PLEASE READ THESE TERMS CAREFULLY! 

By submitting an order or accepting or using Voodoo’s products, you acknowledge that you agree to these terms in their entirety. 

These Commercial Terms of Sale (“Terms”) are effective as of the date Customer agrees to the purchase of products and or services (the “Effective Date”) and constitute a binding agreement between Voodoo Robotics, Inc., a Texas Corporation with its principal place of business located at 200 Chisholm Place, Suite 160, Plano, Texas 75075, ("Voodoo"), and Customer, collectively referred to as the "Parties" and individually as a "Party," set forth the terms and conditions under which Voodoo agrees to sell, and Customer agrees to purchase, the Cloud Display Devices ("Devices"), Turbo Routers ("Turbos"), and licenses for the Big Block Server Software ("Server") as described herein. 

WHEREAS, Voodoo specializes in the provision of advanced technological solutions, including Devices, Turbos, and Server software, designed to meet the diverse needs of its customers in the digital age; 

WHEREAS, Voodoo offers single-use perpetual licenses for its Server software, enabling customers to operate their own dedicated servers, alongside the option for customers to engage in a shared multi-tenant server environment hosted by Voodoo on the Internet a flexible alternative; 

WHEREAS, in addition to hardware and software sales, Voodoo provides optional support contracts for all components, available in one or three-year terms, ensuring comprehensive service and maintenance coverage for its customers; 

WHEREAS, Voodoo aims to facilitate seamless integration and reliable operation of its technological solutions by offering initial twelve-month access to its multi-tenant server environment with any purchase, followed by options for renewal or transition to a dedicated server environment, thereby accommodating varying customer preferences and requirements; 

GENERAL; ORDERING PROCESS

All orders for Devices, Turbos, Server licenses, and related support contracts ("Products and Services") under this Agreement shall be initiated by the Customer through the submission of a request for a quote to Voodoo using Voodoo's standard quoting documents or via Voodoo's designated electronic quoting system. Each quote will detail the type and quantity of Products and Services requested by the Customer, including any selections related to single-use perpetual licenses for the Server or access to the shared multi-tenant server environment, as well as the desired term for any support contracts, and will include an expiration date. Upon the Customer's acceptance of the quote, within its validity period, the quote will be converted into an invoice, thereby formalizing the order. Orders are deemed accepted, and a binding commitment is formed subject to the terms and conditions of this Agreement only upon Voodoo's issuance of an invoice to the Customer. Voodoo reserves the right, at its sole discretion, to reject any request for a quote or order in whole or in part. Upon acceptance, Voodoo will fulfill the order in accordance with the specifications set forth in the accepted quote, subject to product availability and lead times. For initial purchases, access to the multi-tenant server environment is included for twelve months, after which the Customer must either renew access or transition to a dedicated server for continued use. For Customers located outside of the United States, contracts are executed by Voodoo Robotics International, Inc., a distinct entity from Voodoo. It is expressly understood that this Agreement does not create a partnership, joint venture, employment, or agency relationship between Voodoo and the Customer.

Solutions

Software Licensing

Voodoo's Server is proprietary software developed and owned exclusively by Voodoo. The Server Software is made available to the Customer under specific licensing terms designed to protect the intellectual property of Voodoo while providing flexible solutions to meet the Customer's needs. Customers may choose between two primary licensing options for the Server Software: 

Single-Use Perpetual License

This licensing option allows the Customer to use the Server Software on a single server for an indefinite period. The single-use perpetual license grants the Customer the right to use the Server Software in accordance with the terms set forth in this Agreement, without the need for renewal fees. It is understood that this license is non-transferable and does not permit the Customer to copy, modify, or distribute the Server Software.

Access to Multi-Tenant Server

As an alternative to the single-use perpetual license, Customers may opt for access to a shared multi-tenant server environment hosted by Voodoo. This solution provides the Customer with a cost-effective, flexible access to the Server Software without the need to manage their own dedicated server. The initial twelve-month access is included with any purchase of Voodoo Products and Services, after which the Customer must renew their access annually to continue using the multi-tenant server environment.

Limitations

It is expressly prohibited for the Customer to copy, modify, distribute, or create derivative works of the Server Software, regardless of the chosen licensing option. The Server Software is provided for the Customer's use under the terms of this Agreement, and any violation of these terms may result in termination of the license and potential legal action.

By choosing either the single-use perpetual license or access to the multi-tenant server, the Customer acknowledges and agrees to abide by these licensing terms, ensuring the protection of Voodoo's proprietary software while enabling the Customer to utilize the Server Software to meet their operational needs. 

Hardware Integrity and Configuration

Voodoo provides advanced hardware solutions, including Devices and Turbos, designed to seamlessly integrate with the Server. These hardware components are engineered for optimal performance and security, ensuring reliable and efficient operation within Voodoo's technological ecosystem. To maintain the integrity and functionality of these solutions, it is strictly prohibited for the Customer to hack, tamper with, reverse engineer, or otherwise alter the Devices or Turbos in any manner. Such actions not only violate the terms of this Agreement but also compromise the security and performance of the hardware, potentially affecting the overall system's operation. 

Server Configuration

The Server Software is configured to support a specific number of Devices and Turbos, as determined at the time of purchase. Any desire to increase the number of Devices or Turbos beyond the original configuration requires additional purchases. These adjustments allow for the expansion of the Customer's system to meet growing needs, ensuring the Server Software can effectively manage the enhanced hardware setup. Voodoo must be notified of any such changes to ensure proper licensing, support, and integration of the additional hardware components into the existing infrastructure. 

Proprietary

By adhering to these conditions, the Customer agrees to respect the proprietary design and technology of Voodoo's hardware solutions and acknowledges that any unauthorized modifications or expansions of the hardware configuration without proper purchase and integration may result in termination of the Agreement and potential legal action. This commitment to hardware integrity and proper configuration underpins the trust and reliability of Voodoo's comprehensive technological solutions. 

Third-Party Products 

Customers may purchase third-party hardware and/or license third-party software through Voodoo, referred to collectively as “Third-Party Products.” The acquisition of Third-Party Products may require the execution of additional agreements, which specify the terms and conditions of use, including licensing terms, support services, warranty provisions, and limitations of liability.

The purchase or license of Third-Party Products through Voodoo shall adhere to the terms of this Master Sales Agreement and any relevant additional agreements. Customers must review and accept these terms to comply with all conditions set by third-party providers. Voodoo facilitates the integration of Third-Party Products but assumes no liability for their performance or compliance outside the scope of the additional agreements. Concerns regarding Third-Party Products should be directed to the respective third-party providers in line with the additional agreements.  

Maintenance and Support 

Voodoo provides maintenance and support services for hardware (Devices and Turbos) and software (Server) to ensure their optimal performance, reliability, and security.

For Customers with Support Contracts: These customers receive priority technical support, updates and patches for the Server Software, and preventive maintenance and replacement for hardware. Support contracts offer direct troubleshooting, technical assistance, and, when necessary, on-site support, aiming to minimize operational disruptions.

For Customers without Support Contracts: These customers have access to basic support, including an online knowledge base, user manuals, and limited email support. They do not receive proactive maintenance, software updates, or priority technical support, and are subject to standard service fees for hardware repairs or replacements and software updates, potentially facing longer response times.

Service Availability 

Voodoo commits to maintaining high service availability for customers, especially those with support contracts and those using the cloud-based multi-tenant server environment. Customers with support contracts can expect optimal uptime and prioritized support for service interruptions.

Customers using the cloud-based multi-tenant server are provided reliable access and support aimed at minimizing disruptions. However, customers without support contracts or those declining support services have no guaranteed service levels or uptime commitments and may experience longer response times for service restoration.

Voodoo recommends considering support contracts and cloud server usage to enhance service availability and operational continuity. Our aim is to provide reliable, uninterrupted service to all customers, with a commitment to maintaining and improving service levels.

Services Provided Under a Support Contract 

Under the terms of a support contract with Voodoo, the Customer is entitled to specific services aimed at ensuring the optimal functionality and use of the hardware and software purchased, as detailed on the Invoice. These services include a variety of support activities such as personalized training sessions, tailored to meet the Customer's operational requirements, and comprehensive troubleshooting support designed to address and resolve any operational issues promptly.

Services under a support contract will be executed in accordance with professional standards and applicable laws, ensuring high-quality and efficient support for all items specified on the Customer's Invoice. Voodoo commits to providing support that encompasses the full spectrum of the Customer's Voodoo ecosystem.

For the provision of timely and effective support, the Customer must provide Voodoo with reasonable access to networks and servers utilizing Voodoo's software. Such access is necessary for the diagnosis and resolution of software-related problems and the execution of updates and maintenance. Furthermore, the Customer is obligated to return any hardware components, including Devices or Turbos, that require repair or servicing to Voodoo. These responsibilities are critical to the maintenance of system integrity and performance, aiming to minimize operational downtime.

Entering into a support contract with Voodoo allows the Customer to access specialized services, enhancing their product experience and contributing to the effectiveness of their technological solutions by fulfilling their obligations regarding access and equipment return.

Changes in Scope

Voodoo acknowledges that the Customer's operational requirements may evolve, potentially leading to the need for additional Devices, Turbos, or Server licenses. Such expansions can necessitate adjustments in the associated fees, especially in relation to support contracts. The pricing of support contracts is initially determined based on the quantity and type of items covered, along with their respective costs. Therefore, the incorporation of additional items into the Customer's system may require a recalibration of the support contract pricing to reflect the extended scope of services accurately.

Voodoo offers a flexible approach to adjusting contracts in light of these changes. Common practices include providing credit for the unused portions of an existing support contract or prorating the contract to include new items, thereby ensuring the Customer pays only for the required coverage. This approach is designed to uphold billing fairness and transparency, facilitating the smooth addition of new components to the Customer's system.

Customers contemplating system modifications are advised to engage with Voodoo's support team to assess the implications for their support contract and identify cost-effective adjustments to their service plan. Voodoo is dedicated to offering adaptable support solutions that evolve with the Customer's needs, ensuring continued value and performance from their technological investment.

CUSTOMER OBLIGATIONS

Usage Reporting and Problem Notification

Customers are required to promptly inform Voodoo of any issues encountered during the use of Voodoo’s products, including Devices, Turbos, and Server, as well as any significant changes in usage patterns. Keeping Voodoo apprised of such details is crucial for providing timely support and ensuring the optimal performance of the system. Accurate reporting of usage and problems enables Voodoo to tailor its support services to the customer's specific needs and to address any issues more efficiently. 

Account Management

Upon entering into this agreement, the customer will be provided with authorized user accounts for accessing and managing Voodoo’s system. The customer may also generate additional user accounts as needed for their operations. It is the customer's responsibility to safeguard these accounts, ensuring that login credentials are protected and not shared or disclosed to unauthorized individuals. Account security is paramount to maintaining the integrity and confidentiality of the customer's operational data. The customer is responsible for any actions taken through these accounts and must adhere to Voodoo's policies regarding account usage and security.

Environmental and Access Requirements

The customer is responsible for ensuring that the physical environment where Voodoo’s system is deployed meets all necessary environmental requirements, including but not limited to temperature control, humidity levels, and power supply specifications. Additionally, the area must be made accessible to Voodoo’s personnel when required for installation, maintenance, or repair services. Proper environmental conditions and access are essential for the system's reliable operation and longevity. 

Restrictions on System Use

The customer is strictly prohibited from sublicensing, copying, selling, reselling, transferring, assigning, sharing, leasing, modifying, adapting, disassembling, reverse engineering, or decompiling Voodoo’s system or any part thereof without express written permission from Voodoo. Such actions are in violation of this agreement and infringe upon Voodoo’s intellectual property rights. The customer must use the system solely for its intended purpose and within the bounds of this agreement. Any deviation from these terms requires prior written consent from Voodoo, and unauthorized use may result in termination of the agreement and legal action. 

Acceptance

Upon delivery and installation of the Devices, Turbos, and implementation of the Server (collectively, the "System"), the Customer has the option to request a formal testing interval to ensure that the System operates according to the agreed specifications and requirements. This request must be made in writing within 14 days following the installation date, clearly stating the intention to conduct a testing interval, the duration of which must also be agreed upon by Voodoo and the Customer.

During this testing interval, the Customer is responsible for rigorously assessing the System's performance to verify its functionality and compliance with the terms of this Agreement. Should any deficiencies or non-conformities be identified, Voodoo shall be promptly notified and given the opportunity to rectify any issues within a reasonable timeframe, as mutually agreed upon. 

If the Customer does not request a testing interval in writing within the specified period post-installation, the System will be deemed accepted by the Customer as is, without further obligation on Voodoo to conduct such testing. It is the responsibility of the Customer to ensure that the testing interval request is made timely if they wish to avail themselves of this option for verifying the System's performance and compliance. 

Government Restricted Rights. 

The Solutions and documentation are provided with RESTRICTED RIGHTS.  Use, duplication, or disclosure by the Government is subject to restrictions as set forth is subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software-Restricted Rights at 48 CFR 52.227-19, as applicable.  Manufacturer is Voodoo Robotics, Inc., 200 Chisholm Place, Suite 160, Plano, Texas  75075, USA. 

Export Restrictions. 

Customer may not export or re-export the Solutions, any part thereof, or any process or service that is the direct product of the Solutions (the foregoing collectively referred to as the “Restricted Components”), to any country, person, entity, or end user subject to U.S. export restrictions.  Customer specifically agrees not to export or re-export any of the Restricted Components (a) to any country to which the U.S. has embargoed or restricted the export of goods or services or to any national of any such country, wherever located, who intends to transmit or transport the Restricted Components back to such country; (b) to any end user who you know or have reason to know will utilize the Restricted Components in the design, development, or production of nuclear, chemical, or biological weapons; or (c) to any end user who has been prohibited from participating in U.S. export transactions by any federal agency of the U.S. Government.  Customer represents and warrants that no governmental authority has suspended, revoked, or denied Customer’s export privileges.

VOODOO OBLIGATIONS

Voodoo is committed to delivering high-quality products and services, including Devices, Turbos, and Server, to all customers, irrespective of their support contract status. Voodoo shall ensure that all products and services provided under this Agreement meet the specifications and standards as described herein and are fit for the purposes for which they are sold. 

For Customers with Support Contracts:

Voodoo shall provide comprehensive support services as detailed in the support contract, which include, but are not limited to, priority technical support, maintenance services, software updates, and training sessions. These services are designed to ensure the optimal performance and reliability of the products and to address any issues promptly. Voodoo is obligated to respond to support requests from these customers within the response times specified in their respective support contracts, providing solutions and assistance to resolve any problems encountered. 

For Customers without Support Contracts:

Voodoo will offer basic customer support, which includes access to an online knowledge base and limited email support for troubleshooting and queries related to product functionality. While customers without support contracts will not benefit from priority response or comprehensive maintenance services, Voodoo is still obligated to ensure the products sold are of satisfactory quality and adhere to the agreed specifications. 

Across all customer engagements, Voodoo is responsible for adhering to all applicable laws and regulations in the provision of its products and services. Voodoo shall conduct its operations in a professional and ethical manner, maintaining the highest standards of integrity and customer service. Furthermore, Voodoo commits to continuous improvement, seeking to enhance the quality and value of its offerings to meet and exceed customer expectations. 

Fees

The Customer is required to pay all fees as specified in the invoice, with all amounts denominated in United States dollars (USD). Payment of these fees must be completed in full before the shipment of any items or the provision of services. This ensures that all necessary financial obligations are settled prior to the delivery and activation of Voodoo’s Devices, Turbos, Server, support contracts, or access to the multi-tenant server hosted on the Internet. 

Price Changes

Voodoo reserves the right to modify prices at any time without prior notice. This includes adjustments to the cost of services, additional components required for system expansion, or fees associated with the use of the multi-tenant server. Such changes reflect Voodoo’s response to market conditions, product enhancements, or service improvements, aiming to provide customers with the most effective and valuable solutions. 

Late Payment

In the event of late payments, the Customer will incur an interest charge of 1.5% per month on any outstanding balance. This interest is compounded monthly and is designed to encourage timely payments, ensuring that Voodoo can continue to offer high-quality products and services without interruption. Customers are urged to adhere to payment deadlines as specified in their invoices to avoid these additional charges. 

Reimbursement of Support-Related Expenses

Should Voodoo incur any fees or expenses as a direct result of providing support services to the Customer, including but not limited to situations where on-site support is required, such costs will be borne by the Customer. This includes instances where Voodoo personnel must travel to the Customer's location to deliver support, installation, maintenance, or training services. In such cases, the Customer will be responsible for all associated expenses, including per diem charges for each day Voodoo personnel are engaged in travel or on-site activities, as well as all travel and lodging expenses.

Estimates

Voodoo will provide the Customer with an estimate of these expenses in advance, whenever possible, to ensure transparency and allow for customer approval. However, actual expenses will be billed to the Customer based on the actual costs incurred by Voodoo. It is our policy to seek the most cost-effective travel options that do not compromise the quality and timeliness of the support provided. This provision ensures that while Voodoo is committed to offering comprehensive support to its customers, the financial implications of extensive, personalized services, especially those necessitating travel, are fairly and transparently allocated.

Taxes

The Customer is responsible for the payment of all taxes associated with the purchase of products and services from Voodoo, including but not limited to sales, use, value-added, and property taxes, as well as any other taxes or duties imposed by governmental authorities on the transaction. This responsibility extends to international orders, where the Customer is also liable for import duties, customs charges, levies, and tolls that may be incurred as part of shipping and receiving goods across international borders.

Timeliness

It is the Customer's obligation to ensure that all such taxes and duties are paid in a timely and complete manner. Voodoo will make every effort to provide the Customer with an estimate of these costs at the time of order, when possible, but it is understood that the actual charges may vary and will be the sole responsibility of the Customer. The Customer must comply with all applicable tax laws and regulations in their jurisdiction and is advised to consult with a tax advisor to fully understand their tax obligations related to their purchase from Voodoo. 

Exemptions

In cases where Voodoo is required by law to collect and remit taxes on behalf of the Customer, such taxes will be itemized on the invoice provided to the Customer. The Customer must promptly provide Voodoo with valid tax exemption certificates or other evidence of exemption where applicable. Failure to pay required taxes may result in additional charges, penalties, or legal action to recover owed amounts. 

OWNERSHIP RIGHTS

Ownership of Data

The Parties expressly agree that the data pertaining to Customer’s services generated and/or maintained under this Agreement or anyInvoice shall be and remain the sole property of Customer (the “Customer Data”).  Voodoo shall not take any right, title or interest in the Customer Data.  Customer grants to Voodoo the limited right to use or refer to the Customer Data to perform its obligations under this Agreement and for promotional purposes, including discussing efficiency increases based on use of the Voodoo Software; provided that, Voodoo does not disclose the identity of Customer in association with any disclosures regarding increased efficiency.  

Property Rights Retained by Voodoo

Each Party shall retain ownership of all its previously existing intellectual property rights.  Customer acknowledges that Voodoo may incorporate certain computer code, methods, inventions, trade secrets, concepts and know-how (“Voodoo IP”) into any source code, compiled code, custom software or other programming or design work provided by Voodoo to Customer (“Work Product”).  The Voodoo IP was not and will not be created solely for use in or with such Work Product.  Customer acknowledges that Voodoo IP will not become the property of Customer, and that the rights therein are part of Voodoo’s stock in trade and general know how that will remain the sole and unencumbered property of Voodoo, without any claim of Customer thereto, other than a perpetual, paid-up license to use the Voodoo IP as incorporated in, and only as incorporated in, the Work Product.  Except for Customer Data, all materials including, but not limited to, the Voodoo Software or any other computer software in object code or source code, script, programming code, data, HTML script or other information or ideas developed under this Agreement and/or any Invoice shall be Voodoo’s exclusive property, including, without limitation, all copyrights, trademarks, patents, trade secrets and any other proprietary rights and shall not be claimed to be a work-for-hire.  Customer shall provide reasonable assistance to Voodoo in securing and protecting its interests associated with the Voodoo Software, Equipment or other proprietary rights, including executing documents as necessary to secure such rights.   

Third-Party Software

Customer expressly acknowledges that existing proprietary software of Voodoo, and software of third parties, which is provided by Voodoo for use in conjunction with any Work Product (including subsequent versions of proprietary software of Voodoo or third-party software, and enhancements thereof provided by Voodoo), is and shall remain the sole and exclusive property of Voodoo or such third parties, subject only to Customer’s rights pursuant to its license agreement(s) for such software. 

Feedback

During the Term of this Agreement, Customer or its Authorized Users may elect to provide Voodoo with feedback, comments, and suggestions with respect to the Voodoo Software (“Feedback”).  Customer agrees, on behalf of itself and its Authorized Users, that Voodoo shall be free to use, reproduce, disclose, and otherwise exploit any and all such Feedback without compensation or attribution to Customer or such Authorized User.  

LIMITED WARRANTY

Mutual Warranty

Each party warrants that it has the full right and legal authority to enter into, execute, and perform its obligations under this Agreement and that no agreement(s) or pending or threatened claim(s) or litigation known to it would have a material, adverse impact on its ability to perform as required by this Agreement. 

Voodoo Software and Equipment Warranty

Voodoo warrants that the Equipment, under normal usage and with regular recommended service, will be free from material defects in material and workmanship and will perform substantially in accordance with the technical manuals or other documentation applicable to the Equipment for the 90-day period following receipt of the Equipment.  Voodoo warrants that the Voodoo Software will perform substantially in accordance with the technical manuals, training materials, specifications, or other documentation applicable to the Voodoo Software for the 90-day period following receipt of the Voodoo Software when used on the recommended hardware configuration.  Customer’s exclusive remedy and Voodoo’s entire liability under these warranties shall be limited, at Voodoo’s option, to either the repair or replacement of the Voodoo Software and Equipment or to refund the fee paid by Customer for the Voodoo Software and Equipment.  Any replacement of the Voodoo Software or Equipment will be warranted for the remainder of the original warranty period or one full calendar month after receipt by Customer, whichever is longer.  EXCEPT FOR THE FOREGOING LIMITED WARRANTY, THE VOODOO SOFTWARE AND EQUIPMENT IS PROVIDED “AS IS” WITHOUT ANY WARRANTY WHATSOEVER. 

Voodoo Services Warranty

Voodoo warrants that the Services and Maintenance & Support will be performed in a professional and workmanlike manner, in accordance with all applicable laws, and that any Work Product provided by Voodoo will substantially conform to generally accepted industry standards for similar work.  If Voodoo breaches the foregoing warranty, Customer’s exclusive remedy will be for Voodoo to re-perform the particular Solution, at no cost to Customer, to bring them into compliance with such warranty.  Any claim for breach of the foregoing warranty must be made by written notice to Voodoo within 90 days after discovery of the breach, and in no event more than 12 months after Acceptance of the Solution with respect to which the claim is made.  IF VOODOO IS NOT ABLE TO REMEDY ANY BREACH OF THIS SERVICES WARRANTY AFTER A REASONABLE NUMBER OF ATTEMPTS, THEN VOODOO’S LIABILITY TO CUSTOMER SHALL NOT, IN ANY EVENT, EXCEED THE AMOUNT ACTUALLY PAID TO VOODOO BY CUSTOMER FOR THE PARTICULAR SOLUTION AND/OR WORK PRODUCT INVOLVED. 

Limitations

Notwithstanding anything to the contrary, Voodoo will not be liable or responsible for: (i) any modification of any Solution by any party other than Voodoo; (ii) non-compliance with any law as a result of a modification or change by any other party other than Voodoo; (iii) any use of a Solution other than in accordance with the applicable Invoice and manuals, instructions and other materials provided to Customer by Voodoo; or (iv) failures or defects in any software or other tools provided to Voodoo by Customer or third parties.  Customer expressly represents and warrants to Voodoo that it does, and will continue to, regularly perform back-ups of the Customer Data, and that in no event will Voodoo be liable for recovery or restoration of data. 

DISCLAIMER

THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION ARE THE SOLE AND EXCLUSIVE WARRANTIES GIVEN, AND ARE IN LIEU OF, AND VOODOO HEREBY DISCLAIMS, ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR OTHERWISE (INCLUDING TIME OF PERFORMANCE), RESPECTING SOLUTIONS RENDERED OR WORK PRODUCT PROVIDED PURSUANT TO THIS AGREEMENT OR ANY INVOICE.  IN ADDITION, VOODOO MAKES NO WARRANTIES REGARDING ANY THIRD-PARTY PRODUCTS PROVIDED TO OR USED BY CUSTOMER; IF PROVIDED BY VOODOO, SUCH THIRD-PARTY PRODUCTS ARE PROVIDED ON AN “AS IS” BASIS, AND ARE SUBJECT TO THE TERMS AND CONDITIONS PROVIDED BY THE THIRD-PARTY VENDORS AND THE ONLY WARRANTIES WITH RESPECT THERETO, IF ANY, ARE SOLELY THOSE OF SUCH THIRD PARTY. 

CONFIDENTIALITY

Except as otherwise provided in this Agreement, the Parties shall not disclose to employees without a need to know or to any third parties, information received from the other Party which has been identified as proprietary or confidential, or which by the nature of the circumstances surrounding disclosure, should in good faith be understood to be proprietary or confidential, including, without limitation, information regarding the other Party’s business, pricing, know-how, documentation, manuals, or other printed material (“Confidential Information”).  Confidential Information shall not include any information which the receiving Party can establish (i) was in the public domain prior to disclosure to the receiving Party, (ii) comes into the public domain through no act or omission of the receiving Party, (iii) is disclosed to the receiving Party without restriction by a third party who has a legal right to make such disclosure, (iv) was rightfully known to or already in the possession of the receiving Party prior to disclosure to the receiving Party, or (v) was derived by the receiving Party without the aid of or reference to the disclosing Party’s Confidential Information.  The obligations of the Parties under this Section shall survive termination of this Agreement for a period of 2 years. 

TERM; TERMINATION

Term

Unless a different term is set forth in an applicable Invoice the term of this Agreement shall be for 1 year from the Effective Date (“Initial Term”) and, thereafter, automatically renewing for successive 1 year periods (“Renewal Term”).  The Initial Term and any Renewal Term may be referred to as the “Term.”  Either Party may decide not to renew this Agreement by notifying the other Party of its intent not to renew at least 60 days prior to the end of the Initial Term or the then current Renewal Term.   

Termination

Either Party may terminate this Agreement or any applicable Invoice upon breach by the other Party of any material provision of an applicable Invoice or this Agreement, which has not been cured within 30 days after receipt of written notice of such default.  Further, Voodoo shall have the ability to terminate this Agreement for cause if Customer:  (i) becomes insolvent or admits its inability to pay its debts generally as they become due; (ii) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven business days or is dismissed or vacated within 45 days after filing; or (iii) is dissolved or liquidated or takes any corporate action for such purpose, makes a general assignment for the benefit of creditors, or has a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction.  If Customer has executed multiple Invoices, termination of an Invoice shall not automatically terminate this Agreement nor any other Invoice.   

Duties Upon Termination

Upon any termination of the provision of Solutions pursuant to this Agreement:  (i) for any leased Equipment, Customer shall immediately return all such Equipment to Voodoo and pay for any damaged or missing Equipment, the value of which shall be charged to Customer on a prorated basis; (ii) for any licensed software, Customer shall immediately cease using such software and uninstall and/or return any copies thereof to Voodoo; and (iii) for any Services being performed by Voodoo, Customer will pay Voodoo for that portion of the Services rendered through the effective date of termination.  Termination of the provision of Solutions pursuant to this Agreement shall not affect or impair the other rights and obligations of the Parties pursuant to this Agreement.  In the event of termination for cause by Voodoo, Customer will not be entitled to the return of any portion of the fees paid by Customer.  Following termination of this Agreement, Customer will have 30 days to request a copy any Customer Data in Voodoo’s possession, and, if requested, Voodoo shall provide such Customer Data to Customer in the form and format such data is available via the Voodoo Software at the time of termination.  After the 30-day period, Voodoo has no obligation to maintain the Customer Data and will destroy all Customer Data in its possession or under its control in accordance with its data retention policies.  To the extent any additional services are required to migrate Customer Data to Customer, Voodoo shall provide data migration services at the standard hourly service rates of Voodoo.   

SOLICITATION OF PERSONNEL

During the Term of this Agreement and for a period of 1 year thereafter, neither Party will directly or indirectly, without prior written consent of the other, (i) induce any employee of the other to terminate his or her employment, (ii) offer employment or independent contractor engagement to any employee of the other, or (iii) offer any former employee of the other employment for a period of 6 months immediately following such employee’s termination.  To compensate a Party whose employee has been solicited, hired, or induced to terminate his or her employment by the other Party, and not in the way of liquidated damages but to compensate the non-breaching Party for the costs of hiring and training a replacement employee, the breaching Party shall pay to the non-breaching Party an amount equal to 12 months of the salary of the employee who was solicited, hired, or induced to terminate. 

ASSIGNMENT

Neither Party may assign any interest in this Agreement or any of its duties or rights under this Agreement without the prior written consent of the other except that:  (i) each Party may assign its rights and obligations to an Affiliate of such Party upon advance written notice to the other; (ii) either Party may assign its rights and obligations upon written advance notice to the other in connection with any merger, acquisition, or sale of all or substantially all of its assets; or (iii) Voodoo may retain subcontractors to perform its obligations hereunder in whole or in part, in its sole discretion.  Each Party that so assigns this Agreement (or any rights or obligations hereunder) will remain liable for its assignee’s failure to perform its obligations in accordance with this Agreement.  Any assignment in violation of the terms of this Section will be void.  For purposes hereof, “Affiliate” means any entity controlling, controlled by or under common control with a party, where “control” means the right to exercise, directly or indirectly, 50% or more of the voting rights attributable to the ownership of the controlled entity. 

LIMITATION OF LIABILITY

DISCLAIMER OF SPECIAL DAMAGES

IN NO EVENT WILL THE PARTIES OR THEIR OFFICERS, DIRECTORS, AGENTS OR EMPLOYEES BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS OR SERVICE INTERRUPTION, COST OF COVER, OR INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE PERFORMANCE OF THIS AGREEMENT OR ANY SUBSEQUENT DOCUMENT ISSUED UNDER THIS AGREEMENT (INCLUDING WITHOUT LIMITATION INVOICES), EVEN IF THE PARTY OR ITS OFFICERS, DIRECTORS, AGENTS AND EMPLOYEES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

LIMITATION OF LIABILITY

THE MAXIMUM LIABILITY OF EITHER PARTY FOR ANY REASON AND UPON ANY CAUSE OF ACTION OR CLAIM IN CONTRACT, TORT, OR OTHERWISE, WILL BE LIMITED TO THE AGGREGATE AMOUNTS PAID OR PAYABLE BY CUSTOMER TO VOODOO UNDER THE APPLICABLE INVOICES TO WHICH SUCH CAUSE OF ACTION OR CLAIM RELATES IN THE ONE-YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THIS LIMITATION ON DIRECT LIABILITY UNDER THIS SECTION APPLIES TO ALL CAUSES OF ACTION OR CLAIMS IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, BREACH OF STATUTORY DUTY, MISREPRESENTATION, CLAIMS FOR FAILURE TO EXERCISE DUE CARE IN THE PROVISION OF SOFTWARE OR THE PERFORMANCE OF THE SOLUTIONS, AND OTHER TORTS.

The Solutions provided hereunder are not subject to the Magnuson-Moss Warranty Act or any other similar state or federal law.  In the event such law is held to apply to any Solution provided hereunder, then Customer is on notice that this limited warranty gives Customer specific legal rights.  Notwithstanding anything in this Agreement to the contrary, the disclaimers and limitations in this Section shall not apply with respect to (i) the Party’s indemnification obligations under Section 13, (ii) a Party’s breach of Section 8 (Confidentiality), or (iii) a Party’s fraud or willful misconduct. 

INDEMNITY

Voodoo Indemnification

Voodoo will, at its sole expense, defend Customer and Customer’s officers, directors, agents and employees from and against any Claim, and indemnify and hold harmless Customer and Customer’s officers, directors, agents and employees from any loss, cost or damages payable to such third parties, and from any expense (including reasonable attorneys’ and other professional fees) incurred in defending it in any United States court against a claim alleging that the Solutions or any part thereof infringes or misappropriates third-party claimant’s presently existing United States patent or copyright. 

Customer Indemnification

Customer will, at its sole expense, defend Voodoo and Voodoo’s officers, directors, agents and employees from and against any Claim, and indemnify and hold harmless Voodoo and Voodoo’s officers, directors, agents and employees from any loss, cost or damages payable to such third parties, and from any expense (including reasonable attorneys’ and other professional fees) incurred in defending such Claim, relating to or arising out of (i) Customer’s breach of or misrepresentations in this Agreement, (ii) Customer’s violation of applicable law(s), (iii) Customer’s gross negligence, fraud or willful misconduct, (iv) damage to real or tangible personal property, or for bodily injury, or both, to the extent such damage or injury is attributable to the negligence or misconduct of Customer or any breach by Customer of its obligations under this Agreement, or (v) an allegation that any Customer application, materials, data, content or other information infringes, misappropriates or otherwise violates any intellectual property, proprietary or other rights of any third party.  

Exclusions

Voodoo will not be obligated to indemnify Customer if the claimed infringement or misappropriation is caused by Customer’s (i) misuse or modification of the Solutions or any part thereof, (ii) failure to promptly install, deploy or use corrections or enhancements to the Solutions made available by Voodoo, (iii) Customer’s use of the Solutions in combination with any non-Solution product or information, (iv) Customer’s direct or indirect distribution, marketing or use of the materials for the benefit of any third party, (v) Customer’s failure to follow instructions, specifications or directions provided by Voodoo, or (vi) Customer’s use of the materials in an unlawful manner or in connection with or for any unlawful purpose. 

Procedure

The party seeking indemnification shall within one business day following receipt of notice of an indemnifiable claim, forward the notice by overnight mail and email to the indemnifying party. If the indemnifying party accepts responsibility for the claim, the indemnifying Party will select counsel reasonably acceptable to the indemnified Party (such consent not to be unreasonably conditioned, withheld or delayed), and all costs of such counsel will be borne by the indemnifying Party.  The indemnified Party may at its sole option and at its own expense engage its own separate counsel to act as cocounsel on its behalf.  The exercise by the indemnified Party of its option to select cocounsel will in no way limit or modify the indemnifying Party’s obligations set forth in this Section.  Each Party reserves the right to provide a defense of any action subject to a reservation of rights, including the right to obtain contribution or indemnity from the other Party (including for attorney’s fees and costs) to the extent it is determined that such other Party is wholly or partially responsible for the loss or damage giving rise to the claims asserted in such action.  Upon notice of an alleged infringement or if in the indemnifying Party’s opinion such a claim is likely, or alternatively, if the indemnified Party’s rights hereunder are restricted by the indemnifying Party or a valid court order, then the indemnifying Party shall at its option and sole expense: (i) procure the right for the indemnified Party to continue using the alleged infringing material; or (ii) replace the material with non-infringing material which is equivalent in features, functionality and quality; or (iii) modify the material to make it non-infringing while retaining all original features, functionality and quality; or (iv) refund the indemnified Party fees paid for the infringing material based on a depreciated value over 3 years.  Notwithstanding the foregoing, Voodoo will not indemnify, defend, or hold harmless the Customer for Customer’s use of the Solution or Voodoo Software that is in or purportedly in violation of any law, whether local, State/Provincial, or Federal, of the United States or any other country.  As Voodoo cannot predict every possible circumstance of how the Customer will use the Solution or Voodoo Software, it is the Customer’s responsibility to ensure its use is not in violation of law. 

MISCELLANEOUS

Entire Agreement

This Agreement, including any applicable addenda, amendments, exhibits, and Invoices executed in accordance herewith, constitute the complete and exclusive statement of the terms and conditions of the agreement between Voodoo and Customer with respect to the Solutions, and supersedes all other agreements with respect to the subject matter hereof. 

Amendments, Modifications and Waiver

In the event Voodoo modifies these Terms at any time, such modifications shall be binding on Customer only upon Customer’s acceptance of the modified Terms.  Continued use of the Solutions after receipt of notice of any such modifications shall constitute Customer’s acceptance of the modified Terms.  The terms of any purchase order or other document issued by Customer shall not be binding on Voodoo and shall not modify or become part of this Agreement, or otherwise become a part of any agreement or contract between the parties.  Neither Party will, by the lapse of time, and without giving written notice, be deemed to have waived any of its rights under this Agreement.  No waiver of a breach of this agreement will constitute a waiver of any prior or subsequent breach of this Agreement. 

Notices

Any notices under this Agreement shall be in writing and shall be deemed to have been delivered:  (i) upon personal delivery; (ii) 5 business days after mailing; or (iii) 3 business days after sending by email.  Notices to Voodoo shall be sent to Voodoo’s address set forth in the Invoice.  Notices to Customer shall be sent to Customer’s address set forth in the Invoice.  A Party’s address or designee for purposes of any notices may be changed by written notice to the other Party.   

Electronic Signatures

The Parties consent to electronic signatures for the purpose of executing this Agreement by e-mail or other electronic means, subject to compliance with any applicable laws, rules or regulations.  Any such documents that are delivered electronically and accepted are deemed to be “in writing” to the same extent and with the same effect as if the Agreement had been signed manually.   

Marketing.

Neither party may issue press releases related to this Agreement without the other party’s prior consent.  Either party may include the name and logo of the other party in lists of customers or vendors in accordance with the other party’s standard guidelines. 

Signed Writing

Any Invoice or other document that is issued under this Agreement shall be memorialized in a writing, signed by both Voodoo and Customer.  Voodoo shall have no obligation to be begin work on any Invoice or place an order for Equipment or Third-Party Products listed on an Invoice that is not signed by Customer.  The issuance of a purchase order in lieu of a signed writing does not constitute acceptance and will not obligate Voodoo to render performance for the items listed on that purchase order.

Construction and Headings

This Agreement, and any Invoice or other document issued under this Agreement, will not be construed more strongly against either Party regardless of which is more responsible for its preparation.  The Section headings of this Agreement are for convenience only and will not affect the construction of this Agreement.

Force Majeure

In no event shall either Party be liable for any delay or failure to perform under an Invoice to the extent such failure or delay is due to causes beyond its reasonable control, including, but not limited to, acts of god, flood, fire, natural disaster, accident, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the Effective Date, complete or partial government shutdown, passage of a law or act of government, strikes or other labor disturbances, or national or regional shortage or disruption of adequate power, telecommunications, or transportation.

Governing Law

This Agreement will be interpreted in accordance with the laws of the State of Texas, without regard to principles of conflicts of law.  All disputes arising under this Agreement, and any document issued under this Agreement, shall be brought in the state or federal courts located in Collin County, Texas, which shall be the sole and exclusive forum and venue for any litigation.  The Parties stipulate that the United Nations Convention for the International Sale of Goods and Article 2 of the Uniform Commercial Code shall not apply to this Agreement. 

WAIVER OF JURY TRIAL

THE PARTIES HEREBY UNCONDITIONALLY WAIVE THEIR RIGHT TO A JURY TRIAL OF ANY AND ALL CLAIMS OR CAUSES OF ACTION ARISING FROM OR RELATING TO THEIR RELATIONSHIP.  THE PARTIES ACKNOWLEDGE THAT A RIGHT TO A JURY IS A CONSTITUTIONAL RIGHT, THAT THEY HAVE HAD AN OPPORTUNITY TO CONSULT WITH INDEPENDENT COUNSEL, AND THAT THIS JURY WAIVER HAS BEEN ENTERED INTO KNOWINGLY AND VOLUNTARILY BY ALL PARTIES TO THIS AGREEMENT.  IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.

Severability

If any provision of this Agreement is found to be invalid or unenforceable, the remaining provisions of this Agreement shall be interpreted so as best to reasonably effect the intent of the Parties.  The Parties further agree to replace any such invalid or unenforceable provisions with valid and enforceable provisions designed to achieve, to the extent possible, the business purposes of such provisions.

Insurance

During the term of this Agreement, the Parties shall, at their own expense, carry and maintain policies of insurance meeting or exceeding industry recommended policies which may include, but not limited to, general commercial liability, automobile liability, cyber liability, errors and omissions, worker’s compensation, and umbrella liability.  Upon reasonable written request, the Parties shall provide a certificate of insurance evidencing the insurance requirements herein.