November 12, 2020
3720 Clifton Pl
Montrose, CA 91020, USA
Capitalized terms are defined in this document’s last section.
These Policies for the Use, Support and License of the SynTouch Indenter (“Policies”) govern Customer’s use and license of the Indenter and SynTouch’s performance of the Services. SynTouch may update these Policies or the Indenter Manual at any time, and SynTouch will post the updated versions on this site. By either using the Indenter or accepting the Services, Customer agrees to be legally bound to these Policies, the Indenter Manual and any updates thereof. If Customer does not agree to these Policies, the Indenter Manual or any updates thereof, it must notify SynTouch in writing at email@example.com, in which case all Services provided to Customer pursuant to these Policies shall terminate and Customer relinquishes all rights granted hereunder.
SYNTOUCH’S OBLIGATIONS. SynTouch will:
- Perform the Services by using commercially reasonable efforts as determined by SynTouch in its sole discretion within a reasonable time following SynTouch’s receipt of Services Requests, provided that (i) Customer submits Services Requests in accordance with SynTouch’s written instructions; (ii) Customer grants SynTouch reasonable access to the Indenter, Customer’s Data and Certified Indenter Operators; and (iii) Customer is in compliance with the Indenter Manual and has installed all Indenter Updates. For the avoidance of doubt, SynTouch may elect not to perform the Services if Customer fails to abide by this subsection 1 as determined by SynTouch in its sole discretion.
- Subject to the terms set forth in the Business Documents and in SynTouch’s sole discretion, (i) supply Customer with Sensors requested by Customer; (ii) exchange Sensors in Customer’s possession that have been subject to wear and tear caused by Customer’s reasonable use, or are defective and (iii) determine whether new or refurbished Sensors will be provided to Customer.
- Provide training and support in the use of the Indenter to Customer’s Certified Personnel and Certified Indenter Operators.
CUSTOMER’S OBLIGATIONS. Customer will:
- Allow only (i) Certified Indenter Operators to operate the Indenter and (ii) Certified Personnel to submit Services Requests
- At all times comply with the Indenter Manual, and not directly or indirectly (i) violate laws or regulations that affect the use of the Indenter; (ii) disassemble, modify, remove, merge, scrape, translate, decode or reverse engineer any portion of the Indenter, the Sensors or the Software; (iii) use any data mining, gathering, separation or extraction tool, or any robot, spider or other automatic device or manual process to monitor, use or copy any portion of the Software, Licensed IP or data generated thereby; (iv) use, reproduce, compile, disclose, publish, display, distribute, transmit or make available any portion of the Indenter or Licensed IP or the data generated thereby for the purpose of providing testing or measuring services for any third party; (v) remove any notice indicating SynTouch’s proprietary rights or SynTouch’s suppliers’ proprietary rights in the Indenter, Software or Licensed IP; (vi) create derivative works of the Indenter, Software or Licensed IP or any portion or component thereof; (vii) make false, misleading or deceptive statements or representations regarding SynTouch, the Indenter or the Services; or (viii) assign, sell, lease, rent, transfer, exchange, encumber, grant rights, license or sublicense all or any portion of the Indenter or the Sensors during or after the Term.
- Install the Indenter Updates. Customer acknowledges that failing to install the Indenter Updates may result in the Indenter becoming inoperable and unsupported or hinder SynTouch’s performance of the Services.
- Bear the cost of (i) SynTouch’s personnel time and any additional out-of-pocket expenses incurred to perform Services (including but not limited to, any additional ancillary services not agreed to in the Business Documents or Services outlined herein) or caused by Customer’s failure to comply with the Indenter Manual; (ii) all shipping and transportation expenses associated with exchange of the Sensors; (iii) Sensors that are lost while in Customer’s possession or during shipping from Customer to SynTouch; and (iv) Sensors damaged as a result of Customer’s non-compliance with the Indenter Manual. All costs associated with lost or damaged Sensors are set forth in the Business Documents.
TERM AND TERMINATION. If the Customer purchased the Indenter, the term of these Policies will commence on the date of acceptance for use of the Indenter set forth in the Business Documents (the “Acceptance Date”) and continue until one (1) year following the Acceptance Date (the “Initial Term”). Following the Initial Term, these Policies will automatically renew for successive one (1) year terms (each a “Renewal Term”), provided that Customer pays the appropriate non-refundable Services and licensing fee for the Initial Term and each Renewal Term thereafter at the beginning of each such Renewal Term (the “Fee”) or unless Customer gives SynTouch written notice at firstname.lastname@example.org of Customer’s election not to renew at least thirty (30) days prior to the expiration of the Initial Term or the then-current Renewal Term. If Customer rented the Indenter, these Policies apply during the rental period set forth in the Business Documents (the “Rental Term” and together with the Initial Term and Renewal Term, the “Term”). SynTouch may terminate these Policies and the Services if (i) Customer does not pay the Fee or other amounts when due; (ii) Customer has not performed or complied in whole or in part with these Policies, the Business Documents or the Indenter Manual; or (iii) the Indenter becomes subject to a third-party intellectual property infringement claim. If a party receives from the other party a written notice of breach or default under these Policies, the notifying party may terminate these Policies if the notified party does not satisfactorily cure the breach or default within thirty (30) days of such written notice. Upon termination, any and all rights granted to Customer hereunder shall terminate immediately, including Customer’s right to use the Licensed IP and the Sensors.
LICENSE GRANT. Subject to Customer’s full compliance with these Policies and the Business Documents, SynTouch hereby grants to Customer during the Term a non-exclusive, non-transferable, limited license to use the Licensed IP and the Sensors for the sole purpose of Customer’s operation of the Indenter. Except as may be expressly licensed to Customer hereunder, all right, title and interest in and to the Licensed IP and the Sensors, all derivative works thereof, and all related documentation and materials, including all intellectual property and proprietary rights embodied therein, will at all times be exclusively owned by SynTouch. Customer will not use the Indenter or the Sensors for any purpose except as expressly permitted herein. Notwithstanding the foregoing, Customer will own Customer’s Data.
LIMITED WARRANTY AND WARRANTY DISCLAIMER. SynTouch warrants that the Services will be performed by skilled and qualified personnel in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services. EXCEPT FOR THE WARRANTIES EXPLICITLY SET FORTH HEREIN AND IN THE BUSINESS DOCUMENTS, SYNTOUCH MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE INDENTER, THE SENSORS, LICENSED IP OR SERVICES AND DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY (A) WARRANTY OF MERCHANTABILITY; OR (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; OR (E) WARRANTY ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.
LIMITATION OF LIABILITY. In no event during or after the Term, will SynTouch be liable to Customer or any third party for any loss of use, revenue or profit or loss of data or diminution in value, or for any consequential, indirect, incidental, special, exemplary, or punitive damages whether arising out of breach of contract, tort (including negligence), strict liability or otherwise, regardless of whether such damages were foreseeable and whether or not SynTouch had been advised of the possibility of such damages, and notwithstanding the failure of any agreed or other remedy of its essential purpose. Furthermore, in no event during or after the Term shall SynTouch be liable to Customer or any third-party as to the accuracy or completeness of any measurements or information generated by the Indenter. Customer’s reliance upon such measurements or information or conclusions drawn therefrom will be at Customer’s own risk to the maximum extent permitted by law and will not give rise to any liability of or against SynTouch or any affiliates thereof. In no event both during and after the Term, will SynTouch’s aggregate liability arising out of or related to these Policies or any Business Documents, whether arising out of or related to breach of contract, tort (including negligence), strict liability, or otherwise, exceed the total of the amounts paid and payable to SynTouch hereunder.
MUTUAL CONFIDENTIALITY. Notwithstanding any existing or future agreement between Customer and SynTouch setting forth the obligation to maintain the confidentiality of and not disclose proprietary information, each of Customer or SynTouch (the “Receiving Party”) may receive proprietary information from the other (the “Disclosing Party”) relating to the Disclosing Party’s business, vendors, products, services, customers, trade secrets, methods, processes, procedures or other information reasonably expected to be treated in a confidential manner (“Proprietary Information”). Customer’s Data is considered Customer’s Proprietary Information. The Receiving Party and its employees and agents will, at all times, including after termination of the Services or use of the Indenter, keep in trust and confidence all Proprietary Information of the Disclosing Party, and not use it other than in furtherance of these Policies or pursuant to any Business Documents, nor will the Receiving Party or its employees or agents disclose any such Proprietary Information to any third party without the Disclosing Party’s prior written consent.
ENTIRE AGREEMENT. These Policies together with the Business Documents are the entire agreement between Customer and SynTouch relating to the subject matter hereof; supersede all prior or contemporaneous understandings, and will prevail if a conflict arises between these Policies and separate agreements entered into between Customer and SynTouch. Notwithstanding the foregoing, in the event of a conflict between the terms of the license set forth herein and the Business Documents, the license terms in these Policies will prevail.
WAIVERS. The failure by either Customer or SynTouch at any time to require performance of any provision or terms hereof or pursuant to the Indenter Manual will in no manner affect such party’s rights at a later time to enforce the same. No waiver by Customer or SynTouch of any condition or of any breach of any term, representation or warranty contained in these Policies will be effective unless in writing, and no waiver in any one or more instances will be deemed to be a further or continuing waiver of any such condition or breach in other instances or a waiver of any other condition or breach of any other term, representation or warranty.
GOVERNING LAW. All matters arising out of or relating to these Policies or the Indenter Manual are governed by and construed in accordance with the laws of the State of California without giving effect to any conflict of laws provisions that would cause the application of the laws of any other jurisdiction. The exclusive jurisdiction for all disputes arising out of or relating to these Policies will be the California State and United States Federal courts sitting in the County of Los Angeles, California, USA.
“Business Documents” means binding agreements and notices between Customer and SynTouch relating to Customer’s purchase, installation, acceptance or use of the Indenter or SynTouch’s performance of the Services, including but not limited to policies, quotations, invoices, sales orders, purchase orders, purchase agreements, rental agreements, and that certain Limited Warranty for the SynTouch Indenter.
“Certified Personnel” means any of Customer’s personnel or contractors who have received SynTouch’s written certification to submit Services Requests. At SynTouch’s sole discretion, certification may be conditioned upon receiving training by SynTouch.
“Certified Indenter Operators” means Certified Personnel who have received SynTouch’s written certification to operate the Indenter. At SynTouch’s sole discretion, certification may be conditioned upon receiving training by SynTouch.
“Customer” means the customer identified in the purchase or rental order accepted by SynTouch for the Indenter, and, when applicable, Certified Personnel and Certified Indenter Operators.
“Customer’s Data” means all measurements and data generated from Customer’s use of the Indenter.
“Fee” is defined in the Term and Termination section above.
“Indenter” means the SynTouch Indenter consisting of a test station, a computer console, multiple sensors, and ancillary documents, minor components, cables and accessories.
“Indenter Manual” means a document that SynTouch may publish or update from time to time at SynTouch’s sole discretion that sets forth how to operate and care for the Indenter.
“Indenter Updates” means updates or modifications to the Indenter provided by SynTouch to Customer from time to time at SynTouch’s sole discretion.
“Initial Term” is defined in the Term and Termination section above.
“Licensed IP” means intellectual property, including patents, trade secrets, copyrights and trademarks that is owned by SynTouch and embedded in the Indenter or the Sensors, and contained in the Indenter’s data output.
“Policies” means these Policies for the Use, Support and License of the SynTouch Indenter.
“Renewal Term” is defined in the Term and Termination section above.
“Sensors” means the Indenter sensors provided by SynTouch for Customer’s use of the Indenter.
“Services” means SynTouch’s installation, service and support of the Indenter.
“Services Requests” means requests for Services submitted by Certified Personnel in accordance with SynTouch’s written instructions.
“Software” means software and firmware embedded in the Indenter or the Sensors.
“SynTouch” means SynTouch, Inc.
“Term” is defined in the Term and Termination section above.