United States

These are the terms and conditions that apply to a Customer's purchase of Products from "I Open Innovations, Inc." (hereafter iOpen). Acceptance of Customer's order(s) is based on these terms and conditions of sale applying. By accepting delivery of products from iOpen, Customer agrees to be bound and to accept these terms and conditions. These terms and conditions shall control the terms of purchase unless the Customer and iOpen have signed a separate purchase agreement referring to different terms and conditions which expressly control.

1. Terms of Sale:
   

   Payment terms shall be designated as payment in advance. iOpen reserves the right at any time and for any reason to require payment in advance, or otherwise to modify, suspend, or terminate any credit terms previously extended to Customer. iOpen shall be entitled to refuse or delay shipments for failure by Customer to pay within terms any payments due iOpen, whether on this or any other contract between iOpen and sCustomer. All shipments are F.O.B. Origin. The full purchase price shall be invoiced upon delivery to a common carrier. A 1.5% per month service charge, or the maximum permitted by law, whichever is less, may be added to delinquent accounts. In the event that it becomes necessary for iOpen to incur collection costs to collect any amount due and payable, Customer agrees to pay such additional collection costs, charges and expenses, including attorney's fees if the account is placed in the hands of an attorney or an agency for collection. Prices are subject to change without notice. Payments should be made according to the instructions on the face of the invoice, based on one of the forms of payment described in Section 4 of this document.

2. Order Placement:
   

   iOpen will accept orders in person, over the phone, via email, or website.

3. Web Specials:
   

   From time-to-time, iOpen may offer special sales and discounted items. Inventory is limited. Specials are first come, first served; no rain checks are available on web special product(s).

4. Payment for Hardware:
   

   Acceptable forms of payment include credit card payment online or via a sales associate (VISA, American Express, MasterCard, or Discover), check or money order. All payments are in United States of America (USD) currency only.

5. Use of Basic Monitoring Services:
   

   Basic monitoring service is provided to customers who have purchased iOpen wireless sensor products and assigned them to a network on our system on www.iopeninnovations.net. This service provides a comprehensive but limited feature set. iOpen reserves the right to discontinue the Basic service at any time. If this service is to be discontinued, all users will receive notice 90 days prior to service termination, and be provided with the option to change/upgrade to any new or premium service.

6. Payment for Premium Monitoring Services:
   

   Payment for premium monitoring services shall proceed monthly, with the first services billed upon initiation of the premium service on the iOpen Platform. Acceptable forms of payment include credit card payment online or via a sales associate (VISA, American Express, MasterCard, or Discover), check or money order. All payments are in United States of America (USD) currency only. If any amount is past due on an account and payment is issued, iOpen reserves the right to apply those funds against past due invoices first. Any service offered by iOpen may be suspended if any amount is past due by the customer.

7. Cellular Gateway Service Plan/Agreement:
   

   Cellular gateways require activation of a 2-year service agreement (paid monthly or may be prepaid) unless otherwise noted. If a customer wishes to cancel a service agreement before the end date, an early termination fee will apply.

8. Payment for Cellular Gateway Service Plan:
   

   Cellular data fees are based upon a monthly billing cycle. Customer is obligated to stay current with all cellular service plan fees. Failure to do so may result in suspension or termination of service, in which case, early termination fees or a reconnection fee may apply. Automatic billing will be applied to a credit card. If a credit card is not available, the customer will be invoiced. Manually generated invoices for cellular service will incur a $5 handling fee. If any amount is past due on an account and payment is issued, iOpen reserves the right to apply those funds against past due invoices first. Any service offered by iOpen may be suspended if any amount is past due by the customer.

9. Shipping Times, Charges, and Taxes on Hardware:
   

   Orders of $5,000 or less may take up to three weeks to ship. For larger orders, please consult with your sales representative for lead time. Orders received before 2 p.m. CST (GMT -6) will be processed the same business day. Orders received after 2 p.m. will be processed the following business day (iOpen's regular business hours are Monday through Friday, 9 a.m. - 5 p.m. CT). All orders are delivered Monday through Friday unless prearranged with your sales representative in advance.

   Orders placed with a request for expedited processing may be accommodated but are subject to an expedite fee per the following schedule:

   
   

   Expedited Order Processing and Fulfillment

   • Sale amount of $1-$500 = $75 flat fee
   • Sale amount of $501-$2,500 = $75 fee + 5% of order subtotal
   • Sale amount of $2,501+ = $75 flat fee plus 5% of order subtotal
   
   

   Orders Shipping On iOpen’s Shipping Account(s)

   • Sale amount of $1-$500 = $75 flat fee
   • All orders processed to ship on iOpen’s shipping accounts where the shipping fee is less than $50 will be calculated as the shipping cost + $8, covering packaging materials and handling. (Carrier fee < $50 = Shipping fee + $8)
   • All orders processed to ship on iOpen’s shipping accounts where the shipping fee is more than $50 will be calculated as the shipping cost x 1.16, covering packaging materials and handling. (Carrier fee > $50 = Shipping fee * 1.16)
   
   

   Orders Shipping on Customer’s Shipping Account

   • All orders processed to ship on customer’s shipping account where the order subtotal is less than $2,000 will have a $15 flat fee added to the order, covering packaging materials and handling. (Order Subtotal < $2,000 = Order Subtotal + $15)
   • All orders processed to ship on customer’s shipping account where the order subtotal is more than $2,000 will be calculated as the order subtotal x 0.0075, covering packaging materials and handling. (Order Subtotal > $2,000 = Order Subtotal * 0.0075)
   
   

   iOpen will use standard shipping rates as provided by selected carrier. If you are already established with a carrier and can provide iOpen with a shipping number, iOpen will ship via your specified carrier for an additional handling fee of $5/order.

10. Tax Exemption:
    

    Unless Customer provides iOpen with a valid and correct tax exemption certificate applicable to the product ship-to location prior to iOpen's acceptance of the order, Customer is responsible for sales tax, any value added or import taxes associated with the order. If applicable, a separate charge for taxes will be itemized on the invoice.

11. International Customers:
    

    iOpen is not responsible for any brokerage, customs fees, or country taxes. The actual value of all orders is indicated on the invoice, and restatements using lower product values are not permitted.

12. Title and Risk of Loss:
    

    Title to products and risk of loss passes from iOpen to Customer upon shipment from iOpen's facilities and delivery of the product to a common carrier. Title to software will remain with the applicable licensor(s).

13. Claims for Missing or Damaged Goods:
    

    Any claims by Customer for the omission of products in the shipped goods, shortages of product, or damaged goods in a shipment are waived by Customer unless Customer provides notice to iOpen within 15 days after Customer's receipt of shipment.

14. Limited Warranty:
    

    (a) iOpen warrants that iOpen-branded products will be free from defects in materials and workmanship for a period of one (1) year from the date of shipment with respect to hardware and will materially conform to their published specifications for a period of one (1) year with respect to software. iOpen may resell sensors manufactured by other entities and are subject to their individual warranties; iOpen will not enhance or extend those warranties. iOpen does not warrant that the software or any portion thereof is error free. iOpen will have no warranty obligation with respect to Products subjected to abuse, misuse, negligence or accident. If any software or firmware incorporated in any Product fails to conform to the warranty set forth in this Section, iOpen shall provide a bug fix or software patch correcting such non-conformance within a reasonable period after iOpen receives from Customer (i) notice of such non-conformance, and (ii) sufficient information regarding such non- conformance so as to permit iOpen to create such bug fix or software patch. If any hardware component of any Product fails to conform to the warranty in this Section, iOpen shall, at its option, refund the purchase price less any discounts, or repair or replace non-conforming Products with conforming Products or Products having substantially identical form, fit, and function and deliver the repaired or replacement Product to a carrier for land shipment to customer within a reasonable period after iOpen receives from Customer (i) notice of such non- conformance, and (ii) the non-conforming Product provided; however, if, in its opinion, iOpen cannot repair or replace on commercially reasonable terms it may choose to refund the purchase price. Repair parts and replacement products may be reconditioned or new. All replacement products and parts become the property of iOpen. Repaired or replacement products shall be subject to the warranty, if any remains, originally applicable to the product repaired or replaced. Customer must obtain from iOpen a Return Material Authorization Number (RMA) prior to returning any Products to iOpen. Products returned under this Warranty must be unmodified. iOpen reserves the right to repair or replace products at its own and complete discretion. Customer must obtain from iOpen a Return Material Authorization Number (RMA) prior to returning any products to iOpen. Products returned under this Warranty must be unmodified and in original packaging. iOpen reserves the right to refuse warranty repairs or replacements for any products that are damaged or not in original form. (b) As a condition to iOpen's obligations under the immediately preceding paragraphs, Customer shall return Products to be examined and replaced to iOpen's facilities, in shipping cartons which clearly display a valid RMA number provided by iOpen. Customer acknowledges that replacement products may be repaired, refurbished or tested and found to be complying. Customer shall bear the risk of loss for such return shipment and shall bear all shipping costs. iOpen shall deliver replacements for Products determined by iOpen to be properly returned, shall bear the risk of loss and such costs of shipment of repaired products or replacements, and shall credit Customer's reasonable costs of shipping such returned Products against future purchases. (c) iOpen's sole obligation under the warranty described or set forth here shall be to repair or replace non-conforming products as set forth in the immediately preceding paragraph or to refund the documented purchase price for non-conforming Products to Customer. iOpen's warranty obligations shall run solely to Customer, and iOpen shall have no obligation to customers of Customer or other users of the Products.

    
    

    Limitation of Warranty and Remedies.

    THE WARRANTY SET FORTH HEREIN IS THE ONLY WARRANTY APPLICABLE TO PRODUCTS PURCHASED BY CUSTOMER. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY DISCLAIMED. YOU ACKNOWLEDGE AND AGREE THAT THE PRODUCTS AND SERVICES FURNISHED BY iOPEN ARE NOT GUARANTEED TO BE UNINTERRUPTED OR ERROR-FREE. ADDITIONALLY, YOU AGREE THAT WE ARE NOT LIABLE FOR PROBLEMS CAUSED BY YOU OR A THIRD PARTY; BY WIRELESS CARRIERS, DATA CENTERS, BUILDINGS, ACCIDENTS, HILLS, NETWORK CONGESTION, TUNNELS, TOWERS, WEATHER OR OTHER THINGS WE DON'T CONTROL; OR BY ANY ACT OF GOD. FURTHERMORE, iOPEN SPECIFICALLY DISCLAIMS ANY AND ALL LIABILITY AND WARRANTIES, IMPLIED OR EXPRESSED, FOR USES REQUIRING FAIL-SAFE PERFORMANCE IN WHICH FAILURE OF A PRODUCT COULD LEAD TO DEATH, SERIOUS PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE SUCH AS, BUT NOT LIMITED TO, LIFE SUPPORT OR MEDICAL DEVICES OR NUCLEAR APPLICATIONS. PRODUCTS ARE NOT DESIGNED FOR AND SHOULD NOT BE USED IN ANY OF THESE APPLICATIONS. IF YOU NEVERTHELESS CHOOSE TO USE THE PRODUCTS, SOFTWARE, AND/OR SERVICES IN SUCH ACTIVITIES, YOU MUST NOT RELY ON THEM AS YOUR SOLE OR PRIMARY SOURCE OF MONITORING.

    iOPEN'S TOTAL AGGREGATE LIABILITY WHETHER IN CONTRACT, IN TORT, UNDER ANY WARRANTY, IN NEGLIGENCE OR OTHERWISE SHALL NOT EXCEED THE PURCHASE PRICE PAID BY CUSTOMER FOR THE PRODUCT. UNDER NO CIRCUMSTANCES SHALL iOPEN BE LIABLE FOR SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES. THE PRICE STATED FOR THE PRODUCTS IS A CONSIDERATION IN LIMITING iOPEN'S LIABILITY. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THIS AGREEMENT MAY BE BROUGHT BY CUSTOMER MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED.

15. Publicity:
    

    Customer agrees that iOpen may use Customer's name and logo in presentations, marketing materials, customer lists, financial reports, and Web site listings of customers. If Customer prefers that their name and/or logo not be used, they must notify iOpen. If Customer wishes to use iOpen's trade names, trademarks, service marks, logos, domain names and other distinctive brand features ("Brand Features"), Customer may do so, so long as such use is in compliance with this Agreement and follow iOpen’s branding guide.

16. Indemnification:
    

    iOpen shall defend or settle any claim, suit, or action against Customer based on an allegation that any Product purchased by Customer from iOpen infringes any third party's U.S. patent or copyright; provided, that Customer has made no modification or alterations to the product and that Customer gives iOpen prompt written notice of any claim or suit, sole authority to defend or settle as it sees fit, and full cooperation. iOpen may, at its sole option and expense (i) procure for Customer the right to continue using the product (ii) modify the product so that it is non-infringing (iii) procure a replacement product that has substantially the same functionality, or if none of the above options is reasonably available (iv) refund to customer the purchase price originally paid less a use credit for the period of use.

    iOpen has no liability for any claim, suit or action based in whole or in part upon or arising out of compliance with Customer's designs, specifications or instructions, modification of the Hardware or Software, or the combination of the Hardware or Software with products or items not furnished by iOpen. THIS SECTION STATES iOPEN'S ENTIRE LIABILITY AND CUSTOMER'S EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM, SUIT, OR ACTION ALLEGING INFRINGEMENT OF ANY THIRD-PARTY PATENT OR COPYRIGHT.

17. Order changes and cancellation policy:
    

    Orders for standard products
    Changes may be made to an order within 24 hours of confirmation. Each item changed or canceled after 24 hours will incur a 7% restocking fee. These changes also make the order subject to new lead times at the time of the change—rather than lead times when the originally quoted when the order was received.

    Orders for Customized Products and Special Orders
    "Customized Product" is a Product that has been altered, at the request of the Customer, from its original form, fit or function. A "Special Order" is an order that exceeds the normal iOpen run rate for a particular product by 20%. Purchase orders accepted for Customized Products or Special Orders are non-cancellable, non-returnable (NC/NR);

    General Provisions
    Standard lead times apply to all orders unless a specific lead time is quoted at the time of the order.
    iOpen may adjust pricing in cases where orders no longer meet the original annual volume commitments.
    If the terms stated in this section conflict with terms in iOpen's written acceptance of a purchase order, the terms of the acceptance will control.

18. Thirty-Day Satisfaction Guarantee:
    

    Customers may return iOpen Products for a refund (less 15% restocking fee, sales tax, shipping/handling and any expedite fees) if Seller is contacted within thirty days of the Customer's receipt of the product. Customer may return Products for credit, exchange, or a refund. Returns after 30 days will be evaluated on a case-by-case basis. Customer must obtain from Seller a Return Material Authorization Number (RMA) prior to returning any products to Seller. Products must be returned unmodified and in original packaging (if possible). Seller reserves the right to refuse return rights for any products that are damaged or not in original form. Volume orders are subject to a restocking fee.

19. Software:
    

    All software is owned by iOpen or a third-party licensor who shall retain the exclusive right, title, and ownership of the software. Customer is granted a limited, personal, non-exclusive license, without the right to sublicense, to use the software only with the specific iOpen manufactured hardware that such software is intended to operate with or, if not for use with specific iOpen manufactured hardware, then for the use intended by the Product specification.

20. Governing Law:
    

    THIS AGREEMENT AND ANY SALES THEREUNDER SHALL BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. Customer agrees to comply with all applicable laws and regulations of the various states and of the United States. Additionally, Customer agrees to comply with all United States laws concerning export or re- export of products and related technology and documentation.

21. Compliance with Laws:
    

    All iOpen products and publications are commercial in nature. The software, publications, and software documentation available are "Commercial Items", as that term is defined in 48 C.F.R.§2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are defined in 48 C.F.R. §252.227-7014(a)(5) and 48 C.F.R. §252.227-7014(a)(1), and used in 48 C.F.R.?12.212 and 48 C.F.R. 227.7202, as applicable. Pursuant to 48 C.F.R. §12.212, 48 C.F.R.§252.227-7015, 48 C.F.R. §227.7202 through 227.7202-4, 48 C.F.R. §52.227-19, and other relevant sections of the Code of Federal Regulations, as applicable, iOpen's publications, commercial computer software, and commercial computer software documentation are distributed and licensed to United States Government end users with only those rights as granted to all other end users, according to the terms and conditions contained in the license agreements that accompany the products and software documentation, and the terms and conditions herein.

    These commodities, technology or software are exported from the United States in accordance with the Export Administration Regulations. Diversion contrary to U.S. law is prohibited.

22. Export Restrictions:
    

    Customer agrees to comply with all applicable United States export control laws and regulations concerning export and re-export of Products, technology, and documentation, including without limitation, the laws and regulations administered by the United States Department of Commerce and the United States Department of State.

23. Disputes:
    

    The parties agree that the courts of the State of Texas shall have exclusive jurisdiction over any claim or dispute or controversy (whether in contract, tort or otherwise) against iOpen, its agents, employees, successors, assigns or affiliates arising out of or relating to this document, iOpen's Products advertising, or any related purchase. Customer agrees to appear in any such action and hereby consents to the jurisdiction of such court.

24. Force Majeure:
    

    iOpen shall not be liable for any damages or penalty for delay in delivery or for any other failure to perform in accordance with the terms and conditions hereof if such delay or failure to perform is due in whole or in part to factors beyond iOpen's reasonable control, including, but not limited to, delay in transportation or delay in delivery by iOpen's vendors.

25. Severability:
    

    Any waiver of or modification to the terms of this Agreement will not be effective unless executed in writing and signed by iOpen. If any provision of these terms and conditions are held to be unenforceable, in whole or in part, such holding shall not affect the validity of the other provisions of this document (in the event of any inconsistency between these terms and conditions and any other related agreements between Customer and iOpen, the terms of this document shall prevail unless any other agreement(s) are signed by both parties and state its/their terms and conditions control).

26. Entire Agreement
    

    The terms and conditions set forth herein constitute the entire agreement between iOpen and Customer. iOpen's offer to sell is expressly limited to the terms stated herein. iOpen shall not be bound by any terms of Customer's order which add to, modify, or are in any way different from the terms set forth in this document.

    Inquiries or questions relative to invoices for iOpen products should be directed to the sales department and emailed to: info@iopeninnovations.com.