Sulzer Sense™ and Pumpsonline™

TERMS and CONDITIONS


These Terms and Conditions apply to the Sulzer Pumpsonline™ Service (as defined below) that you purchase (each a “Subscription”) and all Sulzer Sense™ hardware products (Products) that you purchase from the Company.  In order to access, subscribe to use, download, share or otherwise use any part of the Pumpsonline Service, Products or use any software scripts provided by the Company in order to make the Pumpsonline Service available or usable, you must accept these Terms and our Privacy Policy, which is available at www.sulzer.com, both of which may be modified or otherwise changed by the Company from time to time at our sole discretion. Your continued use of the Pumpsonline Service and Products will be deemed acceptance to any such amended or updated Terms and Conditions and Privacy Policy. If you do not agree to any of the terms or conditions contained herein, please do not click “I AGREE” when accessing the site thru a web-browser, App or Software and do not use the Pumpsonline Service or any Products.

1.  DEFINITIONS. The following capitalized terms shall have the following meanings whenever used in these terms.

Customer Data” means data in electronic form concerning your equipment which is collected by the Sense hardware and transmitted to Us and managed or stored by Us as part of the Pumpsonline Service, including without limitation, data related to Users.

Documentation” means Company's standard manual related to use of the Products or Pumpsonline Service.

 

Implementation Services” means any installation, configuration or related services with respect to your use of Pumpsonline Service or Products.

Pumpsonline Service” means a range of online services provided by Sulzer to optimize your use of pumping solutions including asset management, spare parts ordering, and the provision of a remote monitoring software that Company hosts in a cloud environment (accessible via a web browser, or Sulzer App).

 Order” means an order issued by you for Products, Pumpsonline Services and/or Implementation Services (if any), whether executed by purchase order, statement of work or otherwise.

“Output Service Data” means the data and/or information that we provide to You in connection with the Pumpsonline Service.  For purposes of clarification, Output Service Data does not include Your Customer Data.

“Sulzer App” means our mobile software application which You may use in order to receive the Pumpsonline Service

Sulzer Hardware” means any computer hardware owned or leased by Us and that is utilized in connection with the Pumpsonline Service.

 

Sense hardware” or “Product” is a hardware package comprising of sensor devices, repeaters, and gateway devices to be installed at your site.

Sulzer Software” means any computer software owned or licensed by Us and that is utilized in connection with the Pumpsonline Service.

 

 Us”, “We”, “Our” or the “Company” means Sulzer entity acting as seller.

Usermeans anyone who accesses Pumpsonline Services in accordance with the Order.

You” or “Your” or “Customer” means the buyer entity identified in the Order.

 

2.   PRODUCTS

2.1.   Number of Products.  You have agreed to purchase the quantity of Products that You have indicated on your Order. If you are unsure of the quantity and optimal configuration of Products that you need, the Company will recommend the number of Products that We believe will allow the Pumpsonline Service to operate in the most optimum fashion practicable. Please note that if You do not purchase and use the optimal number of Products that we recommend in connection with the Pumpsonline Service the efficacy of the Pumpsonline Service may be adversely affected. 

2.2.   Title and Risk of Loss.  Title to the Products will only pass to You upon payment in full of the purchase price.  Risk of damage or loss relating to the Products remains with Us until delivery in accordance with the delivery term specified in the Order in accordance with Incoterms™ 2010.

2.3.   Limited Warranty; Exclusions.  Upon Your payment in full of the purchase and delivery of the Products, we warrant that for a period of the earlier of: (a) twelve months following the delivery of the Products; or (b) the expiration or termination of Your Subscription to the Pumpsonline Service (the “Limited Warranty Period”), the Products will operate in accordance with the written specifications (the “Sense Hardware Specifications”) located at [www.sulzer.com/Sense]  (the “Limited Warranty”). The Limited Warranty does not apply in the event that any part of the Products (including any of Our Software therein) have been: (i) used other than in accordance with these Terms, the Sense Hardware Specifications or other written operating instructions provided by Us or Our agents to You; (ii) modified, repaired, serviced, maintained or altered by anyone other than Us or one of Our authorized agents without Our prior written approval in each instance; (iii) combined with or installed on/with operating systems, hardware or other equipment that do not constitute Our hardware or software; (iv) used or installed not in accordance with the Sense Hardware specifications; (v) damaged by causes beyond Our reasonable control; (vi) normal wear and tear or battery life or (vii) sold or transferred to any entity other than You. The Limited Warranty extends only to You and does not extend to any other entity.  EXCEPT FOR THE LIMITED WARRANTY, THE PRODUCTS AND SERVICES ARE PROVIDED ON AN “AS IS” BASIS WITHOUT ANY WARRANTY OR CONDITION WHATSOEVER, AND WE EXPRESSLY DISCLAIM ALL OTHER IMPLIED OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT WARRANT THAT THE PRODUCTS OR SERVICES WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT THE SUBSCRIPTION WILL PERFORM WITHOUT INTERRUPTION OR ERROR.

2.4.   Warranty Claims.  Our sole obligation and Your exclusive remedy for any failure of the Products to conform to the Limited Warranty is the repair or replacement, at Our sole option, of the Products such that they shall conform with the Sense Hardware Specifications during the Limited Warranty Period.  If You believe that the Products do not conform with the Sense Hardware Specifications during the Limited Warranty Period, please contact Our local representative.  If You are entitled to have the Products repaired or replaced by Us during the Limited Warranty Period under the Limited Warranty, then We shall pay for any applicable shipping charges necessary for the Company to ship repaired or replacement Products to You.  If You are not entitled to have the Products repaired or replaced by Us during the Limited Warranty Period under the Limited Warranty, the Company will not be responsible for any return shipping charges or the replacement of the Products. If We replace the Products pursuant to the Limited Warranty, the replacement Products will be: (x) covered by the Limited Warranty only for the remainder of the Limited Warranty Period that was applicable to the original Products; and (y) shall be considered the Products under these Terms and Conditions.  Batteries are not included in the Limited Warranty,  but will be replaced by Us for a fee (including return shipping) if the Products (including batteries) are returned to our authorized repair center.  At end-of-service life all Products shall be returned to Us for recycling. 

3.  SUBSCRIPTION

 

3.1.   You will receive the Subscription to the Pumpsonline Service that You pay for.  Your Subscription to the Pumpsonline Service shall: (a) begin on the delivery date of the Products; and (b) expire upon the one (1) year anniversary of the delivery date, unless earlier terminated pursuant to the other provisions of this Article 3 (collectively, the “Term”).  Please note that Your Subscription to the Pumpsonline Service does not automatically renew and Your access to the Pumpsonline Service will cease immediately at the end of the Term.   Company will not be required to refund Subscription Fees or Implementation Fees under any circumstances.  You shall be responsible for all shipping and handling costs as well as any sales, use, VAT, transfer and other taxes and duties imposed by any federal, state, municipal or other governmental authority relating to the licenses granted, Products or the Pumpsonline Services or Implementation Services. 

3.2.   You may terminate the Term for any reason at any time to providing notice to the Company.  If You terminate Your access to the Pumpsonline Service will terminate immediately upon your completion of the Termination Notice; and You will not receive any refund for any of the Products or any portion of the Subscription Fee.

3.3.   If You materially breach any provision of the Agreement, then We may give written notice to You of such breach (which written notice must describe, in reasonable detail, the alleged breach).  If such breach(es) cannot be cured, then, at Our sole option, Your Subscription to the Pumpsonline Service, the Term and the Agreement shall terminate immediately upon the delivery of such notice.  If such breach(es) can be cured, but remain(s) uncured more than thirty (30) calendar days after receipt of such written notice by You, then, at Our sole option, We may terminate Your Subscription to the Pumpsonline Service, the Term and the Agreement at any time after the conclusion of such thirty (30) calendar day cure period by written notice to You.  If We terminate Your Subscription to the Pumpsonline Service, the Term and the Agreement: (a) Your access to the Pumpsonline Service will terminate immediately upon such termination; and (b) unless otherwise required by Applicable Law, You will not receive any refund for any of the Products or any portion of the subscription fee.

3.4.   Upon expiration or termination of your Subscription to the Pumpsonline Service, the Agreement and the Term, except as otherwise set forth in Sections 3.2, 3,3 and this 3.4, all rights and obligations of You and Us shall immediately terminate.  Notwithstanding the foregoing, the provisions of this Agreement which by their nature are intended to survive, shall survive any expiration or termination of Your Subscription, the Term and the Agreement.

4.  OBLIGATIONS OF THE PARTIES

4.1.  Company Obligations; Upgrades and Maintenance.

(a)  We agree that during the Term we will provide the Pumpsonline Service to You in accordance with the terms of the Agreement.

(b)  We agree that during the Term (the “Open Account Period”), we will maintain an account for You (“Your Pumpsonline Account”) with Our independent “cloud” storage provider (an “Account Storage Provider”).  Your Pumpsonline Account will contain the: (i) Customer Data; and (ii) the Output Service Data.  During the Open Account Period, You will be able to access Your Pumpsonline Account, view the data contained in it and download such data to Your Devices.  We pay for Your Pumpsonline Account with a portion of Your Subscription Fee so You do not need to pay any additional charge for the opening and maintenance of Your Pumpsonline Account.  Please note that although We will endeavor to select an Account Storage Provider that maintains commercially reasonable security protections: (x) We will not be providing the security for Your Pumpsonline Account (that will be done by the Account Storage Provider); (y) We cannot guaranty or ensure that the security measures employed by the Account Storage Provider will not be breached or that the data in Your Pumpsonline Account will not be accessed or used by third Persons who are not authorized to access Your Pumpsonline Account; and (z) We will not be responsible for any breach of the security measures employed by the Account Storage Provider and/or the unauthorized access or use of the information contained in Your Pumpsonline Account. 

(c)  Notwithstanding anything in the Agreement to the contrary, We agree that although we may disclose Your Data and the Output Service Data on an anonymous, aggregated basis (as provided in the Agreement), we will not: (i) disclose to any third Person any of Your Data or the Output Service Data in any manner which identifies You or Your location; or (ii) use Your Data or the Output Service Data for unlawful or anti-competitive activities.

(d)  You acknowledge that: (i) We may, but are not obligated to, modify, update and/or make upgrades to the Pumpsonline Service and/or perform maintenance on the Pumpsonline Service; (ii) when and if We modify, update and/or make upgrades and/or perform maintenance this may mean that the Pumpsonline Service may be unavailable for a period of time; and (iii) in no event will We be liable to You, any of Your Affiliates or any third Person for any unavailability of the Pumpsonline Service caused by modifications of, updates and/or upgrades to and/or maintenance performed on the Pumpsonline Service.  You acknowledge that your failure to accept, download and install any such modifications, updates and/or upgrades may adversely affect Your use of and access to Pumpsonline Service and/or Our App.

(e)  You acknowledge and agree that this Agreement does not entitle You to obtain software and technology used to operate the Pumpsonline Services other than for access.  You are responsible for the provision of software and computer hardware necessary for it to access and use the Pumpsonline Service, including an internet browser that meets Our requirements.  You are responsible for configuration of its corporate internet firewall to allow the access necessary for data transmission to the Pumpsonline Service.  You are responsible for virus protection for Customer hardware and Customer’s host systems that are networked to those workstations.

 

4.2.  Customer Obligations. 

(a)           You agree (i) to use the Pumpsonline Service and the Products in compliance with all terms and conditions herein; (ii) to give Us access to Your Data as is necessary for Us to provide the Pumpsonline Service; (iii)    to allow Us to use and disclose Your Data as set forth in the Agreement; (iv)  to maintain in compliance with their specifications all of Your devices, Your hardware (excluding the Products) and internet/mobile connections, necessary for Us to provide the Pumpsonline Service to You during the Term and to provide the power to the same; (v) contact Us for reconfiguration of any Products for changes in the environment; and (vi) that the Agreement constitutes Your valid and binding obligation enforceable in accordance with its terms.

(b)          You shall comply with the following Acceptable Use Policy (“AUP”). Customer shall not: (i) use the Pumpsonline Service for service bureau or time-sharing purposes or in any other way allow third parties to exploit the Pumpsonline Service, except as specifically authorized by these terms; (ii) provide passwords or other log-in information to any third party, except as specifically authorized by these terms; (iii) share non-public Pumpsonline Service features or content with any third party; (iv) access the Pumpsonline Service or Product in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics as the Product, or to copy any ideas, features, functions or graphics of the Pumpsonline Service; (v) use the Subscription to interfere with, gain unauthorized access to, or otherwise violate the security of Our (or another party's) server, network, network access, personal computer or control devices, software or data, or other system, or to attempt to do any of the foregoing; (vi) modify, reverse engineer, or enhance the Products without our express prior written consent; (vii) use the Products outside of the Pumpsonline Service; (viii) resell the Products; (ix) use the Pumpsonline Service or Products in a manner that introduces any virus, corrupted data or other harmful, disruptive or destructive code or files (collectively, “Harmful Code”) to or otherwise interferes with or disrupts, overloads or burdens the Pumpsonline Service, Our App, and/or Our Hardware and/or networks or those of Our service providers; or (x)   violate any Applicable Law in connection with the use of the Pumpsonline Service or the Products.

 

(c)  In the event that We suspect any breach of the requirements of this Section 4.2, including without limitation by Users, We may suspend Your access to the Pumpsonline Service without advanced notice, in addition to such other remedies as We may have.

5. YOUR ACCOUNT

5.1.  If You subscribe to the Pumpsonline Service and pay the Subscription Fee to Us, We agree that Users may install Our App on Your Devices free of additional charge and/or access the Pumpsonline Service portal thru a web browser. You agree that You shall use the Pumpsonline Service (including Our App) only as authorized in these Terms and Conditions and will instruct Your Representatives having access to the Pumpsonline Service to act in conformity with Your obligations herein. You agree that You shall be liable for any breach of Your obligations under these terms by any of Your Representatives.

5.2.  If You wish to Subscribe to and use the Pumpsonline Service, You must download Our App onto one of Your Devices or access the Pumpsonline Services thru a web browser and complete a registration process which will create Your Pumpsonline Account. By completing the registration process and creating Your Pumpsonline Account, You expressly provide Us with Your consent to send You messages and other content in connection with the Pumpsonline Service via email, text message or any other means, either through Our App or otherwise.  You agree that You will provide Us with truthful and accurate information when setting up Your Pumpsonline Account, will keep such information up-to-date and select login information (including a password).  You shall have all responsibility for any inaccuracies in any information You provide to Us or in respect of Your failure to keep such information up-to-date. You agree that You: (a) will not share Your Pumpsonline Account or login information with any third Person, nor let any third Person access Your Pumpsonline Account, except Your Representatives and as otherwise permitted by these Terms; (b) are responsible for maintaining the confidentiality of the login information for Your Pumpsonline Account; (c) will notify Us immediately if You know or suspect that Your Pumpsonline Account or Pumpsonline Account login information has been compromised or that Your Pumpsonline Account has been used without Your authorization; and (d) are fully and solely responsible for the security of Your Devices and all activity on Your Pumpsonline Account (except for such activity initiated by Us).

5.3      The following additional terms apply if you obtain Our App from the Google Play Store, please refer to:

https://play.google.com/intl/en_ch/about/play-terms/index.html

6.  IMPLEMENTATION SERVICES

6.1.               We are not responsible for Your installation and configuration of the Products.

6.2.               If requested and agreed, We shall provide Implementation Services for your Products and Pumpsonline Service, and You shall provide such assistance and cooperation as are necessary or convenient to facilitate the Implementation Services as are called for in any Purchase Order.  We may appoint subcontractors, agents, affiliates, or partners to host, perform, modify, improve, enhance, or otherwise provide the Implementation Services and to fulfill our obligations and exercise our rights under these terms.

7.  CUSTOMER DATA & PRIVACY.

 

7.1.               We use reasonable industry measures designed to protect the operating environment of the Pumpsonline Service against unauthorized physical access and the threats of fire, power, temperature, humidity and other physical forces.  Measures include the following: (a) secure data center with physical access limited to authorized personnel and protected by multi-level security services, other persons are admitted only on an as-needed and supervised basis (such as to maintain hardware components); (b) continuous, conditioned power supplied by a redundant power infrastructure, including battery backup solutions and diesel-powered generators, with regular testing for continuous availability;  (c) redundant HVAC climate control and fire suppression; and (d) intrusion protection and detection upon the network and servers on an ongoing basis and anti-virus scanning.  We shall make best endeavors by using commercially reasonable efforts to ensure the Pumpsonline Service are reasonably secure in terms of industry-standard security measures including controls consistent with the ISO 27002 framework and access authentication for secure directories. 

7.2.               You recognize and agree that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the Pumpsonline Service, You assume such risks. We shall have no responsibility or liability for the accuracy of data uploaded to the Pumpsonline Service, including without limitation Customer Data.

7.3.               We may permanently erase Customer Data if Your account is delinquent, suspended, or terminated.

7.4.               You represent and warrant that Customer Data does not and will not include, and You have not and shall not upload or transmit to Our computers or other media, any data (“Excluded Data”) regulated pursuant to laws governing personally identifiable information (the "Excluded Data Laws"). CUSTOMER RECOGNIZES AND AGREES THAT: (a) COMPANY HAS NO LIABILITY FOR ANY FAILURE TO PROVIDE PROTECTIONS SET FORTH IN THE EXCLUDED DATA LAWS OR OTHERWISE TO PROTECT EXCLUDED DATA; AND (b) THE Pumpsonline SERVICE IS NOT INTENDED FOR MANAGEMENT OR PROTECTION OF EXCLUDED DATA AND MAY NOT PROVIDE ADEQUATE OR LEGALLY REQUIRED SECURITY FOR EXCLUDED DATA.

7.5.               Notwithstanding the provisions above of this Article 7, We may use, reproduce, sell, publicize, or otherwise exploit Customer Data and Output Service Data in any way, in Our sole discretion to provide, maintain, protect, promote, and improve the Pumpsonline Service, offer additional products and services to You, and to develop new products and services, to the extent permitted by applicable law.

7.6.               Feedback that You provide to the Company, and nothing in these terms or in the parties’ dealings arising out of or related to these terms will restrict Our right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting You or the User in question. Customer hereby grants Company a perpetual, irrevocable right and license to exploit Feedback in any and every way. (“Feedback” refers to any suggestion or idea for improving or otherwise modifying any of Company’s current or future products or services.) 

8.INDEMNIFICATION.

8.1.               Company shall defend and indemnify Customer and Customer’s Associates (as defined below) against any “Indemnified Claim,” meaning any third-party claim, suit, or proceeding arising out of, related to, or alleging infringement of any patent, copyright, trade secret, or other intellectual property right by the Pumpsonline Service or Products. Company’s obligations set forth in this Section 8.1 do not apply to the extent that an Indemnified Claim arises out of Customer’s breach of these terms.

8.2.               Customer shall indemnify and defend Company and Company’s Associates (as defined below in Section 8.3) against any “Indemnified Claim,” meaning any third party claim, suit, or proceeding arising out of or related to Customer's alleged or actual use of, misuse of, or failure to use the Subscription, including without limitation: (a) claims by Users or by Customer's employees; (b) claims related to unauthorized disclosure or exposure of personally identifiable information or other private information, including Customer Data; (c) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to the Pumpsonline Service through Customer’s account, including without limitation by Customer Data, and (d) claims related to the injury to or death of any individual, or any loss of or damage to real or tangible personal property, caused by the act or omission of Customer or of any of its agents, subcontractors, or employees.

8.3.               The obligations of the indemnifying party (“Indemnitor”) pursuant to Section 8.1 or 8.2 above: (a) include retention and payment of attorneys and payment of court costs, as well as settlement at Indemnitor’s expense and payment of judgments; and (b) will be excused to the extent that the other contracting party’s (“Indemnified Party’s”) or any of such Indemnified Party’s Associates’ failure to provide prompt notice of the Indemnified Claim or reasonably to cooperate materially prejudices the defense. Indemnitor will control the defense of any Indemnified Claim, including appeals, negotiations, and any settlement or compromise thereof; provided Indemnified Party will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. (A party’s “Associates” are its officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns.)

9.  LIMITATION OF LIABILITY.

9.1.               COMPANY’S LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS WILL NOT EXCEED THE CUMULATIVE AMOUNT OF SUBSCRIPTION FEES PAID IN THE TWELVE-MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE APPLICABLE CLAIM.

9.2.               IN NO EVENT WILL EITHER PARTY INCLUDING ITS AFFILIATES, RESELLERS, DISTRIBUTORS AND LICENSORS OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE TO THE OTHER FOR (a) ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES (b) ANY LOSS OF PROFIT, LOSS OF USE DAMAGES, LOSS OF GOODWILL, LOSS OF BUSINESS OPPORTUNITY, LOSS OF SALES, LOSS OF REPUTATION OR LOSS OF ANTICIPATED SAVINGS: (c) ANY LOSS OR INACCURACY OF DATA OR BUSINESS INFORMATION OR FAILURE OR INADEQUACY OF ANY SECURITY SUBSCRIPTION OR FEATURE, HOWSOVER CAUSED ARISING OUT OF OR RELATED TO THESE TERMS.

9.3.               THE LIABILITIES LIMITED BY THIS ARTICLE 9 APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF COMPANY IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Article 9, Company’s liability will be limited to the maximum extent permissible.  Customer agrees not to bring any suit or action against Company or its affiliates for any reason whatsoever more than one year after the cause of action arises.

10.  MISCELLANEOUS.

10.1.            Customer acknowledges and agrees that the Products, Pumpsonline Service and related technical data and services may be subject to export control laws and regulations of Finland and any country in which the services or related technical data or services are developed, received, used, or performed.  Customer shall export and/or re-export any item in accordance with all applicable export laws.

10.2.            Customer agrees that while these terms are in effect, Company shall be authorized to identify Customer as a customer/end-user of Company Services and Products in marketing materials.

10.3.            You agree that We will not be liable for any failures or delays resulting from circumstances or causes beyond Our reasonable control, including, without limitation, fire or other casualty, act of God, war or other violence, or any law, order or requirement of any governmental agency or authority.

10.4.            Entire Agreement/Amendment.  The Agreement constitutes the entire agreement between Us and You and supersedes all prior or contemporaneous, oral or written, representations, understandings or agreements relating to the subject matter hereof.  The Agreement, or any portion thereof, may only be amended by a writing signed You and one of Our duly authorized representatives.

10.5.            The Agreement shall be governed by and construed in accordance with the laws of Finland (without reference to the conflicts of law).  In case of a dispute, the Parties shall make their best endeavors to solve such dispute amicably. If this should not be possible, the courts at the place of Company shall have exclusive jurisdiction. Company reserves the right to claim against Customer at Customer’s place. All disputes shall be settled in accordance with the provisions of the Agreement and the documents pertaining thereto.

10.6.            Amounts not paid when due shall be subject to interest until paid at a rate of interest equal to 5% interest per year and pro rata (or, if less, the maximum amount permitted by law).  Customer shall pay Company’s reasonable attorneys’ fees and costs incurred by Company in collecting overdue amounts, and/or in any controversy or litigation arising under or in connection with these terms in which Customer does not prevail against Company in all of the claims.

10.7.            Waiver.  No waiver of any obligation under this Agreement shall be valid unless in writing and signed by You and one of Our authorized representatives.  No delay or omission by either Us or You in exercising any right or power shall impair such right or power or be construed to be a waiver.  A waiver by either Us or You of any of the obligations to be performed by the other Party or any breach thereof shall not be construed to be a waiver of any succeeding breach or of any other obligation.

10.8.            Successors and Assigns.  The Agreement shall be binding upon and inure solely to the benefit of Us and You and both of our respective permitted successors and assigns, and nothing in the Agreement shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever as a third-party beneficiary under or by reason of the Agreement.

10.9.            Assignment.  You may not assign or transfer the Agreement or any of Your rights or obligations under the Agreement to any third Person without Our prior written consent.  Any attempt by You to assign or transfer the Agreement or such rights or obligations in violation of this Section 10.9 shall be void and of no force and effect.  We may freely assign or transfer the Agreement or any of Our rights or obligations under the Agreement to any third Person without Your prior written consent.

10.10.        Notices.  Whenever under the Agreement We or You are required or permitted to give notice to the other, such notice shall be given in writing and shall be deemed to be given: (a) one Business Day after deposited with a nationally recognized overnight delivery service so long is such notice is prepaid for overnight delivery to the other Party; (b) one Business Day after sending if sent by e-mail; or (c) the day of delivery if personally delivered with written evidence of such delivery, and, in any case, addressed to the Party’s respective notice address located in the Order.  Either You or We may change our respective addresses for notification purposes from time to time by giving the other Party prior written notice in accordance with this Section 10.10 of the new address and the date upon which it will become effective.

10.11.        The Parties understand and agree that: (a) the provisions of the Agreement will supersede any inconsistent provisions contained in any Invoice, purchase order, quotation, confirmation, acceptance, acknowledgement or similar form; (b) all terms or conditions proposed in any Invoice, purchase order, quotation, confirmation, acceptance, acknowledgment or similar form which add to, vary from, or conflict with the provisions in the Agreement will be void; (c) any pre-printed terms in an Invoice, purchase order, quotation, confirmation, acceptance, acknowledgement or similar form will also be void; and (d) in the event of any conflict between the provisions of these terms and the provisions of the Order, the provisions of the Order shall govern.

10.12.        If any provision of the Agreement is held to be illegal, invalid or unenforceable under present or future applicable law while the Agreement or any provision of the Agreement remains in effect: (a) the legality, validity and enforceability of the remaining provisions of the Agreement will not be affected thereby so long as the economic or legal substance of the transactions contemplated by the Agreement is not affected in any manner materially adverse to either Party; and (b) You and We agree that the body making the determination of illegality, invalidity or unenforceability shall have the power to reduce the scope, duration and/or area of the provision, to delete specific words or phrases and to replace any illegal, invalid or unenforceable provision with a provision that is legal, valid and enforceable and that comes closest to expressing the intention of the illegal, invalid or unenforceable provision, and the Agreement shall be enforceable as so modified.