Sales Terms

Part A: TERMS & CONDITIONS OF SALE OF MAXXESS STANDARD PRODUCTS

(and any upgrades of those products, including third party software upgrades)

  1. Minimum order is seventy-five dollars ($75.00)
  2. Maxxess publishes a price list at least once a year. All prices and product specifications are subject to change.
  3. Any applicable taxes are over and above published prices. Where applicable, purchaser shall provide a tax exemption and or certificate acceptable to the taxing authority.
  4. All orders must be accepted and approved by Maxxess prior to shipping.
  5. Prices in effect at time of order will apply.
  6. All pricing is EX WORKS. the Maxxess factory in Brea, CA USA or Maxxess Systems Europe LTD, C/O A NOVO LTD, 71 Bilton Way, Enfield Middlesex EN3 7EP.
  7. Integration, professional services, and training fees must be paid before activity begins.
  8. Each purchase order is subject to credit approval. Except where credit has been approved, all shipments will be prepaid or sent C.O.D.
  9. Maxxess will not be liable for any loss of or damage to, goods while in transit. Standard shipping does not include insurance; therefore, if insurance for a shipment is desired, the request must be indicated on the purchase order.
  10. Maxxess will make every effort to see that orders are shipped on time, but Maxxess will not be held liable for delays or losses that are incurred for any reason whatsoever.
  11. Unless otherwise specified, all shipments will be sent via Maxxess’ carrier of choice.
  12. Maxxess will not warrant or support any installation that does not meet the Maxxess Manuals.
  13. All third-party products such as credentials, readers, printers and printer supplies are final sale; no returns once ordered.
  14. Merchandise being returned to our factory must have a Return Material Authorization (RMA) number. Contact the Customer Service Department for a Return Authorization number.
  15. Credit for any goods returned under an RMA will be applied to the customer’s account and may be utilized for future orders. Maxxess does not provide cash refunds for returned goods.
  16. Merchandise over 90 Days old may not be returned for credit. Any merchandise returned for credit must be approved in advance. Merchandise returned to Maxxess in a container which has not been opened will be subject to a restocking charge. Merchandise cannot be returned to Maxxess if the container has been opened.
  17. Goods returned for service under warranty will be returned to sender with freight prepaid by Maxxess via Ground carrier of Maxxess choice. Customers will be charged freight on warranty items if they require shipment other than Ground. Customers will be charged freight for goods returned out of warranty.
  18. Out of warranty goods returned for service will be subject to a $150.00 Flat Rate Repair Fee. Customers will be charged freight for out of warranty goods repaired by Maxxess.
  19. All goods being returned to the Maxxess factory must have freight prepaid and have the Return Material Authorization number marked clearly on the outside of the box. Otherwise it will be returned to the sender unopened.
  20. Registered eFusion configurations may be modified to eliminate licensed capabilities that are no longer required or used. This action will terminate the license associated with the eliminated capabilities and the software support fees will be adjusted to reflect the modified licensed capabilities.
  21. Maxxess offers an Advanced Unit Replacement Program for emergency replacement of Maxxess products when required. When an advanced unit is requested, a replacement unit will be shipped as soon as possible after the issuance of an RMA and prior to the return of the defective unit. There will be a Seventy-Five Dollar (US $75.00) non-refundable advanced unit fee for this service. Upon shipment of the advanced unit, Maxxess will invoice you for the advanced unit fee plus One Hundred and Fifty Dollars (US $150.00) Flat Rate Repair fee. Upon return of the faulty unit, you will be invoiced as follows:
    – Item Under Warranty: You will be credited One Hundred and Fifty Dollars (US $150.00)
    – Item out of Warranty: You will receive no further invoice. The invoice for the advance unit must be paid in full.
    Maxxess allows you 15 days to return material against an Advanced Replacement RMA. The 15-daytimeline begins on the day that the Advanced Replacement RMA unit is shipped. If the failed unit is not returned in 15 days, you will be invoiced for the unit. Maxxess will return any RMA units returned after the 15-day period and will not issue credit for the unit.
  22. If a unit fails within 60 days of the original date of shipment, the unit will be considered DOA. Maxxess will ship an advanced unit replacement and will waive the advanced unit fee for DOA units.

Please note that no goods will be accepted for return without first obtaining an RMA number. RMA numbers can be obtained from Customer Service in the US by calling +1(714) 772 1000 or emailing orders@maxxess-systems.com. When requesting an RMA, you will need to provide Maxxess the following information:

Part Number

Serial Number

Reason for Return

Maxxess requires that a service technician contact the Maxxess Technical Support Team before you request an advanced replacement unit.

Maxxess Warranties

A-1: Limited Hardware Warranty

  1. Maxxess warrants the hardware products it supplies to be free from defects in material and workmanship for a period of twelve months (12) from the date of receipt. All consumables are exempt from this warranty.
  2. Hardware supplied, but not manufactured by Maxxess is covered only by the manufacturer’s warranty. Maxxess does not provide any additional warranty coverage for this hardware. In the event of a warranty issue with this hardware, Maxxess will coordinate with the customer and the hardware manufacturer to provide warranty coverage, but Maxxess accepts no responsibility for the manufacturer’s performance or non-performance under their warranty.
  3. During the warranty period, Maxxess will repair (or, at its option, replace) at no charge, components that prove to be defective, provided the Maxxess hardware product is returned, shipping prepaid, to Maxxess. Merchandise being returned must have a valid RMA (Return Material Authorization) number clearly indicated on the outside of the carton or it will be refused by Maxxess. To get an RMA number, please call Customer Service in the US on +1(714)772 1000 or email returns@maxxess-systems.com.
  4. This warranty does not apply in the event of any failure caused by: Any act of Nature (Earthquake, Lightning, Flood, etc.) War, Riots, Strikes, Fire, Social Commotion, or any other casualties or contingencies beyond the control of either party.
  5. This warranty does not apply if, in the opinion of Maxxess, the hardware product has been damaged due to abuse, misuse, misapplication or accident or as a result of service or modification by other than an authorized Maxxess service center.
  6. No other warranties are expressed or implied, including, but not limited to, any implied warranties of merchantability and fitness for a particular purpose. Maxxess shall not be held responsible for any consequential damages or losses arising from the use of this product.

A-2: Limited Software Warranty

Maxxess warrants that the Software will perform substantially in accordance with the accompanying materials for a period of ninety (90) days from the date of receipt. If an implied warranty or condition is created by your state /jurisdiction and federal or state/provincial law prohibits disclaimer of it, you also have an implied warranty or condition, BUT ONLY AS TO DEFECTS DISCOVERED DURING THE PERIOD OF THIS LIMITED WARRANTY (NINETY DAYS). AS TO ANY DEFECTS DISCOVERED AFTER THE NINETY-DAY PERIOD, THERE IS NO WARRANTY OR CONDITION OF ANY KIND.

Some states/jurisdictions do not allow limitations on how long an implied warranty or condition lasts, so the above limitation may not apply to you. Any supplements or updates to the Software, including without limitation, any (if any) service packs or hot fixes provided to you after the expiration of the ninety day Limited Warranty period are not covered by any warranty or condition, express, implied or statutory.

A condition of this Limited Warranty is that you must allow Maxxess to connect to the software to test the software.

a. SOFTWARE SUPPORT. Maxxess will provide Standard Software Support for the Software during the Limited Warranty Period. If you require support during this period, please contact Maxxess by e-mail at support@maxxess-systems.com or by telephone at +1(800) 926-2609 or +1(714) 772-1000.

b. LIMITATION ON REMEDIES; NO CONSEQUENTIAL OR OTHER DAMAGES. Your exclusive remedy for any breach of this Limited Warranty is as set forth below. Except for any refund elected by Maxxess, YOU ARE NOT ENTITLED TO ANY DAMAGES, INCLUDING BUT NOT LIMITED TO CONSEQUENTIAL DAMAGES, if the Software does not meet Maxxess’s Limited Warranty, and, to the maximum extent allowed by applicable law, even if any remedy fails of its essential purpose. This Limited Warranty gives you specific legal rights. You may have other rights which vary from state/jurisdiction to state/jurisdiction.

c. YOUR EXCLUSIVE REMEDY. Maxxess’s and its partners’ entire liability and your exclusive remedy for any breach of this Limited Warranty or for any other breach of any other liability relating to the Software shall be, at Maxxess’s option from time to time exercised subject to applicable law, (a)return of the amount paid (if any) for the Software, or (b) repair or replacement of the Software that does not meet this Limited Warranty and that is returned to Maxxess. You will receive the remedy elected by Maxxess without charge, except that you are responsible for any expenses you may incur.

If Maxxess returns the amount paid or replaces the software, the original software must be removed from the system.

This Limited Warranty is void if failure of the Software has resulted from accident, abuse, misapplication, abnormal use or a virus. Any replacement Software will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer, and Maxxess will use commercially reasonable efforts to provide your remedy within a commercially reasonable time.

A-3: DISCLAIMER OF WARRANTIES

The Limited Warranty that appears above is the only express warranty made to you and is provided in lieu of any other express warranties or similar obligations (if any) created by any advertising, documentation, packaging, or other communications. Except for the Limited Warranty and to the maximum extent permitted by applicable law, Maxxess and its suppliers provide the Software and support services (if any) AS IS AND WITH ALL FAULTS, and hereby disclaim all other warranties and conditions, whether express, implied or statutory, including, but not limited to, any (if any)implied warranties, duties or conditions of merchantability, of fitness for a particular purpose, of reliability or availability, of accuracy or completeness of responses, of results, of workmanlike effort, of lack of viruses, and of lack of negligence, all with regard to the Software, and the provision of or failure to provide support or other services, information, software, and related content through the Software or otherwise arising out of the use of the Software. ALSO, THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION OR NONINFRINGEMENT WITH REGARD TO THE SOFTWARE.

A-4: EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MAXXESS OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE,THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT OR OTHER SERVICES, INFORMATION, SOFTWARE, AND RELATED CONTENT THROUGH THE SOFTWARE OR OTHERWISE ARISING OUT OF THE USE OF THE SOFTWARE, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), MISREPRESENTATION, STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF MAXXESS OR ANY SUPPLIER, AND EVEN IF MAXXESS OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.MAXXESS AND ITS SUPPLIERS DO NOT MAKE ANY WARRANTIES. IN PARTICULAR, THE SOFTWARE AND ALL SOFTWARE MEDIA ARE PROVIDED AS IS, WITHOUT ADDITIONAL WARRANTY OF ANY KIND, AND MAXXESS AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR TITLE, ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE, OR ANY WARRANTIES OF NONINFRINGEMENT OF ANY THIRD PARTY’S PATENT(S), TRADE SECRET(S), COPYRIGHT(S), OR OTHER INTELLECTUAL PROPERTY RIGHTS. MAXXESS AND ITS SUPPLIERS DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS IN THE SOFTWARE OR SOFTWARE MEDIA WILL BE CORRECTED. FURTHERMORE, MAXXESS AND ITS SUPPLIERS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOFTWARE IN TERMS OF ITS CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY MAXXESS OR MAXXESS’S AUTHORIZED REPRESENTATIVE SHALL CREATE ANY WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY.

A-5. LIMITATION OF LIABILITY AND REMEDIES

Notwithstanding any damages that you might incur for any reason whatsoever (including, without limitation, all damages referenced herein and all direct or general damages in contract or anything else), the entire liability of Maxxess and any of its partners and your exclusive remedy hereunder (except for any remedy of repair or replacement elected by Maxxess with respect to any breach of the Limited Warranty) shall be limited to the greater of the actual damages you incur in reasonable reliance on the Software up to the amount actually paid by you for the Software or US$5.00. The foregoing limitations, exclusions and disclaimers shall apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose.

Part B: TERMS & CONDITIONS OF SALE OF MAXXESS DEVELOPMENT CONTRACTS

Every development contract requires an agreement, signed by both parties that contains:
  1. Scope of Work
  2. Designated Point of Contact
  3. Pricing
  4. Payment Schedule
  5. Development schedule
  6. Responsibilities of both parties
  7. Acceptance Criteria
  8. Any special T&Cs for the development effort

The development contract must be signed by both parties.

Part C: TERMS & CONDITIONS FOR ALL HeyHQ SaaS CONTRACTS

  1. Provision of HeyHQ service is conditioned on: (i) Acceptance of the HeyHQ Service Agreement and (i) payment of the first HeyHQ invoice for one 3-month period of service and (ii) an HeyHQ Setup fee [if applicable].
  2. Subsequent HeyHQ service periods will be invoiced quarterly for 3-month service periods and will be due on the date identified in the invoice. These invoices will be delivered electronically no less than 5 business days before the Due Date.
  3. Failure to pay an HeyHQ invoice by the Due Date will result in cancellation of the HeyHQ service on that date.
  4. The HeyHQ configuration may be modified at any time during the service period. Any modifications will take effect on the payment of the initial invoice for the modification. Subsequent HeyHQ invoice dates will not change, but the invoiced amounts will be adjusted to reflect the modifications.
  5. HeyHQ service may be extended for an additional one-year period at any time within the original HeyHQ service period. In this case, the HeyHQ invoices will be extended by four quarterly invoices beginning at the end of the original HeyHQ service period.
  6. If HeyHQ service is extended within its service period, the HeyHQ fees will not increase [except for any subsequent configuration changes] during the extension period.

Part D: END USER LICENSE AGREEMENT

PLEASE READ THIS END USER LICENSE AGREEMENT (“AGREEMENT”) CAREFULLY BEFORE INSTALLING THE SOFTWARE PROVIDED BY MAXXESS SYSTEMS INC. (“Maxxess”) AND USING THE PRODUCT. THIS IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR ENTITY) AND MAXXESS REGARDING YOUR USE OF THE PRODUCT, WHICH INCLUDES USER DOCUMENTATION PROVIDED IN ELECTRONIC FORM (TOGETHER, THE “SOFTWARE”). USING THIS SOFTWARE INDICATES YOUR ACKNOWLEDGEMENT THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO BE BOUND TO ITS TERMS. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MUST REFRAIN FROM USING OR INSTALLING THIS SOFTWARE.

1) OWNERSHIP

A. You are receiving a limited license to use the Software strictly in accordance with the terms and conditions of this Agreement and only in connection with the operation of the Product. You may only reproduce the Software in accordance with this Agreement and consistent with the notices contained therein. Except for the license rights granted below, Maxxess and its suppliers retain all right, title and interest in and to the Software, including all intellectual property rights therein such as, without limitation, know-how, trade secrets, architectures, and systems and methods for producing product functionality. This Agreement does not constitute a transfer or sale of the ownership rights held by Maxxess and its suppliers in or to the Software. The Software is protected by applicable intellectual property laws, including United States copyright laws and international treaties.

2) GRANT OF LICENSE

A. Subject to Sections 1 and 3, Maxxess grants to You a non-exclusive, revocable, non-transferable, non-sublicensable, limited license to install and use a copy of the specified version of the Software in object code format, on each platform that You intend to use up to the maximum number of users. For purposes of this Section 2, the Software will be deemed to be installed on any platform from which a user could access such Software over a network or otherwise, whether or not it is actually accessed or copied onto the disk or other data storage device of such computer.

B. If the Software is an Update, as defined in Section 4, from an earlier version thereof, the License to the earlier version shall terminate automatically without further notice thirty (30) days after the Update is installed for use hereunder.

C. The Software is licensed not sold. Any reference herein to any sale or purchase of the Software or any similar reference shall be deemed to mean a license of the Software.

D. If the Product was provided to You pursuant to an Maxxess evaluation program, then in addition to the other provisions and limitations hereof, the Product may be used only for evaluation purposes for the period specified at the time of delivery and if no period has been specified, then You may use the Product for thirty (30) days. In addition, the Product may not be used for any production purposes. At the end of the evaluation period, if You wish to use the Product for production purposes You must purchase a Software license. In the event You determine not to enter into a licensing agreement with Maxxess at the end of the specified evaluation period, then Your rights under this Agreement shall terminate automatically and You shall return the Product to Maxxess.

3) LICENSE RESTRICTIONS

A. You acknowledge that, except as expressly stated in the license granted above, You have no express or implied license to use, modify or improve the Software or any of Maxxess’s patents, copyrights, trade secrets and/or trademarks (including the Software). Maxxess reserves all rights to the Software not expressly granted to You by this Agreement.

B. YOU MAY NOT RENT, LEASE, SUBLICENSE, SELL, ASSIGN, LOAN OR OTHERWISE TRANSFER THE SOFTWARE OR ANY OF YOUR RIGHTS AND OBLIGATIONS UNDER THIS AGREEMENT. Any purported transaction in violation of this Section 3 shall be null and void and of no force or effect. You may not reverse engineer, decompile, or disassemble the Software, except to the extent the foregoing restriction is expressly prohibited by applicable law. You may not remove or destroy any copyright notices or other proprietary markings. You may not modify or adapt the Software, merge the Software into another program or create derivative works based on the Software. You may not use, copy, or distribute the Software without Licensor’s authorization, except that you may make one (1) copy of the Software for archival or back-up purposes only. You may not print copies of any user documentation provided in “online” or electronic form. You agree to make reasonable efforts to notify and inform Your employees or agents having access to the Software of Your limitations, duties and obligations regarding use of the Software.

4) UPDATES

A. Maxxess may from time to time provide You with updates, patches, error corrections or new or modified versions of the Software (collectively referred to as “Updates”). Unless those Updates are supplied with a written license agreement, they will be deemed part of the Software subject to this Agreement. The warranty provided in Section 10 will apply to an Update subject to this Agreement only if You obtain the Update during the Warranty Period (that is, within 30 days after the original ship date), and the warranty with respect to that Update will continue only until the end of the Warranty Period. Any Update subject to this Agreement obtained after the Warranty Period will be provided AS IS. Maxxess has no obligation under this Agreement to provide any Updates.

5) DELIVERY

A. The Software is considered sold and shipped to You Ex Work or when you download the software.

6) SERVICE AND SUPPORT

A. Maxxess has no obligation to provide support, service, upgrades, modifications, or new releases under this Agreement. Maxxess may provide such services under a separate agreement.

7) AUDIT

A. Maxxess may audit and inspect Your records and systems upon ten (10) business day’s prior written notice to confirm Your compliance with Your obligations under this Agreement. Such audits and inspections shall be performed at Your facilities during Your regular business hours or via a remote connection. You shall reasonably cooperate with any such audit. Maxxess will not conduct more than one audit hereunder per year, except that, if an audit reveals a breach of this Agreement, Maxxess may conduct a subsequent audit at any time. Maxxess will initially pay the cost of any audit. You will reimburse Maxxess for such cost, however, if such audit reveals any material breach of this Agreement. Without limiting any of Maxxess’s other rights or remedies, if any Audit reveals, or if Maxxess otherwise determines or discovers that Your use exceeds Your license, You shall immediately pay to Maxxess license fees sufficient at Maxxess’s then current standard rates to obtain the right to use the Software by the number of users You then have using the Software.

8) TERM AND TERMINATION

A. Maxxess may terminate this Agreement if You violate it. You must destroy all copies of the Software in Your possession or control promptly upon termination. Upon Maxxess’s request, You must certify in writing that You have complied with Your obligations under this Section 8 and otherwise under this Agreement. Termination by Maxxess will not limit any of its other rights or remedies under this Agreement or at law or in equity. Any provision of this Agreement that by its sense and context is intended to survive termination of this Agreement will survive termination.

9) EXPORT CONTROL REQUIREMENTS

A. You may not use or otherwise export or re-export the Software except as authorized by United States Law and the laws of the jurisdiction in which the Software was obtained. In particular, but without limitation, the Software may not be exported or re-exported to (i) into (or to a national resident of) any U.S. embargoed country or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designed Nations or the U.S. Department of Commerce’s Table of Denial Orders.

10) LIMITED WARRANTY

A. LIMITED WARRANTY FOR SOFTWARE. Maxxess warrants that the Software will perform substantially in accordance with the accompanying materials for a period of ninety (90) days from the date of receipt. If an implied warranty or condition is created by your state /jurisdiction and federal or state/provincial law prohibits disclaimer of it, you also have an implied warranty or condition, BUT ONLY AS TO DEFECTS DISCOVERED DURING THE PERIOD OF THIS LIMITED WARRANTY (NINETY DAYS). AS TO ANY DEFECTS DISCOVERED AFTER THE NINETY-DAY PERIOD, THERE IS NO WARRANTY OR CONDITION OF ANY KIND. Some states/jurisdictions do not allow limitations on how long an implied warranty or condition lasts, so the above limitation may not apply to you. Any supplements or updates to the Software, including without limitation, any (if any) service packs or hot fixes provided to you after the expiration of the ninety day Limited Warranty period are not covered by any warranty or condition, express, implied or statutory.

a. LIMITATION ON REMEDIES; NO CONSEQUENTIAL OR OTHER DAMAGES. Your exclusive remedy for any breach of this Limited Warranty is as set forth below. Except for any refund elected by Maxxess, YOU ARE NOT ENTITLED TO ANY DAMAGES, INCLUDING BUT NOT LIMITED TO CONSEQUENTIAL DAMAGES, if the Software does not meet Maxxess’s Limited Warranty, and, to the maximum extent allowed by applicable law, even if any remedy fails of its essential purpose. The terms of Section10 (C) (“Exclusion of Incidental, Consequential and Certain Other Damages”) are also incorporated into this Limited Warranty. Some states /jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. This Limited Warranty gives you specific legal rights. You may have other rights which vary from state/jurisdiction to state/jurisdiction.

b. YOUR EXCLUSIVE REMEDY. Maxxess’s and its partners’ entire liability and your exclusive remedy for any breach of this Limited Warranty or for any other breach of this EULA or for any other liability relating to the Software shall be, at Maxxess’s option from time to time exercised subject to applicable law, (a) return of the amount paid (if any) for the Software, or (b) repair or replacement of the Software, that does not meet this Limited Warranty and that is returned to Maxxess. You will receive the remedy elected by Maxxess without charge, except that you are responsible for any expenses you may incur (e.g. cost of shipping the Software to Maxxess).

c. This Limited Warranty is void if failure of the Software has resulted from accident, abuse, misapplication, abnormal use or a virus. Any replacement Software will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer, and Maxxess will use commercially reasonable efforts to provide your remedy within a commercially reasonable time of your compliance with Maxxess’s warranty remedy procedures.

B. DISCLAIMER OF WARRANTIES. The Limited Warranty that appears above is the only express warranty made to you and is provided in lieu of any other express warranties or similar obligations (if any) created by any advertising, documentation, packaging, or other communications. Except for the Limited Warranty and to the maximum extent permitted by applicable law, Maxxess and its suppliers provide the Software and support services (if any) AS IS AND WITH ALL FAULTS, and hereby disclaim all other warranties and conditions, whether express, implied or statutory, including, but not limited to, any (if any) implied warranties, duties or conditions of merchantability, of fitness for a particular purpose, of reliability or availability, of accuracy or completeness of responses, of results, of workmanlike effort, of lack of viruses, and of lack of negligence, all with regard to the Software, and the provision of or failure to provide support or other services, information, software, and related content through the Software or otherwise arising out of the use of the Software. ALSO, THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT WITH REGARD TO THE SOFTWARE.

C. EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MAXXESS OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT OR OTHER SERVICES, INFORMATION, SOFTWARE, AND RELATED CONTENT THROUGH THE SOFTWARE OR OTHERWISE ARISING OUT OF THE USE OF THE SOFTWARE, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS EULA, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), MISREPRESENTATION, STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF MAXXESS OR ANY SUPPLIER, AND EVEN IF MAXXESS OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

D. EXCEPT AS STATED IN SECTION 10A, MAXXESS AND ITS SUPPLIERS DO NOT MAKE ANY WARRANTIES. IN PARTICULAR, THE SOFTWARE AND ANY SOFTWARE MEDIA ARE PROVIDED AS IS, WITHOUT ADDITIONAL WARRANTY OF ANY KIND, AND MAXXESS AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR TITLE, ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE, OR ANY WARRANTIES OF NON-INFRINGEMENT OF ANY THIRD PARTY’S PATENT(S), TRADE SECRET(S), COPYRIGHT(S), OR OTHER INTELLECTUAL PROPERTY RIGHTS. MAXXESS AND ITS SUPPLIERS DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS IN THE SOFTWARE OR SOFTWARE MEDIA WILL BE CORRECTED. FURTHERMORE, MAXXESS AND ITS SUPPLIERS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOFTWARE IN TERMS OF ITS CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY MAXXESS OR MAXXESS’S AUTHORIZED REPRESENTATIVE SHALL CREATE ANY WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY.

E. LIMITATION OF LIABILITY AND REMEDIES. Notwithstanding any damages that you might incur for any reason whatsoever (including, without limitation, all damages referenced herein and all direct or general damages in contract or anything else), the entire liability of Maxxess and any of its partners under any provision of this EULA and your exclusive remedy hereunder (except for any remedy of repair or replacement elected by Maxxess with respect to any breach of the Limited Warranty) shall be limited to the greater of the actual damages you incur in reasonable reliance on the Software up to the amount actually paid by you for the Software or US$5.00. The foregoing limitations, exclusions and disclaimers (including Sections 1, 2 and 3) shall apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose.

11) EXCLUSIVE REMEDIES

A. If, during the Warranty Period, You report any breach of warranty to Maxxess and Maxxess is reasonably able to verify that breach, Maxxess will make commercially reasonable efforts to repair or replace the Software or provide You a reasonable way to work around the problem, as determined by Maxxess.

B. During the Warranty Period, You may report breaches of warranty by email to support@maxxess-systems.com. You must describe the breach in detail and include a phone number or address at which You can be reached during normal business hours. Maxxess will respond within a reasonable time to any reported breach. Any corrected or replaced Software that You obtain under this Section 11 will be considered part of the Software licensed under this Agreement and will be covered by warranty only for any time remaining in the original Warranty Period.

C. The remedies stated in this Section 11 are Your only rights or remedies and will be Maxxess’s only liability or obligation, for any breach by Maxxess of any warranty.

12) LIMITATION OF LIABILITY

A. IN NO EVENT SHALL MAXXESS OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF USE, LOST PROFITS, LOSS OF DATA OR INFORMATION OF ANY KIND, OR COST OF PROCUREMENT OF NEW SOFTWARE ARISING OUT OF OR IN CONNECTION WITH THE SOFTWARE OR ITS USE UNDER THIS AGREEMENT, EVEN IF MAXXESS OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, YOU UNDERSTAND THAT YOU ARE RESPONSIBLE FOR PROTECTING ALL OF YOUR DATA AND FOR ANY LOSS OR DAMAGE THAT RESULTS FROM ANY LOSS OR CORRUPTION OR DAMAGE TO YOUR DATA FOR ANY REASON, INCLUDING ANY BREACH OF THIS AGREEMENT BY MAXXESS. IN NO EVENT WILL MAXXESS AND ITS SUPPLIERS’ LIABILITY FOR ANY CLAIM RELATING TO THE SOFTWARE OR ITS USE UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNT PAID FOR THE SOFTWARE.

13) CONTROLLING LAW

A. This Agreement shall be governed by and construed in accordance with laws of the State of California, without giving effect to that state’s choice of law rules.

14) GOVERNMENT LICENSEE

A. If this Product is supplied to the United States Government, the following provisions apply: (a) the Government acknowledges Maxxess’s representation that the Software contained in the Product was developed at private expense and no part of it is in the public domain; (b) the Software is classified as “Restricted Computer Software” as is defined in Clause 52.227-19 of the Federal Acquisition Regulations (“FAR”). The Government’s rights in the Software shall be as defined in Clause 52.227-19(c) (2) of the FAR.

15) ENTIRE AGREEMENT

A. This Agreement is the entire agreement between You and Maxxess relating to the Product and supersedes any prior or contemporaneous oral or written communication relating to the Product. Nothing contained in any purchase order, acknowledgement, or invoice shall in any way modify the terms or add any additional terms or conditions to this Agreement. If any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement will continue in full force and effect. This Agreement may not be amended or waived except by a writing signed by You and an authorized representative of Maxxess.

16) QUESTIONS

A. Should you have any questions concerning this Agreement, or if you desire to contact Maxxess for any reason, please contact Maxxess at support@maxxess-systems.com.

Version 1.0 updated June 5th, 2024