Terms & Condition

TERMS AND CONDITIONS 

1. Acceptance of Terms

PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY.

These terms and conditions (the “Terms and Conditions” or this “Agreement”) govern all sales of products (“Products”) and all service engagements (“Services”) by Digital Labs & Networks (DLAN) or any DLAN affiliate identified on an invoice, Statement of Work or other DLAN documentation (“Seller”).

By:

• accepting delivery of Products, or
• purchasing or ordering Products or Services from Seller, or
• using or engaging Seller via any Seller website or mobile application (each a “Site”),

you (“Customer”) agree to be bound by these Terms and Conditions, unless Customer and Seller have signed a separate written agreement that expressly governs, in which case that separate agreement will control.

Any additional or different terms submitted by Customer (for example, in a purchase order, email, or other document) are rejected and are considered material alterations. They will be null and void, unless expressly agreed in writing and signed by Seller.

Any general descriptions of Products, Services, or expected results on any Site or mobile application are for information only and do not form part of this Agreement.

2. Changes to Terms; Electronic Records & Signatures

These Terms and Conditions may change without prior notice. The version posted on a Site at the time Customer:

• places an order, or
• signs a Statement of Work (“SOW”)

will govern that order or SOW, unless otherwise agreed in writing by Customer and Seller.

Customer consents to receive records electronically (via web browser or email). Individual consumers may withdraw consent or request non-electronic copies by contacting Seller.

Customer is responsible for Internet connectivity and any fees charged by its Internet provider.

Electronic signatures in the UK and USA (including scanned or electronically transmitted copies) are treated as equivalent to handwritten signatures.

3. Entire Agreement; Purchase Orders

Customer may issue purchase orders for its internal or administrative purposes only. Any additional or different terms in such purchase orders will have no effect.

No prior course of dealing or usage of trade will affect the interpretation of:

• these Terms and Conditions,
• any purchase order or invoice, or
• any Statement of Work (each a SOW is a written document, electronic or paper, signed by both parties and governing Services other than Third Party Services).

This Agreement:

• is the entire understanding between Customer and Seller regarding its subject matter, and
• supersedes all prior or contemporaneous communications and agreements (oral, written, electronic, or implied).

4. Governing Law and Jurisdiction (USA & UK)

These Terms and Conditions, any SOW, the Services, and any sale of Products will be governed by:

• the laws of the State of Texas, USA, and
• the laws of England and Wales, UK,

in each case without regard to conflict of law rules.

Any arbitration, enforcement of arbitration, or litigation will be brought exclusively:

• in Texas, USA, and
• in England, UK.

Customer:

• consents to the jurisdiction of the applicable federal and state courts located there,
• submits to such jurisdiction, and
• waives any right to change venue.

Except for claims related to nonpayment, no action arising out of these Terms and Conditions may be brought more than one (1) year after the cause of action accrues.

Seller’s rights and remedies under these Terms and Conditions are cumulative and in addition to all other legal or equitable rights and remedies.

5. Risk of Loss and Title

• If Customer provides its own carrier account number or selects a carrier not regularly used by Seller, then title and risk of loss pass to Customer when Seller delivers the Products to the carrier (F.O.B. Origin, freight collect).
• For all other shipments, title and risk of loss pass to Customer upon delivery at the specified destination (F.O.B. Destination, freight prepaid and added).

Title to software remains with the applicable licensor(s); Customer’s rights to software are governed by the relevant license agreement between Customer and such licensor(s).

6. Services and Third Party Services

Customer may order Services from or through Seller from time to time. Some Services may be supplied by third parties, including extended warranties or manufacturer services (“Third Party Services”), which are sold by Seller as distributor or sales agent.

For Third Party Services:

• The third party is the contracting party and is solely responsible for performing those services.
• Customer agrees that any claims, losses or damages related to Third Party Services will be pursued only against the third party, not Seller.
• Customer and its Affiliates release Seller and Seller’s Affiliates from all claims arising out of or relating to the purchase or provision of Third Party Services.
• Any associated amounts (including taxes) that Seller collects for Third Party Services are collected only as an independent sales agent.

Affiliate means:

• for Seller: any entity that controls, is controlled by, or is under common control with Seller;
• for Customer: any entity that controls, is controlled by, or is under common control with Customer.

Control means having the direct or indirect power to direct or cause the direction of another entity’s affairs (e.g., via share ownership, appointment rights, contract, or otherwise).

7. Statements of Work (SOWs)

When Services are ordered via a Statement of Work:

• Each SOW incorporates these Terms and Conditions and forms a separate agreement for the Services described.
• Seller or any of its Affiliates may execute an SOW on Seller’s behalf.

If there is a conflict between:

• an SOW and
• these Terms and Conditions

then these Terms and Conditions control, unless the SOW expressly states it is amending this Agreement (by specific reference). Any such amendment applies only to that particular SOW.

Changes to the scope of Services in an SOW:

• must be in a written change order or amendment signed by authorized representatives of both parties; and
• Seller is not obligated to start work on any change until such written agreement is executed.

Each SOW may be signed in counterparts, which together will constitute one original.

8. Customer Cooperation

In addition to any responsibilities in an SOW, Customer agrees to:

1. Provide timely responses to Seller’s questions, requests, approvals, and authorizations.
2. Provide access to information and materials reasonably requested by Seller as necessary or useful to perform the Services, including physical and system access to Customer’s computer systems.
3. Obtain all necessary Required Consents for Seller, its Affiliates, and their subcontractors to access, use, and modify data and third-party products needed for the Services.

Required Consents means all consents, approvals, licenses, and rights needed to allow Seller and its Affiliates and subcontractors to perform the Services.

Customer acknowledges that Seller’s ability to perform Services depends on the accuracy and completeness of information provided by Customer and the cooperation of Customer’s personnel, agents, employees, and subcontractors (“Personnel”) assigned to work with Seller.

Seller will comply with Customer’s reasonable written security rules and procedures, as communicated in writing from time to time.

9. Access and On-Site Services

Seller may perform Services:

• at Customer’s premises,
• at Seller’s facilities, or
• at other locations mutually agreed.

When Services are at Customer’s premises:

• Seller will use reasonable efforts to work during Customer’s normal business hours, unless otherwise agreed.
• Customer will provide Seller with reasonable access to Customer’s staff and other resources that Seller considers necessary or useful.

When Services are performed on Customer’s premises (or another Customer-designated location), Customer agrees to:

• maintain adequate insurance covering the premises and activities; and
• indemnify and hold harmless Seller, its Affiliates, and their agents and employees from any loss, cost, damage, expense (including attorneys’ fees), product liability, death, personal injury, or property damage occurring at the site in connection with the Services, except to the extent caused solely by Seller’s gross negligence or willful misconduct.

10. Payments and Credit Terms

Orders are not binding on Seller until accepted by Seller.

Customer agrees to pay:

• the full purchase price of Products,
• shipping charges (including charges billed to Seller due to use of Customer’s carrier account), and
• fees for Services.

Payment terms:

• Payment terms are at Seller’s sole discretion.
• For Services under an SOW, Customer will pay amounts and follow the payment schedule in the SOW. If none is provided, Customer will pay based on Seller’s invoices.
• Invoices are due within the period stated on the invoice, measured from the invoice date, subject to ongoing credit approval.
• Any of Seller’s Affiliates may invoice on Seller’s behalf.
• Seller may invoice separately for partial shipments and may invoice all or any part of Services in an SOW.

Late payments:

• Customer agrees to pay interest on overdue amounts at the lesser of 1.5% per month or the maximum rate allowed by law.
• In the event of payment default, Customer is responsible for all collection costs, including court costs, filing fees, and attorneys’ fees.
• Seller may suspend Services until payment is received.

Taxes:

• Customer will pay, and indemnify and hold Seller and its Affiliates harmless from, all sales, use, transaction, excise, or similar taxes and any federal, state, local, or environmental fees related to an SOW, the Products, or the Services (excluding taxes on Seller’s net income).
• Any claimed tax exemption must be asserted at the time of purchase, and Customer must provide valid documentation.

Security interest:

• Customer grants Seller a security interest in the Products to secure payment in full and authorizes Seller to file financing statements reflecting that interest.

Expenses:

• Unless an SOW states otherwise, Customer will reimburse Seller for reasonable out-of-pocket expenses related to the Services (such as travel and lodging).

11. Export Compliance

If the transaction involves export of items (including commodities, software, or technology) subject to the U.S. Export Administration Regulations:

• Such items are exported by Seller in compliance with those regulations.
• Customer agrees not to divert, use, export, or re-export such items in violation of U.S. or UK law.

Customer specifically agrees not to export, re-export, or provide such items:

• to any person or entity in a country subject to comprehensive U.S. economic sanctions or embargoes (currently including, but not limited to, Cuba, Iran, Sudan, Syria, and any successor or additional restricted countries), without prior U.S. government authorization; or
• to any entity or person listed on U.S. restricted lists, including the U.S. Treasury Department’s Specially Designated Nationals list, and the U.S. Commerce Department’s Denied Persons, Entity, or Unverified lists.

Customer understands that manufacturer warranties for exported Products may be limited or void outside the United States.

12. Warranties – Products

Customer acknowledges that:

• Seller is not the manufacturer of the Products, and
• the only applicable Product warranties are those provided by the manufacturer, not by Seller or its Affiliates.

Customer is relying solely on the manufacturer’s specifications and not on any statements, specifications, images, or illustrations provided by Seller or its Affiliates.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, SELLER AND ITS AFFILIATES DISCLAIM ALL WARRANTIES RELATING TO PRODUCTS OR THIRD-PARTY SERVICES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO:

• WARRANTIES OF TITLE,
• ACCURACY,
• MERCHANTABILITY,
• FITNESS FOR A PARTICULAR PURPOSE,
• NON-INFRINGEMENT.

This disclaimer does not modify any manufacturer’s warranties that accompany the Products.

Customer:

• waives any claims against Seller or its Affiliates for product liability or intellectual property infringement (or alleged infringement) relating to any Product; and
• waives any right to indemnification from Seller or its Affiliates for such claims by third parties.

No employee or representative of Seller or its Affiliates is authorized to make any additional warranties not contained in this Agreement.

13. Warranties – Legal Compliance & High-Risk Uses

Seller makes no warranty or representation regarding:

• compliance of the Products with laws and regulations (including manufacture, performance, sale, packaging, labeling) in Customer’s territory.

Seller does not warrant that the Products are designed for, or suitable for, any high-risk use, including:

• aircraft or automotive safety or navigation systems,
• life support or medical devices,
• nuclear facilities,
• weapons systems, or similar environments.

Customer:

• agrees to indemnify Seller for any claims arising from such high-risk uses, and
• agrees to review and comply with manufacturer disclaimers and restrictions for high-risk environments.

14. Warranties – Services and Data

Seller warrants that the Services will be performed in a good and workmanlike manner.

Customer’s sole and exclusive remedy, and Seller’s entire liability for breach of this Services warranty, will be, at Seller’s option:

1. Seller’s commercially reasonable efforts to re-perform (or cause re-performance of) any non-compliant Services; or
2. a refund of amounts paid by Customer for the portion of Services not in substantial compliance.

Customer must notify Seller in writing of any claimed Service non-compliance within three (3) business days after performance of the relevant Services.

EXCEPT AS EXPRESSLY SET OUT IN THIS AGREEMENT OR IN A SOW THAT EXPRESSLY AMENDS SELLER’S WARRANTY, AND SUBJECT TO APPLICABLE LAW, SELLER DISCLAIMS ALL OTHER WARRANTIES, CONDITIONS AND REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION:

• FITNESS FOR A PARTICULAR PURPOSE,
• MERCHANTABILITY,
• DURABILITY,
• TITLE,
• ACCURACY,
• NON-INFRINGEMENT,
• ANY WARRANTY RELATED TO THIRD PARTY SERVICES,
• ANY WARRANTY REGARDING HARDWARE OR SOFTWARE USED TO PERFORM SERVICES, AND
• ANY WARRANTY ABOUT RESULTS TO BE OBTAINED FROM THE SERVICES.

This disclaimer applies even if any limited remedy fails of its essential purpose. No representative of Seller or its Affiliates may expand or modify these warranties except in a written SOW that expressly amends this Agreement.

Data and software protection:
Customer is solely responsible for:

• daily backups,
• data and software protection, and
• data reconstruction in the event of loss, damage, or corruption during the Services.

SELLER, ITS AFFILIATES, AND THEIR SUPPLIERS, SUBCONTRACTORS, AND AGENTS ARE RELEASED FROM ALL LIABILITY FOR LOSS, DAMAGE, OR CORRUPTION OF DATA OR SOFTWARE. CUSTOMER ASSUMES ALL RISK OF SUCH LOSS, DAMAGE, OR CORRUPTION.

15. Delays; Shipping and Completion Dates

Seller is not liable for delays in delivery or performance caused by circumstances beyond its reasonable control, including:

• Product unavailability,
• Carrier delays,
• fire, severe weather, power failures, labor issues, acts of war or terrorism, embargoes, acts of God, or government actions.

Any shipping or completion dates (including those in an SOW) are estimates only and not guaranteed deadlines.

16. Pricing, Availability and Estimates

Seller may adjust prices, Products, and Service offerings at any time due to:

• market changes,
• Product discontinuation or unavailability,
• manufacturer or supplier price changes, or
• advertising or other errors.

All orders are subject to:

• Product availability, and
• availability of Seller Personnel to perform Services.

Seller does not guarantee that every order can be fulfilled.

If Services are billed on a time and materials basis, any estimates are for planning purposes only and are not binding.

17. Credits

Any credit issued by Seller:

• must be used within one (1) year from the issuance date,
• may only be applied to future purchases of Products and/or Services, and
• any unused amount after one year automatically expires.

18. Limitation of Liability

UNDER NO CIRCUMSTANCES, AND EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE, WILL SELLER, ITS AFFILIATES, OR THEIR SUPPLIERS, SUBCONTRACTORS, OR AGENTS BE LIABLE FOR:

1. ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFITS, BUSINESS, REVENUE, OR SAVINGS), EVEN IF ADVISED OF THE POSSIBILITY OR SUCH DAMAGES ARE FORESEEABLE;
   B. ANY CLAIMS, DEMANDS, OR ACTIONS BROUGHT AGAINST CUSTOMER BY ANY THIRD PARTY;
   C. ANY LOSS OR CLAIM ARISING OUT OF OR RELATED TO CUSTOMER’S IMPLEMENTATION OF SELLER’S OR ITS AFFILIATES’ RECOMMENDATIONS OR CONCLUSIONS REGARDING THE PRODUCTS OR SERVICES; OR
   D. ANY UNAVAILABILITY OF PRODUCTS OR ANY LOST, DAMAGED, OR CORRUPTED DATA OR SOFTWARE.

If Seller or any of its Affiliates is nevertheless held liable, then the maximum total aggregate liability for all claims from any cause whatsoever will be the lesser of:

• the amount paid by Customer for the Product(s) giving rise to the claim or the specific Services giving rise to the claim, or
• US $25,000.00.

19. Limited License to Work Product

“Work Product” means work product, materials, and deliverables created or provided in connection with the Services, including:

• inventions, discoveries, methods, processes, formulas, ideas, concepts, techniques, know-how, data, designs, models, prototypes, works of authorship, computer programs, proprietary tools, analytical methods, and other information, whether or not protectable by intellectual property rights.

Upon full payment, Customer’s sole right to the Work Product is a non-exclusive, non-transferable, royalty-free license to use it only for Customer’s internal business purposes.

Customer:

• obtains no ownership or property rights in the Work Product, and
• may not use it for any other purpose.

Seller may incorporate third-party intellectual property (“Third Party Intellectual Property”) into the Work Product. Customer’s rights to use Work Product containing Third Party Intellectual Property may be subject to third-party terms and limitations.

20. Confidential Information

“Confidential Information” means any oral, electronic, or written information that:

• is proprietary or confidential, and
• is disclosed or made accessible in connection with this Agreement or any SOW, including the terms and conditions of any SOW,

except information that:

1. becomes public without breach by the receiving party;
2. was already known to the receiving party or becomes known from a third party with the right to disclose it and no confidentiality obligation; or
3. is independently developed by the receiving party’s personnel without access to the Confidential Information.

Where practicable, the disclosing party should mark or identify Confidential Information as such, but failure to do so does not mean it is not confidential.

Each party agrees to:

• keep the other party’s Confidential Information confidential for three (3) years from disclosure;
• protect it with at least the same care used for its own similar confidential information, but not less than reasonable care;
• limit disclosure to those who (i) are involved in providing or receiving Products or Services under this Agreement or an SOW and need to know, or (ii) are business, legal, or financial advisors bound to confidentiality; and
• use the other party’s Confidential Information only for the purposes of this Agreement and applicable SOWs.

Upon written request, the receiving party will either return or certify destruction of the disclosing party’s Confidential Information.

If the receiving party is required by law, regulation, or governmental request to disclose Confidential Information, it will:

• give prompt notice to the disclosing party (to the extent lawful) so that protective measures may be sought, and
• seek confidential treatment for the disclosed information where reasonable.

21. Return Privileges

DLAN accepts returns in accordance with the original manufacturer’s return policies.

• Software is non-returnable once the packaging is opened.
• Electronically delivered software is non-returnable once licenses have been downloaded.

For more details, see DLAN’s Product Return Policy (as referenced on www.dlan.ai).

To start a return or get more information, Customer should contact DLAN Customer Services in the relevant region (USA/UK) or email cs@dlan.ai.

Customer must notify DLAN Customer Services of damaged Products within seven (7) days of receipt.

22. Termination

Either party may terminate the performance of Services or an SOW for cause if the other party fails to cure a material default.

• The non-defaulting party must send written notice specifying the material default.
• The defaulting party has 30 days to cure non-monetary defaults and 10 days to cure monetary defaults, unless the default cannot reasonably be cured within those periods and the defaulting party is using reasonable efforts to cure (except for payment obligations).

If the default is not cured as above, the non-defaulting party may terminate immediately.

Upon termination:

• Customer will pay Seller for all Services performed and expenses incurred up to the termination date, plus any stated termination fee in the SOW and any demobilization or other direct termination costs.
• All rights and obligations under the applicable SOW or Services end, except:
  • payment obligations,
  • any rights that arose before termination, and
  • provisions that by their nature are intended to survive (including limitation of liability, indemnity, confidentiality, Work Product licensing, and this survival clause).

23. Custom Imaging

If Customer wants Seller to install custom software images on Products, Customer must sign Seller’s Installation Indemnity Agreement (form available at www.dlan.ai or as supplied by Seller).

24. Arbitration

Any Claim (as defined below) arising from or relating to:

• the Products or Services,
• these Terms and Conditions or any SOW (including their interpretation, application, breach, termination, or validity),
• relationships created by these Terms and Conditions or any SOW (including relationships with certain third parties, to the extent allowed by law), or
• Seller’s or any Affiliate’s advertising or marketing,

MAY BE RESOLVED, AT THE ELECTION OF SELLER, CUSTOMER, OR THE APPLICABLE THIRD PARTY, EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.

If arbitration is chosen:

• it will be conducted under the rules of the American Arbitration Association;
• neither party will have the right to litigate that Claim in court or to have a jury trial;
• pre-arbitration discovery is limited to what is permitted by the arbitration rules or mutual agreement;
• Customer may not act as a representative or member of any class of claimants.

This arbitration agreement is governed by the U.S. Federal Arbitration Act, regardless of any choice of law provisions.

Arbitration will take place exclusively in Dallas, Texas, USA, and England, UK (as applicable). Any court with jurisdiction may enter judgment on the arbitrator’s award.

Each party bears its own costs for legal representation, discovery, and research. The existence and results of any arbitration will be treated as confidential.

Exception – Collection of Amounts Due:
Any matters related to collecting amounts owed to Seller for Products or Services will be litigated in court, not via arbitration.

25. Personal Data

If and to the extent Seller processes Personal Data on behalf of Customer in providing Services under this Agreement, Seller’s Data Processing Agreement (as provided at www.dlan.ai) applies and is incorporated by reference.

“Personal Data” means any information that identifies or relates to an identified or identifiable individual or household in connection with Services for Customer, including information qualifying as “personal information” or “personal data” under applicable data protection laws.

26. Miscellaneous

• Assignment: Seller may assign or subcontract any portion of its rights or obligations or assign the right to receive payments without Customer’s consent. Customer may not assign this Agreement or any rights or obligations without Seller’s prior written consent. Subject to these restrictions, this Agreement binds and benefits both parties and their successors and permitted assigns.
• Amendments & Waivers: No provision of this Agreement or any SOW is waived, amended, or modified unless in a written document signed by both parties. Any failure or delay by either party to exercise a right or remedy is not a waiver of that right or any other rights.
• Independent Contractors: Seller and Customer are independent contractors. Nothing in this Agreement creates an employer-employee, partnership, or joint venture relationship.
• Severability: If any term of this Agreement or an SOW is found invalid, illegal, or unenforceable, the remaining terms remain in full force and effect.
• Notices: Notices under this Agreement must be in writing and are deemed received:
  • upon actual receipt,
  • three (3) days after mailing by prepaid regular mail or airmail, or
  • one (1) day after sending by courier or facsimile (with confirmation).

27. International Services

This section applies only if an SOW involves Services delivered remotely by Seller to a Customer location outside the United States.

Taxes (International):
Customer will pay and indemnify, defend, and hold Seller, its Affiliates, and their directors, officers, employees, and agents harmless from any losses, costs, damages, or expenses (including attorneys’ fees) arising from any Taxes.

“Taxes” includes:

• sales, use, transaction, value-added, goods and services tax, harmonized sales tax, withholding tax, excise or similar taxes,
• foreign, provincial, federal, state, or local fees or charges (including environmental or similar fees), and
• any income or business tax liability, penalties, and interest related to any transaction or Purchased Items hereunder (excluding taxes based on Seller’s net income).

Customer must claim any tax exemption at the time of purchase and provide Seller with supporting documentation. Taxes may be billed on Product/Service invoices or separately.

Regulatory changes:
If laws or governmental regulations require Seller or its Affiliates to register or obtain licenses, permits, or consents to provide Services in a particular jurisdiction, Seller may:

• decline to provide, or
• terminate,

Services to Customer’s Affiliates in that jurisdiction, without liability to Customer or its Affiliates.

“Laws” means any applicable constitution, statute, treaty, rule, regulation, ordinance, order, code, or other requirement having the force of law, including local, national, or international requirements.

Disputes involving foreign affiliates:
Customer and Seller agree that all claims, controversies, or disputes regarding Services (including damages or injuries to foreign Affiliates) must be resolved in the United States as described in the Arbitration clause above.

If a party’s foreign Affiliate sues or makes a claim against the other party or its Affiliate outside the United States:

• the party will work with its foreign Affiliate to dismiss the suit or claim,
• the party will instead bring any such suit or claim directly in the United States, and
• the party will reimburse the other party or its Affiliates for reasonable costs and expenses incurred responding to the foreign suit or claim.

End of rephrased Terms and Conditions.