Last Updated: May 23, 2023
This Hardware Addendum (this “Hardware Addendum”) is made a part of the Master Subscription Agreement (“Agreement”) between Avetta, LLC (“Avetta”) and the Client identified in the Agreement or associated Sales Order (“Client”). In the event of a conflict between the terms of this Hardware Addendum and the terms of the Agreement, the terms and conditions of this Hardware Addendum apply, but only to the extent of such conflict. Capitalized terms used herein by not defined herein shall have the meanings set forth in the Agreement.
1. Sale of Hardware and Consumables. Avetta shall sell to Client and Client shall purchase from Avetta the hardware and/or consumables ordered by Client under an applicable Sales Order (the “Hardware”) upon the terms and conditions set forth in this Hardware Addendum. Tablets, kiosks, turnstiles, card printers, card readers, gates, modems, relay hardware and other similar access control devices are considered hardware, and Site Access Cards, straws for breathalyzers and similar ancillary items are considered consumables.
2.1. Avetta will use commercially reasonable efforts to cause the Hardware to be delivered on or about the date for delivery as mutually agreed between the parties. If a date for delivery is nominated by Client and not otherwise agreed by Avetta, Avetta will not be bound to deliver the Hardware by that date unless and until it expressly agrees to do so in writing. The actual delivery date for any Hardware is dependent on delivery lead times and other factors outside of Avetta’s control. Client acknowledges that goods delivered to a courier for shipment to Client are outside the control of Avetta and Avetta shall not be liable for any delays, loss, or damage in transit. Notwithstanding the generality of this Section 2.1, Client acknowledges that any invoice issued by Avetta to Client for Hardware may be due for payment in accordance with the payment terms set out in the Agreement prior to the actual physical delivery of the Hardware.
2.2. Avetta shall deliver the Hardware to a site as mutually agreed by the parties in writing (the “Delivery Point”) using Avetta’s standard methods for packaging and shipping such Hardware. Deliveries will be made FOB Avetta’s facility or manufacturer’s facility during normal working hours. Client shall take delivery of the Hardware within 3 days of Avetta’s or carrier’s written notice that the Hardware have been delivered to the Delivery Point.
2.3. If for any reason Client fails to accept delivery of any of the Hardware on the date fixed pursuant to notice that the Hardware have been delivered at the Delivery Point, or if Avetta and/or the carrier is unable to deliver the Hardware at the Delivery Point on such date because Client has not provided appropriate instructions, documents, licenses or authorizations: (i) the Hardware shall be deemed to have been delivered; and (ii) Avetta, at its option, may store the Hardware until Client picks them up, whereupon Client shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
3. Non-Delivery. The quantity of any installment of Hardware as recorded by Avetta on dispatch from Avetta’s place of business is conclusive evidence of the quantity received by Client on delivery unless Client can provide conclusive evidence proving the contrary. Avetta shall not be liable for any non-delivery of Hardware (even if caused by Avetta’s negligence) unless Client gives written notice to Avetta of the non-delivery within 7 days of the date when the Hardware would in the ordinary course of events have been delivered. Any liability of Avetta for non-delivery of the Hardware shall be limited to delivering the Hardware within a reasonable time or adjusting the invoice respecting such Hardware to reflect the actual quantity delivered.
4. Title. Title passes to Client upon the occurrence of both of the following: (i) payment of the full purchase price of the Hardware by Client has been received by Avetta, and (ii) delivery of the Hardware at the Delivery Point. As collateral security for the payment of the purchase price of the Hardware, Client hereby grants to Avetta a lien on and security interest in and to all of the right, title and interest of Client in, to and under the Hardware, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. Until payment of the full purchase price of the Hardware by Client has been received by Avetta, Client grants to Avetta unconditional and irrevocable rights of entry into Client’s premises (or the premises of any associated company or agent where Hardware is located) without liability for trespass or any resulting damage to retake possession of the Hardware. Avetta may keep or resell any Hardware repossessed pursuant to the above rights.
5. Inspection and Rejection of Nonconforming Hardware.
5.1. Client shall inspect the Hardware immediately upon delivery. Client will be deemed to have accepted the Hardware unless it notifies Avetta of any Nonconforming Hardware in the first instance by phone within 72 hours of delivery, and also in writing within 7 days of delivery and furnishes such written evidence or other documentation as reasonably required by Avetta. “Nonconforming Hardware” means Hardware shipped is different than identified in the applicable Sales Order.
5.2. If Client timely notifies Avetta of any Nonconforming Hardware, Avetta shall, in its sole discretion, (i) replace such Nonconforming Hardware with conforming Hardware, or (ii) credit or refund the price for such Nonconforming Hardware. Client shall ship, at its expense and risk of loss, the Nonconforming Hardware to Avetta’s facility located at the address provided by Avetta to Client in writing following receipt of Client’s notice of Nonconforming Hardware. If Avetta exercises its option to replace Nonconforming Hardware, Avetta shall, after receiving Client’s shipment of Nonconforming Hardware, ship to Client, at Client’s expense and risk of loss, the replaced Hardware to the Delivery Point.
5.3. Client acknowledges and agrees that the remedies set forth in Section 5.2 are Client’s exclusive remedies for the delivery of Nonconforming Hardware. Except as provided under Section 5.2, all sales of Hardware to Client are made on a one-way basis and Client has no right to return Hardware purchased under this Hardware Addendum to Avetta.
6. Site Access Cards and Access Card Data. In the event that Client uses site access swipe cards carrying personal identification data linked with and used by the Services (“Site Access Cards”), the following provisions apply:
6.1. Site Access Cards. Although each Site Access Card provided by Avetta pursuant to an applicable Sales Order is held by Client’s employees or those of a Supplier, the relevant information contained on such Site Access Card or on the Services from time to time, including personal or private information (“Access Card Data”) is and remains the property of the holder of that Site Access Card.
6.2. Access Card Data. Each Site Access Card will be encoded with Access Card Data relevant to a specific site (or sites) designated by Client. Site Access Cards are not used by Avetta exclusively for Client. Client accepts that Site Access Cards are used by Avetta for other clients and may be encoded with data relevant to sites of other clients of Avetta and/or information relating to general industry training where a Supplier visits other sites controlled by other Avetta clients.
6.3. Security. Access Card Data (excluding Access Card Data relating to general industry training which may be relevant to several sites other than those of Client) cannot be accessed by any other client of Avetta.
6.4. Compliance with Privacy Laws. Client acknowledges that the Access Card Data contains Personal Information which is protected under applicable laws governing privacy and security and agrees to protect and otherwise deal with such Access Card Data only in accordance with such laws.
6.5. Unauthorized Access. Avetta is not responsible or liable for the unauthorized use of a Site Access Card or unauthorized access to the Services including, without limitation, the unauthorized use of a Site Access Card, the Services or any Access Card Data by Client, Client’s employees or those of a Supplier, whether currently or previously employed or engaged by Client or the Supplier or any third party, as the case may be.
6.6. Consent. Client warrants and acknowledges that it has obtained the consent of all Suppliers or their employees to the use of their Access Card Data, including but not limited to, uploading the Access Card Data onto and sharing the Access Card Data via the Services and otherwise providing the Access Card Data to Avetta. Client warrants that it has notified the Suppliers’ employees that their Access Card Data will be uploaded to the Services and that Avetta will have access to and use of their Access Card Data.
6.7. Indemnification. In addition to the indemnification obligations set forth in Section 8, to the fullest extent permitted by law, a “Claim Against Avetta” shall include any claim, demand, suit or proceeding made or brought against Avetta by a third party arising out of or occurring in connection with Client’s failure to notify and obtain the consent of any Supplier and/or employee of a Supplier in relation to their Access Card Data being uploaded to the Services and that Avetta will have access to and use of their Access Card Data.
7.1. AVETTA MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE HARDWARE, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
7.2. Products manufactured by a third party (“Third-Party Product”) may constitute, contain, be contained in, incorporated into, attached to, or packaged together with, the Hardware. For the avoidance of doubt, AVETTA MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. Avetta will use commercially reasonable efforts to procure for Client from relevant third parties the benefit of any standard warranties or defect liability periods normally attaching or applying to any Third-Party Products. However, Avetta will not be responsible for the substance of any such warranty or defect liability period and will not be responsible for negotiating any particular warranties on Client’s behalf.
8. Indemnification. In addition to the indemnification obligations set forth in the Agreement, Client shall defend Avetta and Avetta’s Affiliates against any claim, demand, suit or proceeding made or brought against Avetta by a third party arising out of or occurring in connection with the Hardware purchased from Avetta or Client’s negligence, willful misconduct or breach of this Hardware Addendum (each a “Claim Against Avetta”), and will indemnify Avetta from any damages, attorney fees and costs (including but not limited to any costs of pursuing any insurance providers) incurred by Avetta as a result of, or for any amounts paid by Avetta under a settlement approved by Client in writing of, a Claim Against Avetta, provided Avetta (a) promptly gives Client written notice of the Claim Against Avetta, (b) gives Client sole control of the defense and settlement of the Claim Against Avetta (except that Client may not settle any Claim Against Avetta unless it unconditionally releases Avetta of all liability), and (c) gives Client all reasonable assistance, at Client’s expense. Avetta may participate in and observe the proceedings at its own cost and expense with counsel of its own choice. The above defense and indemnification obligations do not apply if a Claim Against Avetta arises from Avetta’s breach of this Agreement or applicable Sales Order.
9. Cumulative Remedies. All rights and remedies provided in this Hardware Addendum are cumulative and not exclusive, and the exercise by either party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the parties or otherwise. Notwithstanding the previous sentence, the Parties intend that Client’s rights under Section 3, Section 5, and Section 7 are Client’s exclusive remedies for the events specified therein.