Our Terms of Service
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LAST UPDATED: JANUARY 11, 2023
1. PROVISION OF THE PRODUCT
- The Voltera product is the applicable printer or other hardware device or product (the “Device”) as more particularly described in an ordering document agreed to by the parties (each an “Order Form”), firmware included in such Device (“Firmware”) and any applicable software that runs or supports the applicable Device or any software otherwise provided by Voltera (the “Software”), whether installed on Customer’s computers or hosted by Voltera or its service providers). Device, Firmware and Software are collectively the “Product”.
- Customer may submit a purchase order (“Purchase Order(s)”) in writing or electronically to Voltera for purchase of the Device(s). All Purchase Orders placed by Customer are subject to Voltera’s written acceptance and an Order Form executed by the parties. The following additional provisions apply to your purchase of the Device:
- Upon execution of the applicable Order Form by both parties, the Order Form shall be deemed accepted.
- In the event an Order Form cannot be fulfilled as specified in the Order Form, for reasons outside of its control, Voltera may terminate the Order Form without liability. If the Order Form is terminated by Voltera after acceptance, Voltera agrees to negotiate in good faith to determine a reasonable solution for the replacement of such order. If the parties cannot agree to a reasonable solution, Voltera shall refund Customer all Fees (defined below) related to the Order Form.
- Voltera and Customer shall agree to the location of delivery, delivery date, insurance coverage and any additional terms for each Order Form in the Order Form. Unless otherwise agreed to in writing, Voltera shall determine the method and carrier for shipping. If available, Customer may elect to purchase shipping insurance for an Order Form by indicating it as a separate line item on the Order Form or procure appropriate insurance coverage at its own expense. Voltera shall not in any way be held liable for any delay, damage or destruction of any of Order Forms. Notwithstanding the foregoing, Voltera shall make all commercially reasonable efforts to deliver the Product by the delivery date, and in the event there is damage or destruction to an Order Form, it shall cooperate in good faith with Customer to determine a reasonable solution.
- Title to any Device bought by you shall pass to you upon your full payment of all Fees for such Product. Notwithstanding any agreement between the parties concerning the transfer of title or responsibility for shipping costs, risk of loss to any Product under an Order Form shall pass to Customer pursuant to the shipping terms indicated in the Order Form. If no such terms are clearly stated in the Order Form, then risk of loss to such Product shall pass to Customer upon receipt of shipment by carrier and Customer shall bear the risk of loss during shipment to delivery location.
- You acknowledge and agree that Voltera will exercise no control over your use of the Product, that you are solely responsible for complying with the provisions of this Agreement and all applicable laws, ordinances, codes and regulations of governmental agencies (including import and export laws and regulations), including federal, provincial, state, municipal and local governing bodies, of any country having jurisdiction over your use of the Product, and that Voltera has no liability whatsoever relating to your usage of the Product. Without limiting the foregoing, the Product is not intended for use with (whether direct or indirect), industrial, commercial, military or medical equipment, and is not intended for any use where failure or fault of the Product could directly or indirectly cause risk or damage to life or property, or in any mission-critical or time-sensitive application. Any such use is entirely at your discretion and risk, and shall void the warranty contained in this Agreement.
- Within five (5) days of receipt of delivery, Customer shall inspect all Product received under an Order Form and notify Voltera, in writing, of any goods that are non-compliant with the Product specifications provided by Voltera under an Order Form (“Objection Notice”). An Objection Notice must include written evidence or other documentation demonstrating non-conformance with the Product specifications. If it is determined that any Product delivered under an Order Form are non-conforming, Voltera may, in its sole discretion: (1) repair or replace the non-conforming Product at Voltera’s expense; or (2) issue a refund for the non-conforming goods plus any transportation expenses paid by Customer.
2. RESTRICTIONS ON USE
Customer will not itself, and will be responsible for ensuring that others who are provided access to use the Devices by Customer (each a “Permitted User”) do not : (a) sub-license, sell, rent, lend, lease or distribute the Product or any intellectual property rights therein or otherwise make the Product available to the third parties other than Permitted Users; (b) use the Product to permit timesharing, service bureau use or commercially exploit the Product; (c) use or access the Product: (i) in violation of any applicable law or intellectual property right; (ii) in a manner that threatens the security or functionality of the Product, including by taking any action that imposes, or that may impose, in Voltera’s discretion, an unreasonable or disproportionately large load on Voltera’s systems or infrastructure; or (iii) for any purpose or in any manner not expressly permitted in this Agreement; (d) use the Product to create, collect, transmit, store, use or process any Customer Data (defined below): (i) that contains any computer viruses, worms, malicious code or any software intended to damage or alter a computer system or data; (ii) that Customer does not have the lawful right to create, collect, transmit, store, use or process; or (iii) that violates any applicable laws, or infringes, violates or otherwise misappropriates the intellectual property rights or other rights of any third party (including any moral right, privacy right or right of publicity); (e) modify the Product; (f) reverse engineer, de-compile or disassemble the Product; (g) remove or obscure any proprietary notices or labels on the Product, including brand, copyright, trademark and patent or patent pending notices; (h) access or use the Product for the purpose of building a similar or competitive product or service; (i) perform any vulnerability, penetration or similar testing on the Product; or (j) use or access the Product in any manner that is contrary to any additional restrictions set out in the Order Form or for any purpose or in any manner not expressly permitted in this Agreement.
3. SUSPENSION; MODIFICATIONS
Voltera may from time to time and in its discretion, without limiting any of its other rights or remedies at law or in equity under this Agreement: (a) suspend Customer’s access to or use of the Product or any component thereof: (i) for scheduled maintenance; (ii) if there is a Force Majeure (defined below) event; (iii) if Customer or any Permitted User violates any provision of this Agreement, including any of the restrictions set out in Section 2 above; (iv) to address any emergency security concerns; (v) if required to do so by a governmental or regulatory authority or as a result of a change in applicable law; or (vi) for non-payment of undisputed Fees when due; and (b) make modifications, improvements, customizations, patches, bug fixes, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations (“Modifications”) to the Product.
4. THIRD-PARTY PRODUCTS
The Product may contain or require the use of third-party technology that is licensed under separate license terms, and not under this Agreement or other third-party products that are owned by third parties (collectively “Third-Party Products”). Customer is responsible for separately obtaining or licensing such technology. Customer will accept and comply with the license terms applicable to Third-Party Products. If Customer does not agree to abide by the applicable license terms for any such Third-Party Products, then Customer should not install, access or use such Third-Party Products. Any acquisition by Customer of such Third-Party Products, and any exchange of data between Customer and any such provider of Third-Party Products is solely between Customer and the applicable Third-Party Products provider. Voltera does not warrant or support Third-Party Products or other third-party products, offerings or services, whether or not they are designated by Voltera as “certified” or otherwise. Voltera cannot guarantee the continued availability of such Third-Party Products features, and may cease providing them without entitling Customer to any refund, credit or other compensation, if for example and without limitation, the provider of a Third-Party Products ceases to make the Third-Party Products available for interoperation or otherwise in connection with the corresponding service features in a manner acceptable to Voltera. Voltera is not responsible for any disclosure, modification or deletion of any Customer Data resulting from access by such Third-Party Products or its provider. Voltera may engage third parties to assist it in providing the Product or any part thereof.
5. OWNERSHIP; RESERVATION OF RIGHTS
- Except as specifically set forth in this Agreement, Customer retains all right, title and interest including all intellectual property rights in or to Customer Data. Customer grants to Voltera: (i) a nonexclusive, worldwide, royalty-free, transferable, sublicensable, and fully paid-up licence during the Term (defined below) to access, collect, use, process, store, disclose, transmit, transfer, copy, modify and display Customer Data to provide the Product; and (ii) a nonexclusive, perpetual, worldwide, royalty-free, irrevocable, transferable, sublicensable and fully paid-up licence to access, collect, use, process, store, disclose, transmit, transfer, copy, modify and display Customer Data to: (1) improve and enhance the Product and its other offerings; (2) generate Voltera Metadata (defined below) ; and (3) generate aggregated statistical data that: (A) is anonymized; (B) cannot be re-identified by Voltera; and (C) does not contain any Personal Information (defined in Section 7 below) or identify any customers of Customer or Customer (such data, information and materials, the “Usage Data”). Customer agrees that Voltera may: (i) make Usage Data publicly available in compliance with applicable law; and (ii) useUsage Data to the extent and in the manner permitted under applicable law. For greater clarity, Usage Data is not Customer Data.
- Voltera or its licensors retain all rights, title and interest including all intellectual property rights in and to: (i) the Product (other than title to any Device purchased and paid for by Customer pursuant to an agreed Order Form); (ii) documentation; (iii) the Voltera’s metadata; (iv) other than Customer Data, anything used, developed or delivered by or on behalf of Voltera under this Agreement including any Usage Data; and (v) any Modifications to the foregoing (“Voltera Property”).
- Customer grants to Voltera and its affiliates a worldwide, perpetual, irrevocable and royalty-free license to use and incorporate into the Product any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Permitted Users relating to the operation of Product or any of Voltera’s affiliates’ services (“Feedback”). Nothing in this Agreement will restrict our right to use, profit from, disclose, publish or otherwise exploit any Feedback, without compensation to Customer or Permitted Users and without any obligation to Customer or any Permitted User. Voltera is not obligated to use any Feedback.
- All rights not expressly granted by Voltera to Customer under this Agreement are reserved.
6. SOFTWARE; FIRMWARE LICENSE
- Payment of your Fees set out in an Order Form gives you the right to use all Software embedded in or provided with the Product (as updated by us periodically). Voltera hereby grants to you a personal, revocable, non-exclusive, non-transferable, non-sublicensable (except to Permitted Users to use the Device) royalty-free and limited license to use the Software in accordance with the terms of this Agreement and solely as specified in this Agreement. Except as expressly specified in this Agreement, this license does not imply any rights to future upgrades or updates to either the Software or Firmware. However, if Voltera provides you with any upgrades or updates, such updates or upgrades shall be subject to the terms and conditions of this Agreement and may be subject to additional payments. Notwithstanding the foregoing, Voltera reserves the right, but has no obligation, to automatically download updates free of charge to Firmware or Software to maintain Product compatibility and to provide you with the latest supported version of the Firmware or Software. In the event that you do not wish to obtain such automatic updates, you may notify Voltera at any time; however, discontinuance of such automatic updates may result in lack of Product support or additional charges for Product support due to your version being obsolete. You do not have the right to obtain or use any source code for any Software.
- Where applicable, all installation of Software shall be solely your responsibility, at your own risk, and Voltera shall have no responsibility whatsoever to support such installation process. The warranty in this Agreement shall not apply to any issues with the Software arising from such installation of the software by you or any third party on your behalf. You are solely responsible for the selection, implementation, installation, maintenance and performance of any and all equipment, software and services used for accessing and using the software, including your internal network infrastructure and Internet service provider. You are further responsible for ensuring that all such equipment, software and services meet Voltera’s reasonable requirements, as identified in the applicable Product documentation.
- Without limiting Section 2, you shall not:
- Upon execution of the applicable Order Form by both parties, the Order Form shall be deemed accepted
- attempt to hack the Software or any communication initiated by the Software or to defeat or overcome any encryption or other technical protection methods implemented by Voltera with respect to the Software;
- use any type of bot, spider, virus, clock, timer, counter, worm, software lock, drop dead device, packet-sniffer, Trojan-horse routing, trap door, time bomb or any other codes or instructions that are designed to monitor, distort, delete, damage or disassemble the Software or its ability to communicate with the Device; or
- authorize, permit or otherwise acquiesce in any other party engaging in any of the activities set forth in Section 6(c)(i) – 6(c)(ii) above, or attempting to do so.
- The Software includes or utilizes certain software licensed from third parties and is subject to the terms and conditions of such third-party licenses. The specific DLLs or other code in the Software, together with their applicable license terms, can be found at http://trac.osgeo.org/geos/. Ownership of copyright and other intellectual property and proprietary rights in and to such DLLs and code are as set forth in such third-party licenses. The links to the applicable license terms are provided solely for your convenience, and Voltera disclaims any responsibility for the currency or accuracy of such links. It is solely your responsibility to ensure that you comply with the version of the applicable third-party license in effect as of the date of your use of the Software. You acknowledge that such third-party license terms apply only to the specific DLLs or other code as set forth in the link set forth above; such terms and conditions do not apply to any other portions of the Software provided hereunder to you, and the terms and conditions of this Agreement shall govern all other portions of the Software and Firmware provided hereunder to you.
- The Firmware consists of the Marlin 3D Printer Firmware (found at https://github.com/MarlinFirmware/Marlin), with developments to such Firmware made by Voltera. As the Marlin 3D Printer Firmware is licensed under the GNU General Public License (found at http://www.gnu.org/licenses/), the Firmware is therefore considered a covered work under such license. Accordingly, Voltera will provide you, upon request, with access to the source code for the Firmware, and the ability to copy such source code. All terms and conditions of the GNU General Public License shall apply to your use of the source code of the Firmware, including the requirement to maintain the openness and free availability of such source code. Please note that the terms of this Section 6(e) apply ONLY to relevant portions of the Firmware.
Voltera shall not be obligated to provide any support or maintenance services for the Product unless otherwise expressly agreed upon in writing by you and Voltera. However, this provision does not relieve Voltera of its warranty obligations as expressly described in this Agreement.
- Limited Warranty: As used herein, the term “Warranty Period” means: (i) for Device, twenty-four (24) months from the date of shipment; or (ii) for Extended Warranty Product, 60 months from the date set out in the Order Form for extended warranty. Customer may opt into extended warranty for any Product (“Extended Warranty Product”) within 30 days of the delivery of the applicable Product by sending a further Purchase Order to Voltera. All Purchase Order requests for extended warranty placed by Customer are subject to Voltera’s written acceptance. This warranty is valid only for the original purchaser of a new Product obtained from Voltera or its authorized distributor and shall not survive any transfer of ownership of the Product.
- Voltera warrants that, during the Warranty Period, it shall repair or replace, at its sole option and at its facility, any Product which does not materially conform to Voltera’s specifications or that is significantly defective in materials or workmanship (“Defective Product”), free of charge. If Voltera is unable to repair or replace such Product within a reasonable timeframe, Voltera will refund you the amounts paid for such defective or non-conforming Product. All shipment of such Product is at your expense, unless Voltera otherwise agrees in writing. Voltera may, at its option, use new or refurbished or used parts in good working condition to repair or replace any Product. Any replacement Product will be warranted for the remainder of the original warranty period or 30 days, whichever is longer, or for such minimum time period as required by the jurisdiction in which you reside.
- To obtain performance of this limited warranty, you must follow Voltera’s return policy, as posted on Voltera’s website or as otherwise provided to you, and obtain a valid, written Return Materials Authorization (“RMA”) from Voltera as part of the warranty return process. Voltera reserves the right to refuse or return any Product sent back without an RMA.
- This limited warranty does not apply where the Product that has been: (i) subjected to abuse, misuse, neglect, negligence, accident, damage during shipping, improper testing, improper installation, improper storage, improper handling, improper maintenance, abnormal physical stress, abnormal environmental conditions, abnormal use, any other condition outside of Voltera’s specifications or failure to follow Voltera’s instructions; (ii) modified, reconstructed, repaired or altered by persons other than Voltera or as authorized by Voltera; (iii) used with any Third-Party Product, hardware or product that has not been previously approved in writing by Voltera; or (iv) returned with the original identification markings removed or altered. Further, any Product designated by Voltera as a beta test sample, trial product, experimental, developmental, research, prototype, preproduction, sample, incomplete or out of specification product are provided AS IS and specifically excluded from this limited warranty. Further excluded from this limited warranty are any Product manufactured or created by a third party (“Third-party Materials”). This warranty additionally does not cover any Product marked as “sample” or sold “AS IS”. Voltera will assign, to the extent permissible, to Customer any warranty coverage for Third-party Materials, but Voltera does not independently warrant any such Third-party Materials and the third party’s warranty term may not coincide with the Warranty Period.
- EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, VOLTERA DOES NOT WARRANT THAT THE PRODUCT WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE PRODUCT. THE PRODUCT (AND ANY PART THEREOF) ARE PROVIDED “AS IS”. OTHER THAN AS EXPRESSLY PROVIDED FOR HEREIN, VOLTERA MAKES NO WARRANTIES UNDER THIS AGREEMENT WITH RESPECT TO ANY THIRD-PARTY MATERIALS, THIRD-PARTY PRODUCTS, HARDWARE OR OTHER PRODUCTS EMBEDDED IN OR INCLUDED WITH THE PRODUCTS OR FURNISHED TO CUSTOMER BY VOLTERA. TO THE EXTENT PERMITTED BY APPLICABLE LAW, VOLTERA HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL, OR STATUTORY WARRANTIES, REPRESENTATIONS, AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, AND OTHER THAN AS EXPRESSLY SET OUT IN THIS AGREEMENT, VOLTERA EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION, OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE PRODUCT (OR ANY PART THEREOF) IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.
- Customer shall pay Voltera the fees set forth in the applicable Order Form with respect to Product (“Fees“). All Fees shall be paid in accordance with the Agreement, or as otherwise agreed to in the Order Form. Unless otherwise agreed to in writing in an Order Form, all fees are non-refundable and Customer shall be responsible for handling any customs clearance and payment of any import duties imposed on the Products.
- The Fees will be invoiced and paid in advance, unless otherwise set out in the Order Form. You shall pay any other Fees within 30 days from date of the applicable invoice, unless otherwise expressly agreed in writing between the parties.
- Fees, charges and other amounts payable under this Agreement and all Order Forms exclude applicable taxes and such amounts shall be paid free and clear of any deduction or withholding. Customer shall be responsible for all harmonized sales tax (HST), provincial sales tax (PST), goods and services tax (GST), value added tax, use and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, provincial, territorial or local governmental entity on any amounts payable by Customer hereunder. Any such taxes, duties, and charges currently assessed or which may be assessed in the future, that are applicable to the Product provided under this Agreement are for Customer’s account, and Customer hereby agrees to pay such taxes, provided that, in no event shall Customer pay or be responsible for any taxes imposed on, or with respect to, Voltera’s income. All transportation, insurance, custom packing costs and expenses, and all federal, provincial and local excise, duties, sales, and other similar taxes are the sole responsibility of Customer.
- Customer may not withhold or setoff any amounts due under this Agreement. If Customer fails to make any payment when due, without limiting Voltera’s other rights and remedies, Voltera may: (i) charge interest at the rate of one and a half percent (1.5%) compounded monthly (19.56% annually), or the maximum legal rate (if less), plus all expenses of collection, until fully paid; and (ii) if such failure continues for five (5) days or more, Voltera may: (1) suspend, in accordance with Section 3, Customer’s and all Permitted Users’ access to any portion or all of the Product until such amounts are paid in full; or (2) terminate the Agreement immediately on notice (which may be sent by electronic means to the account administrator), without incurring any obligation or liability to Customer or any other person by reason of such suspension or termination.
- Payment and collection of Fees may be enabled through and executed by a third-party payment processors. Transaction fees associated with the individual payment and collection of Fees or amounts under this Agreement are as outlined in the pricing plan provided to Customer. Customer may be required to agree to terms and conditions as required by such third-party payment processor from time to time. Prior to using the Product and any components thereof, Customer must have all applicable such third-party payment processor’s terms and conditions in effect. By using the Product or any component thereof, Customer acknowledges it must be in full compliance with the terms and conditions of such third-party payment processor and be in good standing with such third-party payment processor.
- Any permitted suspension of any Product by Voltera pursuant to the terms of this Agreement will not excuse Customer from its obligation to make payments of Fees.
- Each party (“Receiving Party”) understands that the other party (“Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the disclosing Party’s business (“Confidential Information” of the Disclosing Party). Confidential Information of Voltera includes non-public information regarding features, functionality and performance of the Product and all Voltera Property. Confidential Information of Customer includes non-public data provided by Customer to Voltera to enable the provision of the Product and, if applicable, the Device (“Customer Data”). During the Term and at all times thereafter, the Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information; and (ii) not to use any such Confidential Information except to carry out its obligations under this Agreement. Confidential Information will not include any information that the Receiving Party can document: (i) is or becomes generally available to the public; (ii) was in its possession or known by it prior to receipt from the Disclosing Party; (iii) was rightfully disclosed to it without restriction by a third party; or (iv) was independently developed without use of any Confidential Information of the Disclosing Party.
- Notwithstanding Section 11(a), Receiving Party agrees that it may disclose Disclosing Party’s Confidential Information to: (i) the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Receiving Party promptly notifies Disclosing Party in writing of such required disclosure and cooperates with Disclosing Party to seek an appropriate protective order; (ii) to its legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the party’s business; or (iii) in the case of Voltera, to potential assignees, acquirers or successors of Voltera if and to the extent such persons need to know such Confidential Information in connection with a potential sale, merger, amalgamation or other corporate transaction involving the business or assets of Voltera.
- Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 11 or, in the case of Customer, Section 2 or Section 6(c), would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
- Upon the termination or expiration of this Agreement and all Order Forms under this Agreement, each party will promptly return to the other party or destroy all Confidential Information of the other party in its possession or control within a reasonable amount of time in accordance with the Receiving Party’s data destruction practices. Notwithstanding the foregoing, Voltera may retain any electronically archived Customer’s Confidential Information, provided that such retained information remains subject to the confidentiality obligations in this Agreement.
- We do not guarantee the confidentiality of any communications made by you through the Product. We do not guarantee the security of data transmitted over the internet or public networks in connection with your use of the Product.
12. LIMITATION ON LIABILITY
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, VOLTERA AND ITS SUPPLIERS, OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES WILL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, PRODUCT OR TECHNOLOGY OR LOSS OF BUSINESS OR LOST PROFITS; (B) FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST OR LOSS OF: (1) SAVINGS; (2) PROFIT; (3) DATA; (4) USE; OR (5) GOODWILL; (III) BUSINESS INTERRUPTION; (IV) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR PRODUCT; OR (V) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THE PRODUCT OR THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES; (C) FOR ANY MATTER BEYOND VOLTERA’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO VOLTERA FOR THE PRODUCT UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE INITIAL ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT VOLTERA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Customer hereby agrees to indemnify, defend and hold harmless Voltera and its affiliates and their respective officers, directors, employees, agents, successor and assigns against any damages, losses, liabilities, settlements and expenses (including costs and legal fees) in connection with any claim or action that arises from any from Customer’s use of any Product contrary to the terms of this Agreement, documentation, policy published by Voltera or contrary to applicable laws.
14. TERM AND TERMINATION
- This Agreement commences on the Effective Date and continues until terminated pursuant to the terms of this Agreement (“Term”).
- Either Party may terminate this Agreement upon written notice if the other party materially breaches, this Agreement, and does not cure such breach within 30 days of receiving written notice from the other party. Additionally, Voltera may terminate this Agreement upon written notice if: (i) it engages in any Product recall, whether voluntary or mandatory; (ii) it is required to do so by any law, regulation, requirement or ruling issued in any form whatsoever by any judicial or other governmental body; (iii) you breach Section 2 or the license set out in Section 6; or (iv) you fail to pay Fees in full when due. Except as otherwise specified herein, neither party shall be entitled to terminate or cancel this Agreement except with the prior written consent of the other party. Upon termination: (i) you shall immediately cease (and ensure that all Permitted Users immediately cease) use of the Product, return the Product to Voltera and destroy or delete any Voltera Property in your possession; and (ii) all Order Forms will terminate. Other than as otherwise provided for in this Agreement, no expiration or termination will affect or relieve Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund. The following Sections, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive expiration or termination of this Agreement for any reason: Sections 2, 6(c), 9(f), 10, 11, 12, 13, 15 and this Section.
Notices sent to either party will be effective when delivered in writing and in person or by email, one day after being sent by overnight courier, or five (5) days after being sent by first class mail postage prepaid to the official contact designated by the party to whom a notice is being given. Notices will be sent: (a) if to Voltera, to the following address:
Voltera Inc., 180 Northfield Drive West, Unit 2, Kitchener, ON, N2L 0C7 Email: email@example.com
and (b) if to Customer, to the current postal or email address that Voltera has on file with respect to Customer. Voltera may change its contact information by posting the new contact information on its website, through the Product or by giving notice thereof to Customer. Customer is solely responsible for keeping its contact information on file with Voltera current at all times during the Term. This Agreement is not assignable, transferable or sublicensable by Customer except with Voltera’s prior written consent. Voltera may transfer and assign any of its rights and obligations under this Agreement without consent. Any purported assignment or delegation by a party in violation of this Section will be null and void. Subject to the foregoing, this Agreement ensures to the benefit of and is binding upon the parties and their respective successors and permitted assigns. This Agreement (including all Order Forms) constitutes the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all prior or contemporaneous agreements, representations or other communications between the parties, whether written or oral. This Agreement replaces and terminates any prior agreed agreement, terms of service or other terms and conditions agreed between the parties related to the Product. Any terms and conditions appearing on a Purchase Order or similar document issued by Customer, or in Customer’s procurement, invoicing, or vendor onboarding portal do not override or form a part of this Agreement (including any Order Form). This Agreement may not be altered, amended, or modified except by a written instrument signed by the duly authorized representatives of both parties. NOTWITHSTANDING THE FOREGOING, VOLTERA MAY UNILATERALLY AMEND THIS AGREEMENT, IN WHOLE OR IN PART (EACH, AN “AMENDMENT”), BY: (A) GIVING CUSTOMER PRIOR NOTICE OF SUCH AMENDMENT; OR (B) POSTING NOTICE OF SUCH AMENDMENT ON VOLTERA’S WEBSITE. UNLESS OTHERWISE INDICATED BY VOLTERA, ANY SUCH AMENDMENT WILL BECOME EFFECTIVE AS OF THE DATE THE NOTICE OF SUCH AMENDMENT IS PROVIDED TO CUSTOMER OR IS POSTED ON SUCH WEBSITE (WHICHEVER IS EARLIER). If any one or more of the provisions of this Agreement is for any reason held to be invalid, illegal, or unenforceable in any respect, any such provision shall be severable from this Agreement. No waiver by either party of a breach or omission by the other party under this Agreement shall be binding on the waiving party unless it is expressly made in writing and signed by the waiving party. This Agreement and any action related thereto will be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to conflicts of law principles. The parties will initiate any lawsuits in connection with this Agreement in Toronto, Ontario, Canada, and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting therein. Notwithstanding the foregoing, a party may commence lawsuits to seek injunctive relief with respect to a violation of its intellectual property rights or breach of confidentiality obligations; in each case, in any appropriate jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. Voltera may identify Customer by name and logo as a Voltera customer on Voltera’s website and on other promotional materials. Any goodwill arising from the use of Customer’s name and logo will inure to the benefit of Customer. Customer shall not directly or indirectly export, re-export or import all or any portion of the Product without first obtaining all required licenses, permits and permissions. Voltera makes no representation or warranty that the Product may be exported without Customer first obtaining appropriate licenses or permits under applicable law, or that any such license or permit has been, will be, or can be obtained. Except as otherwise provided in this Agreement, the parties’ rights and remedies under this Agreement are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or in equity or otherwise. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect. Voltera’s relationship to Customer is that of an independent contractor, and neither party is an agent or partner of the other. Neither party will have, and neither party will represent to any third party that it has, any authority to act on behalf of the other party. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) this Agreement; (2) the applicable Order Form; and (3) the documentation. Neither party will be liable for delays caused by any event or circumstances beyond that party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving that party’s employees), Internet service failures or delays, or the unavailability or Modification by third parties of telecommunications or hosting infrastructure or third-party websites (“firstname.lastname@example.org”). This Section does not apply to any of Customer’s obligations under Sections 10 (Fees), 11 (Confidentiality) or 13 (Indemnification). It is the express will of the parties that this Agreement and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
If you have any questions or inquiries regarding this Agreement, please contact Voltera at email@example.com.
17. THIRD-PARTY TERMS
- Apple App Store Additional License Terms. If the Product, in whole or in part, is provided to you through the Apple Inc. (Apple Inc. together with all of its affiliates, “Apple”) App Store, the following terms and conditions apply to you in addition to all the other terms and conditions of these Terms of Service, the parties acknowledge these Terms of Service are concluded between the parties, and not with Apple. The responsibility for the Product and content thereof is governed by these Terms of Service. Notwithstanding anything to the contrary hereunder, you may use the Product only on an iPhone or iPod touch that you own or control. You and we acknowledge that Apple has no obligation to furnish any maintenance or support services with respect to the Product. In the event of any failure of the Product to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Product (if any) to you. Except for the foregoing, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Product, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be governed by these Terms of Service. Any claim in connection with the Product related to product liability, a failure to conform to applicable legal or regulatory requirements, or claims under consumer protection or similar legislation is governed by these Terms of Service, and Apple is not responsible for such claim. Any third-party claim that the Product or your possession and use of the Product infringes that third party’s intellectual property rights will be governed by these Terms of Service, and Apple will not be responsible for the investigation, defense, settlement and discharge of such intellectual property infringement claim. You represent and warrant that you are not: (i) located in any country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; or (ii) listed on any U.S. Government list of prohibited or restricted parties. You may contact us in writing regarding any notices, questions, complaints or claims with respect to the Product at the contact information noted above. Apple is a third-party beneficiary to these Terms of Service and may enforce these Terms of Service against you. If any of the terms and conditions in these Terms of Service are inconsistent or in conflict with Apple’s applicable instructions for Minimum Terms for Developer’s End User License Agreement (the current version as of the date these Terms of Service was last updated is located at: http://www.apple.com/legal/internet-services/itunes/appstore/dev/minterms/) or the App Store Terms of Service (the current version as of the date these Terms of Service were last updated is located at: http://www.apple.com/legal/internet-services/itunes/ca/terms.html), the terms and conditions of Apple’s instructions for Minimum Terms for Developer’s End User License Agreement or App Store Terms of Service, as applicable, will apply to the extent of such inconsistency or conflict.]
- Google Play. If the Product, in whole or in part, is provided to you through the Google Inc. (Google Inc. together with all of its affiliates, “Google”) Google Play store, the following terms and conditions apply to you in addition to all the other terms and conditions of these Terms of Service: You acknowledge that Google is not responsible for providing support services for the Product. If any of the terms and conditions in these Terms of Service are inconsistent or in conflict with the Google Play Developer Distribution Agreement (the current version as of the date these Terms of Service was last updated is located at https://play.google.com/about/developer-distribution-agreement.html), the terms and conditions of Google’s Google Play Developer Distribution Agreement will apply to the extent of such inconsistency or conflict.