General Terms

Terms for All Transactions

These General Terms apply to any quote, order, order acknowledgment, and invoice, and any sale, license or delivery of all products, software, or services by Viper Innovations Ltd t/a Livewire Innovation.  Viper Innovations Ltd t/a Livewire Innovation does not accept, expressly or impliedly, and Viper Innovations Ltd t/a Livewire Innovation hereby rejects and deems deleted, any additional or different terms or conditions that any potential or actual customer (“Customer”) presents, including, but not limited to, any terms or conditions contained or referenced in any order, acceptance, acknowledgment, or other document, or established by trade usage or prior course of dealing, unless Viper Innovations Ltd t/a Livewire Innovation expressly and unambiguously agrees to such terms and conditions in writing signed by an authorized person. By ordering, accepting delivery, keeping, or using products or otherwise proceeding with any transaction after receipt of the Agreement (as defined below) or after otherwise being notified that such transactions are subject to the Agreement, Customer agrees to the terms of the Agreement. If tender of these terms is deemed an offer, acceptance is expressly limited to the terms of the Agreement.

  1. DEFINITIONS.
    “Agreement”     means a contract between Viper Innovations Ltd t/a Livewire Innovation and the Customer that is formed by reference to these General Terms and, where applicable, one or more sets of Viper Innovations Ltd t/a Livewire Innovation’s offering-specific terms (e.g., Software License Terms) that are attached hereto or available at www.LivewireInnovation.com/terms or from Viper Innovations Ltd t/a Livewire Innovation on request.
    “Confidential Information” means any technical or other information related to Viper Innovations Ltd t/a Livewire Innovation’s Goods and Services (including, but not limited to, any documentation, services offerings, training materials, and written, visual, and oral instructions) and any information that is marked or otherwise expressly identified as confidential in writing or that should have been reasonably understood as such due to its nature, regardless of whether in tangible, electronic, verbal, graphic, visual or other form, that Viper Innovations Ltd t/a Livewire Innovation directly or indirectly discloses to Customer. Confidential Information does not include material or information that (i) is generally known by third parties as a result of no act or omission of Customer; (ii) subsequent to disclosure hereunder was lawfully received without restriction on disclosure from a third party having the right to disseminate the information; (iii) was already known by Customer prior to receiving it from Viper Innovations Ltd t/a Livewire Innovation and was not received from a third party in breach of that third party’s obligations of confidentiality; or (iv) was independently developed by Customer without use of Confidential Information of Viper Innovations Ltd t/a Livewire Innovation.
    “Delivery Date” means the earlier of the date on which (i) Viper Innovations Ltd t/a Livewire Innovation puts a Good into the possession of a carrier for shipment, (ii) Customer takes possession of a Good; or (iii) Viper Innovations Ltd t/a Livewire Innovation makes the Good available to Customer.
    “Documentation” means Viper Innovations Ltd t/a Livewire Innovation’s information manuals that (i) contain operating instructions and performance specifications for the Products, Software, and/or Services; (ii) Viper Innovations Ltd t/a Livewire Innovation delivers to Customer with the Products, Software, and/or Services; and (iii) Viper Innovations Ltd t/a Livewire Innovation generally makes available to all users of its Products, Software, and/or Services.
    “Firmware” means firmware and software that is (i) installed on tangible products, including back-up copies of such software that are delivered with such tangible products, and (ii) not referred to by Viper Innovations Ltd t/a Livewire Innovation with individual product numbers and line item prices.
    “Goods” means Products, Software and Documentation.
    “Intellectual Property” means any computer program or routine (in object code, source code, or embedded format, regardless of the medium on which it resides), algorithms, know-how, firmware, hardware and/or software configurations, inventions, documentation, translations, text and other works of authorship, data, databases, information, mask works, designs, utility models, symbols, logos, marks, names, procedures, processes, methods, improvements and any other intangibles as well as the prototypes, samples, copies, and other materialized forms of the foregoing intangibles.
    “Product” means any tangible products or parts thereof that Viper Innovations Ltd t/a Livewire Innovation agrees to deliver or delivers to Customer including any Firmware.
    “Proprietary Rights” means any and all rights, title, ownership and interests in and to copyrights, mask work rights, industrial designs, trademarks, service marks, trade names, trade secrets, patents, and any other rights to Intellectual Property, recognized in any jurisdiction or country of the world, whether or not registered or perfected.
    “Services” means any services provided by Viper Innovations Ltd t/a Livewire Innovation, including without limitation, any Installation Services, Training Services, Software Maintenance Services, Time & Materials Services, and/or Fixed Fee Services, as applicable (such terms as defined in the applicable offering-specific terms).
    “Software” means any computer software in object code, source code, or other format that Viper Innovations Ltd t/a Livewire Innovation agrees to deliver or make available to Customer, excluding Firmware. For greater clarity, except as referenced in Section 9.7 and as set forth in the Software and End-User License Agreement attached as Exhibit A hereto, no licenses under these General Terms shall extend to any source code.
    “Work Product” means any tangible or intangible results or deliverables that Viper Innovations Ltd t/a Livewire Innovation agrees to create or deliver, or intentionally delivers to Customer, as a result of performing services, including, but not limited to, configurations, computer programs or other information, or customized hardware, and any Intellectual Property developed in connection therewith and Proprietary Rights related thereto.
  2. ORDERING. Viper Innovations Ltd t/a Livewire Innovation’s quotations (unless they expressly specify otherwise) and Customer’s orders are irrevocable for thirty days from their respective date. Customer’s orders are subject to acceptance at Viper Innovations Ltd t/a Livewire Innovation’s sole discretion. No form of acceptance, except Viper Innovations Ltd t/a Livewire Innovation’s written acknowledgment sent to Customer or Viper Innovations Ltd t/a Livewire Innovation’s commencement of performance, shall constitute valid acceptance of Customer’s orders, with any such acceptance being expressly conditioned on assent to the terms hereof and the exclusion of all other terms. Viper Innovations Ltd t/a Livewire Innovation may change its prices at any time without prior notice to Customer, but such change shall not affect any quotation that has been outstanding for less than thirty days or any order that Viper Innovations Ltd t/a Livewire Innovation has expressly accepted in writing or through performance (whereby partial performance constitutes only partial acceptance to the extent performed). All prices are exclusive of any freight, handling and shipping charges, insurance charges, taxes, fees and duties or other similar amounts, however designated, including without limitation value added, sales and withholding taxes which are levied or based upon the prices, charges or upon these General Terms. Customer shall pay any taxes related to Products and Services provided pursuant to these General Terms (except for taxes based on Viper Innovations Ltd t/a Livewire Innovation’s revenue or income) or shall present an exemption certificate acceptable to all relevant taxing authorities. Applicable taxes shall, to the extent practical, be billed as a separate item on the invoice. Once Viper Innovations Ltd t/a Livewire Innovation  has accepted an order, Customer may not cancel, terminate, reschedule, suspend performance of, or issue a hold on, such order, in whole or in part, without the prior written consent of Viper Innovations Ltd t/a Livewire Innovation, which consent, if given, shall be upon terms that will compensate Viper Innovations Ltd t/a Livewire Innovation for any loss or damage therefrom, including but not limited to any work in process or services performed, the price of Goods and Services shipped to, manufactured for, or held separately for, Customer, and loss of profits, incurred costs, and a reasonable allocation of general and administrative expenses.
  3. DELIVERY. For domestic shipments, Viper Innovations Ltd t/a Livewire Innovation selects the carrier, unless Customer provides written instructions. The carrier shall not be considered Viper Innovations Ltd t/a Livewire Innovation’s agent. Viper Innovations Ltd t/a Livewire Innovation shall deliver all Goods and Services FCA Viper Innovations Ltd t/a Livewire Innovation’s facility as designated by Viper Innovations Ltd t/a Livewire Innovation. For international shipments, the Customer shall provide the details of its carrier of choice and account number. Customer takes title and bears shipping costs and risk of loss from the FCA point of shipment. Viper Innovations Ltd t/a Livewire Innovation does not transfer ownership or title to any Software, Firmware, Documentation, or copies thereof; Viper Innovations Ltd t/a Livewire Innovation only grants limited, nonexclusive licenses, as provided herein. Partial and installment shipments are authorized. Alterations to any Goods and Services which Viper Innovations Ltd t/a Livewire Innovation deems necessary to comply with changed safety standards or governmental regulations, to make a Good or Service non-infringing, or to otherwise improve a Good or Service, may be made at any time by Viper Innovations Ltd t/a Livewire Innovation without prior notice to, or consent of, Customer and such altered Goods and Services shall be deemed fully conforming. Immediately upon receipt, Customer shall visually inspect the shipment and notify Viper Innovations Ltd t/a Livewire Innovation in writing of any deficiencies. Customer shall be deemed to have waived its rights to claim incorrect or incomplete delivery or packaging, unless Viper Innovations Ltd t/a Livewire Innovation receives Customer’s detailed written notice within ten days following delivery of the Goods and Services by Viper Innovations Ltd t/a Livewire Innovation. Performance and shipping dates specified or communicated by Viper Innovations Ltd t/a Livewire Innovation to Customer are approximate dates only and (i) the failure to perform or ship on such dates shall not be considered a breach by Viper Innovations Ltd t/a Livewire Innovation, and/or (ii) Viper Innovations Ltd t/a Livewire Innovation is permitted to deliver, and Customer will accept, shipments, in whole or in part, in advance of any dates communicated by Viper Innovations Ltd t/a Livewire Innovation and/or requested by Customer.
  4. NO INSTALLATION. Viper Innovations Ltd t/a Livewire Innovation is not obligated to customize or install any Goods and Services, unless Viper Innovations Ltd t/a Livewire Innovation expressly agrees to do so in a signed writing, in which case (i) Viper Innovations Ltd t/a Livewire Innovation’s Installation Services Terms shall apply additionally, and (ii) Viper Innovations Ltd t/a Livewire Innovation’s obligations with respect to such services shall be separate and independent of Viper Innovations Ltd t/a Livewire Innovation’s obligations with respect to the delivery of Goods and other Services. If Customer delays installation, applicable rental charges may be invoiced on the day first agreed for installation.
  5. PAYMENT. Subject to credit approval by Viper Innovations Ltd t/a Livewire Innovation, which Viper Innovations Ltd t/a Livewire Innovation may modify, revoke or subject to conditions (e.g., approved letter of credit) at any time, Customer shall pay Viper Innovations Ltd t/a Livewire Innovation-submitted invoices in full within thirty days of the invoice date, without any deductions, withholdings, or off-set. Unless Viper Innovations Ltd t/a Livewire Innovation expressly states otherwise, all fees and prices quoted or invoiced exclude sales taxes, service taxes, withholding taxes, customs duties, and other taxes and charges, insurance, and costs related to transportation and special packaging requested by Customer, if any, with any such charges, taxes and/or costs being paid or reimbursed by Customer. If any withholding taxes apply, Customer shall gross up the invoiced amount to ensure that, after such withholding, Viper Innovations Ltd t/a Livewire Innovation receives the full amount invoiced. If Viper Innovations Ltd t/a Livewire Innovation does not receive all amounts when due (i) any due and unpaid portion of the fees shall bear interest in the amount of one and one half percent  per month  or the maximum rate allowed by law, whichever is less, (ii) Viper Innovations Ltd t/a Livewire Innovation may immediately suspend deliveries, licenses and/or performance of any Goods and/or Services, and (iii) Viper Innovations Ltd t/a Livewire Innovation may require payment in advance for any subsequent orders or deliveries and/or further performance. At Viper Innovations Ltd t/a Livewire Innovation’s request, Customer shall provide an irrevocable letter of credit from a financial institution and with terms reasonably acceptable to Viper Innovations Ltd t/a Livewire Innovation. All amounts are due in U.S. currency, unless Viper Innovations Ltd t/a Livewire Innovation specifies otherwise in writing, e.g., a quotation or invoice. All sales are final.
  6. INTELLECTUAL PROPERTY CLAIMS. 

6.1 Claims. Viper Innovations Ltd t/a Livewire Innovation will defend or settle any third party claim against Customer that Goods and Services (excluding Build to Print Products as defined in Section 10.3) as delivered by Viper Innovations Ltd t/a Livewire Innovation infringe a third party’s copyright, trade secret right or U.S. patent provided Customer promptly notifies Viper Innovations Ltd t/a Livewire Innovation in writing, and cooperates with and provides control of the defense or settlement to Viper Innovations Ltd t/a Livewire Innovation, to the extent legally permissible.

6.2 Remedies. In the event of an infringement claim under Section 6.1 (Claims), Viper Innovations Ltd t/a Livewire Innovation will pay (i) infringement claim defense costs, and (ii) settlement amounts and final court-awarded damages, provided in all cases that such costs, amounts, and/or damages do not exceed the amount that Customer paid to Viper Innovations Ltd t/a Livewire Innovation for the Goods and/or Services at issue. If such a claim appears likely, Viper Innovations Ltd t/a Livewire Innovation may, at its option, modify the Good or Service, procure any necessary license, or replace it. If Viper Innovations Ltd t/a Livewire Innovation determines that none of these alternatives is reasonably available, Viper Innovations Ltd t/a Livewire Innovation will, subject to Customer’s return of the Goods or Services upon request by Viper Innovations Ltd t/a Livewire Innovation provide a prorated refund of the fees that Customer paid for such Goods or Services, depreciated on a thirty-six month (Software) or sixty month (Product) linear basis.

6.3 Exclusions. Viper Innovations Ltd t/a Livewire Innovation has no obligation for any claim of infringement arising from: (i) Viper Innovations Ltd t/a Livewire Innovation’s compliance with, or use of, Customer’s designs, specifications, instructions or technical information; (ii) Goods and Services modifications by Customer or a third party; (iii) Goods and Services not used as expressly provided within the Documentation, Viper Innovations Ltd t/a Livewire Innovation’s specifications or related application notes; or (iv) use of the Goods and Services with products not supplied by Viper Innovations Ltd t/a Livewire Innovation. This Section 6 states Viper Innovations Ltd t/a Livewire Innovation’s entire liability, and Customer’s sole remedy, for infringement claims.

  1. LIMITATION OF LIABILITY.

7.1 Limitations. IN NO EVENT SHALL VIPER INNOVATIONS LTD T/A LIVEWIRE INNOVATION HAVE ANY LIABILITY FOR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS, REVENUE, OR DATA, INSTALLATION OR REMOVAL COSTS, OR COST OF COVER. THE LIABILITY OF VIPER INNOVATIONS LTD T/A LIVEWIRE INNOVATION FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH ANY GOODS OR SERVICES SHALL NOT EXCEED A TOTAL AMOUNT EQUAL TO THE PURCHASE PRICE PAID OR PAYABLE BY CUSTOMER FOR THE GOODS OR SERVICES PRINCIPALLY RESPONSIBLE FOR SUCH DAMAGES WITHIN THE LAST TWELVE MONTHS PRECEDING THE CLAIM UNDER THIS AGREEMENT.

7.2 Scope. THE LIMITATIONS OF LIABILITY IN SECTION 7.1 (LIMITATIONS) SHALL APPLY TO ANY DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, WHETHER DERIVED FROM CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF VIPER INNOVATIONS LTD T/A LIVEWIRE INNOVATION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER THE LIMITED REMEDIES AVAILABLE UNDER THESE GENERAL TERMS OR ANY OFFERING SPECIFIC TERMS FAIL OF THEIR ESSENTIAL PURPOSE.

  1. CONFIDENTIAL INFORMATION. Customer will protect the secrecy of Confidential Information with due care. Customer will not (i) disclose Confidential Information to anyone, except to persons in its own organization who have a need to know in order to fulfill Customer’s obligations or exercise Customer’s express rights under the Agreement and who are bound by non-disclosure obligations requiring them to keep the Confidential Information secret; and (ii) use Confidential Information except as necessary for the performance of Customer’s obligations or the exercise of Customer’s express rights under the Agreement.
  2. RIGHTS IN INTELLECTUAL PROPERTY AND TOOLING.

9.1 All Rights Reserved. Except as expressly agreed otherwise in writing, Viper Innovations Ltd t/a Livewire Innovation and its licensors reserve all rights, title and interests, including Proprietary Rights, to (i) any Software, Firmware and/or Documentation, and (ii) all Intellectual Property in and/or related to the Goods and Services. Software, Firmware and Documentation are licensed by Viper Innovations Ltd t/a Livewire Innovation, not sold. The use of a copyright notice on any Viper Innovations Ltd t/a Livewire Innovation Good or Service shall not be taken to indicate that it has been published. All right, title and interest in and to any Work Product, Intellectual Property and/or Proprietary Rights, whether or not subject to statutory protection, which are made, created, developed, written, conceived or first reduced to practice by Viper Innovations Ltd t/a Livewire Innovation solely, jointly or on its behalf, in the course of, arising out of, or as a result of Services performed, and any related tooling, set-up, fitting-up and preparation charges whether or not invoiced, shall belong to and be the sole and exclusive property of Viper Innovations Ltd t/a Livewire Innovation.

9.2 No Reverse Engineering. To the extent legally permissible, Customer agrees not to reverse engineer, translate, create derivative works of, decompile, separate, and/or disassemble, any Goods or portions thereof nor allow or assist others to do so.

9.3 Actions under Mandatory Law. To the extent that Customer is expressly permitted by applicable mandatory law to take any actions that are prohibited under these General Terms or any other terms of the Agreement, included, but not limited to, reverse engineering, Customer agrees to refrain from exercising such rights unless and until Customer has given Viper Innovations Ltd t/a Livewire Innovation three weeks’ prior written notice of Customer’s intent to exercise any such rights and Viper Innovations Ltd t/a Livewire Innovation has not offered reasonable alternatives to Customer’s exercise of the mandatory rights within such three week period.

9.4 Marks and Labels. Customer acknowledges the goodwill associated with Viper Innovations Ltd t/a Livewire Innovation’s trademarks. Customer shall not obscure, remove or alter any trademarks, patent numbers, labels, serial numbers, product identification, copyright or other notices affixed to any Goods and Services, related documentation or packaging, without the express prior written consent of Viper Innovations Ltd t/a Livewire Innovation. Customer shall display Viper Innovations Ltd t/a Livewire Innovation’s and its licensors’ names and logos as well as the name of any Goods and Services on each copy of Software or Documentation made by Customer (provided that Customer shall not make any copies except as permitted by Viper Innovations Ltd t/a Livewire Innovation in a duly signed writing).

9.5 Firmware License. Subject to the terms and conditions of this Agreement, Viper Innovations Ltd t/a Livewire Innovation grants Customer a non-exclusive, limited and restricted license to use Firmware as part of the Product on, with, or for, which it is delivered or made available; Viper Innovations Ltd t/a Livewire Innovation does not permit Customer to make any copies or derivative works of Firmware and Customer may not transfer Firmware, except as part of the same Product on, with, or for, which it is delivered or made available. Firmware may include license terms provided by Viper Innovations Ltd t/a Livewire Innovation and/or its third party licensors which will apply to the use of the Firmware, and take precedence over these license terms.

9.6 Documentation License. Viper Innovations Ltd t/a Livewire Innovation grants Customer a non-sub-licensable, non-exclusive, non-transferable, limited license to use the Documentation that Viper Innovations Ltd t/a Livewire Innovation provides for Customer’s internal business purposes solely in support of Customer’s use of the Goods and Services. Customer is not authorized to copy or modify Documentation, except as expressly permitted by Viper Innovations Ltd t/a Livewire Innovation in a duly signed writing.

9.7 Software and End-User License. Subject to this Section and the terms contained in Exhibit A (Viper Innovations Ltd t/a Livewire Innovation’s Software and End User License Agreement (“EULA”)), Viper Innovations Ltd t/a Livewire Innovation grants Customer a non-sub-licensable, non-exclusive, non-transferable, limited license (a) to use the Software that Viper Innovations Ltd t/a Livewire Innovation provides for Customer’s internal business purposes solely in support of Customer’s use of the Goods and Services and (b) where Customer is an authorized reseller or distributor designated in writing by Viper Innovations Ltd t/a Livewire Innovation, to market and resell the Software solely as permitted in the agreement between Customer and Viper Innovations Ltd t/a Livewire Innovation authorizing such resale and distribution and these General Terms including without limitation this Section 9.7.  Any resale of Software or Documentation to any person or entity other than as expressly permitted in a writing executed by Viper Innovations Ltd t/a Livewire Innovation is expressly prohibited. Customer may not sublicense, to any person or entity, any rights to distribute the Software.  Where Customer is an authorized reseller or distributor, Customer shall provide a copy of the Viper Innovations Ltd t/a Livewire Innovation EULA and applicable third party license agreement to each end user with delivery of the Product or prior to installation of the Software.  Customer shall notify Viper Innovations Ltd t/a Livewire Innovation promptly of any breach or suspected breach of the Viper Innovations Ltd t/a Livewire Innovation EULA or third party license and further agrees that it will, at Viper Innovations Ltd t/a Livewire Innovation’s request, assist Viper Innovations Ltd t/a Livewire Innovation in efforts to preserve Viper Innovations Ltd t/a Livewire Innovation’s intellectual property rights including pursuing an action against any breaching parties. 

  1. LIMITED PRODUCT WARRANTY AND DISCLAIMER.

This Section 10 applies only if and to the extent Customer orders, or Viper Innovations Ltd t/a Livewire Innovation delivers Products, but not, for example, if and to the extent Customer orders Software or Services.

10.1 Limited Product Warranty. Notwithstanding any provision to the contrary (but subject to the operation of any law to the extent it cannot be excluded), Viper Innovations Ltd t/a Livewire Innovation’s sole and exclusive obligations to Customer for any Product made by Viper Innovations Ltd t/a Livewire Innovation and sold hereunder are solely as described in this Section 10.1 and Section 10.2 below, with such obligations being limited solely to any Product which has been returned to Viper Innovations Ltd t/a Livewire Innovation under the RMA procedure (as defined in Section 11)  and which in the reasonable opinion of Viper Innovations Ltd t/a Livewire Innovation is determined to be defective in workmanship, material or not in compliance with the Viper Innovations Ltd t/a Livewire Innovation specification applicable to the Product and has in fact failed under normal use on or before one year from the Delivery Date of the Product, unless otherwise stated in writing by Viper Innovations Ltd t/a Livewire Innovation in accordance with Section 10.3 (Build to Print). All third party products (including Software or Firmware) provided by Viper Innovations Ltd t/a Livewire Innovation carry only the original manufacturer’s warranty applicable to Customer. Viper Innovations Ltd t/a Livewire Innovation will only accept for repair, replacement or credit under warranty Products made by third parties if expressly authorized to do so by the relevant third party. Any Product repaired or replaced under warranty is only warranted for the period of time remaining in the original warranty for the Product. Customer shall have no warranty claims, unless Viper Innovations Ltd t/a Livewire Innovation receives from Customer, before the end of the warranty period and within thirty days of the date on which Customer first came to know, or should have known, about the warranty claim, (A) a written notice describing the warranty breach in reasonable detail; and (B) information in sufficient detail to enable Viper Innovations Ltd t/a Livewire Innovation to reproduce and analyze the failure.

10.1.1 Excluded Causes. Customer has no warranty rights with respect to defects or non-conformities caused by (i) use of the Product with hardware or software that was not expressly specified in writing by Viper Innovations Ltd t/a Livewire Innovation as suited for use with the Product; (ii) Customer’s failure to follow Viper Innovations Ltd t/a Livewire Innovation’s operating instructions; (iii) failure to implement updates; (iv) changes to the Customer environment in which Product was installed; (v) acts or omissions of persons other than Viper Innovations Ltd t/a Livewire Innovation or its authorized representatives; (vi) installation or maintenance of Product by someone other than Viper Innovations Ltd t/a Livewire Innovation or persons certified by Viper Innovations Ltd t/a Livewire Innovation ; (vii) being accidentally damaged, disassembled, modified, misused, repaired or reworked (by any party other than Viper Innovations Ltd t/a Livewire Innovation  or its authorized agents), improperly stored or handled, used in conjunction with another product that is incompatible or of an inferior quality, or used in applications which exceed the Product’s specifications or ratings, neglected, improperly installed or otherwise abused or is used in hazardous activities; or (viii) Force Majeure conditions as defined in Section 12.7 (Force Majeure).

10.1.2 Excluded Product and Components. Customer has no warranty rights with regard to any (i) consumable Product or parts thereof (e.g., parts with an expected useful life of less than ninety days, such as certain batteries); (ii) Product that has been modified by someone other than Viper Innovations Ltd t/a Livewire Innovation, unless such modifications were directed or approved by Viper Innovations Ltd t/a Livewire Innovation in writing and made in conformance with all specifications and instructions provided in such writing; (iii) prototypes, experimental, alpha, beta, field trial or unqualified Product; (iv) any patches, updates, or revisions that Viper Innovations Ltd t/a Livewire Innovation makes, at its sole discretion, available on its website or otherwise (for the avoidance of doubt, Viper Innovations Ltd t/a Livewire Innovation is not obligated to make any patches, updates, or revisions available outside the scope of specific maintenance agreements); (v) build to print Product (other than provided in Section 10.3 – Build to Print) and any other Product that Viper Innovations Ltd t/a Livewire Innovation  provides in accordance with Customer’s request, specifications, or instructions, unless Viper Innovations Ltd t/a Livewire Innovation  agrees in a duly signed writing that the provided Product shall be covered by the limited warranty specified in Section 10.1 (Limited Product Warranty); and (vi) Product not returned in accordance with Viper Innovations Ltd t/a Livewire Innovation’s RMA procedure. Additionally, to be clear, warranty rights do not include mandatory technical support (e.g., end-to-end case management, subject matter expertise via web and telephone support, in-region local language and time support). Viper Innovations Ltd t/a Livewire Innovation technical support is provided under a service contract (which each customer must enter separately with Viper Innovations Ltd t/a Livewire Innovation) and therefore, is treated by Viper Innovations Ltd t/a Livewire Innovation as a category of service independent from warranty rights. To the extent that Viper Innovations Ltd t/a Livewire Innovation provides access to technical support without a separate, valid support contract, it shall be at Viper Innovations Ltd t/a Livewire Innovation’s sole discretion and Viper Innovations Ltd t/a Livewire Innovation may discontinue such technical support at any time. In such cases, incidents will be logged and tracked on a reasonable effort basis; Viper Innovations Ltd t/a Livewire Innovation does not commit to resolving any incidents without a valid service contract. Committed service level response times are reserved for separately paid-for technical support service pursuant to contracts or standard support terms and conditions, as applicable, as defined therein.

10.1.3 Refurbished Parts and Prior Testing. Product may incorporate reconditioned or refurbished parts or subassemblies and may have been used in testing prior to sale.

10.2 Exclusive Remedies. If any Product materially fails to conform to the limited warranty set forth in Section 10.1 (Limited Product Warranty) and actually fails during the applicable warranty period and under normal use, Viper Innovations Ltd t/a Livewire Innovation shall, at its sole discretion (i) repair or replace the non-conforming Product to remedy the nonconformity identified by Customer in accordance with Section 10.1 (Limited Product Warranty); or (ii) issue a credit to Customer for the amounts paid for the Product in exchange for return of the non-conforming Product, in which case Customer’s licenses to any Firmware shall be automatically revoked. Customer hereby transfers to Viper Innovations Ltd t/a Livewire Innovation title and ownership of any parts that Viper Innovations Ltd t/a Livewire Innovation replaces.

10.3 Build to Print. Any Product that Viper Innovations Ltd t/a Livewire Innovation makes or customizes in accordance with Customer’s specifications (“Build to Print Product”) is excluded from the limited warranty in Section 10.1 (Limited Product Warranty). With respect to Build to Print Product, Viper Innovations Ltd t/a Livewire Innovation warrants only that Viper Innovations Ltd t/a Livewire Innovation performs the manufacturing services in a professional and workmanlike manner and in accordance with standards reasonably applicable to such services. Viper Innovations Ltd t/a Livewire Innovation will re-perform any services which are not in compliance with this warranty if Customer notifies Viper Innovations Ltd t/a Livewire Innovation of noncompliance in writing, on or before thirty days immediately following completion of the applicable services. THIS SERVICE WARRANTY IS THE ONLY WARRANTY THAT APPLIES TO THE PROVISION OF CONTRACT MANUFACTURING SERVICES OR BUILD TO PRINT PRODUCTS TO CUSTOMER. 

10.4 Disclaimer. THE REMEDIES EXPRESSLY PROVIDED IN THIS SECTION 10 WILL BE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES AND SHALL BE IN LIEU OF ANY OTHER RIGHTS OR REMEDIES CUSTOMER MAY HAVE AGAINST VIPER INNOVATIONS LTD T/A LIVEWIRE INNOVATION WITH RESPECT TO ANY NON-CONFORMANCE OF GOODS AND/OR SERVICES. EXCEPT AS SPECIFIED IN SECTION 10.1 (LIMITED PRODUCT WARRANTY) AND 10.3 (BUILD TO PRINT), VIPER INNOVATIONS LTD T/A LIVEWIRE INNOVATION MAKES NO EXPRESS REPRESENTATIONS OR WARRANTIES WITH REGARD TO ANY PRODUCT. VIPER INNOVATIONS LTD T/A LIVEWIRE INNOVATION   DISCLAIMS ALL IMPLIED WARRANTIES, CONDITIONS, AND REPRESENTATIONS INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, REGARDLESS OF THE LEGAL THEORY ON WHICH SUCH IMPLIED WARRANTY MAY BE BASED, INCLUDING, WITHOUT LIMITATION, CONTRACT, COURSE OF DEALING, USAGE, OR TRADE PRACTICE.

  1. RETURN PROCEDURE. Customer must make all claims under the warranties, and no claim will be accepted from any third party. The warranties set forth herein are non-transferable. With respect to warranty claims under the Agreement, Viper Innovations Ltd t/a Livewire Innovation will accept Goods only if returned in compliance with Viper Innovations Ltd t/a Livewire Innovation’s Return Material Authorization (“RMA”) process. Customer shall obtain a RMA number from Viper Innovations Ltd t/a Livewire Innovation prior to returning any Goods and ship the Goods prepaid and insured as instructed by Viper Innovations Ltd t/a Livewire Innovation. If Customer returns Goods without an itemized statement of claimed defects, Viper Innovations Ltd t/a Livewire Innovation will not evaluate the Goods but will return them to the Customer at the Customer’s expense .Any Good that is returned to Viper Innovations Ltd t/a Livewire Innovation but which is found to meet the applicable specifications for the Good and/or is not defective in workmanship and materials shall be subject to Viper Innovations Ltd t/a Livewire Innovation’s standard examination charge in effect at the time, which shall be charged to, and paid for by, Customer.
  2. MISCELLANEOUS

12.1 Compliance. Customer shall obtain all licenses, permits and approvals required by any government and shall comply with all applicable laws, rules, policies and procedures of the applicable government and other competent authorities. Customer will indemnify and hold Viper Innovations Ltd t/a Livewire Innovation harmless for any violation or alleged violation by Customer of such laws, rules, policies or procedures. Customer shall not transmit, export or re-export, directly or indirectly, separately or as part of any system, the Goods or any technical data (including processes and services) received from Viper Innovations Ltd t/a Livewire Innovation, without first obtaining any license required by the applicable government, including without limitation, the United States Government and/or any other applicable competent authority. Customer also certifies that (i) none of the products or technical data supplied by Viper Innovations Ltd t/a Livewire Innovation will be sold or otherwise transferred to, or made available for use by or for, any entity that is: (a) located in an “embargoed” country in accordance with any applicable government list(s) including without limitation, those of the United States, (b) a ‘denied’ or ‘restricted’ party on any applicable government list(s) including without limitation, those of the United States, and/or (c) engaged in the design, development, production or use of nuclear, biological or chemical weapons or missile technology; (ii) no relevant agency or authority has suspended, revoked or denied Customer’s export and/or import privileges; and/or (iii) Customer is not located in or under the control of a national or resident of, a jurisdiction where this transaction is prohibited.

12.2. Choice of Law and Jurisdiction. The Agreement and its validity, interpretation and performance, and any related dispute between the parties (“Disputes”) shall be governed by the laws of the State of Utah and the United States of America, as if performed wholly within the State of Utah and without giving effect to any principles of conflict of laws. The parties specifically disclaim the application of (i) the United Nations Convention on Contracts for the International Sale of Goods and/or its implementing and/or successor legislation and/or regulations; and/or (ii) principles of conflicts of law and that body of law applicable to choice of law. Viper Innovations Ltd t/a Livewire Innovation and Customer hereby irrevocably and unconditionally submit to the jurisdiction of the courts in the State of Utah and all courts competent to hear appeal therefrom and such courts shall have exclusive jurisdiction over any Disputes. Customer waives its right to a jury trial. Notwithstanding the foregoing, either party may, at its sole discretion, seek injunctive relief in any court of competent jurisdiction (including, but not limited to, preliminary injunctive relief). The prevailing party in any legal proceeding brought by one party against the other party in a Dispute shall be entitled to recover its legal expenses, including, but not limited to, the costs of any court or arbitration proceeding and reasonable attorneys’ fees.

12.3 Entire Agreement. The Agreement contains the entire agreement between Viper Innovations Ltd t/a Livewire Innovation and Customer concerning the subject matter of the Agreement, and apart from any existing non-disclosure agreements, the Agreement supersedes any previous communications, representations or agreements between the parties, whether oral or written, regarding transactions hereunder. No provisions in any purchase orders, or in any other documentation employed by or on behalf of either party in connection the Agreement, regardless of the date of such documentation, will affect the terms of the Agreement, even if such document is accepted by the receiving party, with such provisions being deemed deleted. Any notices and any modifications of, or amendments to, the Agreement shall be invalid, unless (i) notices are in writing and sent by fax or by certified mail, postage prepaid, or via email with confirmation of receipt; and (ii) modifications and amendments are in writing and signed by duly authorized officers of both parties. Representations made by sales or technical personnel of Viper Innovations Ltd t/a Livewire Innovation shall have no legal effect, unless confirmed by a senior executive of Viper Innovations Ltd t/a Livewire Innovation (senior vice president or above) in writing. Furthermore, notices to Viper Innovations Ltd t/a Livewire Innovation are invalid, unless and until received at Viper Innovations Ltd t/a Livewire Innovation’s head office with a copy to Viper Innovations Ltd t/a Livewire Innovation’s Legal Department.

12.4 Dates and Timelines. All references to days are to calendar days, except as expressly noted otherwise. All scheduled shipment dates, delivery dates, and other dates are non-binding estimates, unless a senior executive of Viper Innovations Ltd t/a Livewire Innovation (senior vice president and above) expressly agrees in a duly signed writing that a certain date shall be legally binding.

12.5 No Waiver. The failure or delay of either party to exercise or enforce any right or claim does not constitute a waiver of such right or claim and shall in no way affect that party’s right to later enforce or exercise it, unless such party issues an express written waiver, signed by a duly authorized representative.

12.6 Assignment and Delegation. Customer may not assign any of its rights against Viper Innovations Ltd t/a Livewire Innovation, and any (purported) assignment, either voluntarily or by operation of law, is invalid. Any warranties extended by Viper Innovations Ltd t/a Livewire Innovation are nontransferable and for Customer’s benefit only. Viper Innovations Ltd t/a Livewire Innovation may assign its rights and delegate its obligations.

12.7 Force Majeure. Any non-performance or late performance – except of payment obligations – of either party shall be excused to the extent that performance is rendered impossible or delayed by strike, fire, flood, acts of terrorism, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of the non-performing or late-performing party whether or not similar to the foregoing. If by reason of any such force majeure event, Viper Innovations Ltd t/a Livewire Innovation’s supplies of Goods and Services are limited, Viper Innovations Ltd t/a Livewire Innovation shall have the right to prorate the available supply in such a manner as it, in its sole discretion, determines appropriate.

12.8 Audit. Upon reasonable notice, Viper Innovations Ltd t/a Livewire Innovation or its agent(s) may inspect Customer’s facilities (including computers) and records to verify Customer’s compliance with these General Terms and any Software license terms and payment for all Software licensed (including applicable support fees) to Customer. Customer will keep records regarding its use in sufficient detail to permit this verification. Customer shall fully cooperate with such audit, and grant all required assistance and dial-in and/or on-site access to all networks, records, materials and equipment. If, after an audit, it is determined that Customer had underpaid any amounts due, Viper Innovations Ltd t/a Livewire Innovation will invoice Customer for and Customer will pay the amount of the underpayment plus interest from the date payment was due. If the underpayment is more than five percent of the amount properly due, Customer will also reimburse Viper Innovations Ltd t/a Livewire Innovation for its audit expenses. Viper Innovations Ltd t/a Livewire Innovation’s rights and remedies under this Section 12.8 shall be in addition to and not in lieu of any other rights or remedies that are available to Viper Innovations Ltd t/a Livewire Innovation at law or in equity.

12.9 Severability. If and to the extent that any of the terms of this Agreement, except payment obligations, become or are declared to be illegal by any court of competent jurisdiction, such terms shall be null and void and shall be deemed deleted from this Agreement, but only to the extent that such term is illegal, it being the intent and agreement of the parties that the Agreement shall be deemed amended by modifying such term to the extent necessary to make it legal while preserving its intent or, if that is not possible, by substituting therefore another term that is legal and achieves the same objective. All remaining terms of this Agreement shall remain in full force and effect.

12.10 No Authority. The parties to this Agreement are independent contractors. No relationship of principal to agent, master or servant, employer to employee or franchiser to franchisee is established hereby between the parties. Neither party has the right or authority to, and shall not, assume or create any obligation of any nature whatsoever on behalf of the other party or bind the other party in any respect whatsoever. Viper Innovations Ltd t/a Livewire Innovation neither assumes nor authorizes any third party, person or entity to assume or accept any liability or obligation, or to make any commitment for Viper Innovations Ltd t/a Livewire Innovation with regard to the Goods and/or Services.

12.11 Interpretation. In this Agreement, unless a contrary intention appears: (i) the terms, “hereof”, “hereunder” and similar expressions refer to this Agreement and not to any particular portion hereof and include any agreement supplemental hereto; (ii) words importing a singular number only shall include the plural and vice versa; (iii) the term “including” means “including without limitation”; (iv) other grammatical forms of defined words or expressions have corresponding meanings; (v) a reference to a section, document or agreement, including this Agreement, includes a reference to that section, document or agreement as amended from time to time, as permitted hereunder; and (vi) the division of this Agreement into sections and the insertion of headings are for convenient reference only, and shall affect neither the construction nor the interpretation of this Agreement.

EXHIBIT A

SOFTWARE AND END USER LICENSE AGREEMENT

IMPORTANT: PLEASE READ THIS SOFTWARE AND END USER LICENSE AGREEMENT CAREFULLY. IT IS VERY IMPORTANT THAT YOU CHECK THAT YOU ARE PURCHASING VIPER INNOVATIONS LTD T/A LIVEWIRE INNOVATION SOFTWARE OR EQUIPMENT FROM AN APPROVED SOURCE AND THAT YOU, OR THE ENTITY YOU REPRESENT (COLLECTIVELY, THE “CUSTOMER”) HAVE BEEN REGISTERED AS THE END USER FOR THE PURPOSES OF THIS VIPER INNOVATIONS LTD T/A LIVEWIRE INNOVATION SOFTWARE AND END USER LICENSE AGREEMENT. IF YOU ARE NOT REGISTERED AS THE END USER, YOU HAVE NO LICENSE TO USE THE SOFTWARE AND THE LIMITED WARRANTY IN THIS SOFTWARE AND END USER LICENSE AGREEMENT DOES NOT APPLY. ASSUMING YOU HAVE PURCHASED FROM AN APPROVED SOURCE, DOWNLOADING, INSTALLING OR USING VIPER INNOVATIONS LTD T/A LIVEWIRE INNOVATION OR VIPER INNOVATIONS LTD T/A LIVEWIRE INNOVATION-SUPPLIED SOFTWARE CONSTITUTES ACCEPTANCE OF THIS AGREEMENT.

VIPER INNOVATIONS LTD T/A LIVEWIRE INNOVATION (“VIPER INNOVATIONS LTD T/A LIVEWIRE INNOVATION”) IS WILLING TO LICENSE THIS SOFTWARE TO YOU ONLY UPON THE CONDITION THAT YOU RECEIVED THE SOFTWARE FROM AN APPROVED SOURCE AND THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS SOFTWARE AND END USER LICENSE AGREEMENT PLUS ANY ADDITIONAL LIMITATIONS ON THE LICENSE SET FORTH IN A SUPPLEMENTAL LICENSE AGREEMENT ACCOMPANYING THE PRODUCT OR AVAILABLE AT THE TIME OF YOUR ORDER (COLLECTIVELY, THE “AGREEMENT”). TO THE EXTENT OF ANY CONFLICT BETWEEN THE TERMS OF THIS END USER LICENSE AGREEMENT AND ANY SUPPLEMENTAL LICENSE AGREEMENT, THE SUPPLEMENTAL LICENSE AGREEMENT SHALL APPLY. BY DOWNLOADING, INSTALLING OR USING THE SOFTWARE, YOU ARE REPRESENTING THAT YOU RECEIVED THE SOFTWARE FROM AN APPROVED SOURCE AND ARE BINDING YOURSELF TO THE AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THE AGREEMENT, THEN VIPER INNOVATIONS LTD T/A LIVEWIRE INNOVATION IS UNWILLING TO LICENSE THE SOFTWARE TO YOU AND (A) YOU MAY NOT DOWNLOAD, INSTALL OR USE THE SOFTWARE, AND (B) YOU MAY RETURN THE SOFTWARE (INCLUDING ANY UNOPENED PACKAGE AND ANY WRITTEN MATERIALS) FOR A FULL REFUND, OR, IF THE SOFTWARE AND WRITTEN MATERIALS ARE SUPPLIED AS PART OF ANOTHER PRODUCT, YOU MAY RETURN THE ENTIRE PRODUCT FOR A FULL REFUND. YOUR RIGHT TO RETURN AND REFUND EXPIRES THIRTY DAYS AFTER RECEIPT FROM AN APPROVED SOURCE, AND APPLIES ONLY IF YOU ARE THE ORIGINAL AND REGISTERED END USER. FOR THE PURPOSES OF THIS SOFTWARE AND END USER LICENSE AGREEMENT, AN “APPROVED SOURCE” MEANS (A) VIPER INNOVATIONS LTD T/A LIVEWIRE INNOVATION; OR (B) A DISTRIBUTOR AUTHORIZED BY VIPER INNOVATIONS LTD T/A LIVEWIRE INNOVATION TO DISTRIBUTE/SELL VIPER INNOVATIONS LTD T/A LIVEWIRE INNOVATION EQUIPMENT, SOFTWARE AND SERVICES WITHIN YOUR TERRITORY TO END USERS; OR (C) A RESELLER AUTHORIZED BY ANY SUCH DISTRIBUTOR IN ACCORDANCE WITH THE TERMS OF THE DISTRIBUTOR’S AGREEMENT WITH VIPER INNOVATIONS LTD T/A LIVEWIRE INNOVATION TO DISTRIBUTE/SELL THE VIPER INNOVATIONS LTD T/A LIVEWIRE INNOVATION EQUIPMENT, SOFTWARE AND SERVICES WITHIN YOUR TERRITORY TO END USERS.

THE FOLLOWING TERMS OF THE AGREEMENT GOVERN CUSTOMER’S USE OF THE SOFTWARE (DEFINED BELOW), EXCEPT TO THE EXTENT: (A) THERE IS A SEPARATE SIGNED CONTRACT BETWEEN CUSTOMER AND VIPER INNOVATIONS LTD T/A LIVEWIRE INNOVATION GOVERNING CUSTOMER’S USE OF THE SOFTWARE, OR (B) THE SOFTWARE INCLUDES A SEPARATE “CLICK-ACCEPT” LICENSE AGREEMENT OR THIRD PARTY LICENSE AGREEMENT AS PART OF THE INSTALLATION OR DOWNLOAD PROCESS GOVERNING CUSTOMER’S USE OF THE SOFTWARE. TO THE EXTENT OF A CONFLICT BETWEEN THE PROVISIONS OF THE FOREGOING DOCUMENTS, THE ORDER OF PRECEDENCE SHALL BE (1) THE SIGNED CONTRACT, (2) THE CLICK-ACCEPT AGREEMENT OR THIRD PARTY LICENSE AGREEMENT, AND (3) THE AGREEMENT. FOR PURPOSES OF THE AGREEMENT, “SOFTWARE” SHALL MEAN COMPUTER PROGRAMS, INCLUDING COMPUTER PROGRAMS EMBEDDED IN VIPER INNOVATIONS LTD T/A LIVEWIRE INNOVATION PRODUCTS, AS PROVIDED TO CUSTOMER BY AN APPROVED SOURCE, AND ANY UPGRADES, UPDATES, BUG FIXES OR MODIFIED VERSIONS THERETO (COLLECTIVELY, “UPGRADES”), ANY OF THE SAME WHICH HAS BEEN RELICENSED UNDER THE VIPER INNOVATIONS LTD T/A LIVEWIRE INNOVATION SOFTWARE TRANSFER AND RE-LICENSING POLICY (AS MAY BE AMENDED BY VIPER INNOVATIONS LTD T/A LIVEWIRE INNOVATION FROM TIME TO TIME) OR BACKUP COPIES OF ANY OF THE FOREGOING.

This Software and End User License Agreement applies to any quote, order, order acknowledgment, and invoice, and any license or delivery of Software by Viper Innovations Ltd t/a Livewire Innovation, in addition to Viper Innovations Ltd t/a Livewire Innovation’s General Terms, which are incorporated by reference herein and are either attached hereto, or available at www.LivewireInnovation.com/terms or on request.

  1. SCOPE AND DEFINITIONS. The definitions in Viper Innovations Ltd t/a Livewire Innovation’s General Terms shall apply in addition to the following definition: “Authorized Users” means officers, employees and independent contractors of Customer, who are bound by enforceable written obligations to (i) treat the Software, Documentation and Confidential Information of Viper Innovations Ltd t/a Livewire Innovation as confidential (as set forth in Viper Innovations Ltd t/a Livewire Innovation’s General Terms); and (ii) use such Software, Documentation and Confidential Information only on behalf of Customer and only in accordance with this Software and End User License Agreement.
  2. NO SALE. Software and Documentation (and any copies thereof), are licensed only, not sold by Viper Innovations Ltd t/a Livewire Innovation. Viper Innovations Ltd t/a Livewire Innovation reserves all rights, except as expressly granted in this Software and End User License Agreement.
  3. LICENSE.

3.1 License Grant. Subject to the terms and conditions of this Agreement, Viper Innovations Ltd t/a Livewire Innovation grants Customer a personal, non-sublicensable, non-exclusive, non- transferable, limited license to have Authorized Users use copies of the Software in accordance with the applicable Documentation within the scope of the License Models described in Section 3.2 (License Models), solely for Customer’s internal business purposes. Viper Innovations Ltd t/a Livewire Innovation’s license grant is conditioned upon Customer’s continuous compliance with all license limitations and restrictions described in this Software and End User License Agreement and if Customer violates any of these limitations or restrictions or any other terms of this Software and End User License Agreement, the license grant will automatically and immediately expire without notice from Viper Innovations Ltd t/a Livewire Innovation. Customer acknowledges that the license descriptions in this Section 3.1 and in Section 3.2 (License Models) define the scope of rights that Viper Innovations Ltd t/a Livewire Innovation grants to Customer and that any usage of the Software outside the scope of that license grant and the scope of any statutory rights constitutes an infringement of Viper Innovations Ltd t/a Livewire Innovation’s and/or its licensors’ Intellectual Property and/or Proprietary Rights as well as a material breach of this Software and End User License Agreement.

3.2 License Models. Any license grant under this Software and End User License Agreement is subject to the limitations defined in this Section 3.2. Unless Viper Innovations Ltd t/a Livewire Innovation expressly specifies or agrees otherwise in a duly signed writing, all Software shall be governed by a Standard License (see Section 3.2.1 (Standard License)).

3.2.1 Standard License. Unless Viper Innovations Ltd t/a Livewire Innovation expressly specifies in writing that one or more additional or different License Models apply per Subsections 3.2.2 (Licensed Hardware) through 3.2.4 (Time Limit) below, Customer may install and keep one copy of the Software on either (i) one stand-alone computer or (ii) one Product, neither of which may be connected to a network in a manner that allows no more than one user to upload, access, manipulate or otherwise create or use a copy of the Software. Customer may not use the Software other than on one computer or Product.

3.2.2 Licensed Hardware. If Viper Innovations Ltd t/a Livewire Innovation in writing identifies a certain computer or Product (“Licensed Hardware”) on which the Software may be used, then Customer may install, upload, copy, keep, view, and use the applicable Software only on such Licensed Hardware. Customer may migrate the Software to a different computer, type of computer, or Product only if (i) Customer gives thirty days’ prior written notice to Viper Innovations Ltd t/a Livewire Innovation; (ii) Customer does not upload or use the Software on the Licensed Hardware after installing it on the destination computer or Product; and (iii) Customer removes all copies from the Licensed Hardware within two weeks after installing it on the destination computer or Product, which will thereafter become the Licensed Hardware for purposes of these Software License Terms. Upon installation of the Software on such destination computer or Product, Customer shall lose all license rights to the Software for use on the old Licensed Hardware.

3.2.3 Server-Client Architecture. If Viper Innovations Ltd t/a Livewire Innovation identifies Software in a duly signed writing as a server software product (“Server Software”) then Customer may install, upload, copy, keep, view, and use one copy of the server portion of such Software on a single server. Customer may install and use copies of the client portion of such Software on computers in accordance with one of the following options:

(i) Floating Licenses. If Viper Innovations Ltd t/a Livewire Innovation specifically describes a license for Server Software in writing as a “floating license,” Customer may install, upload, copy, keep, view, and use the client portion of such Software on a reasonable number of individual workstations on the condition that no more than the maximum number of concurrent Authorized Users specified by Viper Innovations Ltd t/a Livewire Innovation may use the client or have access to the server portion of the Software at any one time. If Viper Innovations Ltd t/a Livewire Innovation does not specify in writing a different maximum number of Authorized-Users for a floating license, the maximum number of concurrent Authorized-Users shall be one.

(ii) Node-Locked Licenses. Unless Viper Innovations Ltd t/a Livewire Innovation specifically describes in writing a license for Server Software as a “floating license,” Customer may install, upload, copy, keep, view, and use the client portion of such Software only on one workstation per authorized node. All activities related to the operation of the Software must be performed on the same workstation. The maximum number of authorized nodes shall be one, unless Viper Innovations Ltd t/a Livewire Innovation specifies another number in writing.

3.2.4 Time Limit. Subject to Customer’s ongoing compliance with the terms and conditions of this Software and End User License Agreement, including, without limitation, the payment of all fees or charges related to this Software and End User License Agreement, the term of the license(s) contained herein shall either a) continue for the Viper Innovations Ltd t/a Livewire Innovation-specified period for any limited duration license, at which point such license shall automatically expire at the end of such period, or b) if no period is specified by Viper Innovations Ltd t/a Livewire Innovation, continue until terminated in accordance with Section 6.1 below. Notwithstanding the foregoing, Viper Innovations Ltd t/a Livewire Innovation has the right to revoke Customer’s license(s) at any time due to Customer’s non-payment.

3.3 Copies. Except as expressly specified herein or agreed otherwise in writing, Customer may duplicate each item of Software that Viper Innovations Ltd t/a Livewire Innovation delivers only to the extent necessary for backup purposes.  Customer may not create any other copies of the Software, unless Viper Innovations Ltd t/a Livewire Innovation expressly permits additional copies in writing.

3.4 License Key Management. Viper Innovations Ltd t/a Livewire Innovation may, at its sole discretion, use or combine license management programs with any Software, which automatically monitor and enforce license restrictions and limitations, provided that such precautions shall not relieve Customer of its primary responsibility to ensure compliance with this Software and End User License Agreement. Customer expressly agrees to be fully responsible for compliance by all Authorized Users with this Software and End User License Agreement, to take all actions reasonably requested by Viper Innovations Ltd t/a Livewire Innovation to protect the rights of Viper Innovations Ltd t/a Livewire Innovation in the Software and Documentation, and to indemnify and hold Viper Innovations Ltd t/a Livewire Innovation harmless against any loss resulting from a breach of this Software and End User License Agreement by any Authorized User or any individual or entity that Customer caused, enabled or allowed to use the Software in any manner not authorized under this Software and End User License Agreement.

3.5 License Restrictions., Customer agrees not to (i) translate or create any derivative works based on the Software or Documentation or modify or alter the Software or Documentation in any manner whatsoever; (ii) sell, sublicense, lease, rent, loan, assign, convey, distribute, or otherwise transfer the Software or Documentation to any third parties; (iii) copy or use the Software or Documentation for any purpose or in any manner not expressly permitted in this Software and End User License Agreement; (iv) use the Software outside the permitted scope of the License Models; (v) use the Software or Documentation, in any format, for or in the interest of any third party other than by Authorized Users; (vi) disclose the results of any benchmark test of the Software to any third party, without Viper Innovations Ltd t/a Livewire Innovation’s prior written approval; or (vii) permit or encourage any third party to do any of the foregoing. Customer acknowledges that the structure, organization and codes of the Software remain confidential trade secrets of Viper Innovations Ltd t/a Livewire Innovation and its licensors. Customer shall cooperate with Viper Innovations Ltd t/a Livewire Innovation, and shall render all reasonable assistance requested by Viper Innovations Ltd t/a Livewire Innovation, to assist Viper Innovations Ltd t/a Livewire Innovation in preventing and identifying any use of, or access to, the Software and Documentation, by Authorized Users or otherwise, in violation of this Software and End User License Agreement. For greater clarity, no source code shall be licensed under these Software License Terms (excluding possibly under the Specific Licenses).

3.6 Specific Licenses. To the extent that Customer acquires from Viper Innovations Ltd t/a Livewire Innovation any Software that is accompanied by or made available subject to other end-user license terms and/or other terms (in shrink-wrap, click-through or other format), either from Viper Innovations Ltd t/a Livewire Innovation or originating from third party licensors (“Specific Licenses”) (i) Customer shall agree to such Specific Licenses vis-à-vis the licensor specified in such Specific Licenses; (ii) to the extent such Specific Licenses conflict with Section 3.1 (License Grant) through 3.5 (License Restrictions), the Specific Licenses shall take precedence with respect to the Software (or portion thereof) subject to such Specific Licenses; and (iii) Customer’s right to use the Software (or portion thereof) subject to such Specific Licenses will be defined and restricted in such Specific Licenses. Software originated by Viper Innovations Ltd t/a Livewire Innovation is not subject to third party licenses. Terms of this Software License that are different from applicable third party licenses are offered by Viper Innovations Ltd t/a Livewire Innovation alone.

  1. AUDIT. Upon reasonable notice, Viper Innovations Ltd t/a Livewire Innovation or its agent(s) may inspect Customer’s facilities (including computers) and records to verify Customer’s compliance with this Software and End User License Agreement and payment for all Software licensed (including applicable support fees) to Customer. Customer will keep records regarding its use in sufficient detail to permit this verification. Customer shall fully cooperate with such audit, and grant all required assistance and dial-in and/or on-site access to all networks, records, materials and equipment. If, after an audit, it is determined that Customer has underpaid any amounts due, Viper Innovations Ltd t/a Livewire Innovation will invoice Customer for and Customer will pay the amount of the underpayment plus interest from the date payment was due. If the underpayment is more than five percent of the amount properly due, Customer will also pay Viper Innovations Ltd t/a Livewire Innovation inspection expenses. Viper Innovations Ltd t/a Livewire Innovation’s rights and remedies under this Section 4 shall be in addition to and not in lieu of any other rights or remedies that are available to Viper Innovations Ltd t/a Livewire Innovation at law or in equity.
  2. LIMITED WARRANTY AND DISCLAIMERS.

5.1 Limited Warranty. Viper Innovations Ltd t/a Livewire Innovation warrants that on the Delivery Date, the Software substantially conforms to Viper Innovations Ltd t/a Livewire Innovation’s specifications in the applicable Documentation, subject to the limitations and exclusions in Section 5.1.1 (Excluded Causes) through Section 5.1.3 (No Warranties for Updates).

5.1.1 Excluded Causes. Customer has no warranty rights with respect to defects or non-conformities caused by or related to (i) use of the Software with hardware or software that was not expressly specified in writing by Viper Innovations Ltd t/a Livewire Innovation as suited for use with the Software; (ii) Customer’s failure to follow Viper Innovations Ltd t/a Livewire Innovation’s operating instructions; (iii) failure to implement all updates, upgrades, and other new releases of Software made available to Customer (provided, for the avoidance of doubt, that Viper Innovations Ltd t/a Livewire Innovation is not obligated to make available any such new releases outside the scope of a separate maintenance agreement); (iv) changes to the Customer environment, in which Software was provided; or (v) acts or omissions of persons other than Viper Innovations Ltd t/a Livewire Innovation or its authorized representatives.

5.1.2 Modifications. Customer has no warranty rights with regard to any Software (i) that has been modified by someone other than Viper Innovations Ltd t/a Livewire Innovation, unless such modifications were directed or approved by Viper Innovations Ltd t/a Livewire Innovation in writing and made in conformance with all specifications and instructions provided by Viper Innovations Ltd t/a Livewire Innovation in such writing; (ii) that Viper Innovations Ltd t/a Livewire Innovation modified in accordance with Customer’s request, specifications, or instructions, unless Viper Innovations Ltd t/a Livewire Innovation agreed in a duly signed writing that the modified Software would be covered by the limited warranty specified in Section 5.1 (Limited Warranty); or (iii) third party products.

5.1.3 No Warranties for Updates. Viper Innovations Ltd t/a Livewire Innovation does not extend any warranties under this Software and End User License Agreement for any updates that Viper Innovations Ltd t/a Livewire Innovation may make available under Viper Innovations Ltd t/a Livewire Innovation’s Software Maintenance Terms. Any warranties for any updates are exclusively and finally provided for under Viper Innovations Ltd t/a Livewire Innovation’s Software Maintenance Services Terms, if applicable.

5.2 Exclusive Remedies. If the Software materially fails to conform to the limited warranty set forth in Section 5.1 (Limited Warranty), Viper Innovations Ltd t/a Livewire Innovation shall, at its sole discretion (i) repair or replace the non-conforming Software to remedy the non-conformity identified by Customer in accordance with Section 5.3 (Warranty Period); or (ii) issue a credit to Customer equal to the amounts paid for the Software in exchange for return of the non-conforming Software, in which case all licenses granted to Customer under these Software License Terms for such Software shall be automatically revoked. This Software warranty does not obligate Viper Innovations Ltd t/a Livewire Innovation to provide any on-site repair or on-site replacement of Software. At Viper Innovations Ltd t/a Livewire Innovation’s discretion, repair of the Software may be made in later releases of Software and may require the purchase of additional software or hardware at Customer’s expense. THE REMEDIES EXPRESSLY PROVIDED IN THIS SECTION 5.2 (EXCLUSIVE REMEDIES) WILL BE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES AND SHALL BE IN LIEU OF ANY OTHER RIGHTS OR REMEDIES CUSTOMER MAY HAVE AGAINST VIPER INNOVATIONS LTD T/A LIVEWIRE INNOVATION WITH RESPECT TO ANY NON-CONFORMANCE OF SOFTWARE.

5.3 Warranty Period. Unless Viper Innovations Ltd t/a Livewire Innovation expressly specifies or agrees on a different warranty period in a duly signed writing, the warranty period for Software shall be ninety days and begin on the Delivery Date. Customer shall have no warranty claims under Section 5.1 (Limited Warranty), unless Viper Innovations Ltd t/a Livewire Innovation receives from Customer, during the warranty period and within thirty days of the date on which Customer noticed or should have known about the warranty breach, (i) a written notice describing the warranty breach in reasonable detail (“Warranty Claim”); (ii) remote and physical access to the affected Software as well as information in sufficient detail to enable Viper Innovations Ltd t/a Livewire Innovation to reproduce and analyze the failure.

5.4 Disclaimer. EXCEPT AS SPECIFIED IN SECTION 5.1 (LIMITED WARRANTY), VIPER INNOVATIONS LTD T/A LIVEWIRE INNOVATION MAKES NO EXPRESS REPRESENTATIONS OR WARRANTIES WITH REGARD TO ANY SOFTWARE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, VIPER INNOVATIONS LTD T/A LIVEWIRE INNOVATION DISCLAIMS ALL IMPLIED WARRANTIES, CONDITIONS, AND REPRESENTATIONS, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, REGARDLESS OF THE LEGAL THEORY ON WHICH SUCH IMPLIED WARRANTY, CONDITION OR REPRESENTATION MAY BE BASED, INCLUDING, WITHOUT LIMITATION, CONTRACT, COURSE OF DEALING, USAGE, OR TRADE PRACTICE AND, WITHOUT LIMITING THE FOREGOING, MAKES NO WARRANTY THAT THE SOFTWARE WILL BE ERROR-FREE, THAT ITS PERFORMANCE OR OPERATION WILL BE UNINTERRUPTED, OR THAT THE SOFTWARE WILL PERFORM ON ANY HARDWARE OR WITH ANY SOFTWARE, EXCEPT AS EXPRESSLY CERTIFIED AS INTEROPERABLE BY VIPER INNOVATIONS LTD T/A LIVEWIRE INNOVATION IN THE APPLICABLE DOCUMENTATION. THE SOFTWARE IS NOT FAULT-TOLERANT AND IS NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE OR RESALE AS SOFTWARE FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE IN WHICH THE FAILURE OF THE SOFTWARE COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.

 5.5 U.S. Government End Users. The Software is made available to non-Department of Defense (DOD) agencies of the United States Government with RESTRICTED RIGHTS and its supporting documentation is provided with LIMITED RIGHTS. Use, duplication, or disclosure by the United States Government is subject to the restrictions as set forth in subparagraph “C” of the Commercial Computer Software – Restricted Rights clause at FAR 52.227-19 or any successor clause. In the event the sale is to a DOD agency, the Government’s rights in software, supporting documentation, and technical data are governed by the restrictions in the Technical Data Commercial Items clause at DFARS 252.227-7015 and DFARS 227.7202 or any successor clauses. The Software is a trade secret of Viper Innovations Ltd t/a Livewire Innovation for all purposes of the Freedom of Information Act or its successor legislation or any other disclosure statute, regulation or provision and in all respects is and shall remain proprietary to Viper Innovations Ltd t/a Livewire Innovation or its licensors. The U.S. Government must refrain from changing or removing any insignia or lettering from the Software or from producing copies of the Software and manuals (except one copy of the Software for backup purposes). Use of the Software shall be limited to the facility for which it is acquired. All other U.S. Government personnel using the Software are hereby on notice that use of the Software is subject to restrictions that are the same as, or similar to, those specified above.

  1. TERMINATION.

6.1 Termination for Cause. Without limiting Section 3.1 (License Grant) with respect to the automatic termination of license rights for specific Software, Viper Innovations Ltd t/a Livewire Innovation may terminate — at Viper Innovations Ltd t/a Livewire Innovation’s sole discretion either all or specific — licenses to Software granted hereunder, by giving written notice, effective immediately, if within ten days of Viper Innovations Ltd t/a Livewire Innovation’s delivery of a reasonably detailed written request to cure, Customer has not cured all breaches of payment obligations, license limitations and restrictions, including, but not limited to, the License Models, or any other substantial obligations under these Software License Terms or the Agreement. Upon such termination, Customer shall immediately pay all outstanding fees, cease use of all Software and related Documentation, return or delete, at Viper Innovations Ltd t/a Livewire Innovation’s request and sole discretion, all copies of the Software and Documentation in Customer’s possession, and certify compliance with all foregoing obligations to Viper Innovations Ltd t/a Livewire Innovation in writing. These termination rights are in addition to any other rights and remedies that Viper Innovations Ltd t/a Livewire Innovation may have at law or in equity.

6.2 Survival. Viper Innovations Ltd t/a Livewire Innovation’s General Terms and this Software and End User License Agreement, except Section 3.1 (License Grant), shall survive termination of any or all licenses granted hereunder.