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Terms and Conditions

Terms and Conditions

GENERAL TERMS AND CONDITIONS

  1. Scope.
    1. These General Terms and Conditions (these "General Terms") shall apply to the sale of Linga software and software services, (together, the "SaaS Services"), hardware sold or provided by Linga for use in conjunction with SaaS Services ("Hardware"), implementation, application branding and configuration services, report development, terminology and user interface customization, analytics services and such other professional services as may be set forth in the Sales Order ("Professional Services"), and any other service provided by Linga when expressly referenced or included in an order form or similar agreement ("Sales Order") executed by and between Linga and the purchaser indicated in the Sales Order ("Customer"). "Services" means, collectively, the SaaS Services and Professional Services, in each case and as to the extent set forth in a Sales Order.
    2. Appendix A (SaaS and Software Services Terms) applies to SaaS Services. Appendix B (Hardware Terms) applies to any Hardware Customer has purchased or otherwise obtained from Linga. Appendix C (Professional Service Terms) applies to Professional Services obtained from Linga.
  2. Payment.
    1. General. Customer shall pay Linga the fees, costs, expenses, and charges as set forth on the Sales Order or otherwise set forth in this Agreement ("Fees"). Linga shall apply partial payments provided by the Customer in its sole discretion. Unless otherwise provided on the Sales Order, Fees do not include any sales, use, value-added, excise, property, withholding, and other taxes and duties. Customer agrees to pay all such taxes and duties or, as applicable, to provide Linga with a valid resale exemption certificate or equivalent. If Customer fails to pay any Fees or other amount due within seven (7) calendar days of the due date, Linga may terminate this Agreement immediately and/or deactivate any and all Services.
    2. Payment Terms.
      1. Hardware and Professional Service Fees. Unless extended payment terms are included in the Sales Order, Customer shall pay all invoiced Fees associated with Hardware or Professional Services upon execution of this Agreement or on or before the due date, as applicable. Refunds for Hardware are subject to Linga Refund Policy, described in Appendix B "Hardware Terms." Professional Services Fees, including but not limited to implementation and training fees, are not refundable.
      2. SaaS Service Fees. Customer shall pay all Fees associated with SaaS Services in advance according to the schedule identified in the Sales Order. SaaS Service Fees are not refundable. Linga shall not prorate SaaS Service Fees if Customer terminates a Sales Order before the end of the month.
      3. Seasonal Use. If Customer will experience a period in which customer will not need to use the Services ("Dormant Period"), Customer may request a period of up to three (3) months of reduced SaaS Service fees. Such requests may not be made sooner than ninety (90) days after successful implementation and use of Services, and may not be made more than once per calendar year. If approved, Linga will charge Customer 25% of its monthly SaaS fees during the Dormant Period.
      4. Extended Payment Terms. If the Sales Order provides for "Extended Payment Terms", Customer shall make all payments as outlined in the Sales Order. Customer shall make such payments to Linga regardless of Linga invoicing the customer for each payment. Any invoicing or billing besides the Sales Order shall be done as an administrative convenience by Linga and shall not be required to prompt payment by the Customer. Failure to make one or more installments as required by the Sales Order shall be treated as a breach of contract by Customer, permitting Linga to exercise its remedies available at law and pursuant to this Agreement against Customer. Any dispute between Linga and Customer over the performance and service of the Services shall not serve as grounds for the customer to not pay the installment for the Hardware. The granting of extended payment terms in installments shall not be treated as financing.
  3. Proprietary Information. Any business, operational, or technical information provided by one party (the "Disclosing Party") to the other party (the "Receiving Party") (collectively, "Proprietary Information") contains valuable and confidential information that is proprietary to the Disclosing Party and which the Receiving Party agrees includes and constitutes trade secrets and unpublished copyrighted material of the Disclosing Party. The Receiving Party agrees to, and will, maintain the confidentiality of, and the Receiving Party agrees not to, and will not disclose, Proprietary Information of the Disclosing Party. The Receiving Party agrees to only use Proprietary Information of the Disclosing Party as necessary in connection with this Agreement. Nothing in this Agreement shall be construed to convey any title or ownership rights to any Proprietary Information of the Disclosing Party to the Receiving Party. The parties agree that any confidentiality agreement, non-disclosure agreement, or similar agreement between the parties and/or their affiliates is hereby terminated and of no further force or effect and all confidentiality obligations of the parties shall be governed by this Agreement. The Receiving Party recognizes that the confidentiality obligations in this Section 3 of these General Terms are reasonable and necessary to protect the legitimate interests of the Disclosing Party, that the Disclosing Party would not have entered into this Agreement in the absence of such obligations, and that the Receiving Party's breach or threatened breach of such obligations would cause the Disclosing Party irreparable harm and significant injury, the amount of which would be extremely difficult to estimate and ascertain, thus, making any remedy at law or in damages inadequate. Therefore, the Receiving Party agrees that the Disclosing Party shall be entitled, without the necessity of posting of any bond or security, to the issuance of injunctive relief by any court of competent jurisdiction or arbitrator(s) enjoining any breach or threatened breach of such covenants, for specific performance and for any other relief such court deems appropriate. This right shall be in addition to any other remedy available to the Disclosing Party at law or in equity.
  4. Customer Obligations.
    1. Customer Data. Customer retains all right, title and interest in and to any information or data inputted or stored in the Services by Customer and/or its users ("Customer Data"). Customer is solely responsible compliance with Applicable Laws related to the collection, use, and legality of any personally identifiable information ("PII") or other information about its customers and employees, including any notice requirements with respect to Customer's customers or employees. Notwithstanding anything to the contrary, Linga shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Linga will be free to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Linga offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. Customer agrees that it is responsible for the accuracy of the Customer Data provided to Linga. Linga shall have no liability for any losses incurred related to such inaccurate information.
    2. Identity Verification. Linga is required to obtain, verify, and record certain Customer information to fulfill its legal and or regulatory obligations. Upon request, Customer shall provide information and documents requested by Linga which are necessary to verify business information including, without limitation: business name, address, taxpayer identification number. Linga may require additional documentation to verify the identity and home addresses of certain individuals associated with Customer's business or organization. Customer warrants that any information provided to Linga under this Section is true, complete, and correct as of the date thereof and as of the date any such update is delivered to Linga.
    3. Use of Services. Customer will use all applicable Services only as intended, in compliance with Applicable Laws (as defined below), and in the ordinary course of business operation at the location(s) designated on the Sales Order. Customer must notify Linga in writing before any other Legal entity may use the Services or act on Customer's behalf. Before allowing such third parties to use or access the Services, Customer must provide any documentation reasonably required by Linga indicating that the third party is duly authorized by law and the Customer to act on the Customer's behalf. Linga may rely on such information and documentation supplied by the Customer until Linga receives any written notice of any change and has had reasonable opportunity to act on such notice.
    4. Site Installation and Maintenance. Unless otherwise agreed, Customer is solely responsible for preparation and maintenance of its site(s) where the SaaS Services may be used. Customer is solely responsible for replacement of any service-related consumable materials such as printer paper, ink, or batteries. Customer is responsible for purchasing, selecting, and maintaining the hardware, software, or other technology Customer uses to send data or information to Linga or to access the SaaS Services. As part of implementation, Linga will provide Customer with a "Network Assessment Document" outlining recommended networking standards. Customer understands that failure to meet such standards or reasonable equivalent may adversely impact the SaaS Services' performance, and Linga shall have no responsibility for any such adverse effects.
  5. Implementation. Implementation services shall be provided solely by Linga or Linga's approved service provider and shall only be provided directly to the Customer or the Customer's employees. Customer is expected to complete implementation within thirty (30) days of the start date provided on the Sales Order. If factors not within Customer's control delay implementation, Customer may request from Linga an extension of up to thirty (30) additional days to complete implementation. Linga may deny such request in its sole discretion. Customer understands that any third parties participating in implementations must be provided by Linga or approved by Linga in accordance with section 4.c (Use of Services) of this Agreement. Customer understands and agrees that any third-party participation shall be governed by Section 17 (Third Party Content/Products) of this Agreement.
  6. Work Product. Customer agrees that Linga will own exclusively all information, data, materials, discoveries, inventions, works of authorship, documents, documentation, models, computer programs, software (including source code and object code), firmware, web pages, databases, content, designs, drawings, specifications, processes, procedures, techniques, algorithms, diagrams, methods, and all tangible embodiments of each of the foregoing (in whatever form and media) and all other works that are conceived, created, reduced to practice, or prepared by or for Linga whether or not at the request of Customer, and that are related in any way to or are within the scope of the Services or the Software, whether or not prepared on Customer's premises ("Work Product"). Customer also acknowledges and agrees that Linga shall own all intellectual property rights arising from the creation or development of Work Product throughout the world (which include, without limitation, mask works, trademarks, inventions, know how, authors' rights, rights of attribution, and other proprietary rights and all applications and rights to apply for registration or protection of such rights) ("Linga IP"). Customer does not claim any right in such Linga IP, even if incorporated with Work Product and, except as set forth herein, no license is granted to Linga IP. Except to the extent permitted by applicable law, Customer shall not disassemble, decompile, decrypt, extract, reverse engineer, prepare a derivative work based upon, distribute, or time share the Services, the Software or any Work Product of Linga IP or any components thereof, or otherwise apply any procedure or process to the Services, the Software or any Work Product of Linga IP or components thereof in order to ascertain, derive, and/or appropriate for any reason or purpose, the source code or source listings or any algorithm, data, process, procedure or other information contained therein. Customer shall not rent, sell, resell, lease, sublicense, loan or otherwise transfer the Services, the Software or any Work Product of Linga IP or components thereof. Notwithstanding the foregoing, to the extent that Customer or its employees create any work that is based upon one or more preexisting versions of a work provided to Customer, such as an enhancement or modification, revision, translation, abridgement, condensation, expansion, collection, compilation or any other form in which such preexisting works may be recast, transformed or adapted (each, a "Derivative Work") such Derivative Work shall be owned by Linga and all right, title and interest in and to each such Derivative Work shall automatically vest in Linga. Linga shall have no obligation to grant Customer any right in any such Derivative Work.
  7. Term and Termination.
    1. Term. Unless earlier terminated as set forth herein, this Agreement shall take effect on the Effective Date and shall continue in force until the expiration or termination of all Sales Orders (the "Term").
    2. Order Term. Unless a Sales Order is terminated earlier in accordance with the terms set forth in the Agreement, the term of a Sales Order shall commence on the start date (unless this Agreement or the Sales Order have a different date for calculation purposes) and continue until the end date stated in the applicable Sales Order (the "Initial Order Term"). Unless the Sales Order expressly provides otherwise, after the termination date provided in the Sales Order or the initial term provided under this paragraph, the Sales Order will automatically renew for successive terms equal in duration (e.g. one month or one year) to the Initial Order Term (each, a "Renewal Order Term") unless one party gives the other party written notice of non-renewal prior to the end of the Initial Order Term or any Renewal Order Term. "Order Term" means the Initial Order Term and all Renewal Order Terms.
    3. Termination Without Cause. Linga or Customer may terminate this Agreement without cause, for any reason, upon written notice to the other party; subject to any conditions contained in this Agreement and/or any Sales Order impacted by the termination including any Cancellation Fees due and owing. Notice of Termination by Customer must be provided using the "Cancellation Request Form" which may be accessed at https://www.lingaros.com/forms/cancel-request/. Linga shall inform the Customer of changes to the location of the Cancellation Request Form.
    4. Termination for Cause. This Agreement may be terminated immediately upon written notice by either party if: (a) the other party breaches any provision of this Agreement, or (b) the other party becomes the subject of any bankruptcy or insolvency proceeding which is not stayed or dismissed within thirty (30) days after the commencement thereof.
  8. Rights and Duties upon Expiration or Termination. Upon expiration or earlier termination of this Agreement, the Services and Customer's right to access and use the Services and any right to use the Work Product, Linga IP and Linga Proprietary Information and all other items (collectively, "Linga Items") shall immediately terminate and cease, and Linga will have the right to take immediate possession of all Linga Items and Customer shall (a) immediately stop access and use of all Linga Items; (b) shall return all copies of Linga Items to Linga; (c) delete all Linga Items off of any and all storage media possessed or controlled by Customer; and (d) promptly certify to Linga that it has complied with the requirements herein. The rights and obligations of the parties which by their nature must survive termination or expiration of this Agreement shall survive any termination or expiration of this Agreement.
  9. Compliance.
    1. Applicable Law. Customer is solely responsible for compliance with all local, state, and federal laws, rules, regulations, and/or executive orders that are enforced or administered by the Office of Foreign Assets Control, in addition to any applicable laws of foreign countries in which Customer operates ("Applicable Law"). If there is a conflict between this Agreement and any Applicable Law, then this Agreement shall fully vary such Law to the extent permitted by Law.
    2. Payment Network Rules. Customer is solely responsible for compliance with all "Payment Network Rules," which shall include all rules, bylaws, standards, protocols, operating regulations, guidelines, or procedures; and any amendment, interpretation, or modification of any such rule, bylaw, standard, protocol, operating regulation, guideline, or procedure promulgated by an electronic payment network (such as Visa or Mastercard) that governs the provision of payment services on that payment network. If there is a conflict between this Agreement and any Payment Network Rule, then this Agreement shall fully vary such Payment Network Rule to the extent permitted.
    3. Cooperation. Customer will cooperate with Linga's requests for information or documents related to Customer's compliance with Applicable Law, Payment Network Rules, or this Agreement.
  10. Suspension of Service. Although Linga has no obligation to monitor Customer's use of the Services, Linga may do so and may prohibit, suspend, terminate, or limit any access or use of the Services it believes may be (or alleged to be) in violation of the terms of this Agreement; any law, Applicable Law, or third party rights, Payment Network Rules, or which violates or otherwise exposes or potentially exposes Linga to civil or criminal liability, or otherwise threatens the Services, or data therein, provided that such right will not obligate Linga to monitor or exert editorial control over Customer's use of the Services. Linga and Customer will cooperate to determine the solution to the issue causing Linga's suspension of the Services. Linga will restore access to the Services if the issue is resolved.
  11. Indemnification. Customer will indemnify and hold Linga harmless against all costs, expenses (including without limitation, attorneys' and legal fees) damages and other liabilities associated with any demand, claim, action, suit or proceeding (collectively, "Claims") that arise out of or relate to the Services or Hardware used by the Customer.
  12. Infringement Indemnification. If a competent court holds or a written allegation asserts that the Software or the Services infringes a valid U.S. patent, copyright, trademark, trade names, service marks or other intellectual property or misappropriates any trade secret, then notwithstanding anything to the contrary contained in this Agreement, Linga's entire obligation and Customer's exclusive remedy shall be, at Linga's option, to either: (a) secure the right for Customer to continue use of the Software and/or Services, (b) replace or modify the Software and/or Services, or (c) terminate this Agreement.
  13. General Representations and Warranties. Each party represents and warrants to the other that (a) it has authority to execute and perform this Agreement; (b) executing this Agreement does not constitute a material conflict with, breach, or default under any applicable law, its respective organizational documents, or any documents, agreements, contracts or instruments which are binding upon it; and (c) this Agreement creates valid, legal, and binding obligation enforceable against it, subject to applicable insolvency and bankruptcy laws.
  14. Disclaimer. EXCEPT FOR ANY WARRANTIES EXPRESSLY SET FORTH IN THESE GENERAL TERMS OR IN ANY OF THE APPLICABLE APPENDICES, LINGA HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES OF QUALITY OR PERFORMANCE. CUSTOMER ACKNOWLEDGES THAT LINGA HAS NOT REPRESENTED OR WARRANTED THAT THE SERVICES OR SOFTWARE WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT DELAY OR WITHOUT COMPROMISE OF THE SECURITY SYSTEMS RELATED TO THE SERVICES, OR THAT ALL ERRORS WILL BE CORRECTED. FURTHERMORE, IT IS THE CUSTOMER'S RESPONSIBILITY TO WORK WITH THEIR ACQUIRER TO ENSURE THAT INTERCHANGE FEES AND ASSESSMENTS ARE ACCURATE, TO INCLUDE CHANGES OR ENHANCEMENTS TO THE SERVICES AS THEY RELATE TO THIS AGREEMENT OR STATEMENT OF WORK. IT IS THE CUSTOMER'S RESPONSIBILITY TO MONITOR AND MANAGE PROPER INTERCHANGE FEES AND ASSESSMENTS WITH THEIR ACQUIRER. THE SERVICES (OR ANY PORTION THEREOF), DELIVERABLES, AND ALL RELATED INFORMATION, CONTENT, TECHNOLOGY, AND SERVICES PROVIDED BY OR ON BEHALF OF LINGA (AND ITS LICENSORS AND SUPPLIERS) ARE PROVIDED ON AN "AS-IS" AND "AS AVAILABLE" BASIS, WITHOUT REPRESENTATIONS OR WARRANTIES OR ANY KIND, EITHER EXPRESS OR IMPLIED, AND LINGA EXPRESSLY DISCLAIMS ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE (EVEN IF ADVISED OF THE PURPOSE), ACCURACY, COMPLETENESS, TITLE, NON-INFRINGEMENT, AND/OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. LINGA DOES NOT GUARANTEE THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL RELIABLE OR ACCURATE OR WILL MEET CUSTOMER'S REQUIREMENTS. THIS DISCLAIMER AND EXCLUSION SHALL APPLY EVEN IF THE EXPRESS WARRANTY SET FORTH ABOVE FAILS OF ITS ESSENTIAL PURPOSE.
  15. LIMITATION OF LIABILITY. LINGA WILL NOT BE LIABLE FOR NOR SHALL CUSTOMER MAKE ANY CLAIM FOR (WHETHER BASED ON CONTRACT, TORT, STRICT OR STATUTORY LIABILITY, NEGLIGENCE, OR OTHERWISE), ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, DIRECT, INDIRECT, OR CONSEQUENTIAL DAMAGES (EVEN IF CUSTOMER AND/OR LINGA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR SAVINGS, LOSS OF USE OF SERVICES OR SOFTWARE, COST OF CAPITAL, SUBSTITUTE SERVICES, SOFTWARE, DOWNTIME COSTS, OR DAMAGES AND EXPENSES. NOTWITHSTANDING ANYTHING HEREIN OR ANY OTHER AGREEMENT OR OTHERWISE TO THE CONTRARY, IN NO EVENT WILL LINGA'S AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS OR DAMAGES EXCEED THE TOTAL PAYMENTS ACTUALLY MADE TO LINGA BY CUSTOMER UNDER THIS AGREEMENT FOR THE SERVICES FOR THE SIX (6) MONTH PERIOD PRECEDING THE DATE THE LIABILITY ACCRUES FROM SUCH CLAIM. Notwithstanding anything herein regarding the SaaS Services, no claim against Linga shall offset Customer's payment obligations for Extended Payment Terms.
  16. Force Majeure Events and Exclusions. Linga will not be responsible or liable for those things that are, or would reasonably be expected to be, within the control of Customer or not within the control of Linga or the scope of the Services including, without limitation, (a) any delay resulting from any person or entity other than Linga, such as (but not limited to) network carriers and communication carriers, (b) any component for which Linga is not responsible, including but not limited to, all Customer-provided or Customer-managed electrical power sources, networking equipment, computer hardware, computer software or Internet and telecommunications access, (c) establishing, hosting and maintenance of its website(s) and its connection to the Internet, (d) incomplete integration of Linga Services, (e) Customer-initiated changes (e.g., if Customer requests for change that requires Linga to take the system down during business service hours) whether implemented by Customer or Linga on behalf of Customer, (f) acts or omissions of Customer, its employees, agents or third party contractors, (g) Customer providing inadequate network capacity or bandwidth or for delays caused by the flow of data generally outside Linga's control, (h) the accuracy of the data or information provided to Linga, (i) force majeure events herein including, without limitation, acts of God, pandemics, viruses, epidemics, earthquakes, fire, flood, wars, acts of terrorism, civil or military disturbances, sabotage, riots, interruptions, loss or malfunctions of utilities, or communications services, acts of military authority or similar governmental action, or any other cause beyond Linga's reasonable control, (j) use of organizational communication tools other than those recommended by Linga, and (k) hack, breach or compromise of Customer or encryption or the fact Customer did not encrypt data.
  17. Third Party Content/Products.
    1. Third Parties. If the Customer substitutes or combines any software programming, devices, or services that are not provided by Linga or expressly approved by Linga with Services or Linga Hardware or Services ("Unapproved Third Party Products"), the Customer agrees that (i) Linga makes no warranty, representation, endorsement, or guarantee regarding, and accepts no responsibility with respect, to such Unapproved Third Party Products; (ii) Linga shall not be responsible for the installation, operation, maintenance, use or technical support of such Unapproved Third Party Products; (iii) Linga shall have no liability or obligations related to the use of such Unapproved Third Party Products; and (iv) installation, operation, maintenance, use and/or any other acts involving such Unapproved Third Party Products may invalidate, void, terminate and/or eliminate any representations, warranties, guaranties or any promises regarding the Services.
    2. Access to Third Party Content. Certain tools, hardware, software, and features of the Services may make third party content available to the Customer and/or the Customer's customers. As Linga does not control such content, Customer agrees that (i) Linga is not responsible for any such content; (ii) Linga does not make any guarantees about the accuracy, currency, suitability, or quality of the information in such content, and does not assume responsibility for unintended, objectionable, inaccurate, misleading, or unlawful content and (iii) Customer should assume that the owner of the content will not be providing any warranty to Customer or accepting any liability related to Customer's access or use of the content. Linga makes no warranty, representation, endorsement, or guarantee regarding, and accepts no responsibility for, the quality, content, nature, performance, availability, or reliability of content provided by third parties, or any products or services referenced thereby.
  18. Assignment and Successors. Customer may not assign this Agreement or any of its rights or obligations hereunder, by operation of law or otherwise, without prior written consent of Linga. Linga may assign this Agreement or any of its rights or obligations hereunder, by operation of law or otherwise, without the prior written consent of the Customer. We may contract with others to provide all or any part of the Services. This Agreement shall be binding upon, and inure to the benefit of, you and us and your and our respective permitted successors and assigns. Successors and Assigns must execute any documentation Linga may reasonably require.
  19. Relationship of Parties. The parties are independent contractors and nothing in this Agreement shall be deemed to make either party an agent, employee, partner, or joint venture of the other party. Neither party shall have the authority to bind, commit, or otherwise obligate the other party in any manner whatsoever.
  20. Use of Names. Except as otherwise provided herein or required under Applicable Law, Each Party represents and warrants that neither Party shall have any right, express or implied, to use in any manner the name or other designation of the other Party or any other trade name, trademark or logo of the other Party for any purpose in connection with the performance of this Agreement without the other Party's prior written consent.
  21. Severability. If any portion of this Agreement is determined to be or becomes unenforceable or illegal, such portion shall be deemed eliminated and the remainder of this Agreement shall remain in effect in accordance with its terms as modified by such deletion.
  22. Modification. The parties agree that this Agreement cannot be altered, amended, or modified, except in writing that is signed by an authorized representative of each party.
  23. Jurisdiction. This Agreement shall be governed by and interpreted exclusively in accordance with the laws of the State of Delaware, excluding its choice or conflict of law rules.
  24. Binding Arbitration. This Section includes an arbitration agreement and an agreement that all claims will be brought only in an individual capacity (and not as a class action or other representative proceeding). Please read it carefully. Customer and Linga agree that any controversy or claim (except for any claim of infringement, breach of confidentiality, or misappropriation of any patent, copyright, trademark, or trade secret) arising out of or relating to these Terms, the Platform and/or use of the Platform, including all questions of arbitrability, shall be settled by arbitration administered by the American Arbitration Association ("AAA") in accordance with its Commercial Arbitration Rules ("Commercial Rules") by a sole arbitrator, unless otherwise agreed by the parties. Customer can access the Commercial Rules at https://www.adr.org/Rules or by calling +1 800-778-7879. Customer and Linga shall endeavour to agree upon the arbitrator, and if Linga and Customer fail to do so within twenty-one (21) days of the commencement of the arbitration, the appointment shall be made by the AAA in accordance with the Commercial Arbitration Rules. The place, or legal seat of arbitration, shall be Wisconsin and the language of the arbitration shall be English.
    CUSTOMER MAY ONLY BRING CLAIMS IN ITS INDIVIDUAL CAPACITY ON ITS OWN BEHALF, AND NOT IN ANY REPRESENTATIVE CAPACITY OR ON BEHALF OF ANY CLASS OR PURPORTED CLASS AND NOT AS A MASS ARBITRATION, AND NO ARBITRATION CUSTOMER COMMENCE HEREUNDER MAY BE JOINED WITH OR INCLUDE ANY CLAIMS BY ANY OTHER PERSONS. EACH PARTY SHALL BE EXCLUSIVELY RESPONSIBLE FOR PAYING ITS OWN ARBITRATION FILING FEES, WHICH MAY LATER BE ALLOCATED BY THE ARBITRATOR.
    The arbitrator shall issue a reasoned award and, subject to the limitation of liability set forth above, shall have the power to grant any interim or provisional measures that the arbitrator deems appropriate, including, but not limited to, injunctive relief and specific performance, and any interim or provisional measures ordered by the arbitrator may be specifically enforced by any court of competent jurisdiction as a final award. Nothing herein, however, shall authorize the arbitrator to act as amiable compositeurs, to proceed ex aequo et bono, or to exercise rights of iura novit curia. Customer and Linga each retain the right to seek interim measures from a judicial authority, and any such request shall not be deemed incompatible with the agreement to arbitrate nor shall be deemed a waiver of the right to arbitrate. The arbitrator shall award the prevailing party, if any as determined by the arbitrator, its reasonable costs, including reasonable attorney's fees. Judgment on any award rendered by the arbitrator may be entered in any court of competent jurisdiction. No information concerning an arbitration, beyond the names of the parties, their counsel or the relief requested, may be unilaterally disclosed to a third party by any party unless required by law. Any documentary or other evidence given by any party or witness in any arbitration shall be treated as confidential by any party whose access to such evidence arises exclusively because of its participation in the arbitration and shall not be disclosed to any third party (other than a legal witness or expert under a duty of confidentiality), except as may be required by law. Any party who commences any judicial proceeding in connection with an arbitration initiated hereunder shall endeavour to have the judicial record of any such proceeding sealed or kept confidential to the extent permitted by law.
  25. Action Timing. Any action arising out of or related to this Agreement must be brought within six (6) months from the first date such action could have been brought, despite any longer period provided by statute. If a longer period is provided by statute, the parties hereby expressly waive it.
  26. Notice. Any notice required under this Agreement, or any Other Agreement shall be given in writing and shall be deemed effective upon receipt. Communications may be given in any manner to which Customer and Linga may separately agree, including electronic mail. Without limiting the foregoing, first-class mail, and commercial courier service are hereby agreed to as acceptable methods for providing Communications, except that notice of termination without cause by Customer must be provided to Linga by submitting the Cancellation Request Form, as described in Section 7.c. (Termination Without Cause).

  27. Address for Notice – "Linga"
    Linga, LLC
    4501 Tamiami Trail N.
    Suite 400
    Naples, FL 34103

    With a copy to:
    PNC Bank National Association
    Legal Department
    1600 Market Street, 8th Floor
    Philadelphia, PA 19103
    Attn: Linga Legal Support
    Address for Notice – "Customer"
    Billing address as indicated on the Sales Order.
  28. WAIVER OF JURY TRIAL. TO THE EXTENT THE BINDING ARBITRATION PROVISION ABOVE IS NOT APPLICABLE OR UNENFORCIBLE, EACH PARTY IRREVOCABLY WAIVES ALL OF ITS RESPECTIVE RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR CLAIM OF ANY NATURE ARISING OUT OF, BY VIRTUE OF, OR IN ANY WAY CONNECTED TO THIS AGREEMENT, ANY DOCUMENT EXECUTED IN CONNECTION HEREWITH, ANY AMENDMENT OR SUPPLEMENT HERETO OR THERETO, OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. LINGA AND CUSTOMER ACKNOWLEDGES THAT THE FOREGOING WAIVER IS KNOWING AND VOLUNTARY.
  29. Entire Agreement. This Agreement, along with any Other Agreement, constitutes the entire agreement between the parties regarding the subject matter hereof and supersedes all proposals and discussions and writings between the parties with respect thereto. In the event of any conflict between any Other Agreement and this Agreement, this Agreement shall control.
  30. Electronic Records, Signatures and Delivery. This Agreement and other documentation may be provided to Customer either in paper form or electronically. Any part of this Agreement in electronic form shall be a "writing" or "in writing" and shall constitute an "original" both in electronic form and when printed from electronic files or records. Notwithstanding any other provision of the Agreement, and any other communication may, at Linga's option, be in the form of an electronic record. Any communication may at Linga's option be signed or executed using electronic signatures. For the avoidance of doubt, the authorization under this paragraph may include, without limitation, use or acceptance by Linga of a manually signed paper communication which has been converted into electronic form (such as scanned into PDF format) for transmission, delivery and/or retention.

Appendix A

SaaS and Software Services Terms

This Appendix A (SaaS Services Terms) applies to SaaS Services and Software ordered by Customer or sold or provided by Linga under the Agreement. Capitalized terms used in this Appendix A (SaaS Services Terms) that are not defined herein shall have the meanings ascribed elsewhere in the Agreement. Capitalized terms that are defined in this Appendix A (SaaS Services Terms) and elsewhere in the Agreement shall have the meanings ascribed in this Appendix A (SaaS Services Terms). Any Professional Services ordered by Customer or sold or provided by Linga under the Agreement with respect to any SaaS Services shall be described in the Agreement and shall be governed by Appendix C (Professional Services Terms).
  1. SaaS Services. Pursuant to the terms and conditions of this Agreement, Linga hereby grants Customer a non-exclusive, non-assignable, non-sublicensable, and non-transferable license to access and use the Services for Customer's internal business purposes only and subject to any license restrictions set forth on the applicable Sales Order. Customer hereby accepts the SaaS Services, agrees to use such only for bona fide transactions, and agrees to pay the Fees set forth herein. Customer shall not allow any third party to use the SaaS Services.
    1. Restrictions. Except as expressly authorized in this Agreement, or with Linga's written consent, Customer may not (a) assign, sublicense, transfer, lease, rent or distribute any of its rights in the SaaS Services, (b) modify, alter, port, translate, localize, or create derivative works based upon the SaaS Services in any manner, (c) reverse assemble, decompile, reverse engineer, translate or otherwise attempt to derive or obtain the source code, the underlying ideas, algorithms, structure or organization of the SaaS Services (except and only to the extent that applicable law prohibits or restricts reverse engineering restrictions, or as permitted by an applicable Open Source Software license), (d) copy or duplicate the SaaS Services, (e) utilize any equipment, device, software, or other means designed to circumvent or remove any form of copy protection or product key used by Linga in connection with the SaaS Services, (f) use the SaaS Services to develop a product which is competitive with any Linga product offering, (g) enable access to the SaaS Services for a greater number of users than the total number of users purchased ("Registered Users"), (h) interfere with or disrupt the integrity or performance of any SaaS Services associated with the SaaS Services; (i) use the SaaS Services in violation of any law or regulation, including by allowing the transfer, transmission, export or re-export of the SaaS Services or any portion thereof in violation of any export control laws or regulations administered by the U.S. Commerce Department, the Office of Foreign Assets Control, or any other government agency, (j) remove, alter or obscure any proprietary notices in or on the SaaS Services including copyright notices, (k) disclose or make available passwords, user IDs or other credential and login information (collectively, "Passwords") associated with the SaaS Services to any unauthorized third party, or (l) cause or permit any third party to do any of the foregoing. Customer will use best efforts to prevent unauthorized access to, and use of, the Passwords and the SaaS Services, and will immediately notify Linga in writing of any unauthorized access to or use of the SaaS Services.
    2. Customer Duties. Customer will (i) be responsible for its Registered Users' compliance with this Agreement and the Sales Order, (ii) be responsible for the accuracy, quality and legality of Customer Data and the means by which Customer acquired Customer Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the SaaS Services, and notify Linga promptly of any such unauthorized access or use, (iv) use the SaaS Services only in accordance with this Agreement and applicable laws and government regulations, and (v) comply with terms of service of any third party offering with which Customer uses the SaaS Services. Customer will not, nor permit third parties to: (a) make the SaaS Services available to, or use for the benefit of, anyone other than Customer, unless expressly stated otherwise in this Agreement, (b) sell, resell, license, sublicense, distribute, make available, rent or lease the SaaS Services in a service bureau or outsourcing offering, (c) use the SaaS Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the SaaS Services to store or transmit any disabling code, date bomb, time bomb, Trojan horse, bug, virus, works, or any other code, key or other device that may damage, destroy, alter, reveal, disrupt, deny access to, disable, or otherwise harm any software, hardware, data, or systems, (e) interfere with or disrupt the integrity or performance of the SaaS Services or any third-party data contained therein, (f) attempt to gain unauthorized access to Linga or its related systems or networks, (g) permit direct or indirect access to or use of any the SaaS Services in a way that circumvents Customer's obligations in this Agreement, or use any of the SaaS Services to access or use any Linga's intellectual property rights except as permitted under this Agreement, (h) copy the SaaS Services or any part, feature, function or user interface thereof, (i) frame or mirror any part of the SaaS Services, other than framing on Customer's own intranets or otherwise for Customer's own internal business purposes or as permitted in this Agreement, (j) access, use or copy the SaaS Services in order to build a competitive product or service or to benchmark with any third party product or service, (k) reverse engineer the SaaS Services (to the extent such restriction is permitted by law), or (l) alter, modify or create derivative works of any Software to develop or provision their own software or applications.
    3. Feedback. Customer grants to Linga a non-exclusive, worldwide, perpetual, irrevocable, sub-licensable, royalty-free license, without restriction, to use in any manner and incorporate into Linga's Hardware or services, any suggestion, enhancement request, recommendation, correction, or other feedback provided by Customer or Registered Users concerning Linga current or future Hardware or services.
    4. Subcontractors. Linga may subcontract or delegate any portion of the performance of the SaaS Services, or assign or transfer any of its rights or obligations under this Agreement without Customer's prior written consent. Linga will be responsible for and remain liable to Customer for the actions and omissions of all subcontractors engaged by Linga in connection with the SaaS Services as if they were Linga's own actions and omissions.
    5. Software Updates. Linga may provide software updates from time to time. Customer acknowledges that it should incorporate such updates as soon as practicable and that failure to do so may negatively affect Software performance. Customer acknowledges that any updates or upgrades are subject to this Agreement. Customer understands that Linga may stop supporting certain versions of the Software.
  2. Software License. Customer's use of the Software is subject to the End User License Agreement available at https://www.lingaros.com/end-user-license-agreement/, which may be updated from time to time by Linga (the "EULA").
    1. Grant. As of delivery to Customer, Linga grants Customer a non-exclusive, non-transferable, non- sublicensable, limited license to download, distribute internally, install, execute, run, and use the Software only in connection with the Services.
    2. Restrictions. In addition to any restrictions set forth in the EULA, Customer shall not reverse engineer, reverse compile, or disassemble any part of the Software to derive the source code thereof without the prior written consent of Linga. Customer shall not remove, obscure, or deface any copyright or proprietary notices appearing in the Software and will retain all such notices in any permitted reproductions of the Software. All title, interest, and ownership in and to the Software belongs to Linga or its licensors.

Appendix B

Hardware Terms

This Appendix B (Hardware Purchase Terms) applies to Hardware. Capitalized terms used in this Appendix B (Hardware Terms) that are not defined herein shall have the meanings ascribed elsewhere in the Agreement. Capitalized terms that are defined in this Appendix B (Hardware Purchase Terms) and elsewhere in the Agreement shall have the meanings ascribed in this Appendix B (Hardware Purchase Terms). Any Professional Services ordered by Customer or sold or provided by Linga under the Agreement with respect to Hardware shall be described in Agreement and shall be governed by Appendix C (Professional Services Terms).
  1. Terms of Delivery
    1. All Hardware shall be delivered FCA Delivery Destination Incoterms 2020, using Linga's standard methods for packaging and shipping the Hardware. The "Delivery Destination" means the location identified by the Customer and agreed to by Linga on the applicable Sales Order where the Hardware will be delivered to. Unless expressly agreed to by the parties in writing, Linga shall select the method of shipment of and the carrier for the Hardware. Linga may, in its sole discretion, without liability or penalty, make partial shipments of Hardware to Customer. As applicable, each shipment constitutes a separate sale, and Customer shall pay for the units shipped, whether the shipment is in whole or partial fulfillment of a Sales Order.
    2. Customer shall examine all incoming Hardware for any damage or defects within the timeframe specified in Section 3.a after receipt of the Hardware at the Delivery Destination.
    3. Any time quoted for delivery is an estimate only; provided, however, that Linga shall use commercially reasonable efforts to deliver all Hardware on or before the requested delivery date. Linga is not liable for or in respect of any loss or damage arising from any delay in filling any Sales Order, failure to deliver, or delay in delivery. No delay in the shipment or delivery of any Hardware relieves Customer of its obligations under this Agreement, including accepting delivery of any remaining installment or other Sales Order of Hardware.
  2. Transfer of Title and Risk of Loss
    1. Unless otherwise set forth in the Sales Order, title to the Hardware shall transfer to Customer upon sale of the Hardware.
    2. Risk of loss to the Hardware shall pass to Customer upon delivery of the Hardware to the Delivery Destination. If Hardware is delivered in multiple pieces, parts or components, risk of loss with respect to each piece, part or component shall transfer as described in this paragraph. Title and risk of loss with respect to Hardware or components thereof that are rejected by Customer at the Delivery Destination shall transfer back to Linga at the time that Linga picks up the rejected Hardware or components, which shall take place within ten (10) business days following such rejection.
  3. Customer Obligations
    1. Customer shall have fourteen (14) days following delivery of the Hardware pursuant to Section 1 to inspect the Hardware and notify Linga that Customer rejects the Hardware solely if they appear to be damaged, defective, or not conforming based on such initial visual inspection. Customer shall give Linga the opportunity to examine any notice of complaint. Any Hardware not rejected within fourteen (14) days following receipt by the Customer shall be deemed accepted by Customer in satisfactory condition and meeting the specifications in effect for such Hardware. If Linga confirms that the Hardware is defective, Linga will replace the defective Hardware or refund the amount paid for such Hardware, as applicable, at the discretion of Linga. THE REMEDIES SET FORTH IN THIS SECTION ARE CUSTOMER'S SOLE AND EXCLUSIVE REMEDY FOR THE DELIVERY OF NONCONFORMING HARDWARE.
    2. Customer shall not be entitled to (i) equip the Hardware with software that does not correspond to Linga's factory default specifications or (ii) perform any value-added resale services nor install interfaces in the Hardware that are not provided by Linga, unless expressly approved by Linga in writing.
    3. Customer shall only access and use the Hardware and ensure that any third parties using the Hardware in accordance with the Linga manuals and specifications provided by Linga, including their updates, provisions and specifications drawn up by Linga and any other documentation provided by Linga with the Hardware, including any original equipment manufacturer's documentation and/or specifications.
    4. If Linga notifies Customer that any Hardware needs to be recalled or otherwise withdrawn from the market, and Customer refuses or otherwise fails to do so in a timely fashion, Customer agrees to indemnify Linga, its affiliates, and their respective officers, directors, employees, agents and shareholders, from and against any and all liability, loses, damages, costs, expenses, penalties, and fines, including reasonable attorneys' fees, incurred or suffered by Linga as a result of any such failure or refusal.
  4. Return Policy. Customers who are not participating in the Complimentary Hardware Program may return Hardware for a refund, less a thirty percent (30%) restocking fee, up to sixty (60) days after the date of delivery of the Hardware to the Customer. Customers who are participating in the Complimentary Hardware Program may return Hardware as described below. Thereafter, all Customers may return items under the Defect Warranty during the Defect Warranty Period, as described below. For items returned under the Defect Warranty, Customer must return hardware to Linga at its own expense and in secure packaging. Customer is responsible for any damage that occurs during shipping. Such refunds shall be provided to the Customer using the same payment method as the Customer's original payment. If Linga agrees to provide replacement hardware before Customer has shipped the return hardware to Linga, Linga must receive the returned hardware within thirty (30) calendar days of delivery of the replacement hardware. If Linga does not receive the hardware within thirty (30) calendar days, Linga will either, at its option: a) charge Customer the price of the advance replacement part plus shipping costs, or b) suspend Customer's access to SaaS Services. Any product returned outside of the Defect Warranty period will be repaired or replaced at Linga's then standard price.
  5. Thereafter, Customer may return items under the Defect Warranty during the Defect Warranty Period, as described below. For items returned under the Defect Warranty, Customer must return hardware to Linga at its own expense and in secure packaging. You are responsible for any damage that occurs during shipping. Such refunds shall be provided to the Customer using the same payment method as the Customer's original payment. If Linga agrees to provide replacement hardware before Customer has shipped the return hardware to Linga, Linga must receive the returned hardware within thirty (30) calendar days of delivery of the replacement hardware. If Linga does not receive the hardware within thirty (30) calendar days, Linga will either, at its option: a) charge Customer the price of the advance replacement part plus shipping costs, or b) suspend Customer's access to SaaS Services. Any product returned outside of the Defect Warranty period will be repaired or replaced at Linga's then standard price.
  6. Limited Defect Warranty; Disclaimer; Exclusions.
    1. Linga warrants that from the sale of the Hardware and for a period of twelve (12) months ("Defect Warranty Period") thereafter, such Hardware will be materially free from defects in material and workmanship under normal use and operation for its intended purpose ("Defect Warranty"). Linga's sole and exclusive obligation and liability under the Defect Warranty shall be for Linga to replace any Hardware that fails to conform to the Defect Warranty during the Defect Warranty Period. Such obligation shall be the Customer's sole remedy under this Defect Warranty.
    2. LINGA WILL USE COMMERCIALLY REASONABLE EFFORTS TO PASS THROUGH ANY MANUFACTURER'S WARRANTIES, AS PERMITTED BY THE MANUFACTURER. CUSTOMER ACKNOWLEDGES THAT NEITHER LINGA OR ITS THIRD-PARTY PROVIDERS CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE HARDWARE OR SERVICES MAY BE SUBJECT TO LIMITATIONS, INTERRUPTIONS, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF COMMUNICATIONS FACILITIES. LINGA AND ITS THIRD-PARTY PROVIDERS ARE NOT RESPONSIBLE FOR ANY INTERRUPTIONS, DELAYS, DELIVERY FAILURES, DATA LOSS, LOSS OF PROFITS, LOSS OF USE OR OTHER DAMAGE RESULTING FROM ANY OF THE FOREGOING INCLUDING ACTS OF GOD. IN ADDITION, LINGA DOES NOT WARRANT THAT THE OPERATION OF THE HARDWARE WILL BE ERROR-FREE OR THAT OPERATION WILL BE UNINTERRUPTED. EXCEPT AS SPECIFIED HEREIN, CUSTOMER ACKNOWLEDGES THAT THE HARDWARE AND ANY AND ALL PARTS THEREOF ARE PROVIDED "AS IS", "AS AVAILABLE", AND "WITH FAULTS" BASIS. THE WARRANTIES OF LINGA SET FORTH HEREIN ARE LINGA'S SOLE AND EXCLUSIVE WARRANTIES WITH RESPECT TO THE HARDWARE AND ARE MADE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE. EXCEPT AS SPECIFIED IN HEREIN, ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS OR WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE (EVEN IF KNOWN TO LINGA), NON-INFRINGEMENT, SATISFACTORY QUALITY OR ARISING FROM A COURSE OF DEALING, LAW, USAGE, OR TRADE PRACTICE ARE HEREBY EXCLUDED AND DISCLAIMED BY CUSTOMER, AND HEREBY WAIVED BY LINGA. THIS DISCLAIMER AND EXCLUSION SHALL APPLY EVEN IF THE EXPRESS WARRANTY SET FORTH ABOVE FAILS OF ITS ESSENTIAL PURPOSE.
    3. This Defect Warranty does not apply if Hardware: (i) has been repaired, altered, or modified in any manner, or an addition made thereto, by third parties other than Linga or its authorized representatives, or as approved by Linga in writing; (ii) has been damaged due to the use of a non-Linga product in connection with such Hardware; (iii) has been damaged due to natural disaster or other force majeure event; (iv) has been subjected to misuse, abuse, improper handling, alterations, modifications or repairs by Customer, its employees, contractors, or subcontractors, negligence, abnormal or unusual physical, environmental, electromagnetic or electrical stress, including lightning strikes, or accident; (v) has not been properly stored, handled, operated or maintained in accordance with Customer's obligations hereunder; or (vi) was not purchased by the Customer (collectively, "Warranty Exclusions"). If Linga determines after receipt of a Defect Warranty claim and inspection of the Hardware that such Hardware is not in breach of the Defect Warranty but a defect that is the result of a Warranty Exclusion, Linga will have no obligation to repair or replace such Hardware unless Customer requests Linga to do so in writing. If Customer requests repair or replacement of a Hardware when Linga has no obligation under the Defect Warranty, Customer shall, within thirty (30) business days, reimburse Linga for all reasonable costs associated with Linga's repair or replacement of such Hardware, including, but not limited to, reimbursement of Linga's reasonable costs of inspection, parts, labor, delivery, transport and Linga's travel expenses.
  7. Embedded Software License. As of the delivery of the Hardware to Customer, Linga grants Customer a fully paid-up, royalty-free, non-exclusive, non-sublicensable, worldwide license to execute, run, and use the Embedded Software on and with the Hardware.
  8. Linga Complimentary Hardware Program. If Customer has opted into the Complimentary Hardware Program, as indicated on the Sales Order, and executed an agreement with Hybrid Payments Merchant Processing, the following applies:
    1. The Customer agrees to three (3) year term for SaaS Services and Hybrid Payments Merchant Processing.
    2. If Customer terminates this Agreement, in whole or in part, in accordance with Section 6(c) or Customer's Hybrid Payments Merchant Processing, Customer will be charged a cancellation fee as set forth in the Sales Order ("Cancellation Fee"). Customer authorizes Linga immediately on or after the effective date of termination, deduct such total amount of the Cancellation Fee and any other costs associated with the termination from Customer's bank account or charge such total amount to Customer's payment card on file, or any other payment method on file with Linga. If Linga is unable to deduct such Cancellation Fee and other costs associated with the termination from the Customer's payment method on file, Customer shall pay Linga the amount due within thirty (30) days of the date Linga provides an invoice for such Cancellation Fee. The parties agree that the Cancellation Fee is not a penalty but is a reasonable amount of liquidated damages to compensate Linga for termination expenses and other damages. Any Cancellation Fee will be in addition to any and all other damages and equitable remedies to which Linga may be entitled.
    3. Customers who are participating in the Complimentary Hardware Program may return Hardware and cancel their Hybrid Payments Merchant Processing Agreement without incurring a Cancellation Fee for up to sixty (60) days after the contract execution date.
The Cancellation Fee charged to Customer will be calculated as follows:
Timing of Cancellation Percentage of the Cancellation Fee
0-3 months after delivery of the Hardware* 100%
4-6 months after delivery of the Hardware 75%
7-9 months after delivery of the Hardware 50%
10-12 months after delivery of the Hardware 25%
12 + Months after delivery of the Hardware 0%
*Customer may also return in accordance with Return Policy in Section four without incurring a cancellation fee.

Appendix C

Professional Services Terms

This Appendix C (Professional Services Terms) applies to Professional Services (as defined in the General Terms). Capitalized terms used in this Appendix C (Professional Services Terms) that are not defined herein shall have the meanings ascribed elsewhere in the Agreement. Capitalized terms that are defined in this Appendix C (Professional Services Terms) and elsewhere in the Agreement shall have the meanings ascribed in this Appendix C (Professional Services Terms).
  1. Professional Services.
    1. As requested by Customer, Linga will provide Professional Services as may be set forth in the Sales Order or Agreement.
    2. The Sales Order will set forth any associated fees.
  2. Limited Warranty. Linga represents and warrants that it will perform the Professional Services in a workmanlike and professional manner and consistent with generally recognized industry standards.
  3. Location of Services. Professional Services may be performed at any facility owned or operated by Linga and/or its subcontractors and as otherwise set forth in the Sales Order. If Customer requests Linga to perform the Professional Services at any Customer sites, Linga agrees to comply with any of Customer's policies and procedures related to the use of, or access to, such sites (including work health and safety and security policies) specified in the Agreement. Linga may suspend or refuse to deliver Services if conditions at the site are, in its reasonable opinion, unsafe or hazardous to Linga employees required to work on that site. Customer will reimburse Linga for reasonable travel and travel-related expenses provided that such expenses are approved in advance by Customer in writing.
  4. Staffing.
    1. Linga may subcontract or delegation any portion of the performance of the Professional Services or assign or transfer any of its rights or obligations under this Agreement without Customer's prior written consent. Linga will be responsible for and remain liable to Customer for the actions and omissions of all subcontractors engaged by Linga in connection with the Professional Services as if they were Linga's own actions and omissions.
    2. Nothing in this Agreement will operate or be construed as making Customer and Linga partners, joint ventures, principals, joint employers, agents or employees of or with the other. Each Party will be responsible for the processing and payment of any salary and benefits (including provision for employment taxes, federal, state, and local income taxes, worker's compensation and any similar taxes) associated with the employment of its respective employees.
    3. Linga shall at all times remain the employer of record for and remain liable for the acts or omissions of all persons performing the Professional Services whether as Linga employees, contractors, subcontractors or representatives, and Linga shall perform all of the responsibilities of an "employer" under applicable laws and regulations.
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