LOBAKI TERMS & CONDITIONS
All products and services provided by Lobaki, Inc. to the Customer (“Customer”) referenced in the associated Quote or Scope of Work, (“Customer”) are subject to the following terms and conditions which shall endure and bind to the corresponding Purchase Order (“Purchase Order").
1.) Payment - All items sold are invoiced in full upon shipment, software renewals are invoiced 45 days before expiration and all software development projects are invoiced on a monthly work-in-process basis. Payment is due net thirty (30) days from invoice date. All taxes (other than Lobaki Income Tax), shipping, handling, insurance, and other charges will be included in the invoice.
2.) Term - This Agreement commences upon the issuance of the Purchase Order and will terminate 1 years from such date or upon the expiration of the terms of any software license contained in the Purchase Order, whichever is greater. Either party may terminate this Agreement: (a) upon thirty (30) days’ written notice if the other party breaches these terms and conditions and such breach remains uncured at the expiration of such period; or (b) immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.
3.) Installation and Training – Lobaki shall procure, provision, and set up all hardware with the required software/content to meet the Purchase Order requirements. It shall be delivered to the FOB locations stated on the Purchase Order. Lobaki shall provide all training as specific in the Purchase Order at times and places mutually convenient.
4.) Limited Warranty and Support - Subject to the disclaimer in Section 4c below, Lobaki offers a limited warranty and support as follows:
a) All Hardware product will conform in all material respects to the published data sheet of the original equipment manufacturer and be warrant free from defects in materials and workmanship as specified by the original equipment manufacturer.
b) All Lobaki provided Content will conform in all material respects to the standard, published Lobaki end user documentation for such applications for the term specified in the Purchase Order. Lobaki reserves the right to upgrade applications as it so sees fit as well as modify specific content offerings in any product bundle.
c) LOBAKI DISCLAIMS ALL OTHER WARRANTIES CONCERNING PRODUCTS, EXPRESS, IMPLIED OR STATUTORY, INCLUDING AS TO PERFORMANCE, MERCHANTABILITY, OR FITNESS FOR PARTICULAR PURPOSE. LOBAKI’S OBLIGATIONS ARISING FROM CLAIMS OF INFRINGEMENT ARE SET FORTH EXCLUSIVELY IN THE NEXT PARAGRAPH.
5.) Limited Liability - Aggregate liability under any and all claims relating to this Agreement shall in no event exceed the total fees paid under this Agreement to Lobaki in such claims.
6.) Indemnification – Each Party to this Purchase Order agrees to indemnify the other from and against any and all actions, arising from their actions. The Parties will promptly notify each other upon receipt of any third party claim or legal action arising for this transaction.
7.) Content/Software Ownership - Subject to the limited rights expressly granted hereunder, Lobaki reserves all right, title and interest in and to the Content/Software, including all related intellectual property rights. No rights are granted hereunder other than as expressly set forth herein.
8.) Non-Disclosure - All pricing, terms and conditions are to remain confidential except as provided in this Agreement. The foregoing does not apply to information that: (a) is in the possession of Customer at the time of disclosure; (b) is received by the Customer form third party not bound by a non-disclosure agreement; (c) is independently developed by the Customer; or (d) is in the public domain. Furthermore, Customer may disclose Data pursuant to the order or requirement of a court, administrative agency, or other governmental body. Lobaki may also at its option publish a press release announcing the business relationship without specifics.
9.) Data Privacy Provisions - To the extent applicable to these terms and conditions, personal identifiable information and other non-public data collected by Lobaki will not be sold, shared, distributed, made available or otherwise used for any purpose outside of those absolutely necessary for the performance of those set forth in the Purchase Order.
10.) Relationship of the Parties "(Lobaki and Customer") - The Parties to the Purchase Order hereto are and shall remain independent contractors. Nothing herein shall be deemed to establish a partnership, joint venture, or agency relationship between the Parties. Neither Party shall have the right to obligate or bind the other Party in any manner to any third party.
11.) Assignment/Sublicense - Except as set forth herein, neither Party shall, directly or indirectly, by operation of law or otherwise, transfer or assign any rights granted hereunder, with the exception of an assignment carried out as part of a merger, restructuring, or reorganization, or as a sale.
12.) Notices - All notices required to be given to Lobaki shall be sent to: Attn: Kevin R. Loud, Chief Financial Officer, Lobaki, Inc. 736 S. President Street, STE 106, Jackson, MS 39201 and to the contact information referenced on the purchase agreement.
13.) Force Majeure - Neither Party shall be liable to the other by reason of any failure of performance hereunder if such failure arises out of causes beyond such Party's reasonable control, despite the reasonable efforts, and without the fault or negligence of such Party. A Party experiencing such an event shall give as prompt notice as possible under the circumstances.
14.) Governing Law - This Agreement shall be construed in accordance with and governed by the substantive laws of the State of Mississippi. Disputes shall be resolved only in the state or federal courts in Hinds County, Mississippi.
15.) Severability - If any provision of this Agreement is held invalid or unenforceable under any applicable law, such invalidity or unenforceability will not affect any other provision of this Agreement that can be given effect without the invalid or unenforceable provision, and this Agreement shall be construed as if said invalid or unenforceable provision had not been contained herein.