These General Terms and Conditions (“Agreement”) govern the sale of goods, and hardware (“Products”), and the provision of managed IT services, professional consulting, engineering, and related support services (“Services”) by Glass Box Technology, LLC (“Glass Box”) to the customer (“Customer”).

In the event of a conflict between the terms and conditions of this Agreement and any additional, preprinted, boilerplate or standard terms and conditions included on any purchase order, statement of work (“SOW”), document, or other communication of Customer and/or Glass Box (collectively, “Orders”), this Agreement shall prevail. Customer and/or Glass Box’s failure to object to such conflicting or additional terms will not change or add to the terms of this Agreement. Notwithstanding the foregoing, mutually executed Orders that explicitly state the intent to supersede specific terms and conditions of this Agreement shall apply only for that specific engagement.

SECTION A: ORDERING AND FINANCIAL TERMS (APPLIES TO ALL TRANSACTIONS)

1. ORDERS AND SCOPE.

1.1  Quotes. Quotes from Glass Box are invitations to enter into a contract and are subject to change at any time without notice. Unless otherwise provided, all quotes are valid for 30 days from the date of issuance.

1.2  Acceptance. All Orders are subject to acceptance by Glass Box. Contracts between Customer and Glass Box are formed upon Glass Box’s written acceptance or execution of Customer’s Order.

1.3  Statements of Work. Services may be further defined in a written SOW executed by both parties.

2. PRICING AND PAYMENT.

2.1  Fees and Prices. Customer agrees to pay the prices for Products and the fees for Services as set forth in the applicable quote or SOW.

2.2  Taxes and Duties. All prices and fees are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind. Customer shall be responsible for all such charges, costs, and taxes.

2.3  Payment Terms. Payment of the total invoice amount, without offset or deduction, is due 30 days from the invoice date or as otherwise approved in writing by Glass Box.

2.4  Late Payments and Collection. On any past due invoice, Glass Box may charge interest from the payment due date to the date of payment at the lesser of (i) 18% per annum; or (ii) the maximum amount allowed under applicable law. Glass Box shall be entitled to receive reasonable attorneys’ fees incurred in the collection of any past due invoice. If Customer defaults on any payment, Glass Box may suspend any outstanding deliveries or Services and declare all outstanding invoices due and payable immediately.

2.5  Credit Management. At any time, Glass Box may change the terms of Customer’s credit, require financial data for verification of Customer’s creditworthiness, require a guarantee or other security, or suspend any outstanding Orders or Services.

2.6  Credit Expiration. Unless otherwise provided by applicable law, any credit (including service credits) issued by Glass Box to Customer will expire if unused for 12 months following the date of issuance.

SECTION B: PRODUCT SALES TERMS (APPLIES TO THE SALE OF PRODUCTS)

3. DELIVERY AND TITLE.

3.1  Shipping Terms. Unless otherwise specified by Glass Box in writing, all deliveries of Products are EXW Glass Box’s distributor’s/manufacturer’s warehouse (INCOTERMS 2020) (“Delivery Point”).

3.2  Title and Risk of Loss. Title and risk of loss shall pass to Customer upon delivery of the Products to the carrier at the Delivery Point.

3.3  Delays and Partial Shipments. Delivery dates are estimates only. Glass Box is not liable for delays in delivery. Glass Box reserves the right to make partial deliveries and Customer will accept delivery and pay for the Products delivered. A delayed delivery of any part of an Order does not entitle Customer to cancel other deliveries.

3.4  Failure to Accept Delivery. If Customer fails to accept delivery, or if Glass Box cannot deliver because Customer has not provided appropriate instructions: (i) the Products shall be deemed delivered; and (ii) Glass Box may store the Products, whereupon Customer shall be liable for all related costs (including storage and insurance).

3.5  Non-Delivery Claims. Glass Box shall not be liable for non-delivery unless Customer gives written notice within five (5) business days of the expected receipt date. Liability for non-delivery is limited to replacement or invoice adjustment.

4. SECURITY INTEREST IN PRODUCTS. As collateral security for the payment of the purchase price of the Products, Customer hereby grants to Glass Box a lien on and security interest in and to all of the right, title, and interest of Customer in, to, and under the Products, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. This security interest constitutes a purchase money security interest under the California Uniform Commercial Code.
5. INSPECTION AND RETURNS OF PRODUCTS.

5.1  Inspection Period. Customer shall inspect the Products within five (5) business days of receipt (“Inspection Period”). Customer will be deemed to have accepted the Products unless it notifies Glass Box in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Glass Box. For purposes of this Agreement, “Nonconforming Goods” means the following: (i) product shipped is different than identified in Customer’s Order; or (ii) product’s label or packaging incorrectly identifies its contents. Claims regarding defects in materials or workmanship are handled exclusively under Section 6.

5.2  Remedy and Returns. If Customer timely notifies Glass Box of Nonconforming Goods, Glass Box shall, in its sole discretion (i) replace such Nonconforming Goods with conforming Products, or (ii) credit or refund the price for such Nonconforming Goods. Customer must obtain a Return Material Authorization (“RMA”) number from Glass Box prior to returning any Nonconforming Goods. Customer shall ship, at its expense and risk of loss, the Nonconforming Goods to the facility designated by Glass Box. If Glass Box exercises its option to replace Nonconforming Goods, Glass Box shall, after receiving Customer’s shipment of Nonconforming Goods, ship to Customer, at Customer’s expense and risk of loss, the replaced Products to the Delivery Point.

5.3  Exclusive Remedy. This Section B.3 sets forth Customer’s exclusive remedies for the delivery of Nonconforming Goods. All other sales are final.

6. PRODUCT WARRANTIES.

6.1 Pass-Through Warranty. Glass Box will pass through to Customer any transferable Product warranties, indemnities, and remedies provided to Glass Box by its distributor or the manufacturer, including those for intellectual property infringement.

6.2  Statutory Warranty. If required by law, Glass Box warrants that at the time of delivery, the Products shall conform to the specifications stated by the manufacturer in its published data sheet for 12 months from delivery.

6.3  Assistance. In the event of a Product defect covered by the manufacturer’s warranty, Customer shall follow the manufacturer’s return procedures. Glass Box agrees to use commercially reasonable efforts to assist Customer in effecting the return under the manufacturer’s warranty.

SECTION C: SERVICES TERMS (APPLIES TO THE PROVISION OF SERVICES)

7. PERFORMANCE OF SERVICES.

7.1  Standard. Glass Box shall perform the Services in a professional and workmanlike manner consistent with generally prevailing industry standards.

7.2  Personnel. Glass Box is solely responsible for the supervision, control, and payment of its personnel (including subcontractors). Glass Box may use subcontractors, provided Glass Box remains responsible for their performance.

8. CUSTOMER OBLIGATIONS FOR SERVICES.

8.1  Cooperation and Access. Customer shall provide timely access to personnel, systems, facilities, and information as reasonably necessary for Glass Box to perform the Services, and shall ensure such information is accurate.

8.2  Customer Delays. Glass Box shall not be liable for any costs or delays arising from Customer’s failure to timely perform its obligations.

8.3  Licenses and Consents. Customer is solely responsible for obtaining and maintaining all necessary licenses, permissions, and consents from third parties (including software licensors) required for Glass Box to access or support Customer’s systems. Customer warrants that all systems provided for support are properly licensed and that Glass Box is authorized to access them.

8.4  Data Backup. Unless explicitly included in the scope of Services, Customer is solely responsible for backing up all data, software, and programs before and during the performance of the Services. Glass Box shall have no liability for loss or recovery of data arising out of the Services.

8.5  Non-Interference. With respect to any systems actively managed by Glass Box (“Managed Environment”), Customer shall not, and shall not permit others to, modify or alter the Managed Environment without Glass Box’s prior written consent. Customer is responsible for any outages or degradation caused by such unauthorized interference.

9. SERVICE WARRANTIES AND ACCEPTANCE.

9.1  Services Warranty. Glass Box warrants that Services will be performed in a professional and workmanlike manner consistent with industry standards.

9.2  Exclusive Remedy (Services). Glass Box does not warrant the results of the Services. Customer’s sole and exclusive remedy for a breach of the Services Warranty shall be the re-performance of the deficient Services, provided Customer provides written notice of the breach within thirty (30) days after the performance of the applicable Services.

9.3  Acceptance of Deliverables. If Services include specific deliverables (“Deliverables”), Customer shall have ten (10) business days (the “Acceptance Period”) to review the Deliverable against the criteria specified in the SOW or quote. If Customer provides written notice of rejection specifying the deficiencies, Glass Box shall use commercially reasonable efforts to correct and redeliver the Deliverable. Customer is deemed to have accepted the Deliverables if notice of rejection is not received during the Acceptance Period.

SECTION D: GENERAL LEGAL TERMS (APPLIES TO ALL TRANSACTIONS)

10  GENERAL WARRANTY DISCLAIMER. TO THE EXTENT PERMITTED BY LAW, EXCEPT AS EXPRESSLY SET FORTH IN SECTIONS 6 (PRODUCTS) AND 9 (SERVICES), GLASS BOX MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, WHATSOEVER. GLASS BOX EXPRESSLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.

11. INTELLECTUAL PROPERTY.

11.1  Products. Products, including software or other intellectual property, are subject to applicable rights of third parties, such as patents, copyrights and/or user licenses, and Customer will comply with such rights.

11.2  Services and Deliverables. Unless otherwise stated in an SOW, Customer shall own Deliverables created specifically for Customer under an SOW upon payment in full, excluding Glass Box’s pre-existing intellectual property, tools, or methodologies (“Glass Box IP”), which remain the sole property of Glass Box. Glass Box grants Customer a non-exclusive, perpetual, royalty-free license to use Glass Box IP incorporated into Deliverables solely for Customer’s internal business purposes.

12. LIMITATION OF LIABILITY. TO THE EXTENT PERMITTED BY LAW, NEITHER GLASS BOX NOR ITS EMPLOYEES OR AGENTS ARE LIABLE FOR AND CUSTOMER IS NOT ENTITLED TO ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (FOR EXAMPLE, LOSS OF PROFITS OR REVENUE, LOSS OF DATA, LOSS OF USE, REWORK, MANUFACTURING EXPENSE, BUSINESS INTERRUPTION, INJURY TO REPUTATION, OR LOSS OF CUSTOMERS). IN NO EVENT SHALL CUSTOMER’S RECOVERY FROM GLASS BOX FOR ANY DIRECT DAMAGES EXCEED (A) FOR PRODUCTS, THE PRICE OF THE PRODUCT AT ISSUE; OR (B) FOR SERVICES, THE TOTAL FEES PAID FOR THE SERVICES GIVING RISE TO THE CLAIM DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM. To the extent the preceding limitation of liability is deemed invalid under applicable law, Glass Box’s total liability in any event will not exceed USD $10,000.
13. INDEMNIFICATION. Customer will indemnify, defend and hold Glass Box harmless from any claims based on: (i) Glass Box’s compliance with Customer’s designs, specifications, or instructions; (ii) modification of any Product or Deliverable by anyone other than Glass Box; (iii) use of Products or Services in combination with other products or in violation of Section 15; (iv) Customer’s breach of its obligations under Section 8 (including licensing and non-interference); or (v) Customer’s violation of applicable law.
14. CONFIDENTIALITY. All non-public, confidential or proprietary information of Glass Box, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing (including non-published pricing and other purchasing information contained in any quote), discounts, or rebates, disclosed by Glass Box 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” is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized by Glass Box in writing. Upon Glass Box’s request, Customer shall promptly return all documents and other materials received from Glass Box. Glass Box 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.
15. USE RESTRICTIONS. Customer shall comply with the manufacturer’s Product specifications. Products and Services are not authorized for use in critical safety or other applications (e.g., life support, nuclear facilities, or aircraft operation) where a failure may reasonably be expected to result in personal injury, loss of life, or serious property damage. If Customer uses or sells the Products or Services for use in any such applications, Customer acknowledges that such use is at Customer’s sole risk.
16. DATA PRIVACY AND PERSONALLY IDENTIFIABLE INFORMATION. Both parties shall comply with all applicable data protection and privacy laws. To the extent Glass Box processes any Personally Identifiable Information (PII) of Customer’s employees or contacts necessary for performing the Services or fulfilling Orders, Glass Box agrees to treat such PII as confidential, will safeguard such information from unauthorized disclosure, and agrees not to appropriate such PII for Glass Box’s own use or to disclose such information to third parties except as necessary to perform its obligations. Glass Box agrees to notify Customer promptly upon discovering a data breach involving Customer PII and shall comply with the disclosure requirements imposed by California law, including California Civil Code Sections 1798.29 and 1798.82.
17. FORCE MAJEURE. Glass Box is not liable for failure to fulfill its obligations due to causes beyond its reasonable control (for example: acts of nature, acts or omissions of the Customer, operational disruptions, natural disasters, epidemic medical crises, materials shortages, strikes, delays in transportation, widespread network or telecommunications failures, or inability to obtain labor or materials through its regular sources).
18. EXPORT/IMPORT. Certain Products, Services, and related technology sold or utilized by Glass Box are subject to export control laws, regulations and orders of the United States, the European Union, and/or other countries (“Export Laws”). The Customer shall comply with such Export Laws and obtain any license, permit or authorization required to transfer, sell, export, re-export or import the Products and related technology and documentation. The Customer will not export or re-export the Products and related technology and documentation to any country or entity to which such export or re-export is prohibited, including any country or entity under sanction or embargoes administered by the United Nations, U.S. Department of Treasury, U.S. Department of Commerce or U.S. Department of State.
19. GOVERNMENT CONTRACTS. Glass Box provides commercial Products and Services. Glass Box agrees only to the clauses in the Federal Acquisition Regulation (“FAR”) and Defense Federal Acquisition Regulation (“DFAR”) that are required to be inserted in subcontracts for commercial items/services as set forth in FAR 52.244-6(c)(1), FAR 52.212-5(e)(1), and DFAR 252.244-7000. In accordance with FAR 12.211 and 12.212, Customer will receive only those rights in technical data and software customarily provided to Glass Box by the manufacturers. In no event will this be interpreted as providing to Customer unlimited rights in data, software, or intellectual property rights provided by the manufacturers or any other third party. Glass Box specifically rejects the flow down of the requirements of the: (i) Trade Agreements Act, FAR 52.225-5 or DFARS 252.225-7021; (ii) the Buy American Act, FAR 52.225-1 or DFARS 252.225-7001; and (iii) any Preference for Domestic Specialty Metals regulation.
20. ELECTRONIC ORDERS. In the event that any part of the purchase and sale of Products utilizes electronic data interchange, Customer’s internal portal or third party portal, or any other electronic means (“Electronic Purchase Order”), this Agreement will continue to apply to the purchase and sale of Products between Customer and Glass Box. Customer’s acceptance of Glass Box’s acknowledgment request or Glass Box’s specification of details with respect to Electronic Purchase Orders via writing, email or other electronic data interchange shall be binding on Customer.
21. GENERAL.

21.1  Governing Law and Venue. This Agreement shall be governed, construed, and enforced in accordance with the laws of the state of California, without giving effect to conflict of law principles thereof. The courts of San Diego County, California shall have exclusive jurisdiction and venue over all controversies arising out of, or relating to, this Agreement.  The United Nations Convention for the International Sale of Goods shall not apply.

21.2  Assignment. Customer may not assign this Agreement without the prior written consent of Glass Box. This Agreement is binding on successors and assigns.

21.3  Modification. This Agreement can only be modified in writing signed by authorized representatives of both Glass Box and Customer. Such modification shall only be valid to the extent it expressly provides for modification of this Agreement.

21.4  Relationship. Glass Box and Customer are independent contractors and agree that this Agreement does not establish a joint venture, agency relationship, or partnership.

21.5  Waiver. Glass Box’s failure to object to any document, communication, or act of Customer will not be deemed a waiver of any of these terms and conditions. No waiver by Glass Box of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Glass Box.

21.6  Severability. The unenforceability of any provision of this Agreement will not affect the remainder of the terms or conditions.

21.7  Third-Party Rights. Products, including software or other intellectual property, are subject to any applicable rights of third parties, such as patents, copyrights and/or user licenses, and Customer will comply with such rights.

21.8  Compliance with Laws. Customer and Glass Box will comply with applicable laws and regulations.

21.9  Electronic Signatures. The parties agree to use electronic signatures and agree that any electronic signatures will be legally valid, effective, and enforceable.

21.10  Survival. Provisions which by their nature should apply beyond termination will remain in force, including Payment, Warranty Disclaimers, Intellectual Property, Limitation of Liability, Confidentiality, Data Privacy and PII, and General provisions.