Equipment Purchase Order Terms of Service

THIS REDUX PURCHASE ORDER TERMS AND CONDITIONS GOVERNS THE TERMS OF SERVICE

PURCHASE ORDER BETWEEN REVIVE ELECTRONICS, LLC (“REVIVE”) AND THE BUYER REFLECTED IN THE

ASSOCIATED PURCHASE ORDER. THE PURCHASE ORDER, THESE TERMS AND ANY EXHIBITS, AS ATTACHED,

ARE COLLECTIVELY REFERRED TO AS THE “AGREEMENT”.

1. Equipment and Technology Subject to this Agreement. The Equipment, as specified on a Purchase Order, is used to provide electronic device drying services (“Services”) for eligible hearing instruments, including hearing aids, amplifiers, implantable devices, hearables, and accessories. Equipment will be delivered (cost of delivery and applicable carrier insurance included) on/around the delivery date indicated on the Purchase Order.Buyer acknowledges the “Technology”, defined herein, behind the Equipment remains under sole ownership of REVIVE with Buyer having no rights or interests in the Technology. Technology includes any and all proprietary processes, inventions, discoveries, technology, tools, drawings, designs, prototypes, plans, specifications, materials, trade secrets, know-how, standards, documentation, applications, programs, methods, techniques, formulae, protocols, analyses, information and data in any form (whether or not patentable or copyrightable), and any and all other intellectual property or proprietary information, that presently exists or is developed prior to, on or after the date of execution of this Agreement relating in any way to the Equipment and Redux Machine and REVIVE’s logos, tradenames and trademarks.
2. License Grant. REVIVE hereby grants to Buyer, a non-exclusive, non-transferable, non-sublicensable license to use REVIVE’s logos, trademarks, tradenames, Technology and intangible assets, used or in connection with the Equipment and the promotion, advertising, distribution, and sale of the Services. REVIVE hereby reserves all rights not expressly granted to Buyer under this Agreement. Without REVIVE’s prior written consent, Buyer shall not use REVIVE’s logo, trademark, and/or tradenames individual or in combination, as part of (i) its corporate or tradename, or (ii) any domain name.
3. Intellectual Property Rights. Except as expressly provided in this Agreement, nothing contained herein shall be deemed to grant, either directly or by implication, estoppel, or otherwise, any license under any certificates, patents, copyrights, trademarks, service marks or other intellectual property rights of REVIVE. Buyer shall have no right to use any marks, names, slogans, logos or designations of REVIVE other than in the Locations, unless otherwise agreed to in writing by REVIVE.
4. Equipment Payment Terms. The Buyer is responsible to pay the amount indicated on the Purchase Order within fifteen (15) days after receipt of the invoice from REVIVE.
5. Purchase Orders. A purchase order means a non-cancelable order, form, memorandum, written communication and/or electronic transmission that Buyer may deliver to REVIVE for the purchase of Products. All Purchase Orders are subject to the terms and conditions herein unless otherwise specifically amended in such Purchase Order. Notwithstanding anything to the contrary, Buyer may not cancel orders once the Equipment has been shipped.
6. Delivery and Risk of Loss. All shipments shall be FOB Origin. Title to and Risk of Loss of the Equipment sold pursuant to this Agreement shall pass to Buyer upon delivery of the Equipment to the carrier. Any loss or damage to a Product after the passing of title shall be for the account and risk of Buyer. If Buyer wishes to expedite any delivery, Buyer shall pay the difference between the new expedited rate and standard ground rates. Buyer has the responsibility to inspect packaging and Equipment to confirm the shipment is complete and contents undamaged at the time of delivery.Additionally, REVIVE shall not be responsible for loss or damage to property, material, or equipment subjected to the use of the Equipment belonging to Buyer, its agents, employees, suppliers, clients, or anyone directly or indirectly employed by Buyer (“User” or “Users”). Buyer is encouraged to obtain appropriate insurance against such risk of loss. Buyer and its Users waive rights of subrogation against REVIVE for such losses.
7. Inspection and Acceptance. All Products ordered pursuant to this Agreement shall be subject to inspection by Buyer to determine conformity with REVIVE's advertised or published specifications. If the Product delivered does not so conform, Buyer shall have the right to reject such Product within five (5) days after the date of receipt by Buyer provided that Buyer shall furnish REVIVE with a written notice describing in particularity any discrepancy or reasons for rejection and arrange for the return of Product at REVIVE’s sole cost and expense.
8. REVIVE Responsibilities and Warranty. REVIVE agrees to deliver Equipment to Buyers address via a nationally recognized carrier for which a signature is required for delivery addressed to Buyer. Upon delivery REVIVE warrants the Equipment provided hereunder is of clear title, free of any liens and encumbrances and free from defects in material and workmanship and will conform to its written specifications. REVIVE further warrants that the Equipment shall remain working properly and free from defect for a period of 24-months following the date shipped by REVIVE to the Buyer (“Warranty Period”) subject to the provisions provided in this Agreement. During this time, Buyer will notify REVIVE Service Desk of any known or suspected defect constituting a breach of the foregoing warranties and REVIE will repair or replace Equipment as determined upon review by a REVIVE representative.
9. Care and Operation of Equipment. The Equipment should only be used and operated in a careful and proper manner consistent with instructions for use. Any damage or destruction of the Equipment caused by (i) use of the Equipment in a manner other than as intended, (ii) failure to follow the operating instructions, or (iii) any other misuse of the Equipment shall void the warranty and any liability upon Seller to remedy such damage or destruction.
10. Delays. REVIVE shall not be liable for any delay or failure to perform due to any cause beyond its control. Causes include but are not limited to strikes, acts of God, reasonably unforeseeable interruptions of transportation or delivery or default of any supplier, material shortages, event caused by national/international pandemic, or other such causes outside its reasonable control. The delivery date shall be considered extended by a period of time equal to the time lost because of any excusable delay, provided that Buyer may terminate the applicable Purchase Order if the delay or failure to deliver lasts more than thirty (30) days after the projected delivery date and the exclusivity terms and obligations stated herein shall no longer apply.
11. Alterations. Neither Buyer nor any of its employees, directors, officers, independent contractors, representatives or agents shall decompile, reverse engineer, or attempt to reconstruct or discover any source code, underlying ideas, techniques, or algorithms of any Equipment provided under this Agreement. Buyer understands that it shall make no alterations to any Equipment or operating software, or make any attempt to open, alter, or otherwise compromise the security seal on any Equipment, and any such action will void any warranties provided hereunder.
12. Defective Equipment and Troubleshooting. In the event any Equipment is not working properly, Buyer shall promptly contact REVIVE via the REVIVE Service Desk at 844-733-8948 or support@redux.com, so that REVIVE can attempt to troubleshoot warranty issues and resolve the issue remotely. REVIVE will return any messages within two (2) business days. If REVIVE is not able to resolve the issue within three (3) business days after the parties verbally discuss the problem, Buyer shall return the Equipment to REVIVE for replacement during the Warranty Period. To process the return, REVIVE will send Buyer a prepaid shipping label to return the defective Equipment and, once received, REVIVE will ship replacement Equipment at its cost.
13. Assignment and Transfer of Property. If Buyer assigns or transfers the Equipment to any party outside of this Agreement, without the prior written consent of REVIVE, all warranties or obligations under this Agreement shall be void as of the date of assignment or transfer. REVIVE shall have no obligations to the new party in possession of the Equipment.
14. Confidentiality. The Parties acknowledge that they may obtain information (including Equipment, software, and documentation) from the other Party under this Agreement that is confidential and proprietary in nature (“Confidential Information”). Each Party will, at all times, maintain the confidentiality of such Confidential Information of the other Party and will use it only for the purpose for which it is provided. Neither Party will disclose Confidential Information of the other Party to any third party without the disclosing Party’s prior written consent. This section will not apply to information that (a) already is in the public domain as a result of no act or omission of the receiving Party; (b) is lawfully received by the receiving Party from a third party without restriction and without breach of any duty of non-disclosure by such third party; or (c) is provided to receiving Party by the disclosing Party expressly for the purpose of dissemination to others.
15. Limitation of Liability. IN NO EVENT SHALL REVIVE BE LIABLE TO THE BUYER FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR TREBLED OR ENHANCED DAMAGES, INCLUDING, BUT NOT LIMITED TO LOST PROFITS, LOST BUSINESS, OR OTHER COMMERCIAL OR ECONOMIC LOSS, WHETHER SUCH DAMAGES ARE CLAIMED FOR BREACH OF CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, OR OTHER THEORY, AT LAW OR IN EQUITY, FOR ANY AMOUNTS AGGREGATING IN EXCESS OF AMOUNTS PAID TO IT UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD BEFORE THE CAUSE OF ACTION AROSE, REGARDLESS OF WHETHER OR NOT EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES UNLESS APPLICABLE LAW FORBIDS A WAIVER OF SUCH DAMAGES.
16. Relief. Any breach (actual, threatened or intended) of either Party’s covenants, obligations, or undertakings hereunder relating to the other Party’s Intellectual Property Rights or Confidential Information, will cause irreparable damage to such Party that cannot be readily remedied in monetary damages in an action at law. Therefore, each Party agrees that in such event the other Party shall be entitled to obtain, on an expedited basis from any court of competent jurisdiction, immediate injunctive relief to enjoin any breach or prospective breach of any such provision of this Agreement. The foregoing shall be in addition to such other remedies as the Parties may otherwise have available to it under applicable laws, including equitable relief and damages.
17. Indemnity. Buyer shall indemnify REVIVE against, and hold REVIVE harmless from, any and all claims, actions, suits, proceedings, costs, expenses, damages, and liabilities, including attorney fees, arising out of, connected with, or resulting from possession, use, operation, maintenance or return of any Equipment by Buyer. Buyer shall further indemnify REVIVE, and hold REVIVE harmless from any and all client claims, all loss and damage to any Equipment during the Term. Buyer recognizes and agrees that included in this indemnity clause, but not by way of limitation, is Buyer’s assumption of any and all liability for injury, disability, and/or death of Buyer’s employees, directors, subcontractors, agents, clients and any other third party caused by the operation, use, control, handling, or transportation of any Equipment purchase by Buyer hereunder.
18. Relationship of the Parties. Nothing contained in this Agreement will be construed to create any joint venture or partnership between REVIVE and Buyer. Each Party agrees that neither its employees nor any of its personnel is an employee of the other Party or is entitled to any benefits provided or rights guaranteed by the other Party or by operation of law, to their respective employees, including but not limited to group insurance, liability insurance, disability insurance, paid vacation, sick leave or other leave, retirement plans, health plans, premium, and the like. Buyer will be solely responsible for the supervision and control of all acts and omissions of its employees, directors, agents, and other personnel.
19. Entire Agreement. This Agreement, as defined above, constitutes the entire Agreement between the Parties with respect to the subject matter hereof and supersedes all prior understandings or Agreements between them, whether written or oral, relating to such information. No modification, amendments or supplements to this Agreement shall be effective for any purpose unless in writing, signed by each Party.
20. Severability. If any provision of this Agreement is found by any court of competent jurisdiction to be invalid or unenforceable, the invalidity of such provision shall not affect other provisions of this Agreement, and all provisions not affected by such invalidity shall remain in full force and effect.
21. Waiver. The waiver by either Party of a breach or default in any of the provisions of this Agreement by the other Party shall not be construed as a waiver of any succeeding breach of the same or other provisions; nor shall any delay or omission on the part of either Party to exercise or avail itself of any right, power, or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other Party.
22. Jurisdiction and Venue. This Agreement shall be governed exclusively by the laws of the state of Indiana without regard to the conflicts or choice of law provisions of any jurisdiction. The state and federal courts seated in the Southern District of Indiana shall have exclusive jurisdiction to interpret the validity, construction, and performance of this Agreement, and shall adjudicate any dispute arising out of or relating to this Agreement. Each Party hereby consents to the exclusive jurisdiction of such courts.
23. Waiver of Jury Trial. Each Party hereto hereby irrevocably waives any right to have a jury participate in resolving any suit, action or proceeding arising out of or relating to this Agreement or any of the transactions contemplated hereby or thereby.
24. Notices. All notices required or contemplated by this Agreement shall be in writing and addressed to the addresses provided herein. Each Party may change the address to which notices shall be sent from time to time by giving the other Party written notice of change in accordance with this Section. Notices shall be deemed to have been received: (a) if personally delivered, on the date of delivery; (b) if mailed, on the date of delivery, as shown by the addressee’s registry or certification receipt; (c) if sent and delivered by overnight carrier, one (1) business day after the date of delivery of such communication to such carrier, as marked thereon, with applicable charges prepaid; (d) if sent electronically, on the date of the transmission or, if that day is not a business day, on the next following business day.

If to REVIVE:

REVIVE Electronics, LLC 10300 Kincaid Drive Fishers, IN 46037 Attn: Reuben Zielinski Email: hearing@redux.com