Voyant, Inc. Terms & Conditions (Evaluation)

(effective from 01/01/2025)

1. General.

THESE TERMS AND CONDITIONS (“TERMS”) APPLY TO THE PURCHASE OF PRODUCTS BY YOU (“BUYER”) FROM VOYANT, INC. (“VOYANT”). USE OF THE PRODUCTS BY BUYER SHALL BE DEEMED TO BE ACCEPTANCE OF THESE TERMS. NO MODIFICATION OR WAIVER OF ANY OF THE TERMS AND CONDITIONS CONTAINED HEREIN AND NO ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS WILL BE EFFECTIVE IN CONNECTION WITH SUCH PURCHASE, UNLESS EXPRESSLY AGREED TO IN WRITING AND SIGNED BY BOTH PARTIES. BUYER’S ACCEPTANCE OF THE PRODUCTS WILL CONSTITUTE BUYER’S ACCEPTANCE OF THESE TERMS.

2. Product Delivery.

2.1 Delivery.

Shipments of Products shall be FCA (Incoterms 2010) Voyant’s place of shipment/export, and title (exclusive of the Software incorporated therein) and risk of loss or damage shall pass from Voyant to Buyer upon Voyant's delivery of the Products to the designated carrier at the place of shipment/export. In the absence of specific routing instructions provided by Buyer, Voyant reserves the right to select the common carrier and method of shipment for the Product, with all transportation and customs charges to be paid by Buyer, however, Voyant shall be responsible for all export details and licenses. Within forty-eight (48) hours after receipt of the Product Buyer will request a return merchandise authorization (“RMA”) from Voyant for all Product that Buyer believes were damaged at the time of delivery. Upon Voyant’s receipt of the RMA, receipt of any alleged damaged Products from Buyer, and Voyant’s confirmation of the alleged damage, Voyant will promptly repair, replace or reimburse the damaged Products.

2.2 Permitted Uses.

BUYER MAY USE THE PRODUCTS ONLY FOR ITS INTERNAL EVALUATION, RESEARCH, DEVELOPMENT, TESTING, INTEGRATION AND IMPLEMENTATION WITH BUYER’S PRODUCTS (THE “PURPOSE”). Voyant reserves the right to disclose the buyer's name for public relations purposes, at its sole discretion.

2.3 Intellectual Property Ownership.

Voyant retains all right, title and interest in and to the intellectual property rights in, to and under the Products, subject only to the limited license set forth herein. Subject to these Terms, Voyant hereby grants to Buyer a non-exclusive, non-sublicensable, non-transferable license to use (a) the Software, solely for the Purpose and in accordance with these Terms and the Documentation. Buyer will not use the Software or the Documentation except as expressly set forth herein. The Software is licensed and not sold. Buyer will not distribute, copy, modify or create derivative works of the Software. Buyer will not, and will not permit any third party to, (i) benchmark the Product against any competitive products or disclose benchmarking information regarding the performance of the Software, (ii) remove any Software from the Product, and/or (iii) provide the Software to any third party.

2.4 Further Restrictions & No Reverse-Engineering.

Buyer will not use the Products, Product Data, Documentation and/or any of Voyant’s Confidential Information for benchmarking, developing competing technologies or any activity other than the Purpose. Buyer will not, and will not permit any third party (including any affiliate of Buyer) to, modify, create derivative works of, reverse engineer, translate, reduce to human perceivable form, port, disassemble or decompile, transfer, relicense, sublicense, rent, or lease the Product and/or Software. Buyer will only use the Product in accordance with the Documentation for the Purpose. Buyer will not transfer, provide, sell or disclose any Product, Documentation or Product Data to any third party (including any affiliate of Buyer), except with respect to Product Data to Buyer service providers for the purpose of storing or annotating and labeling services and to Buyer customers who are not competitors of Voyant.

3. Payment.

Buyer will pay the invoiced amount within thirty (30) days after the date of Voyant’s delivery of the Product. Payments are non-refunded, non-creditable and are exclusive of all taxes or government fees. Buyer will pay all applicable tax and government fees. If a transaction is exempt from tax, Buyer will provide Voyant with a valid exemption certificate or other evidence of such exemption in a form acceptable to Voyant. Any amounts payable by Buyer hereunder that remain unpaid after the due date will be subject to a late charge equal to the lesser of one and one-half percent (1.5%) per month or the maximum rate allowable by law from the due date until such amount is paid. Buyer will pay all amounts due to Voyant in U.S. dollars, unless otherwise provided in the Accepted Order.

4. Feedback and Improvements.

To the extent Buyer provides feedback and improvements to Voyant relating to the Product and/or Software, Voyant will be free to use, disclose, reproduce, modify, sublicense, transfer, distribute and exploit any such feedback and improvements, in whole or in part, in any manner.

5. Warranty.

Voyant warrants that for a period of twelve (12) months from delivery to Buyer (“Warranty Period”), the Product will (a) conform to the specifications provided with the Product and any statements made on the containers for, or labels on, the Product, (b) be free from material defects in materials or workmanship, and (c) to Voyant’s knowledge, be free of malicious code such as viruses, trap doors, time bombs and other intentionally destructive or disabling code. Voyant makes no warranties or conditions with respect to Products which have been subjected to misuse, neglect, accident or abuse or have been improperly installed, operated, stored, maintained, repaired, or altered by anyone other than Voyant, or had their serial numbers or month and year of manufacture or shipment removed, defaced or altered, or combined with non-Voyant products. No warranty is provided on the Software. THE WARRANTIES SET FORTH HEREIN ARE EXCLUSIVE, AND BUYER HEREBY WAIVES, ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO THE PRODUCTS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE.

6. Termination.

Buyer may only cancel or modify an Order prior to its written Acceptance by Voyant.

7. Confidentiality.

Buyer agrees that the non-disclosure and confidentiality terms executed by the parties in effect as of the provision of the Products shall be incorporated herein by reference and govern these Terms. Voyant’s Confidential Information includes, but is not limited to, the Product, the Documentation, these Terms (including pricing), and all other information and materials identified as confidential by Voyant.

8. Indemnification.

8.1 Buyer Indemnification.

Buyer will defend, indemnify and hold harmless Voyant against any and all claims, actions, demands, suits, or proceedings, and/or settle any such claims, filed by third parties (“Claims”) arising from any breach by Buyer or its affiliates of these Terms or any violation of applicable laws, rules or regulations. Buyer will pay any loss, liability, damage or cost (including reasonable attorneys’ fees) (“Losses”) attributable to such Claims that are awarded against Voyant in a final judgment, or that must be paid pursuant to a settlement agreed to in writing by Buyer. In the event a Claim as described in this Section 8.1 is brought against Voyant: (a) Voyant will promptly notify Buyer of the Claim, (b) Voyant will give Buyer full information and reasonable assistance in connection with the Claim, and (c) Buyer will have sole control of the defense and settlement thereof.

8.2 Voyant Indemnification.

Voyant will defend, indemnify and hold harmless Buyer against any and all Claims alleging that the Product infringes any third-party copyright or patent or misappropriates any third-party trade secret. Voyant will pay any Losses attributable to such Claims that are awarded against Buyer in a final judgment or that must be paid pursuant to a settlement agreed to in writing by Voyant. In the event of a Claim described in this Section 8.2 is brought against Buyer: (a) Buyer will promptly notify Voyant of the Claim, (b) Buyer will give Voyant full information and reasonable assistance in connection with the Claim, and (c) Voyant will have sole control of the defense and settlement thereof. THE FOREGOING INDEMNIFICATION OBLIGATIONS ARE VOYANT’S SOLE AND EXCLUSIVE OBLIGATIONS, AND BUYER’S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.

9. Limitation of Liability.

IN NO EVENT WILL VOYANT BE LIABLE TO BUYER, DIRECTLY OR INDIRECTLY, FOR LOSS OF ANTICIPATED REVENUE OR PROFITS, INTEREST, PENALTIES OR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, MULTIPLE, OR EXEMPLARY DAMAGES OR LIABILITIES IN CONNECTION WITH THESE TERMS, WHETHER FOR BREACH OF CONTRACT, PROPERTY DAMAGE, PERSONAL INJURY, ILLNESS, OR DEATH OR OTHERWISE. EXCEPT FOR (I) FRAUD, INTENTIONAL ACTS AND/OR OMISSIONS, GROSS NEGLIGENCE, AND/OR (II) ANY BREACH OF SECTIONS 2.2, 2.3, 2.4, 4 AND 7, NEITHER PARTY’S LIABILITY UNDER THESE TERMS SHALL EXCEED THE TOTAL FEES PAID BY BUYER TO VOYANT.

10. Governing Law; Dispute Resolution.

Any disputes arising out of or relating to these Terms will be governed by the internal laws of the State of New York, without giving effect to its choice of law principles. Any legal suit, action or proceeding arising out of or relating to these Terms will be determined by final and binding arbitration administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules and Mediation Procedures. The seat or place of arbitration shall be San Francisco, New York, and the arbitration shall be conducted and the award shall be rendered in English.

11. Assignment.

Buyer may not assign, sell, transfer, delegate or otherwise dispose of, whether voluntarily or involuntarily, by operation of law or otherwise, these Terms or any rights or obligations under these Terms without Voyant’s prior written consent. Voyant may assign these Terms without consent in connection with a merger, consolidation, corporate reorganization, or sale of all or substantially all of its business or assets pertaining to the subject matter of these Terms. Any purported assignment, transfer, delegation or other disposition by Buyer will be null and void. Subject to the foregoing, these Terms will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.

12. Export Regulations.

Buyer and Voyant will comply with all relevant export laws and regulations of the United States, including, without limitation, the U.S. Export Administration Regulations. Buyer shall obtain Voyant’s prior written consent in order to export the Product. Buyer shall ensure strict compliance with these Terms in the country(ies) where the Products are exported.

13. Force Majeure.

Neither party will be liable under these Terms because of any failure or delay in the performance of its obligations (except for payment of money) on account of pandemics, strikes, shortages, riots, fire, flood, storm, earthquake, acts of God, hostilities or any other cause beyond its reasonable control.

14. Severability.

In the event that any provision (or portion thereof) of these Terms is determined by a court of competent jurisdiction to be illegal, invalid or otherwise unenforceable, such provision (or portion thereof) will be severed and deleted from these Terms, while the remainder of these Terms will continue in full force and remain in effect according to its stated terms and conditions.

15. Waiver.

The waiver by either party of any default or breach of these Terms will not constitute a waiver of any other or subsequent default or breach. Failure by either party to exercise or enforce any rights hereunder will not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement thereof at any time or times thereafter.

16. Audit and Inspection Rights.

Voyant and its authorized representatives shall have the right from time to time to access Buyer's premises and records to verify: (a) Buyer's compliance with these Terms; and (b) Buyer's performance or ability to perform under these Terms. In the event that Voyant determines, in Voyant’s reasonable and sole discretion, Buyer has not or will not be able to perform its duties and covenants under these Terms, or that Buyer is in or at risk of financial distress and/or eventual insolvency, Voyant shall have the option to buy back the Products at a price not to exceed its original price and Buyer shall provide its cooperation to ensure that the Products are timely returned to Voyant.

17. Survival.

Sections 1, 2.2, 2.3, 2.4, 3, 4, 6, 7, 8, 9, 10, 11, 14, 15, 16, 17, 18, and 19 shall survive termination or expiration of these Terms.

18. Complete Agreement.

These Terms constitute the complete agreement between the parties and supersede all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of these Terms.

19. Definitions

“Acceptance” or “Accepted” means Voyant’s written acceptance of a purchase order from Buyer for the Products.
“Documentation” means the applicable printed and digital instructions, user guides, policies, online help files, technical documentation, and manuals for installation and use of the Product, as updated from time to time, that Voyant makes generally available to its buyers. Documentation is not considered a deliverable or a work-made-for-hire.
“Order” means the purchase order for the delivery or purchase of the Products by Buyer.
“Product” means the Voyant sensing system (including the Software incorporated therein) and/or Software that is provided by Voyant to Buyer or Buyer purchases under these Terms, as identified in the purchase order that references these Terms, or in connection with which these Terms are provided.
“Product Data” means any data generated, produced, or otherwise outputted by the Product.
“Software” means Voyant’s software product or Voyant’s firmware and software incorporated in the Product provided by Voyant to Buyer under these Terms, including all old and new versions of such firmware and software, as well as any accompanying visualization or analysis software tools that Voyant makes generally available to licensees of such firmware at no additional license fee.