Hudl Sideline Hardware – Terms and Conditions of Sale
Acceptance of Terms — By purchasing and accepting delivery of products supplied by Agile Sports Technologies, Inc. (hereinafter “Hudl”, “seller”, “we”, “our” or “us”) (“Products”), as identified on any applicable quotation, purchase order, order confirmation or invoice (the “Sales Confirmation”), you (sometimes “buyer”, “you” or “your”) agree to be bound by these terms and conditions (the “Terms and Conditions”). These Terms and Conditions together with any Sales Confirmation comprise the entire agreement between the parties (collectively, this “Agreement”). Any terms or conditions contained in any other form or other document submitted by you which are inconsistent with, or in addition to, this Agreement are rejected, objected to and shall be deemed void and of no force or effect.
Cancellation; Changes — Once submitted, any cancellation(s) or change(s) to your order(s) may be made only with advance written approval of Hudl and such changes may require different terms, including a change in the price and/or time of delivery. Hudl reserves the right to cancel any order, in whole or in part, upon your breach of this Agreement or your bankruptcy, insolvency, dissolution, receivership proceedings, or upon the occurrence of any event leading Hudl to reasonably question your willingness or ability to perform.
Delivery — Hudl will deliver the Products within a reasonable time after receiving your Sales Confirmation, subject to their availability. Delivery of Products to the carrier at Hudl’s shipping point shall constitute delivery to you and you shall bear all risk of loss or damage in transit. Hudl shall not be liable for any delays, loss, or damage in transit. Unless otherwise set forth in the Sales Confirmation, Hudl shall deliver the Goods, EX WORKS (Incoterms® 2010) at the location specified in the Sales Confirmation (the “Delivery Location”), using our standard methods for packaging and shipping same. We shall not be liable for any non-delivery of the Products to the Delivery Location, unless you give written notice to us of such non-delivery within five (5) days following the date that you would, in the ordinary course of business, have received the Products. Hudl’s liability for any non-delivery of the Products shall be limited to replacing the Products within a reasonable time or adjusting the invoice respecting such Products to reflect the actual quantity delivered. Hudl reserves the right to make delivery in installments, all such installments to be separately invoiced and paid for when due per invoice, without regard to subsequent deliveries. Delay in delivery of any installment shall not relieve you of your obligations to accept remaining deliveries.
Price; Taxes — Unless otherwise set forth in an applicable Sales Confirmation, the price of the Products is based on the prices quoted on the order form. All stated prices are exclusive of any taxes, fees, duties, and levies, however designated or imposed, and Hudl shall not be responsible for the payment of any use tax, sales tax, excise tax, duty, custom, inspection or testing fee, or any other tax, fee or charge of any nature whatsoever imposed by any governmental authority, on or measured by the transaction between us, with the sole exception of any sales taxes invoiced and collected from you by Hudl. All other such charges (if any) must be paid by you separately and in addition to the prices quoted or invoiced. In the event Hudl is required to pay any such tax, fee or charge, you shall reimburse Hudl therefore; or, in lieu of such payment, you shall provide Hudl at the time the order is submitted an exemption certificate or other document acceptable to the authority imposing the tax, fee or charge.
Payment — Unless otherwise set forth in the Sales Confirmation, you shall pay all invoiced amounts on receipt, but in any case, no later than thirty (30) days following the date of invoice. Unpaid amounts shall accrue interest at a rate equal to the lesser of one and one-half percent (1.5%) per month and the maximum rate permitted by applicable law, from due date until paid, plus Hudl’s reasonable costs of collection. Hudl reserves all other rights granted to a seller under the Uniform Commercial Code (“UCC”) for a buyer’s failure to pay for the Products or any other breach by you of this Agreement. In addition to all other remedies available to Hudl (which Hudl does not waive by the exercise of any rights hereunder), we may suspend the delivery of any Products or access to any service provided to you by Hudl if you fail to pay any amounts when due and such failure continues for five (5) days following your receipt of notice thereof. You may not withhold payment of any amounts due and payable as a set-off of any claim or dispute with Hudl, regardless of whether relating to Hudl’s breach, bankruptcy, or otherwise.
Limited Warranty — Hudl warrants that its products shall, at the time of delivery, conform to the description of such products as provided to you by Hudl through Hudl’s product directory, analytical data or other then-current literature. THIS WARRANTY IS EXCLUSIVE, AND HUDL MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF ANY THIRD-PARTY PATENTOR INTELLECTUAL PROPERTY RIGHTS. Hudl’s warranties made in connection with this sale shall not be effective if Hudl has determined, in its sole discretion, that you have misused the Products in any manner, have failed to use the Products in accordance with industry standards and practices, or have failed to use the Products in accordance with instructions, if any, furnished by Hudl. HUDL’S SOLE AND EXCLUSIVE LIABILITY AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO PRODUCTS PROVED TO HUDL’S SATISFACTION TO BE DEFECTIVE OR NONCONFORMING SHALL BE REPLACEMENT OF SUCH PRODUCTS WITHOUT CHARGE OR REFUND OF THE PURCHASE PRICE, IN HUDL’S SOLE DISCRETION, UPON THE RETURN OF SUCH PRODUCTS IN ACCORDANCE WITH HUDL’S INSTRUCTIONS. HUDL SHALL NOT IN ANY EVENT BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND RESULTING FROM ANY USE OR FAILURE OF THE PRODUCTS, EVEN IF HUDL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE INCLUDING, WITHOUT LIMITATION, LIABILITY FOR LOSS OF USE, COST OF CAPITAL, LOSS OF WORK IN PROGRESS, DOWN TIME, LOSS OF REVENUE OR PROFITS, FAILURE TO REALIZE SAVINGS, ANY LIABILITY OF BUYER TO A THIRD PARTY, OR FOR ANY LABOR OR ANY OTHER EXPENSE, DAMAGE OR LOSS OCCASIONED BY SUCH PRODUCT INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY OR PROPERTY DAMAGE UNLESS SUCH PERSONAL INJURY OR PROPERTY DAMAGE IS CAUSED BY HUDL’S GROSS NEGLIGENCE. THE EXCLUSION OF SUCH DAMAGES AND/OR CLAIMS SHALL BE DEEMED INDEPENDENT OF, AND SHALL SURVIVE, ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY ARISING FROM THE PURCHASE AND/OR THESE TERMS AND CONDITIONS. HUDL’S LIABILITY FOR DAMAGES HEREUNDER SHALL IN NO CASE EXCEED THE CONTRACT PRICE FOR THE SPECIFIC PRODUCTS THAT GIVE RISE TO THE BREACH. THESE EXCLUSIONS AND LIMITATIONS ON DAMAGES SHALL APPLY REGARDLESS OF HOW THE LOSS OR DAMAGE MAY BE CAUSED AND AGAINST ANY THEORY OF LIABILITY, WHETHER BASED ON CONTRACT, INDEMNITY, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER THEORY. ALL CLAIMS MUST BE BROUGHT WITHIN ONE (1) YEAR OF SHIPMENT, REGARDLESS OF THEIR NATURE.
Returns — Products may be returned for a full refund within thirty (30) days of shipment.
Claims and Liability — Immediately upon receipt of any Products shipped hereunder, you shall inspect the same and shall notify Hudl in writing of any claims for shortages, defects or damages and shall hold such Product(s) for Hudl’s written instructions concerning disposition. If you fail to so notify Hudl within five (5) days after the Products have been received by you, such Products shall conclusively be deemed to conform to this Agreement and to have been irrevocably accepted by you. In any claim, brought subject to the conditions above, you must prove to the satisfaction of Hudl that you followed all instructions for use, care, storage, maintenance, handling and application of the Products. Unless otherwise specifically restricted by mandatory applicable law, Hudl’s liability under any claim and in connection with any possible allegation, whether based on negligence, contract, or any other cause of action, shall be limited to either (i) the replacement of the Products or the supply of equivalent goods; (ii) the repair, or payment of the cost of repair, of the Products; or (iii) credit in an amount equal to the purchase price specified in the pertinent Sales Confirmation, or in an amount of equivalent goods, all at Hudl’s sole option. You acknowledge that the remedy available to you as specified herein, is in lieu of any remedies that may be otherwise available to you, now or in the future, whether in law or in equity, relating to any loss or damage, whether directly or indirectly, arising from the purchase and/or the use of Products, including without limitation, any actual or contingent damages, loss of production, loss of profit, loss of use, loss of contracts or any other consequential or indirect loss whatsoever, whether pecuniary or non-pecuniary. Should any limitation on Hudl’s liability hereunder be held ineffective under applicable law, than Hudl’s liability shall in any event be limited to the minimum amount of damages to which Hudl may limit its liability, where such is greater than the purchase price as specified in the pertinent Sales Confirmation.
Indemnity — You shall indemnify and hold Hudl, its corporate affiliates, agents, employees and representatives harmless from and against any and all claims, damages, losses, costs or expenses (including attorney’s fees) or any other liability resulting from, but not limited to, (a) the design, manufacture, sale, use, care, storage, delivery, application or maintenance of any Products sold hereunder, (b) breach of the provisions and representations contained in this Agreement, or (c) negligence, recklessness or misconduct, whether alleged to have been committed by Hudl or by any other person whatsoever.
Governing Law; Disputes — All disputes allegedly arising from the legality, interpretation, application, or performance of your order, the Products or this Agreement shall be governed by the laws of the State of Nebraska without reference to its conflict of laws principles. Notwithstanding the foregoing, nothing in this section shall prevent Hudl from bringing a claim in any court having jurisdiction over you to enjoin infringement of Hudl’s trademark, patent or other intellectual property rights, or to prevent irreparable harm to Hudl. The parties agree to waive, to the fullest extent permitted by law, any and all rights to a trial by jury in connection with any dispute.
Miscellaneous — Hudl’s failure to strictly enforce any particular term or condition contained herein or to exercise any right with respect to your order shall not constitute a waiver of Hudl’s right to strictly enforce such terms or conditions or exercise such right thereafter. All rights and remedies are cumulative and are in addition to any other rights and remedies Hudl may have at law or in equity. Any waiver of a default by you shall be in writing and shall not operate as a waiver of any other default or of the same default thereafter. If any of these terms shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be affected or impaired thereby. The section headings herein are for convenience only; they form no part of this Agreement and shall not affect its interpretation. These Terms and Conditions shall be binding upon, inure to the benefit of, and be enforceable by, the parties hereto, and their respective heirs, personal representatives, successors and assigns.
