MASTER SERVICES AGREEMENT

This Master Services Agreement (this “Agreement”) is entered into by and between Actsoft, Inc., a Florida corporation (“Actsoft”) with a place of business at 10006 N. Dale Mabry HWY, Suite 100, Tampa, FL 33618, and the Customer (“Customer”). Actsoft and Customer are sometimes referred to jointly as the “parties” or singularly as a “party.”

RECITALS

WHEREAS, Customer desires to obtain access to the Services with respect to certain of its information technology needs; and Actsoft wishes to provide the Services to Customer, each on the terms and conditions set forth in this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants and promises set forth herein, and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

1.SERVICES

  • 1.1 Purpose. This Agreement sets forth the terms and conditions under which Actsoft agrees to provide (i) certain hosted “software as a service” (“Subscription Services”) for certain software applications to Authorized Users, as further set forth on each online order form (“Order Form”) and (ii) if applicable, all other implementation services, customization, integration, data import and export, monitoring, technical support, maintenance, training, backup and recovery, and change management (“Professional Services” together with Subscription Services, the “Services”) related to Customer’s access to, and use of, such Subscription Services and each Platform, as further set forth on each statement of services (“Statement of Work”) issued hereunder (Order Forms and Statements of Professional Services are sometimes referred to jointly as a “Statement of Services”).
  • 1.2 The Services; Access and Use License. Subject to the terms and conditions of this Agreement, during the Term, Actsoft shall use commercially reasonable efforts to provide (i) Customer and Authorized Users access to Subscription Services. Subject to the terms and conditions of this Agreement, during the Term, Actsoft hereby grants Customer and Authorized Users a non-exclusive, non-sublicensable, non- transferable, worldwide license to access and use Subscription Services, solely for internal business purposes as set forth herein.
  • 1.3 Subscription Services. Each applicable Order Form shall specify and further describe the Subscription Services to be provided in accordance with the representations and warranties set forth herein, and shall identify, each applicable device, user limitations, fees, subscription term and other applicable terms and conditions.
  • 1.4 Professional Services. Each applicable Statement of Work shall specify and further describe the Professional Services to be provided in accordance with the representations and warranties set forth herein, and may, but need not, include, the Professional Services offered, limitations, milestones, fees, term and other applicable terms and conditions.
  • 1.5 Changes to Service Delivery Platform (“Platform”). Actsoft may, in its sole discretion, make any changes to any service delivery platform that it deems necessary or useful to (i) maintain or enhance (a) the quality or delivery of Actsoft’s products or services to its customers, (b) the competitive strength of, or market for, Actsoft’s products or services, (c) such Platform’s cost efficiency or performance, or (ii) to comply with applicable law.

2.ACCESS AND AUTHORIZED USER

  • 2.1 Account Owners. During the configuration and set-up process, Customer will identify an account owner user name and password for Customer’s Actsoft account. Actsoft reserves the right to refuse registration of, or cancel user names and passwords it deems inappropriate. Authorized Account Owners are for designated administrative users and cannot be shared or used by more than one Administrative User, but may be reassigned to new Administrative Users replacing former Authorized Users who no longer require ongoing use and access of the applicable Platform.
  • 2.2 Authorized Users. Customer may allow such number of Customer’s employees and/or independent contractors as is indicated on an Order Form to use the applicable Subscription Services on behalf of Customer as “Customer Users.” Authorized User subscriptions are for designated Authorized Users and cannot be shared or used by more than one Authorized User, but may be reassigned to new Authorized Users replacing former Authorized Users who no longer require ongoing use of the applicable Platform.
  • 2.3 Authorized User Conditions to Use. As a condition to access and use of Subscription Services, (i) each Authorized User shall agree to abide by the terms of Actsoft’s end-user terms of use which it may adopt from time to time, and (ii) Customer Users shall agree to abide by the terms of this Agreement and Actsoft’s end-user terms of use, or a subset hereof. Customer shall immediately notify Actsoft of any violation of the terms of any of the foregoing by any Authorized User upon becoming aware of such violation, and shall be liable for any breach of the foregoing agreements by any Authorized User.
  • 2.4 Account Responsibility. Customer will be responsible for (i) all uses of any account that Customer has access to, whether or not Customer has authorized the particular use or user, and regardless of Customer’s knowledge of such use, and (ii) securing its Actsoft account, passwords (including but not limited to administrative and user passwords) and files. Actsoft is not responsible for any losses, damages, costs, expenses or claims that result from stolen or lost passwords.

3.ADDITIONAL RESTRICTIONS AND RESPONSIBILITIES

  • 3.1 Software Restrictions. Customer will not, nor permit or encourage any third party to, directly or indirectly (i) reverse engineer, decompile, disassemble or otherwise attempt to discover or derive the source code, object code or underlying structure, ideas, know-how or algorithms relevant to a Platform or any software, documentation or data related to a Platform (“Software”); (ii) modify, translate, or create derivative works based on a Platform or any Software; (iii) use a Platform or any Software for timesharing or service bureau purposes or other computer service to a third party; (iv) modify, remove or obstruct any proprietary notices or labels; or (v) use any Software or a Platform in any manner to assist or take part in the development, marketing or sale of a product potentially competitive with such Software or Platform. For the avoidance of doubt, Software and the Services, including all user-visible aspects of the Services, are the Confidential Information of Actsoft.
  • 3.2 Customer Compliance. Customer shall use, and will ensure that all Authorized Users use Subscription Services in full compliance with this Agreement, Actsoft’s end-user terms of use and all applicable laws and regulations. Customer represents and warrants that it (i) has accessed and reviewed any terms of use or other policies relating to a Subscription Service provided by Actsoft, (ii) understands the requirements thereof, and (iii) agrees to comply therewith. Actsoft may suspend Customer’s account and access to Subscription Services and performance of the Services at any time and without notice if Actsoft believes that Customer is in violation of this Agreement. Although Actsoft has no obligation to monitor Customer’s use of Subscription Services, Actsoft may do so and may prohibit any use it believes may be (or alleged to be) in violation of the foregoing.
  • 3.3 Customer Systems. Customer shall be responsible for obtaining and maintaining—both the functionality and security of—any equipment, including, but not limited to smartphones, tablets and other tracking devices, and ancillary services needed to connect to, access or otherwise use Subscription Services.
  • 3.4 Restrictions on Export. Customer may not remove or export from the United States or allow the export or re-export of the Software or anything related to Software or Services, or any direct product thereof in violation of any restrictions, laws or regulations of any United States or foreign agency or authority.
  • 3.5 DFARS. Software, each Platform and the Services and any documentation provided by Actsoft are deemed to be “commercial computer software” and “commercial computer software documentation” pursuant to Defense Federal Acquisition Regulation Supplement, codified under Chapter 2 of Title 48, United States Code of Federal Regulations, Section 227.7202, and Federal Acquisition Regulation, codified in Title 48 of the United States Code of Federal Regulations, Section 12.12. Any use, modification, reproduction, release, performance, display, or disclosure of the Software or documentation by the United States Government is governed solely by this Agreement and is prohibited except to the extent expressly permitted by this Agreement.

4.PROPRIETARY RIGHTS

  • 4.1 Ownership. Customer shall own all right, title and interest in and to the Customer Data and if applicable, devices required to utilize Subscription Services. Actsoft shall own and retain all right, title and interest in and to (i) each Platform, Software and the Services and all improvements, enhancements or modifications thereto, (ii) any software, applications, inventions or other technology developed in connection with the Services, and (iii) all intellectual property and proprietary rights in and related to any of the foregoing (collectively, “Services IP”).
  • 4.2 Customer Data License. Customer hereby grants to Actsoft a non-exclusive, transferable, sublicensable, worldwide and royalty-free license to use and otherwise exploit Customer Data to provide the Services to Customer hereunder and as necessary or useful to monitor and improve a Platform, Software and the Services, both during and after the Term. For the avoidance of doubt, Actsoft may use, reproduce and disclose Platform-, Software- and Services-related information, data and material that is anonymized, de-identified, or otherwise rendered not reasonably associated or linked to Customer or any other identifiable individual person or entity for product improvement and other lawful purposes, all of which information, data and material will be owned by Actsoft. It is Customer’s sole responsibility to back-up Customer Data during the Term, and Customer acknowledges that it will not have access to Customer Data through Actsoft or any Platform following the expiration or termination of this Agreement.
  • 4.3 No Other Rights. No rights or licenses are granted except as expressly set forth herein.

5.FEES & PAYMENT

  • 5.1 Fees. Customer will pay Actsoft, Authorized Resellers or Carrier Partners the then-applicable fees described in an Order Form in accordance with the terms set forth therein (“Fees”).
  • 5.2 Payment. Actsoft, Authorized Resellers or Actsoft’s Carrier Partners shall bill Fees on a monthly basis, as detailed on an Order Form. In the event Subscription Services are billed by Carrier Partners, Fee and Payment terms applicable to billing partner and their services provided shall govern. In the event Carrier has specific early termination terms, those shall govern as well. If Carrier terms are silent related to early termination, the early termination terms pursuant to this agreement shall apply. In the event Fees are billed directly by Actsoft, Fees shall be billed and are due one month in advance of service period. In the event Actsoft and Customer agree to billings through an invoice with terms, full payment for invoices issued in any given month must be received by Actsoft thirty (30) days after the mailing date of the invoice (unless otherwise specified on the applicable Order Form). Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. In addition to any other remedies available, Actsoft may suspend Services in the event of payment delinquency.
  • 5.3 Payment Disputes. If Customer believes that Actsoft has billed Customer incorrectly, Customer must contact Actsoft no later than thirty (30) days after the closing date on the first billing statement in which the believed error or problem appeared in order to receive an adjustment or credit. Inquiries should be directed to Actsoft’s customer support department or the applicable Account Manager.
  • 5.4 Taxes. Customer shall pay, and shall be labile for, all taxes relating to Actsoft’s provision of the Services hereunder. Actsoft shall pay, and shall be liable for, taxes based on its net income or capital.
  • 5.5 No Deductions or Setoffs. All amounts payable to Actsoft hereunder shall be paid by Customer to Actsoft in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason except as may be required by applicable law.
  • 5.6 Restocking Fee. Customer shall have up to thirty (30) days to return purchased or bundled equipment (“Equipment”) for exchange at no charge. After thirty (30) days and before ninety (90) days, any return of Equipment for exchange shall be subject to a fifty dollar ($50.00) Restocking Fee. After ninety (90) days, Equipment exchanges shall not be accepted.
  • 5.7 Seasonal Fee. In the event Customer elects to suspend use of their devices to accommodate the seasonal nature of their business, monthly services fees shall be suspended during the seasonal suspension period. However, for each license that is set to seasonal suspend, a fee of three dollars ($3.00) shall be charged to cover the cost of maintaining Customer data and associated charges associate therewith.
  • 5.8 Price Increase. The per-license pricing during any such Renewal Term shall be the same as that during the prior Term unless Actsoft has given the Customer written notice of a pricing increase at least thirty (30) days before the end of such prior Term, in which case the pricing increase shall be effective upon Renewal Term and thereafter. Any such pricing increase shall not exceed ten percent (10%) of the pricing for the relevant Services in the immediately prior Term, unless the pricing in such prior Term was designated in the relevant Purchase Order as promotional or one-time.

6.TERM AND TERMINATION

  • 6.1 Term. This Agreement shall remain in effect until its termination as provided below (the “Term”). The term of each Statement of Services shall begin on the applicable “Services Effective Date” and continue for the “Service Term,” in each case as specified in such Statement of Services. Each Order Form shall renew for additional (i) one (1) year periods if the Service Term is equal to or greater than one (1) year, or (ii) periods equal to the Service Term if the Service Term is less than one (1) year (each, a “Renewal Term”), unless written notice of non-renewal is received by the other party at least sixty (60) days prior to the expiration of the then current term.
  • 6.2 Termination. In addition to any other remedies it may have, Actsoft may terminate this Agreement upon written notice if the other party fails to pay any amount when due or otherwise materially breaches this Agreement and fails to cure such breach within thirty (30) days or as agreed upon by both parties after receipt of written notice of such breach from the non-breaching party. Notwithstanding the foregoing, if Customer is a state agency or a political subdivision of a state, or a federal agency or a political subdivision of the federal government, Customer may terminate this Agreement at any time (i) for convenience upon ninety (90) days’ written notice to Actsoft, or (ii) if adequate funds to pay Actsoft all fees owed hereunder are not appropriated to such Customer during the Term, unless otherwise authorized by law; provided, it is expressly agreed that Customer shall not activate this non-appropriation provision for its convenience, substation for another procurement system or solution, or to circumvent the requirements of this Agreement in any way.
  • 6.3 Effect of Termination. Upon termination of the Agreement Customer shall immediately cease all use of, and all access to, the Subscription Services and Actsoft shall immediately cease providing the Subscription Services. If (i) Actsoft terminates this Agreement pursuant to the second sentence of Section 6.2, or (ii) Customer terminates this Agreement pursuant to clause (i) of the last sentence of Section 6.2, an Early Termination Fee (ETF) will apply if you terminate service prior to the expiration of the applicable Contract Service Term. The ETF is prorated and calculated based on the remaining months of the Contract Service Term, up to $250/subscriber for Bundled Services with a Device and up to $150 ETF/subscriber for subscription only services.
  • 6.4 Survival. Sections [3.1, 4–5, 6.2, 6.3, 6.4, and 9–17] shall survive any termination or expiration of this Agreement. All other rights and obligations shall be of no further force or effect.

7.WARRANTY AND DISCLAIMER

  • 7.1 Warranties. Actsoft represents and warrants that it will provide and deliver the Subscription Services in a professional and workmanlike manner. Each party represents and warrants that it has the legal power to enter into this Agreement. Additionally, Customer warrants that (i) Customer owns or has a license to use and has obtained all consents and approvals necessary for the provision and use of all of the Customer Data that is placed on, transmitted via or recorded by Subscription Services; (ii) the provision and use of Customer Data as contemplated by this Agreement and the Subscription Services do not and shall not violate any Customer’s privacy policy, terms-of-use or other agreement to which Customer is a party or any law or regulation to which Customer is subject to; and (iii) no Customer Data will include social security numbers or other government-issued identification numbers, financial account numbers, credit card or debit card numbers, credit report information or other personal financial information, health or medical information or other information that is subject to international, federal, state, or local laws or ordinances now or hereafter enacted regarding data protection or privacy, including, but not limited to, the Health Insurance Portability and Accountability Act, the Health Information Technology for Economic and Clinical Health Act, the Fair Credit Reporting Act, the Children’s Online Privacy Protection Act and the Gramm-Leach-Bliley Act.
  • 7.2 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN OR IN A STATEMENT OF SERVICE, ACTSOFT DOES NOT WARRANT THAT ACCESS TO THE PLATFORMS, SOFTWARE OR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES ACTSOFT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. FURTHER, ACTSOFT MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO SERVICES PROVIDED BY THIRD PARTY TECHNOLOGY SERVICE PROVIDERS RELATING TO OR SUPPORTING A PLATFORM, INCLUDING HOSTING AND MAINTENANCE SERVICES, AND ANY CLAIM OF CUSTOMER ARISING FROM OR RELATING TO SUCH SERVICES SHALL, AS BETWEEN ACTSOFT AND SUCH SERVICE PROVIDER, BE SOLELY AGAINST SUCH SERVICE PROVIDER. THE PLATFORMS, SOFTWARE AND SERVICES ARE PROVIDED “AS IS,” AND ACTSOFT DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
  • 7.3 Purchased and Bundled Device. In the event Subscription Services as detailed on the Order Form include purchased or bundled tracking devices, please see Addendum A for additional terms and Warranty information.

8.INDEMNITY

  • 8.1 Indemnification by Actsoft. Actsoft will defend Customer against any claim, suit, demand, or action made or brought against Customer by a third party alleging that the Services, or Customer’s use or access thereof in accordance with this Agreement, infringes any intellectual property rights of such third party, and will indemnify and hold harmless Customer from any damages, losses, liabilities, costs and fees (including reasonable attorney’s fees) finally awarded against Customer in connection with or in settlement of any such claim, suit, demand, or action. The foregoing obligations do not apply with respect to portions or components of any Platform or Service (i) not supplied by Actsoft, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery, or granting of access, by Actsoft, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Services is not strictly in accordance with this Agreement. If, due to a claim of infringement, a Platform is held by a court of competent jurisdiction to be or is believed by Actsoft to be infringing, Actsoft may, at its option and expense (a) replace or modify such Platform to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using such Platform, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for such Platform. This Section states Customer’s sole and exclusive remedies for claims of infringement.
  • 8.2 Indemnification by Customer. The Customer shall be solely responsible for, and shall indemnify, defend, and hold Actsoft free and harmless from all damages, liabilities, charges, and expenses (including attorney’s fees) from all claims, lawsuits, or other proceedings to the extent arising out of or relating to (a) use of the Software in a manner permitted or not permitted by this Agreement, by the Customer and independent contractors, their employees and agents, and all persons or entities who have access through the Customer or independent contractors to the Software or; (b) infringement of any right resulting in any way from the use of the Software with other software or hardware provided or not provided by Actsoft or from any computer software or printed, electronic, or recorded materials created by the Customer or independent contractors. This clause is not intended to limit the Customer’s duty to indemnify Actsoft, as otherwise required by law.

9.LIMITATION OF LIABILITY

IN NO EVENT SHALL (I) EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY EXCEED IN THE AGGREGATE THE TOTAL FEES PAID OR OWED BY CUSTOMER HEREUNDER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM (SUCH AMOUNT BEING INTENDED AS A CUMULATIVE CAP AND NOT PER INCIDENT), AND (II) EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, COVER, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS AND DISCLAIMERS SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

10.GOVERNING LAW AND DISPUTE RESOLUTION

This Agreement is governed in all respects by the laws of the State of Florida, without giving effect to its rules relating to conflict of laws. Neither any adoption of the Uniform Computer Information Transactions Act nor the U.N. Convention on the International Sale of Goods applies to this Agreement or to the rights or duties of the parties under this Agreement. Any dispute arising out of or relating to this Agreement, or its subject matter, shall be resolved exclusively by binding arbitration under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”). Either party may send a notice to the other party of its intention to file a case with the AAA under this Section (“Arbitration Notice”). The arbitration will be conducted in Tampa, Florida by a single arbitrator knowledgeable in government contracting matters and the commercial aspects of “software as a service” arrangements and intellectual property. The parties will mutually appoint an arbitrator within thirty (30) days of the Arbitration Notice. If the parties are unable to agree on an arbitrator, then the AAA will appoint an arbitrator who meets the foregoing knowledge requirements. The arbitration hearing will commence within sixty (60) days after the appointment of the arbitrator and the hearing will be completed and an award rendered in writing within sixty (60) days after the commencement of the hearing. Prior to the hearing, each party will have the right to take up to four (4) evidentiary depositions, and exchange two (2) sets of document production requests and two sets, each, of not more than ten (10) interrogatories. The arbitrator will provide detailed written explanations to the parties to support their award and regardless of outcome, each party shall pay its own costs and expenses (including attorneys’ fees) associated with the arbitration proceeding and fifty percent (50%) of the fees of the arbitrator and the AAA. The arbitration award will be final and binding and may be enforced in any court of competent jurisdiction.

11.SECURITY

Actsoft may, from time to time, host and/or maintain a Platform using a third party technology service provider and Customer acknowledges that Actsoft cannot offer any additional or modified procedures other than those put in place by such technology provider with respect to such technology service.

12.FORCE MAJEURE

Actsoft is not responsible nor liable for any delays or failures in performance from any cause beyond its control, including, but not limited to acts of God, changes to law or regulations, embargoes, war, terrorist acts, acts or omissions of third party technology providers, riots, fires, earthquakes, floods, power blackouts, strikes, weather conditions or acts of hackers, internet service providers or any other third party or acts or omissions of Customer or any Authorized User.

13.ASSIGNMENT

Neither party may assign this Agreement to any third party without the prior written consent of the other; provided that no consent is required in connection with an assignment to an affiliate or in connection with any merger, reorganization, consolidation, sale of assets or similar transaction. Actsoft may sublicense any or all of its obligations hereunder. For the avoidance of doubt, a third party technology provider that provides features or functionality in connection with a Platform shall not be deemed a sublicensee under this Agreement.

14.GENERAL PROVISIONS

If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement, together with Statement of Services entered into hereunder and all exhibits, annexes and addenda hereto and thereto is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. All waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement, and neither party has authority of any kind to bind the other party in any respect whatsoever. In the event of a conflict between this Agreement and any Statement of Services, such Statement of Services shall prevail unless otherwise expressly indicated in this Agreement or such Statement of Services. The heading references herein are for convenience purposes only and shall not be deemed to limit or affect any of the provisions hereof. Unless otherwise indicated to the contrary herein by the context or use thereof: (i) the words “hereof,” “hereby,” “herein,” “hereto,” and “hereunder” and words of similar import shall refer to this Agreement as a whole and not to any particular Section or paragraph of this Agreement; (ii) the words “include,” “includes” or “including” are deemed to be followed by the words “without limitation;” (iii) references to a “Section” or “Exhibit” are references to a section of, or exhibit to this Agreement; and (iv) derivative forms of defined terms will have correlative meanings.

 

ADDENDUM A – DEVICE EQUIPMENT ADDITIONAL TERMS (If Applicable)

  1. Limited Warranty.

Manufacturer warrants that product, when delivered: (a) conforms to Manufacturer’s material written specifications for the product; and (b) is free from material defects in material and workmanship. Incorrect: (i) storage; (ii) installation; (iii) use; (iv) maintenance, (v) service; or (vi) repair by Customer, or any form of alteration, misuse, abuse or accident affecting the product, may interfere with confirmation of original condition and therefore (whether or not there is actual interference) voids the warranty. Manufacturer shall not be liable under this warranty if Customer knew of any failure of a product to conform to specifications prior to purchase.

Actsoft warrants that the Equipment will be free of defects in materials and workmanship, and will perform in accordance with the Equipment Manufacturer’s stated specifications for the length of the original term of the contract following delivery. Actsoft makes no other warranties as to the Equipment, express or implied, including but not limited to the warranties of merchantability or fitness for any particular purpose. This warranty does not cover damage to the Equipment resulting from Customer’s negligence, abuse or misuse of the Equipment. Actsoft disclaims any liability whatsoever for loss, damage, or injury to Customer or third parties as a result of any defects, latent or otherwise, in the Equipment.

  1. Warranty Claim.

Any claim under the warranty shall be made within the shorter of: (a) actual inspection of product following delivery; (b) a reasonable time to complete inspection of product following delivery; or (c) one year from shipment date. To make a claim Customer must: (a) notify Manufacturer in writing within the shorter of the times stated in the preceding sentence, specifying in detail the nature of the warranty claim; and (b) permit Manufacturer to inspect and test the product claimed to be defective. A claim made after the warranty period is not covered by any warranty.

  1. Disclaimer.

THE ABOVE WARRANTY IS EXCLUSIVE AND CONSTITUTES MANUFACTURER’S SOLE LIABILITY AND CUSTOMER’S SOLE REMEDY REGARDING ANY CLAIMED NONCONFORMANCE OF PRODUCT AND IS IN LIEU OF ANY OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR OTHER WARRANTY OF QUALITY, FUNCTION, PERFORMANCE, OR OTHERWISE, WHETHER EXPRESS OR IMPLIED. MANUFACTURER DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. THERE IS NO WARRANTY THAT EXTENDS BEYOND THE DESCRIPTION OF THE FACE HEREOF. No personnel or representative of Manufacturer is authorized to make any warranty about a product. Oral or written statements by any Manufacturer personnel or representative, including via email, do not constitute a warranty, do not bind or obligate Manufacturer, shall not be relied on by Customer, and are not part of these terms. The entire agreement of the parties is embodied in this writing. Customer acknowledges it has not relied on any warranty or representation by any person or entity except for the warranties or representations specifically stated herein.

  1. Delivery and Shipping.

Actsoft will schedule delivery in accordance with its standard lead time unless Actsoft agrees in writing to an accelerated delivery date. Customer is responsible for all shipping, insurance and customs charges related to delivery of the Equipment, payable in advance through debit or credit card.

  1. Acceptance.

All Equipment will be presumed accepted by Customer unless Actsoft receives written notice of rejection explaining the basis for rejection within three (3) business days of delivery. Actsoft will have a reasonable opportunity to repair or replace rejected Equipment, at its option. Actsoft assumes shipping costs in an amount not to exceed normal ground shipping charges to Actsoft’s designated facility for the return of properly rejected Equipment. If Actsoft reasonably determines that rejection was improper, Customer will pay all expenses caused by the improper rejection.

  1. Export Restrictions.

Customer is responsible for compliance with all import and export control laws and regulations. Customer will obtain, at its sole expense, all import, export, and re-export approvals and licenses required for Equipment delivered and will retain documentation evidencing compliance with those laws and regulations. Actsoft will not be liable to Customer for any failure to provide Equipment as a result of government actions that impact Actsoft’s ability to perform.