the Product, and notify Stoneware,Inc. in writing within 10 days of date of applicable invoice in order to receive a refund or credit in the amount of the fee.
To receive a refund, Customer must notify Stoneware in writing of Customer’s request for a refund by using one of thefollowing:e-mail: email@example.com (cc: firstname.lastname@example.org)Fax: (866)-596-2088Mail: Stoneware, Inc.11555 N. Meridian Street, Suite 150Carmel, IN 46032
If Customer does not uninstall and cease all use of the Product within such 10-day period, Customer will be deemed tohave accepted the applicable software license terms and shall be bound by the terms of this Agreement.
4. WarrantiesUNLESS AS SET FORTH IN THE APPLICABLE SOFTWARE LICENSE TERMS, STONEWARE MAKES NOWARRANTIES FOR SOFTWARE, SERVICE, SUPPORT OR THIRD PARTY PRODUCTS. SUCH SOFTWARE,SERVICE, SUPPORT AND PRODUCTS ARE PROVIDED “AS IS,” WITHOUT WARRANTIES OR CONDITIONS OFANY KIND. SOME STATES DO NOT ALLOW LIMITATIONS OF WARRANTIES, SO THESE LIMITATIONS MAY NOTAPPLY TO CUSTOMER. THIRD PARTY PROVIDERS OF SOFTWARE, SERVICES, PRODUCTS AND SUPPORTMAY PROVIDE WARRANTIES TO CUSTOMER THAT ARE INDEPENDENT OF THIS AGREEMENT.
5.1 Customer Information. Stoneware and its affiliates may store, use and process contact information and otherinformation about Customer, including name, phone numbers, addresses, and e-mail addresses, necessary to performunder this Agreement. Such information will be processed and used in connection with this Agreement and the Productsor Services. Such information may be transferred by Stoneware to any country where Stoneware does business; andmay be provided to entities acting on Stoneware’s behalf in relation to this Agreement and the Products or Services.Stoneware may also disclose such information where required by law.
5.2 Limitation of Liability. In any action under or related to this Agreement, Stoneware shall not be liable to Customerfor any of the following, even if informed of their possibility or not and whether arising in contract, tort, (includingnegligence) or otherwise: 1) third-party claims for damages; 2) loss of, or damage to, data; or 3) special, incidental,indirect, punitive or consequential damages; or 4) loss of profits, business, revenue, goodwill or anticipated savings. Assome states or jurisdictions do not allow the exclusion or limitation of some damages, the above exclusion or limitationmay not apply to this Agreement. Except for bodily injury (including death) and damage to real property or tangiblepersonal property, Stoneware shall not be liable for more than the amount of actual direct damages suffered byCustomer, up to the amount Customer paid for the Product or Service.
5.3 Force Majeure. Stoneware shall not be liable to Customer for any failure or delay in the performance of itsobligations hereunder, to the extent such failure or delay is caused by fire, flood, earthquakes, other elements of nature;acts of war; terrorism, riots, civil disorders, rebellions or revolutions; epidemics, communication line or power failures;governmental laws, court orders or regulations; or any other cause beyond the reasonable control of Stoneware.
5.4 Product Changes. Stoneware may change or discontinue Products at any time. In such event, Stoneware mayfulfill Customer’s order with a Product that has the functionality and performance as the Product ordered by Customer.
5.5 Export. All Products purchased under this Agreement shall be of United States origin are subject to the exportregulations of the United States. Customer shall comply with any applicable export regulations in transferring theProducts
5.6 Governing Law. For transactions initiated and performed in the United States, this Agreement, and all orders issued hereunder, shall be governed by the laws of the State of Indiana, without regard to its conflict of law principles, and any dispute relating to this Agreement shall be brought in a state or federal court of competent jurisdiction in the State of Indiana. For all other transactions, this Agreement, and all orders issued hereunder shall be governed under the laws of the country in which the transaction is initiated and performed, without regard to its conflict of law principles, and any dispute relating to this Agreement shall be brought before the competent courts of such country. The United Nations Convention on Contracts for the International Sale of Goods does not apply. Neither party may bring an action arising out of or related to this Sales Agreement more than two years after the cause of action arose.
Stoneware Sales Agreement – July 2020