GENERAL TERMS AND CONDITIONS (“TERMS”)

[THESE TERMS OF SERVICE FORM A BINDING LEGAL CONTRACT BETWEEN YOU (“CUSTOMER, “YOU,” “YOUR”) AND ENORAMA PHARMA INC. (“WE”, “US”, OR “ENORAMA”).  BY ACCESSING OR PURCHASING ENORAMA PRODUCTS (AS DEFINED BELOW) OR SERVICES AND ANY OTHER MATERIALS MADE AVAILABLE BY ENORAMA ON THIS SITE OR IN ANY OTHER FORMAT, OR ON PREMISES, AND WHETHER YOU PAY FOR SUCH ENORAMA PRODUCTS OR SERVICES OR RECEIVE OR USE ONE OF OUR FREE PRODUCTS/SERVICES, YOU (A) AGREE TO BE BOUND BY THE AGREEMENT (AS DEFINED BELOW); (B) ACKNOWLEDGE AND AGREE YOU ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS EXPRESSLY PROVIDED IN THIS AGREEMENT; AND (C) REPRESENT YOU ARE LAWFULLY ABLE TO ENTER INTO CONTRACTS AND ARE OF THE LEGAL AGE OF MAJORITY IN THE JURISDICTION IN WHICH YOU RESIDE (AT LEAST EIGHTEEN YEARS OF AGE IN MANY COUNTRIES/JURISDICTIONS). IF THIS AGREEMENT IS BEING AGREED TO BY A COMPANY OR OTHER LEGAL ENTITY, THEN THE PERSON AGREEING TO THIS AGREEMENT ON BEHALF OF THAT COMPANY OR ENTITY REPRESENTS AND WARRANTS THAT HE OR SHE IS AUTHORIZED AND LAWFULLY ABLE TO BIND THAT COMPANY OR ENTITY TO THIS AGREEMENT. YOU HEREBY WAIVE ANY APPLICABLE RIGHTS TO REQUIRE AN ORIGINAL (NON-ELECTRONIC) SIGNATURE OR DELIVERY OR RETENTION OF NON-ELECTRONIC RECORDS, TO THE EXTENT NOT PROHIBITED UNDER APPLICABLE LAW.

These Terms form part of an agreement (the “Agreement”) and apply to the sales of the products identified [on the first page of the agreement][in a separate purchase order, quotation, or written order confirmation (each an “Order”).  The Agreement, including the Order, will constitute the entire agreement between Enorama Pharma Inc. and its affiliates (together, “Enorama”) and the buyer (“Customer”) of Enorama products (the “Products”).  Enorama will sell to Customer, and Customer will purchase from Enorama, the Products set out [on page 1 hereto] or in a separate Order.  Under no circumstances shall Enorama accept or be deemed to accept any term or condition that varies from, is inconsistent with, imposes new obligations on Enorama, or affords the Customer additional rights, relative to the Terms unless Enorama expressly acknowledges and consents to such particular term or condition in a writing signed by Enorama.   For clarity, an agreement between Customer and Enorama shall be formed only by Customer’s acceptance of these Terms.  Customer’s purchase of Products is expressly limited to the terms and conditions contained in [the Order and] these Terms.  If Customer’s acceptance of an Order, or separate communication in connection with such acceptance, contains information that conflicts with the content of [Enorama’s Order form] or these Terms, then the content of [Enorama’s Order form and] these Terms shall prevail.  Under no circumstances shall Enorama accept or be deemed to accept any term or condition that varies from, or is inconsistent with these Terms, or imposes new obligations on Enorama, or creates new or expanded warranties, unless Enorama expressly acknowledges and consents to such particular term or condition in a writing signed by Enorama.

  1. Purchase Price; Payment. Purchase charges shall be invoiced at the time of [order/shipment]. Customer shall pay each invoice [as provided on page 1] within [30] days after the date of invoice.  Customer’s obligations, including but not limited to, Customer’s obligation to pay the purchase price are absolute, irrevocable, and unconditional and are not subject to defense, action, suit, claim, counterclaim, crossclaim, excuse, forgiveness, abatement, deferment, reduction, interruption, recoupment, or setoff for any reason, including but not limited to (i) any actual or alleged defect, fault, flaw, malfunction, deficiency, inadequacy, inoperability, or infringement relating to the Products, (ii) any claims Customer has or may have relating to Customer’s or manufacturer’s actions, descriptions, guarantees, representations, or warranties, or (iii) any breach default, termination, cancellation, or expiration under or of any agreement, service or service or maintenance contract, or other agreement between Customer and one or more third parties, whether or not relating to the Products.  Interest at the rate 1-1/2 % per month, or the maximum allowable by law, shall apply to balances on invoices 31 days past due and until paid.  Enorama reserves the right to demand payment in advance, if it considers it appropriate, as well as to suspend further delivery as long as payment for previous deliveries is still outstanding or determines in its sole discretion that Customer may not pay on time. Except for Taxes levied on Enorama’s net income, the Customer assumes liability for, will timely report and remit all Taxes to the appropriate taxing authorities, and will indemnify and hold Enorama harmless from and against any and all claims for payment or collection of Taxes. Notwithstanding the foregoing, Enorama may report and remit some or all Taxes, and the Customer acknowledges and agrees that Enorama is not assuming liability therefor. The Customer will pay or reimburse Enorama on demand for all Taxes remitted by Enorama relating to a purchase of the Products.  For purposes of this Agreement, “Tax” means a tax, fee, assessment, levy, toll, tariff, charge, or duty of any kind or nature relating to a purchase of the Products, including, but not limited to, income, license, title, registration, personal property, sales, use, transfer, excise, value-added, and alternative taxes, together with interest, penalties, fines, and additional amounts relating thereto, imposed, assessed, charged, levied, or collected by or under the authority of any governmental or quasi-governmental body
  2. Delivery; Risk of Loss; Inspection and Claims. Unless expressly agreed in the Order, Enorama does not guarantee or assume any liability to meet any delivery date proposed or requested by Customer or Enorama.  Customer shall provide Enorama with a requested delivery date at the time the parties enter into this Agreement.  Prior to an Order being processed for delivery, Enorama may contact Customer to verify the requested delivery date, in which case Customer shall by confirm in writing the requested delivery date.  Customer acknowledges that Enorama will not process delivery until this written confirmation is received from the Customer.  The disposable packaging is part of the delivered Products and will not be collected by Enorama.

Unless otherwise specified in this Agreement, all Products will ship ex works Enorama’s shipping point, prepaid, via Enorama’s selected carrier. Customer shall pay all transportation charges from Enorama’s shipping point to destination, with shipping charges added to the cost paid by Customer pursuant to this Agreement.  Title and risk of loss shall pass to Customer upon delivery to the Carrier at Enorama’s shipping point, whether or not insured.  Customer shall inspect Products upon receipt at the destination and notify Enorama in writing of any shortages or readily ascertainable damaged or defective Products within 72 hours after delivery.  Failure of Customer to timely notify Enorama shall relieve Enorama of any liability with respect to damaged or defective Products.  All claims for loss or damage in transit must be made by Customer against the carrier.  [No returns of Products will be allowed unless authorized in advance in writing by Enorama and accompanied by a material return authorization number issued by Enorama.  Shipments shipped to Enorama without a material return authorization number will be refused and returned to the Distributor. A material return authorization number will be issued for defective materials, warranty credit, shipping errors or repairs.  Returns will not be accepted for any other reason.  Enorama does not reimburse or give credit for return freight incurred by the Distributor.]

  1. Customer Pick-up / 3rd Party Carriers. At the time the parties enter into the Agreement, but only to extent expressly agreed by Enorama in writing, Customers may arrange to pick up orders when available at identified Enorama facilities and/or request collect shipment or 3rd party billing on a Customer-specified carrier if preferred.  The following guidelines will also apply.

[Kristoffer:  How big are the orders?  Do you charge handling fees if the buyer doesn’t pick up on time etc?]

  1. Customer Representations. Customer represents and warrants to Enorama that (i) Customer’s legal name, principal place of business, jurisdiction of organization, and form of organization are completely and accurately set forth in the Order, (ii) Customer is duly organized, validly existing, and in good standing under the laws of its jurisdiction of organization, (iii) Customer is duly qualified to do business as a foreign entity and is in good standing under the laws of each jurisdiction in which the nature of its business requires qualification, including, but not limited to, the jurisdictions in which the Products are or will be located, (iv) Customer has full power and authority to conduct its business as it is now being conducted and to own or use the properties and assets that it purports to own or use, including, but not limited to, the properties at which the Products are or will be located, (v) this Agreement constitutes the legal, valid, and binding obligation of Customer, enforceable against Customer in accordance with its terms, (vi) Customer has the absolute and unrestricted right, power, and authority to execute and deliver this Agreement and to pay, perform, discharge, and observe all of its promises, agreements, covenants, and obligations, (vii) each Individual executing this Agreement Customer’s behalf is duly authorized to do so, (viii) Customer’s execution of this Agreement and Customer’s payment, performance, discharge, and observance of its promises, agreements, covenants, and obligations does not and will not breach or violate any provision of applicable law, Customer’s governing documents, or Customer’s existing contracts or authorizations, and (ix) there is no pending or, to Customer’s knowledge, threatened litigation or other proceeding materially affecting Customer, its assets, or its operations.
  2. Limited Warranty. Enorama warrants, for a period of [3] months from the date of shipment of the Product(s), that such Products will materially conform to the specifications set forth in Enorama’s published specifications in effect as of the date of shipment and will be free from significant defects in material and workmanship and Customer will receive good and valid title to the Products, free and clear of all encumbrances and liens of any kind.  Any claim under this warranty must be made in writing within such warranty period.  If any Product covered by a timely claim is found to be defective, Enorama will, within a reasonable time, make any necessary repairs or corrections or, at Enorama’s option, replace the Product.  Unless pre-authorized by Enorama in writing, Enorama will not accept any charges for correcting defects or accept the return of any Product.  This warranty will not apply to any Products that have been subjected to misuse, neglect, storage damage, misapplication, accident or any other damage caused by any person other than Enorama, or that have not been used, installed, or maintained in accordance with Enorama’s specifications.  THIS LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES AS TO THE PRODUCTS PROVIDED BY ENORAMA.  ENORAMA MAKES NO OTHER WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, AND EXPRESSLY EXCLUDES ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE.  THE REPAIR/REPLACEMENT REMEDIES SET FORTH IN THIS SECTION ARE CUSTOMER’S EXCLUSIVE REMEDY FOR BREACH OF WARRANTY FROM ENORAMA.
  3. Limitation of Liability. Other than the repair/replacement remedies provided for in Paragraph 5, which are the Customer’s exclusive remedy for breach of the limited warranty, Enorama’s liability to the Customer at all times relating in any way to the Agreement or the Products shall be limited to the purchase price of the Products subject to the warranty claims. EXCEPT AS SPECIFICALLY SET FORTH HEREIN, ENORAMA MAKES NO OPINION, REPRESENTATION, WARRANTY, PROMISE, OR GUARANTEE OF ANY KIND OR NATURE, WHETHER WRITTEN OR ORAL, EXPRESS OR IMPLIED, RELATING TO A PURCHASE OR THE PRODUCTS, INCLUDING, BUT NOT LIMITED TO, ANY OPINION, REPRESENTATION, WARRANTY, PROMISE, OR GUARANTEE OF QUALITY, WORKMANSHIP, DESIGN, CONFIGURATION, STYLE, CONDITION, FUNCTIONALITY, PERFORMANCE, OPERATION, CAPABILITY, CAPACITY, POWER, SIZE, RANGE, DURABILITY, USEFUL LIFE, ECONOMIC LIFE, EXISTENCE, DELIVERY, INSURABILITY, UTILITY, SUITABILITY, VALUE, NEWNESS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE BY THIRD PARTIES, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, LICENSE OR CERTIFICATION REQUIREMENTS, TAX OR ACCOUNTING IMPLICATIONS, OR LEGAL OR REGULATORY COMPLIANCE, AND CUSTOMER ACKNOWLEDGES AND AGREES THAT ENORAMA HAS NOT MADE THE SAME. IN NO EVENT SHALL ENORAMA BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, REVENUES, LOST INCENTIVES OR BACK CHARGES) ARISING OUT OF OR RELATED IN ANY WAY TO THE AGREEMENT, THE PRODUCTS, OR THE ANCILLARY SERVICES WHETHER BASED ON A STATUTORY CLAIM, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, GROSS NEGLIGENCE, STRICT LIABILITY, CONTRIBUTION, INDEMNIFICATION, A THIRD-PARTY CLAIM, OR ANY OTHER CLAIM OR CAUSE OF ACTION REGARDLESS OF THE (A) NEGLIGENCE OR GROSS NEGLIGENCE (SOLE OR CONCURRENT) OF ENORAMA, AND (B) WHETHER ENORAMA HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES.  Enorama disclaims, and Customer waives the enforceability and effectiveness of, all existing and hereafter arising laws and regulations (as the same may be amended, supplemented, or interpreted from time to time) that impose or purport to impose warranties that are not specifically provided for herein, and Customer agrees that it will not pursue claims relating thereto or attempt to enforce the same.
  4. Assumption of Risk. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CUSTOMER ASSUMES ALL RISK AND LIABILITY FOR THE RESULTS OBTAINED BY THE USE OF ANY PRODUCTS IN ANY PROCESS, WHETHER IN TERMS OF OPERATING COSTS, GENERAL EFFECTIVENESS, SUCCESS OR FAILURE, AND REGARDLESS OF ANY ORAL OR WRITTEN STATEMENTS MADE BY ENORAMA, BY WAY OF TECHNICAL ADVICE OR OTHERWISE, RELATED TO THE USE OF THE PRODUCTS.
  5. Enorama shall not be responsible for delays in performance caused, directly or indirectly, by any act of God, accident, war, force of arms, fire, elements, riot, labor dispute, strike, sabotage, civil commotion, act of terrorism, government action, regional or global pandemic, transportation interruption, inability to obtain raw materials, including nicotine, other materials, or labor, or any other contingencies beyond Enorama’s reasonable control.
  6. [Kristoffer:  Let’s discuss]  Customer shall procure and maintain for the term of this Agreement, and for a period of two years thereafter, commercial general liability insurance (“CGL Insurance”) with limits of not less than $2 million per occurrence from a company or companies with an AM Best Financial Strength Rating of at least B+ and Financial Size Category of at least VII that is admitted, authorized or licensed in the jurisdiction(s) where the Products will be used.   The CGL Insurance shall: (a) be written on an occurrence based form; (b) to the fullest extent permitted by law, extend additional insured coverage to Enorama, its parents, subsidiaries, stockholders, members, partners, directors, managers, officers, employees, and agents (collectively, the “Enorama Group”) with respect to liability arising out of, connected with or resulting from the Products, including for ongoing and completed operations; (c) be primary and non-contributory for the Enorama Group; the Enorama’s Group’s own insurance shall be excess and non-contributory; (d) provide that defense costs shall be payable in addition to, and do not reduce, policy limits; (e) not include a deductible or self-insured retention greater than $10,000 unless the Enorama Group approves otherwise in writing.  Customer shall be solely responsible for paying any deductible or self-insured retention.  Should Customer fail to pay any deductible or self-insured retention, the Enorama Group may pay same and seek reimbursement from Customer; (f) not include exclusions for water vehicles or extreme sports equipment or any other restriction that would limit or eliminate coverage for the Products; (g) not exclude coverage for punitive or exemplary damages, where or to the extent that coverage for such damages is permitted by law, unless the Enorama Group approves otherwise in writing; (h) not exclude coverage for any member of the Enorama Group for injuries to any employee, other than an employee of that member of the Enorama Group.  CGL Insurance shall be available to Enorama Group for “liability over” types of claims which involve injuries to the employees of Customer or any insured under such CGL insurance except Enorama Group; (i) provide that it may not be canceled, terminated, non-renewed or modified without at least 30 days’ prior written notice to Enorama; (j) include a waiver of the insurer’s subrogation rights against the Enorama Group; (k) contain a cross-liability exclusion.

The insurance requirements and amount of policy limits set forth in this Paragraph 9 are minimums.  These requirements shall not reduce or limit the Enorama Group’s rights under any of Customer’s insurance policies which provide broader coverage or greater limits.  Customer remains responsible for determining the appropriate amounts and types of insurance to protect itself and the Products, and Customer shall obtain any such insurance to the extent it exceeds the minimum requirements in this Paragraph 9.

Customer shall provide Enorama with Certificates of Insurance and endorsements evidencing Customer’s compliance with the insurance requirements of this Paragraph 9.  Customer thereafter shall provide Enorama with renewal Certificates of Insurance and endorsements upon each policy renewal for the duration of this Agreement and for two years thereafter.  Customer, upon Enorama’s demand, shall provide Enorama with complete copies of any insurance policies that Customer is required to maintain pursuant to this Paragraph 9.  Customer further authorizes its insurers and insurance brokers and agents to release certified copies of such insurance policies to Enorama upon the request of Enorama; (v) Enorama’s failure to demand Certificates of Insurance and endorsements shall not constitute a waiver of the insurance requirements of this Paragraph 9.  Enorama may only waive such insurance requirements in writing.

Customer’s failure to comply with all insurance requirements set forth in this Paragraph 9 shall constitute a material breach of this Agreement.

  1. Assignment by Enorama. Enorama may assign, sell, grant a security interest in, and otherwise transfer some or all of its right, title, and interest in and to this Agreement without notice to or the consent of Customer. Customer will, promptly after the request of Enorama or Enorama’s Assignee, obtain, execute, and deliver to such parties a Notice of Assignment and all other Documents that Enorama or Enorama’s Assignee deem necessary or desirable, each in form and substance satisfactory to Enorama, or Enorama’s Assignee in their absolute discretion. Customer acknowledges and agrees that Enorama’s Assignee will not assume any of Enorama’s obligations except those specifically set forth in the Notice of Assignment. Customer agrees that it will not assert against Enorama’s Assignee any defense or claim that Customer has against Enorama. CUSTOMER WILL PAY ALL ASSIGNED, SOLD, ENCUMBERED, AND OTHERWISE TRANSFERRED AMOUNTS AS DIRECTED BY ENORAMA, OR ENORAMA’S ASSIGNEE, AND CUSTOMER ACKNOWLEDGES AND AGREES THAT ITS OBLIGATION TO DO SO IS ABSOLUTE, IRREVOCABLE, AND UNCONDITIONAL AND IS NOT SUBJECT TO DEFENSE, ACTION, SUIT, CLAIM, COUNTERCLAIM, CROSSCLAIM, EXCUSE, FORGIVENESS, ABATEMENT, DEFERMENT, REDUCTION, INTERRUPTION, RECOUPMENT, OR SETOFF FOR ANY REASON, INCLUDING, BUT NOT LIMITED TO, (I) ANY ACTUAL OR ALLEGED, DEFECT, FAULT, FLAW, MALFUNCTION, DEFICIENCY, INADEQUACY, INOPERABILITY, OR INFRINGEMENT RELATING TO THE PRODUCTS, (II) ANY CLAIMS CUSTOMER HAS OR MIGHT HAVE RELATING TO THE MANUFACTURER’S ACTIONS, DESCRIPTIONS, GUARANTEES, REPRESENTATIONS, OR WARRANTIES, OR (Ill) ANY BREACH, DEFAULT, TERMINATION, CANCELLATION, OR EXPIRATION UNDER OR OF ANY LICENSE AGREEMENT, SERVICE OR MAINTENANCE CONTRACT, OR OTHER AGREEMENT BETWEEN CUSTOMER AND ONE OR MORE THIRD PARTIES, WHETHER OR NOT RELATING TO THE PRODUCTS.

For purposes hereof, (A) Enorama’s Assignee means a person or entity to whom or which Enorama assigns, sells, grants a security interest in, or otherwise transfers some or all of Enorama’s right, title, or interest in or to Enorama or the Product; and  (B) “Notice of Assignment” means a notice evidencing Enorama’s assignment, sale, grant of a security interest in, or other transfer of some or all of Enorama’s right, title, or interest in or to the Products.

  1. Defense and Indemnification. To the fullest extent permitted by applicable law, Customer shall defend and indemnify each member of the Enorama Group from and against any and all claims, losses, liabilities, damages, statutory claims, demands, lawsuits, arbitration proceedings, actions, causes of action, obligations, damages, settlements, judgments, fines, penalties, requests for relief, action or forbearance of any kind and expenses (including, but not limited to, attorneys’ fees) (collectively, “Claims”) arising out of, connected with or resulting from the Products, including but not limited to their purchase, manufacture, selection, ordering, configuration, design, quality, condition, functionality, delivery, leasing, control, possession, storage, repair, service, installation, use, operation, maintenance, return, repossession, remarketing, or disposal, except for liability for damages for death or bodily injury to persons, injury to property, or any other loss, damage or expense arising from the sole negligence or willful misconduct of that member of the Enorama Group, its agents, servants, or independent contractors who are directly responsible to that member of the Enorama Group, or for defects in design furnished by those persons (“Indemnified Claims”). Customer further agrees to defend and indemnify each member of the Enorama Group from and against all Claims arising out of, connected with or resulting from patent, trademark, copyright, or other intellectual property infringement with respect to the Products (“IP Claims”).
  2. Customer’s duty to defend and indemnify each member of the Enorama Group from and against Indemnified Claims and IP Claims requires Customer to pay all legal fees and expenses that such member of the Enorama Group incurs to defend itself against such Indemnified Claims and IP Claims. Each member of the Enorama Group shall have the right to select defense counsel for itself.  Customer’s duty to defend each member of the Enorama Group from and against each Indemnified Claim and IP Claim arises when that member provides written notice of such Indemnified Claim or IP Claim to Customer.  Customer’s obligation to defend each member of the Enorama Group against each Indemnified Claim and IP Claim applies until a final adjudication is obtained concluding that such Indemnified Claim or IP Claim is barred by the expiration of the applicable statute(s) of limitation and/or repose, or until each such Indemnified Claim or IP Claim is fully and finally resolved.

Customer’s obligation to defend and indemnify the members of the Enorama Group against Indemnified Claims and IP Claims is in no way limited by or to the insurance limits and requirements set forth in Paragraph 9 of this Agreement.  Customer’s obligation to defend and indemnify the members of the Enorama Group from and against Indemnified Claims and IP Claims applies without regard to whether Customer maintains insurance as required by Paragraph 10 of this Agreement or whether such insurance is available to Customer.

Customer waives any provision of state, federal or local workers’ compensation law that prevents any member of the Enorama Group from seeking contribution, indemnification or damages from Customer if any employee, agent or invitee of Customer commences litigation or makes a demand against such member of the Enorama Group for any injury or damage actually or allegedly arising out of, connected with or resulting from the Products.

Customer, to the fullest extent permitted by law, releases each member of the Enorama Group from any liability, damage or loss actually or allegedly arising out of, connected with or resulting from the Products, including liability, damage or loss that arises from, results from or is caused by that member’s negligence.  Customer expressly acknowledges that it will not seek from or sue the members of the Enorama Group for contribution or reimbursement in connection with any liability, damage or loss released by this paragraph.  Customer also acknowledges that it will not assign to any other party its rights against the members of the Enorama Group in connection with any liability, damage or loss released by this paragraph.  To the extent that such liability, damage or loss is covered by Customer’s insurance, Customer waives fully for the benefit of the members of the Enorama Group any claims which might give rise to a right of subrogation in favor of any of Customer’s insurance carriers.

The indemnity and defense obligations under this Paragraph 11 shall survive the completion, expiration or termination of this Agreement.

  1. Ownership of Intellectual Property. Enorama retains all Intellectual Property Rights and all other proprietary rights related to, associated with, or imbedded in, the Products.  Customer shall not delete or alter any copyright, trademark, or other proprietary rights notices or markings appearing on or in connection with the Producs.  For purposes herein, Intellectual Property Rights means all worldwide intellectual property rights available under applicable law, including without limitation rights with respect to patents, copyrights, moral rights, trademarks, trade secrets, know-how, and databases.
  2. Customer is under no duty to provide any suggestions, enhancement requests, or other feedback regarding the Products (“Feedback”). If Customer chooses to offer Feedback to Enorama, Customer hereby grants Enorama a perpetual, irrevocable, non-exclusive, worldwide, fully-paid, sub-licensable, assignable license to incorporate into the Products or otherwise use any Feedback Enorama receives from Customer.  Customer also irrevocably waives in favor of Enorama any moral rights which you may have in such Feedback pursuant to applicable copyright law.
  3. Confidential Information. A receiving party will not use the disclosing party’s Confidential Information except as permitted under this Agreement or to enforce its rights under this Agreement and will not disclose such Confidential Information to any third party except to those of its employees and/or subcontractors who have a bona fide need to know such Confidential Information for the performance or enforcement of this Agreement; provided that each such employee and/or subcontractor is bound by a written agreement that contains use and disclosure restrictions consistent with the terms set forth in this Section 12. Each receiving party will protect the disclosing party’s Confidential Information from unauthorized use and disclosure using efforts equivalent to the efforts that the receiving party ordinarily uses with respect to its own Confidential Information of similar nature and in no event using less than a reasonable standard of care; provided, however, that a party may disclose such Confidential Information as required by applicable law, regulation, court order or action by applicable regulatory authority, subject to the party required to make such disclosure giving reasonable notice to the other party to enable it to contest such order or requirement or limit the scope of such request. For purposes of this Agreement, “Confidential Information” means any business or technical information disclosed by either party to the other that is designated as confidential at the time of disclosure or that, under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary of the other party. Confidential Information shall not include information that the receiving party can demonstrate (a) is or becomes publicly known through no fault of the receiving party; (b) is, when it is supplied, already known to whoever it is disclosed to in circumstances in which they are not prevented from disclosing it to others; (c) is independently obtained by whoever it is disclosed to in circumstances in which they are not prevented from disclosing it to others; or (d) was independently developed by the receiving party without use of or reference to the other party’s Confidential Information.
  4. Customer shall reimburse Enorama’s expenses (including, but not limited to, court costs, interest and reasonable attorneys’ fees and expenses) in collecting any amounts owed by Customer arising out the Agreement, including, but not limited to, expenses incurred by Enorama in protecting its rights under the Agreement.
  5. Compliance with Governmental Requirements. To apply, any standards or requirements of law or governmental regulations must be expressly and specifically set forth in writing in the Order.  Otherwise, Enorama shall have no liability or obligation to Customer with respect to the failure of the Products to comply with any such standards or requirements.
  6. The parties and their respective counsel have had the opportunity to review and negotiate the terms hereof. Neither party will be deemed to be the drafting party if any part or provision hereof is found to be ambiguous by a court of competent jurisdiction
  7. Governing Law and Exclusive Jurisdiction. The Agreement shall be governed by, and construed in accordance with, the laws of the State of California without giving effect to the conflict of law principles, shall be binding upon any and all successors and assigns of the parties hereto and shall not be construed in whole or in part against any party solely because of the fact that the party drafted it.  The exclusive jurisdiction for any dispute arising out of the Agreement shall be in a court of competent jurisdiction located in [Santa Barbara County, California], and the parties agree to personal jurisdiction and that all discovery, including depositions, shall be conducted therein.
  8. The Agreement may not be amended except in writing and signed by an authorized representative of Enorama.  Customer shall not assign the Agreement without Enorama’s prior written consent and the full release of Enorama from any obligations with respect to the Products.  Any provision of the Agreement that is invalid under the applicable law or court order shall not in any way invalidate or affect the remaining provisions of the Agreement.  To the extent that any provision of this Agreement may be declared unenforceable, such provision shall be deemed stricken as though never part of this Agreement; otherwise, every other provision hereof and this Agreement shall remain in full force and effect.