These Standard Purchase Terms (these “Terms”) supplement and govern the Purchase Order (the “Purchase Order”) by and between Fuze Technology Inc., a Delaware corporation (“Fuze”) and the Buyer identified in the Purchase Order (“Buyer”). Capitalized terms used but not defined in these Terms are defined in the Purchase Order. If any provision in these Terms conflicts with any provision in the Purchase Order, the provision in the Purchase Order controls. As in the Purchase Order, in these Terms “Agreement” refers, collectively, to the Purchase Order, any supplemental terms or exhibits thereto and these Terms.
1.Title. The Stations are sold by Fuze to Buyer under this contract are sold DPU (Incoterms 2020) to Buyer’s Venue(s) and Address(es) in the Purchase Order. Unless otherwise provided under the Purchase Order:
(a)Title and risk of loss will pass from Fuze to Buyer upon delivery to Venue(s).
(b)Fuze is not responsible for arranging unloading or installation at Venue(s).
2.Expenses. Buyer is solely responsible for all costs associated with the ongoing operation of the Stations, such as providing and paying for all electricity necessary for the operation of the Stations at the Venue(s) and the cost of ongoing Internet connectivity for the purpose of facilitating rentals of Chargers. Except as specified in any Purchase Order, Fuze is solely responsible for all expenses relating to the delivery of the Stations to and from the Venue(s).
4.Modifying the Agreement.
(a)The Purchase Order may only be modified by a written document signed by Fuze and Buyer.
(b)Fuze may change these Terms from time to time, and will post any such changes at www.chargefuze.com/enterprise-purchase-terms with the revised ‘Last Updated’ date above. These changes will only take effect as to Buyer thirty (30) days after the changes are posted.
5.Intellectual Property. At all times during and after the Term, Fuze retains all right, title and interest in and to all Software, technology (including products, processes, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information), and other intellectual property owned or licensed by Fuze (the “Intellectual Property”). Buyer acquires no property or ownership rights in the Intellectual Property. Buyer acknowledges and agrees that, when not in use by End Users, the Stations may display content, including third-party advertisements, placed by Fuze that is consistent with Fuze’s Ad Guidelines, available at https://www.chargefuze.com/shop-ad-guidelines/ (“Screen Content”). As between the parties, Buyer retains all right, title and interest in the Screen Content it provides and hereby grants to Fuze all rights necessary to display the Screen Content on the Stations during the Term.
6.Security and Privacy. Fuze has implemented and will maintain commercially reasonable technical and organizational security measures, in accordance with industry standards, to protect the Stations, their software and any End User information processed thereby against unauthorized disclosure or access by unauthorized third parties. Buyer agrees to use commercially reasonable efforts to implement any hardware-related changes to the Stations deemed necessary or prudent by Fuze in connection with the foregoing.
7.Limited Warranty. Fuze’s warranty obligations for the Station hardware, Charger hardware and Software, and Buyer’s remedies for breach of those warranty obligations, are limited to the terms set forth in this Section 7.
Fuze warrants the Station hardware against defects in materials and workmanship for a period of one (1) year from the Effective Date (“Station Warranty Period”).
If a Station hardware defect arises and a valid claim is received by Fuze within the Station Warranty Period, at its option, Fuze will (1) repair the Station at no charge, using new or refurbished replacement parts, (2) exchange the Station with a replacement Station least functionally equivalent to the original product, or (3) refund the purchase price of the Station.
Fuze warrants replacement products or parts provided under this warranty against defects in materials and workmanship from the date of the replacement or repair for ninety (90) days or for the remaining portion of the original Station’s warranty, whichever provides longer coverage for you. When a Station is replaced or repaired, in whole or in part, any replacement item becomes Buyer property and the replaced Station (or part thereof) becomes Fuze’s property.
This warranty does not apply: (a) to damage caused by accident, abuse, misuse, misapplication, or non-Fuze products; (b) to damage caused by service performed by anyone other than Fuze; (c) to a product or a part that has been modified without the written permission of Fuze; or (d) if any Fuze serial number has been removed or defaced.
No Warranty. Except as otherwise specified herein, Fuze provides no warranty as to the Chargers, against defects in materials and workmanship or otherwise.
Replacement. As necessary during the Term (due to use and/or loss), Buyer may request that Fuze drop-ship replacement Chargers to the Venue or a location designated by Buyer for replenishment by Buyer personnel. Notwithstanding the foregoing, Fuze agrees to monitor the number of Chargers available at the Stations on an ongoing basis and reserves the right to drop-ship replacement Chargers to Buyer at any time Fuze reasonably determines that the number of available Chargers fails to meet average rental demand at the Venue(s).
Installation. Buyer agrees to coordinate shipment with Fuze and promptly install the new batteries within the Stations upon delivery.
Cost. Except for any replacement Chargers corresponding to paid End User lost/stolen fees, any replacement Chargers provided under subclause (ii) above will be provided to Buyer at cost and deducted from the next Revenue Share payment due to Buyer hereunder.
During the Term, Fuze warrants that the Software (1) will not contain Malware, (2) will substantially perform in compliance with this Agreement and the Documentation, including the functionality of facilitating and completing Charger rentals, and (3) Fuze will provide Buyer, at no additional charge, all updates, bug fixes, and other error corrections to the Software (“Updates”) that Fuze generally makes available to all licensees of the Software (and such updates will constitute as Software under this Agreement). Fuze shall not materially reduce or eliminate functions, features, or capabilities of the Software or Stations in any such Updates.
“Documentation” means the standard manuals, user instructions, technical specifications, and other materials regarding features, functionality, and operation of the Stations, Chargers, and Software supplied by Fuze to Buyer or made available by Fuze to Buyer or its customers generally on its website, https://www.chargefuze.com/.
“Malware” means software code that is designed or intended to have any of the following functions: (1) disrupting, disabling, harming or otherwise substantially impeding the normal operation of, or providing unauthorized access to, a computer system or network or other device on which such code is stored and installed or (2) damaging, copying, viewing or destroying any data file without the user’s consent.
If a Software defect arises during the Term, Fuze will promptly repair, patch or modify the Software to resolve the defect at no charge. If Fuze is unable to resolve the defect within thirty (30) days of its initial discovery by Fuze (or identification to Fuze by Buyer), Buyer may request that Fuze deliver replacement Stations to the Venue(s) free of such defect.
(a)Each party represents and warrants that it has all requisite power and authority to enter into this Agreement.
(b)Unless otherwise stated elsewhere in the Agreement, during the Term, Fuze agrees, represents and warrants that: (i) it is solely responsible for all transactions with users who utilize the Stations and/or the mobile chargers provided thereby, and any disputes arising therefrom; (ii) the Intellectual Property does not and will not violate any third party proprietary rights, such as registered intellectual property rights; and (iii) it will own or have all rights necessary to provide the Screen Content and no such Screen Content will infringe upon the intellectual property or other rights of any third party or be obscene, defamatory, disparaging or otherwise likely to damage the goodwill of either Fuze or Buyer.
(c)Unless otherwise stated elsewhere in the Agreement, Buyer acknowledges and agrees:
the Stations require the use of the Software and any rental of Chargers is subject to agreement to Fuze’s online terms of service and its incorporated documents, including without limitation its minimum pricing and lost-Charger fees; and
to use commercially reasonable efforts to maintain the Stations in compliance with all standard written requirements as to setup and maintenance practices (if any) issued by Fuze to all similarly situated purchasers of Stations.
(a)“Confidential Information” of a party means all technical or business information (including all data), and all intellectual property of such party, its affiliated entities, or other third parties doing business with such party that: (i) is disclosed to, accessed by or otherwise learned by the other party; and (ii) is marked or indicated as confidential (or with similar words) or would reasonably be expected to be confidential given the nature of the information or the circumstances around its disclosure. Buyer agrees that Fuze’s technology, software and data used or processed in connection with the Stations constitute Fuze’s Confidential Information.
(b)During the Term and thereafter, each party will not: (i) access or use the Confidential Information of the other party except as necessary to perform its obligations or exercise its rights under the Agreement; or (ii) disclose or otherwise knowingly allow access to the Confidential Information of the other party to any individuals or third parties except as provided in Section 9(c) below. In addition, each party will protect the Confidential Information of the other party with at least the same level of care as it protects its own similar confidential information, but not less than a commercially reasonable level of care.
(c)Either party may disclose relevant aspects of the other’s Confidential Information to the officers, directors, employees, professional advisors (including accountants and attorneys), contractors and other agents of it to the extent such disclosure is necessary for the performance of their obligations to such party; provided, however, that the disclosing party causes the Confidential Information to be held in confidence by the recipient to the same extent and in the same manner as required hereby. In addition, either party may disclose Confidential Information of the other party to the extent required to comply with any laws or court orders; provided, however, that such party provides the other party with prior notice of any such disclosure. If notification to the disclosing party is not permitted by law, or if it is permitted and that relief or order is not obtained, the receiving party: (a) may disclose only that portion of the disclosing party’s Confidential Information that the receiving party’s counsel advises is not subject to privilege and must be disclosed; and (b) shall cooperate with the disclosing party to the extent permitted by law to ensure the disclosed Confidential Information is treated in a confidential manner after disclosure.
(d)The restrictions on use and disclosure in this Section do not apply to Confidential Information that:
is already known to the receiving party, as demonstrated by prior existing records, when it was disclosed by the other party;
is or becomes known to the public through no fault of the receiving party or its employees, agents or contractors;
is lawfully received by a party from a third party where the third party has not required that party to maintain the information in confidence; or
is developed by the receiving party independently of disclosure by or receipt from the other party.
(e)Upon a party’s request and as directed by such party, the other party will promptly return all Confidential Information of the requesting party and all written materials that contain, summarize or describe any such Confidential Information. Each party will immediately notify the other of any unauthorized possession, use or knowledge of the other’s Confidential Information of which such party is aware.
10.Indemnification. Each party will defend, indemnify and hold harmless the other party, and its employees, associates, successors, designees, licensees and assigns (collectively, “Indemnitees”), from and against any loss, liability (including settlements, judgments, fines and penalties) or costs (including reasonable attorney fees, court costs and other litigation expenses) relating to any third party action, suit or proceeding against any such Indemnitees that arises from: (a) the breach or alleged breach by the indemnifying party of the Agreement; or (b) the gross negligence, recklessness or willful misconduct of the indemnifying party.
11.Disclaimer of Warranties. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED IN THE AGREEMENT, THE STATION(S), CHARGERS AND ALL RELATED INTELLECTUAL PROPERTY DELIVERED UNDER THE AGREEMENT ARE PROVIDED “AS IS” AND FUZE MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT THERETO. ALL CONDITIONS, WARRANTIES, AND REPRESENTATIONS, EXPRESS OR IMPLIED, ARE EXCLUDED, INCLUDING, WITHOUT LIMITATION, ANY CONDITIONS OR WARRANTIES RELATING TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
12.Limitation of Liability.
(a)NEITHER PARTY SHALL HAVE ANY OBLIGATION OR LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY (WHETHER IN TORT, EQUITY, CONTRACT, WARRANTY OR OTHERWISE AND NOTWITHSTANDING ANY FAULT, NEGLIGENCE, PRODUCT LIABILITY, OR STRICT LIABILITY IN ACCORDANCE WITH APPLICABLE LAW) FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO BUSINESS INTERRUPTION, OR LOST BUSINESS OR PROFITS INCURRED BY BUYER, FUZE OR ANY OTHER PERSON, RELATING TO THE OVERALL AGREEMENT OR THE STATION(S) PROVIDED UNDER THE AGREEMENT, EVEN IF SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b)EXCEPT WITH RESPECT TO (i) A PARTY’S INDEMNITY OBLIGATIONS, (ii) A BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS, or (iii) CLAIMS ARISING DUE TO A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT (“Excluded Claims”), THE TOTAL LIABILITY OF ONE PARTY TO THE OTHER FOR ALL CLAIMS, LOSSES, COSTS, FINES, SETTLEMENTS, PENALTIES OR DAMAGES, INCLUDING COURT COSTS AND REASONABLE OUTSIDE ATTORNEYS’ FEES, ARISING OUT OF OR RELATED TO THIS AGREEMENT (“Losses”) SHALL NOT EXCEED THE AMOUNT PAID OR PAYABLE HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE DATE THE CLAIM FIRST AROSE
(c)WITH RESPECT TO EXCLUDED CLAIMS, THE TOTAL LIABILITY OF EITHER PARTY TO THE OTHER FOR ALL LOSSES SHALL NOT EXCEED $250,000.
(a)In the event that the parties are unable to resolve any controversy or claim arising under this Agreement informally, the controversy or claim must be submitted to final and binding arbitration. The arbitration will be initiated and conducted according to either the JAMS Streamlined Arbitration Rules and Procedures, except as modified herein, including the Optional Appeal Procedure, at the Los Angeles office of JAMS, or its successor in effect at the time the request for arbitration is made (the “Arbitration Rules”). The arbitration may only be conducted in a county embracing the Venue(s) or Los Angeles County, CA before a single neutral arbitrator appointed in accordance with the Arbitration Rules. The arbitrator will follow California law and the Federal Rules of Evidence in adjudicating the dispute. However, the parties agree that disclosure shall be limited in any such arbitration to no more than two (2) depositions per party, each no more than four (4) hours in length; no more than ten (10) written requests for documents; no more than ten (10) requests to admit; and no more than five (5) written interrogatories. The parties waive the right to seek punitive damages and the arbitrator will have no authority to award such damages. The arbitrator will provide a detailed written statement of decision, which will be part of the arbitration award and admissible in any judicial proceeding to confirm, correct or vacate the award. If either party refuses to perform any or all of its obligations under the final arbitration award (following appeal, if applicable) within thirty (30) days of such award being rendered, then the other party may enforce the final award in any court of competent jurisdiction. The party seeking enforcement will be entitled to an award of all costs, fees and expenses, including reasonable outside attorneys’ fees, incurred in enforcing the award, to be paid by the party against whom enforcement is ordered.
(a)Publicity. Neither party may use the other party’s trademarks, service marks, name, or logo, or otherwise refer to or identify that other party in marketing or promotional materials, press releases, statements to news media or other public announcements, without the other party’s prior written consent, which the other party may grant or withhold in its sole discretion; provided, however, that Fuze may use the name of each Venue and any Buyer-provided marks within the Fuze application(s) and systems for the sole purposes of enabling End Users to locate the Stations and complete Rentals.
(b)Entire Agreement/Waiver. The Agreement contains the entire understanding between the parties and supersedes all prior agreements, representations and undertakings whether oral or written. It may only be modified, supplemented or altered by a writing signed by both parties. No failure or delay on the part of either party in insisting on compliance herein or in exercising any right, power or remedy under the Agreement will operate as a waiver or modification thereof; nor will any single or partial exercise of any such right, power or remedy under the Agreement, preclude any other or further exercise or any other right, power or remedy under the Agreement.
(c)Validity of Agreement. In case any term of the Agreement is held invalid, illegal, or unenforceable in whole or in part, neither the validity of the remaining part of such term nor the validity of any other terms will be affected thereby.
(d)Choice of Law. The Agreement is governed by the laws of the State of California without regard to its jurisprudential or statutory conflicts of laws rules. Any claim, dispute or disagreement with respect to the relationship between the parties or the Agreement will be submitted for arbitration under Section 13 above; provided, however, that Section 13 does not restrict a party’s ability to seek preliminary injunctive relief to the federal courts in the district embracing the Venue(s) or in Los Angeles, California.
(e)No Joint Venture. The Agreement creates no partnership, employment, joint relationship, joint venture, master-servant, or mutual responsibility on behalf of one party for the debts or liabilities of the other. The parties agree that Fuze is acting as an independent contractor of Buyer. Neither party has the power to bind nor obligate the other.
(f)Electronic Signatures. The parties agree that this Agreement may be executed electronically. As such, the parties agree that electronic signatures, including those delivered by PDF or signed through an electronic signature system (e.g., DocuSign or PandaDocs), have the same effect as a handwritten signature. The parties waive any and all rights to object to the enforceability of the Agreement based on the form or delivery of signature.
(g)Notice. Any notice required or permitted to be given under this Agreement by either party shall be in writing and will be deemed given on the date sent by email to the email address(es) on the signature page