This Hardware Addendum is incorporated into and forms a part of the Master Services Agreement between Livestream and Customer (the Agreement). Capitalized terms herein shall have the meaning set forth in the Agreement or as otherwise normally defined by Livestream.
1. Delivery; Transfer of Title. Upon payment of applicable Fees under the applicable Order, Livestream shall make the Hardware available for pickup by the carrier at Livestreams shipping location, at which time risk of loss shall pass to Customer. Delivery will be made to the shipping address specified by Customer in the applicable Order. Any shipment dates quoted to Customer are estimates only. The Hardware will be shipped at Customers sole expense, including, without limitation, all freight, insurance and other shipping expenses, and any special packaging expenses. In addition to the payment of the Hardware Fees, Livestream shall invoice Customer for the foregoing costs and Customer shall pay such invoice in accordance with Section4of the Agreement. Livestream retains title to all Hardware until Livestream receives full payment for the Hardware. Title to any Firmware (as defined below) remains with the applicable licensor.
2. Limited License. The Hardware may consist of or contain certain embedded software and/or documentation (Firmware). If any such Firmware is proprietary to Livestream, then Livestream hereby grants to Customer a limited, non-exclusive, non-transferable license under Livestreams intellectual property rights in and to such Livestream Firmware, to use such Firmware[during the Order Term]solely as may be necessary for Customer to use the Hardware in accordance with the terms of the Agreement. Without limiting the foregoing, Customers access and use of any third-party Firmware shall be governed separately by the applicable agreement(s) between Customer and the applicable third-party supplier(s) (each, a Third Party License).
3. Intellectual Property. Except for the limited license granted above or as otherwise set forth in a separate Third Party License, this Addendum and the sale of the Hardware hereunder to Customer shall in no way be deemed to transfer to Customer any intellectual property rights, including without limitation in any patents or patent applications, trademarks or copyrights of Livestream and/or its third-party suppliers. Except for the limited license granted above or as otherwise set forth in a separate Third Party License, Livestream retains for itself and its third-party suppliers, as applicable, all intellectual property rights in and to the Hardware, including without limitation all designs, engineering details and other data and materials pertaining to the Hardware and to all discoveries, inventions, patents and other proprietary and intellectual property rights arising out of the work done by Livestream and/or its third-party suppliers in connection with the Hardware, including the sole right to manufacture any and all such Hardware.
4. Use and Operation; Marking. Customer shall only use and operate the Hardware in the ordinary conduct of its business by qualified employees of Customer and in accordance with all applicable specifications, all applicable operating instructions, and applicable governmental laws, rules and regulations. Customer shall not without written authorization make any modifications, additions or improvements to any Hardware. Customer shall not remove, modify, alter, destroy, or obscure any of the logos, trademarks, patent or copyright notices, confidentiality or proprietary legends or other notices or markings on the Hardware.
5. Inspection. Customer shall inspect all Hardware upon receipt and such Hardware shall be deemed accepted by Customer unless written notice of rejection for nonconforming or defective Hardware is received by Livestream within fifteen (15) days after Customers receipt of shipment (Notice of Rejection). A Notice of Rejection must specify the applicable Order number, type and quantity of the Hardware, the exact nature of the nonconformity or defect, and any other details as may be reasonably requested by Livestream. All claims by Customer for receipt of nonconforming or defective Hardware must be made in writing to Livestream within fifteen (15) days after receipt of shipment (Notice Period) or such claims shall be waived and forever barred. Livestream shall review properly submitted Notices of Rejection, and may, in its sole discretion, authorize a return of the Hardware in accordance Livestreams return and RMA policies described in Section 7, below.
6. Limited Warranty. Livestream warrants to Customer that the Hardware, as delivered, will be free from defects in materials and workmanship for a period of one (1) year from the date such product is delivered to Customer (the Warranty Period). Livestreams sole liability and Customer's exclusive remedy for Hardware that fails to conform to the foregoing limited warranty (the Nonconforming Hardware) is limited to repair or replacement of such Nonconforming Hardware, at Livestreams sole option and election (the Limited Warranty). The warranty for the repaired or replaced Hardware is limited to the scope and duration of the original warranty for the Hardware. This warranty is contingent upon proper use of the Hardware in the application for which it was intended and does not apply to any Hardware that is subjected to unusual physical or electrical stress, misuse, neglect, improper testing or storage, or unauthorized repair, as may be determined in Livestreams sole discretion.
The above limited warranty is for Customers benefit only, and is non-transferable. OTHER THAN AS EXPRESSLY SET FORTH ABOVE, LIVESTREAM MAKES NO WARRANTIES, EXPRESS, STATUTORY, IMPLIED, OR OTHERWISE, WITH RESPECT TO THE HARDWARE. LIVESTREAM SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES AND CONDITIONS OF NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE HARDWARE, TO THE MAXIMUM EXTENT PERMITTED BY LAW.
7.1. Request for Return. Hardware may not be returned to Livestream without first obtaining Livestreams consent, which may be withheld in Livestreams sole discretion. Customer may request a return authorization from Livestream by: (i)sending Livestream a Notice of Rejection in accordance with the terms of Section 5, above, or (ii) following the applicable Notice Period, filing a request for return with Livestream for any Nonconforming Hardware (as defined above) (RMA). The RMA must specify the applicable Order number, type and quantity of the Hardware, the exact nature of the nonconformity or defect, and any other details as Livestream may reasonably request. If return authorization is granted by Livestream, the Hardware shall be returned in Livestreams original packaging materials to the address specified by Livestream. If original packaging materials are no longer available, Customer shall contact Livestream for packaging instructions.
7.2. Repair and Replacement. ALL HARDWARE RETURNS MUST BE IN ACCORDANCE WITH SECTION7.1. CUSTOMERS SOLE AND EXCLUSIVE REMEDY FOR ANY NONCONFORMING HARDWARE SHALL BE IN ACCORDANCE WITH THE LIMITED WARRANTY SET FORTH IN SECTION6. Such remedy is available only if Livestreams examination of the returned Hardware discloses to Livestreams reasonable satisfaction that the Hardware constitutes Nonconforming Hardware (as defined above) and has not otherwise been repaired or altered by persons not authorized by Livestream, subject to misuse, negligence or accident, or connected, installed, used or adjusted otherwise than in accordance with the applicable specifications. If it is found that any Hardware has been returned which is not in breach of the Limited Warranty set forth in Section 6, Customer will be notified and such Hardware shall be returned at Customers expense. In addition, a charge for testing and examination may, in Livestreams sole discretion, be made for any returned Hardware.
8. Third-Party Warranty and Indemnity. Livestream will provide to Customer the full benefit of any and all warranties and indemnities granted to Livestream by its third-party suppliers in connection with any Hardware. Customer shall indemnify, defend and hold harmless Livestream for any costs, expenses, damages, or other losses arising out of or related to (i) any warranty made by Customer to any third party with respect to the Hardware; and (ii) Customers failure to disclaim implied warranties and limit remedies and liabilities to third parties with respect to the Hardware.
9.1. Cancellations. Customer may not cancel an order, and Customer cannot return Hardware to Livestream for credit or refund, without prior written approval from an authorized representative of Livestream. Livestream may, from time to time in its sole discretion: (i) discontinue or limit its production of any Hardware; (ii) allocate, terminate or limit deliveries of any Hardware in time of shortage; and (iii) modify the design of, specifications for, or construction of any Hardware, provided the modification has equivalent form, fit and function. Livestream may recall any or all Hardware upon ten (10) days written notice to Customer and the Customer may return any or all Hardware upon a like notice to Livestream.
9.2. Force Majeure. Livestream will be excused from any obligation hereunder to the extent performance thereof is rendered impossible by acts of God, fire, flood, riots, material shortages, strikes, governmental acts, disasters, earthquakes, inability to obtain labor or materials through its regular sources, or any other reason beyond the reasonable control of Livestream.
9.3. Export. None of the Hardware or underlying information or technology may be exported or re-exported, directly or indirectly, contrary to US law or US Government export controls.