End User License Agreement

1. BY DOWNLOADING, INSTALLING, COPYING, ACCESSING OR USING THIS SOFTWARE, 2. BY CLICKING A FIELD OR BOX INDICATING ACCEPTANCE, OR BY 3. EXECUTING AN ORDER FORM THAT REFERENCES TO THESE TERMS, YOU HEREBY AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF ANOTHER PERSON OR COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THAT PERSON, COMPANY OR LEGAL ENTITY AND ITS AFFILIATES TO THESE TERMS.
IF YOU DO NOT AGREE TO THESE TERMS: DO NOT DOWNLOAD, INSTALL, COPY, ACCESS OR USE THE SOFTWARE, AND RETURN THE SOFTWARE AND PROOF OF ENTITLEMENT TO THE PARTY FROM WHOM YOU ACQUIRED THEM.
      • Applicability. These terms and conditions (these “Terms“) govern the sale of the goods (“Goods“) and services (“Services“) by WipeOS, LLC (“Provider“) to the Customer identified in the signature block (“Customer“). The accompanying invoice or ordering document (the “Sales Invoice“) and these Terms (collectively, this “Agreement“) comprise the entire agreement between the parties and supersede all prior or contemporaneous understandings, agreements, negotiations, representations, and warranties, and communications, both written and oral. These Terms prevail over any of Customer’s general terms and conditions of purchase regardless of whether or when Customer has submitted its purchase order or such terms. Fulfillment of Customer’s order does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend these Terms.
      • Delivery of Goods.
        • The Goods will be delivered within a reasonable time after the receipt of Customer’s purchase order. Provider shall not be liable for any delays, loss, or damage in transit.
        • Provider may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Customer. Each shipment will constitute a separate sale, and Customer shall pay for the units shipped, whether in whole or partial fulfillment of Customer’s purchase order.
      • Shipping Terms. Provider shall make delivery in accordance with the terms on the face of the Sales Invoice.
      • Title and Risk of Loss. Title and risk of loss pass to Customer upon Provider’s shipment of the Goods.
      • Customer’s Acts or Omissions. If Provider’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants, or employees, it is important to note that Provider shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
      • Inspection and Rejection of Nonconforming Goods.
        • Customer shall inspect the Goods within 30 days of receipt (“Inspection Period“). Customer will be deemed to have accepted the Goods unless it notifies Provider in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as required by Provider. “Nonconforming Goods” means only the following: (i) product shipped is different than identified in Customer’s purchase order; or (ii) product’s label or packaging incorrectly identifies its contents.
        • If Customer timely notifies Provider of any Nonconforming Goods, Provider shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Customer in connection therewith. Customer shall ship, at its expense and risk of loss, the Nonconforming Goods to Provider. If Provider exercises its option to replace Nonconforming Goods, Provider shall, after receiving Customer’s shipment of Nonconforming Goods, ship to Customer, at Customer’s expense and risk of loss, the replaced Goods.
        • Customer acknowledges and agrees that the remedies set forth in Section 6(b) are Customer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 6(b), all sales of Goods to Customer are made on a one-way basis and Customer has no right to return Goods purchased under this Agreement to Provider.
        • If Customer wishes to return the product, Customer will promptly notify the Provider. At that time, the Customer and Provider will agree on a timeframe for product return. If the product has not been returned to the Provider at the end of the agreed timeframe, the Customer will be billed for the entire cost of the product. The current cost of the WipeOS appliance product is $600 USD.
      • Price.
        • Customer shall purchase the Goods and Services from Provider at the prices (the “Prices“) set forth in the Sales Invoice. Each Sales Invoice shall conform to this Section 7. The pricing herein shall remain fixed for twelve months following execution of this Agreement. Thereafter, Provider may increase the pricing in this Section 7, no more than once annually, by providing 90 days prior notice to Customer.
        • Customer shall purchase credits from Provider and Provider shall debit credits from Customer’s account based on Customer’s actual use of the Goods and Services.
        • Taxes Excluded. All Prices are exclusive of all sales, use, excise taxes, and any other similar taxes, duties, and charges imposed by any Governmental Authority on any amounts payable by the Customer. Customer shall be responsible for all such charges, costs, and taxes; provided, that, Customer shall not be responsible for any taxes imposed on, or with respect to, Provider’s income, revenues, gross receipts, personal or real property, or other assets.
        • Custom Development Excluded. Customer acknowledges that the fees above do not include, and Provider has no obligation to provide, custom development services. Should Customer request such services, Provider will determine in its sole discretion whether sufficient resources are available. If Provider agrees to provide custom development services, the applicable fees and terms for such services will be detailed in a Statement of Work signed by Provider and Customer.
      • Payment Terms.
        • Customer shall pay all invoiced amounts due to Provider within 30 days from the date of Provider’s invoice unless both parties have mutually agreed to an alternative payment schedule (e.g., quarterly payments, etc.). Customer shall make all payments hereunder by wire transfer, check, PayPal, or other payment method agreed to by Provider and in US dollars.
        • Customer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Provider, whether relating to Provider’s breach, bankruptcy, or otherwise.
        • Except for any right to refund expressly stated in these Terms, all fees for Goods and Services are non-refundable.
      • Limited Warranty.
        • PROVIDER MAKES NO WARRANTIES WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
        • PROVIDER MAKES NO WARRANTIES WHATSOEVER WITH RESPECT TO THE SERVICES. ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, ARE EXPRESSLY DISCLAIMED.
        • Products manufactured by a third party (“Third Party Product”) may constitute, contain, be contained in, incorporated into, attached to, or packaged together with, the Goods. For the avoidance of doubt, PROVIDER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
      • Limitation of Liability.
        • IN NO EVENT SHALL PROVIDER BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
        • IN NO EVENT SHALL PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO PROVIDER FOR THE GOODS AND SERVICES SOLD HEREUNDER.
        • The limitation of liability set forth in Section 10(b) shall not apply to (i) liability resulting from Provider’s gross negligence or willful misconduct and (ii) death or bodily injury resulting from Provider’s acts or omissions.
      • Compliance with Law. Customer shall comply with all applicable laws, regulations, and ordinances. Customer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement. Customer shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by Customer. Customer assumes all responsibility for shipments of Goods requiring any government import clearance.
      • Termination. In addition to any remedies that may be provided under these Terms, Provider may terminate this Agreement with immediate effect upon written notice to Customer, if Customer: (a) fails to pay any amount when due under this Agreement; (b) has not otherwise performed or complied with any of these Terms, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors. Customer may terminate the Agreement if Provider breaches these Terms and fails to cure such breach within thirty (30) days of receiving Customer’s detailed written notice of the breach.
      • Waiver. No waiver by Provider of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Provider. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
      • Confidential Information. All non-public, confidential, or proprietary information of Provider, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Provider to Customer, whether disclosed orally or disclosed or accessed in written electronic or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Provider in writing. Upon Provider’s request, Customer shall promptly return all documents and other materials received from Provider. Provider shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Customer at the time of disclosure; or (c) rightfully obtained by Customer on a non-confidential basis from a third party.
      • Intellectual Property. Provider hereby grants Customer a nonexclusive license to access and use the embedded software within the Goods solely as authorized herein. Copies of such software accessed pursuant to these Terms are licensed, not sold, and Customer receives no title to or ownership of any copy or of the software itself. Furthermore, Customer receives no rights to the software other than those specifically granted in these Terms. Without limiting the generality of the foregoing, Customer shall not: (a) modify, create derivative works from, distribute, publicly display, publicly perform, or sublicense the software; (b) use the software for service bureau or time-sharing purposes or in any other way allow third parties to exploit the software; or (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive any of the software’s source code.  Customer recognizes that the software and its components are protected by copyright and other laws.
      • Feedback. Customer hereby grants Provider a perpetual, irrevocable, worldwide license to use any Feedback (as defined below) Customer communicates to Provider, without compensation, without any obligation to report on such use, and without any other restriction. Provider’s rights granted in the previous sentence include, without limitation, the right to exploit Feedback in any and every way, as well as the right to grant sublicenses. Notwithstanding the provisions of Section 14 (Confidential Information), Feedback will not be considered Provider’s Confidential Information. (“Feedback” refers to any suggestion or idea for modifying any of Provider’s products or services, including without limitation all intellectual property rights in any such suggestion or idea.)
      • Force Majeure. No party shall be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Customer to make payments to Provider hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; and (f) national or regional emergency. The Impacted Party shall give notice within ten days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and minimize the effects of such Force Majeure Event. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause.
      • Assignment. Customer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Provider. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under this Agreement.
      • Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
      • No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns, and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.
      • Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Minnesota without giving effect to any choice or conflict of law provision or rule (whether of the State of Minnesota or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Minnesota.
      • Jurisdiction. Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Minnesota in each case located in Hennepin County. Each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
      • Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice“) shall be in writing and addressed to the parties at the addresses set forth on the face of the Sales Invoice or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
      • Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
      • Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Compliance with Laws, Confidential Information, Intellectual Property, Governing Law, Submission to Jurisdiction and Survival.
      • Amendment and Modification. These Terms may only be amended or modified in writing, stating specifically that it amends these Terms and is signed by an authorized representative of each party.

Version 1.2 – Effective: July 2024