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Terms Of Sale

This is a legal agreement between you (meaning you as an individual if acting on your own behalf, or the company that you represent if you are acting on behalf of such company) and Occipital, Inc. (“Occipital”). By placing an order or making a purchase of a hardware product (“Product”) from the Occipital Structure Sensor website (the “Store”), you agree to the terms of sale (“Terms”) set out below along with Occipital’s Privacy Policy and Website Terms of Use. These Terms may be updated by Occipital at any time, and it is your responsibility to review these Terms each time you make a purchase from the Store.

Purchase and use of the Product are also subject to the terms and conditions of the Hardware Warranty defined in the section “Hardware Limited Warranty” below. Any software provided to you by Occipital for use with the Product is subject to Occipital’s End User Software License Agreement unless otherwise specified.

The Store is offered by Occipital, Inc. (“Occipital”), a Delaware corporation with its principal place of business at 1801 13th Street, Suite 202, Boulder, CO.

Information contained on the Store may contain technical inaccuracies or typographical errors. The Store, all content available on the Store, and all related communications are provided on an “as is” basis. We make no representations or warranties as to the completeness, accuracy, adequacy or reliability of any information contained on the Store.

BY CLICKING ON THE BUTTON TO SUBMIT AN ORDER, YOU ARE CONSENTING TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS SET FORTH BELOW. IF YOU DO NOT AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS SET FORTH BELOW, DO NOT CLICK THE BUTTON TO SUBMIT AN ORDER.

Pricing and Availability

All prices are in US dollars unless otherwise expressly stated in writing. Where you are making payment in a currency other than US dollars, the currency exchange rate that applies is the one in effect at the time your payment is processed, not the one that was in effect on the date that you placed your order.

All Products offered on the Store are subject to availability. We reserve the right to change prices for Products at any time, and to correct pricing errors that may inadvertently occur.

Changes

Occipital reserves the right to make changes in the design of its Products without the obligation to make equivalent changes to products that have previously been supplied to you. Except as expressly set forth in these Terms, you shall not be entitled to change or cancel any order that has previously been accepted by Occipital without the prior written agreement of Occipital.

The Product includes embedded software (firmware). Occipital reserves the right, but has no obligation, to download updates to your Product upon your Product being connected to a computer with Internet capability, in order to maintain compatibility with Occipital software associated with such Product, such as the Structure SDK.

Ordering

When you place an order you are making an offer to buy the Product from the Store. By placing an order, you represent and warrant that you are 18 years of age or older, that the information you have provided is true and correct, and that you have the right to use the payment means selected by you.

You may be asked to supply information in connection with your order, including your credit card number or other payment account number, your billing address, your phone number and your shipping information. By submitting this information, you grant Occipital the right to use it in accordance with Occipital’s Privacy Policy. These rights include, without limitation, the right to provide this information to third parties for purposes of facilitating the processing of orders and the completion of purchases initiated by you or on your behalf. Verification of information may be required prior to the confirmation or acceptance of an order or completion of any purchase.

Order Acceptance

We reserve the right to accept or decline your order for any reason at any time, including after an order has been submitted, whether or not the order has been confirmed. If we cancel an order after you have already been billed, we will refund the billed amount. We may attempt to contact you if all or a portion of your order is cancelled, or if additional information is needed to complete and accept your order.

Payment

All credit, debit and other payment accountholders are subject to validation checks and authorization by the card issuer or payment account administrator. If the issuer of your payment card or administrator refuses to authorize payment to us, we will not be liable for any delay or non-delivery.

Shipping & Delivery

The stated delivery period within which you will receive your order is approximate. Goods will be sent to the address given by you in your order (subject to any shipping restrictions, which we may impose in our sole discretion). All shipments are made by third-party carriers. Occipital will make reasonable efforts to accommodate your delivery requirements; however, delivery is subject to availability of resources at the time of order placement. Occipital shall therefore not be liable in any way for any delay or damage arising from Occipital’s failure to meet your delivery requirements or any delivery dates.

Risk of loss for items passes to you upon delivery of the items to you, and you are responsible for pursuing the third-party carrier for any loss occurring in transit. Occipital retains title to all Products shipped until we have received final payment in full.

You are responsible for examining all shipments promptly upon receipt. If you discover any shortages or incorrect products in the shipment, you must notify Occipital immediately.

Title, Intellectual Property & Use Restrictions

Title to any Products bought by you shall pass to you upon your full payment for such Products in accordance with the “Shipping & Delivery” section above.

Notwithstanding the foregoing, title to Software shall not pass to you, and you are hereby put on notice that your use of any Occipital software supplied to you under this agreement is governed by and subject to the software license terms as may be provided to you with the software. Such license terms may be included as a file with the software that you download from Occipital for use with the Product, such as the Structure SDK. Use of any third party software under these Terms shall be governed by and subject to your agreeing to the terms of all applicable third party agreements and licenses respecting such third party software.

You do not acquire any intellectual property or other proprietary rights under these Terms, including without limitation any right, title or interest in and to patents, copyrights, trade-marks, industrial designs, confidential information, or trade secrets, whether registered or unregistered, relating to Occipital products, software or any part thereof. Your only rights to Occipital products, software, or any part thereof shall be those rights expressly licensed or granted to you under these Terms or in a separate, mutually agreed upon, written agreement between you and Occipital. Any rights not expressly granted under these Terms are reserved.

Except to the extent expressly agreed upon in writing by you and Occipital, you shall not, and you shall not permit any third party to, copy, reproduce, distribute, modify, decompile, disassemble or reverse engineer the Products or any software provided to you by Occipital as part of the Products (including firmware), nor shall you use the Products except to facilitate your internal business functions or for personal, non-business-related use.

You are responsible for the selection, implementation, and performance of any and all third party equipment used in connection with the Products, and for compliance with any licenses, conditions, laws, rules and/or regulations respecting the use of the Products and any equipment, services or software used in conjunction with the Products. This includes all applicable laws, regulations and orders applicable to the export, re-export, transfer or resale of Products. You also acknowledge that Occipital will not take, and will not be required to take, any action contrary to such applicable laws.

Sales Taxes

In the United States, we charge sales tax for sales of Products in states where we are required to collect it. Any sales tax charged will be indicated during the checkout process. If you live in a US state with sales or use tax and we do not collect sales tax, you are responsible for any applicable use taxes. Please contact support@structure.io with your tax exempt certificate to place a tax exempt order.

Taxes, Customs Duties and Fees outside of the United States

If your shipping address is outside of the United States, your items may be subject to taxes, customs duties and fees levied by the destination country (“Import Fees”).

If so, you are the importer of record in the destination country and are responsible for all Import Fees, to ensure that the Products can be lawfully imported, and to comply with all laws and regulations of the destination country.

30-Day Return Policy

Within 30 days of delivery, you may return an unopened, unused Product to Occipital for a refund. If your Product has been opened and used, it is no longer eligible to be returned under the 30-Day Return Policy noted in this section.

To initiate a refund and to arrange for the return of the Product, contact Occipital at to request a Return Authorization (RA). You are responsible for the costs of shipping the Product back to Occipital.

In the case of an unopened, unused Product, the amount refunded to the customer is the original amount paid minus a 10% restocking fee and minus any original shipping fees paid by the customer.

Any items damaged due to reasons not covered under our Hardware Limited Warranty (for example, if the Product is damaged due to abuse or disassembly of the Product) cannot be returned for a refund.

Products that have been opened and/or used may only be returned to Occipital if they are found to be defective per the terms of the Hardware Limited Warranty below.

National Statutory Rights

Consumers in some jurisdictions may have legal rights under applicable legislation governing the online sale of consumer goods. These rights are not affected or limited by these Terms.

Hardware Limited Warranty

Occipital warrants that, for a period of three (3) months from the date that the Products are delivered to you: (a) the Products will comply with Occipital’s specifications for such Products, and (b) the Products will be free from material defects in material, design and workmanship.

If you notify Occipital of any such material defects or non-conformance within such three (3) month period and obtain the applicable Return Authorization (“RA”), Occipital will, at its option, repair or replace the Products, or offer a refund. If Occipital is unable to repair or replace such Products within a reasonable timeframe, Occipital will refund you the amounts paid for such defective or non- conforming Products. All shipment of such Products is at your expense, unless Occipital otherwise agrees in writing.

Occipital may, at its option, use new or refurbished or used parts in good working condition to repair or replace any Product. Any replacement product will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer, or for such minimum time period as required by the jurisdiction in which you reside.

The above warranty shall not apply to defects or non-conformities resulting from: (a) use of the Product in a manner contrary to, or not in accordance with, the documentation, guidelines or instructions provided by Occipital, (b) any modification, maintenance or repair of the products by anyone other than Occipital, (c) normal wear and tear, (d) external causes such as, but not limited to, power failure or electrical power surges, or (e) your breach of these Terms. This warranty additionally does not cover Products marked as “sample” or sold “AS IS”.

Occipital does not warrant that the operation of the Product will be uninterrupted or error-free. Additionally, the foregoing warranty does not apply to any software provided to you, including firmware. All Occipital software is provided “AS IS”, and subject only to the license terms applicable to such software.

The warranty set forth in this Section (“Hardware Limited Warranty”) is the exclusive warranty made by Occipital to you. Occipital disclaims all other representations, warranties and conditions, whether express or implied, including but not limited to any express or implied representations, warranties or conditions of merchantability, merchantable quality, fitness for a particular purpose, durability, title, non-infringement, or any other warranty or condition arising by statute, custom or usage of trade related to the products provided hereunder. Some jurisdictions may not allow the exclusion or limitation of implied warranties and conditions. To the extent permitted by law, any implied warranties or conditions relating to the products and services to the extent that they cannot be excluded as set out above are limited to three (3) months from the date that the Products are delivered to you.

The Hardware Limited Warranty is provided to the original purchaser, and cannot be transferred or otherwise assigned to another party.

Warranty Returns

You must obtain a valid, written Return Authorization (RA) from Occipital as part of the warranty return process. Occipital reserves the right to refuse or return any Products sent back without an RA.

If you experience a problem with your Product, please contact our support team at . Warranty returns are limited to reasons in the Occipital Hardware Limited Warranty. Should anything need to be serviced or replaced under warranty, return instructions will be provided along with a return authorization number (RA) after you have contacted Occipital support. Valid warranty returns including both Product and outbound shipping are processed at no additional charge to customers in the United States. Valid warranty returns to customers outside of the United States include Product and outbound shipping at no additional charge, but do not include additional Import Fees, which will be the responsibility of the customer.

Indemnity

You shall defend, indemnify and hold Occipital, its successors, assigns, officers, directors, employees and agents harmless from any and all claims, damages, judgments, settlements, losses or expenses, including but not limited to attorney’s fees and charges, and court and arbitration costs, arising out of or relating to these Terms (including without limitation (a) a claim of infringement of any intellectual property or proprietary right arising from your combination or use of the Products with software, interfaces, or other materials that are not supplied or specifically authorized by Occipital, (b) a claim respecting any injury, death or property damage in connection with your use or misuse of the Products, (c) any third party claim arising from your unauthorized or improper use or modification of the Products, and (d) any third party claim arising out of your material breach of these Terms). This indemnity obligation excludes any direct damages to the extent arising from the gross negligence or willful misconduct of Occipital.

Occipital will defend, indemnify and hold you harmless with respect to amounts required to be paid to a third party, and all costs, expenses, and liability, including without limitation attorney’s fees and court costs, arising from a claim that the Products furnished and used within the scope of these Terms infringe(s) such third party’s copyright, patent or other intellectual property right enforceable in the territory in which you have been authorized to use such Products. Notwithstanding the foregoing, Occipital shall have no liability for any claim of infringement to the extent based on: (a) use of a superseded or altered release or version of any Product if the infringement would have been avoided by the use of a current unaltered release or version of such Product that Occipital has, as of the time the claim arose, made commercially available at no charge to you or (b) any claim for which you are obligated to indemnify Occipital.

Each party’s indemnity obligations hereunder are conditional upon: (a) the indemnified party notifying the indemnifying party in sufficient time to allow the indemnifying party to protect its legal interests; (b) the indemnifying party having sole control of the defense and all related settlement negotiations, provided, however, that the indemnifying party shall act reasonably and in good faith to protect the indemnified party’s interests, and (c) the indemnified party providing the indemnifying party with the assistance, information and authority necessary to perform the indemnifying party’s obligations under this paragraph. Reasonable out- of-pocket expenses incurred by the indemnified party in providing such assistance will be reimbursed by the indemnifying party.

Limitations of Liability

In no event will Occipital be liable under these Terms for any damages other than your direct damages to the extent arising from Occipital’s gross negligence or willful misconduct, and in no event shall Occipital’s aggregate liability exceed the amounts paid by you to Occipital for the Products that gave rise to the claim.

No claim may be brought against Occipital, whether in contract, tort or otherwise, more than two years after the Products were delivered.

The Product is not intended for control, whether direct or indirect, of or use with industrial, commercial, military or medical equipment, and is not intended for any use where failure or fault of the product could directly or indirectly cause risk or damage to life or property, or in any mission-critical application. Any such use is entirely at your discretion and risk, and shall void the warranty contained in these Terms. You will be solely responsible for (and Occipital disclaims) any and all loss, liability, or damages resulting from such use.

EXCEPT FOR THE LIMITED DIRECT DAMAGES SPECIFIED IN THIS SECTION (“LIMITATIONS OF LIABILITY”), TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL OCCIPITAL BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, DATA, USE OR OPPORTUNITY, WHETHER OR NOT SUCH DAMAGES WERE FORESEEN OR UNFORESEEN, AND WHETHER OR NOT OCCIPITAL WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Support

Occipital shall not be obligated to provide any support or maintenance services for the Products unless otherwise expressly agreed upon in writing by you and Occipital. However, this provision does not relieve Occipital of its warranty obligations described in the “Warranty Returns” section above.

Resale

Occipital sells and ships products through the Store to end-user customers only. You may not purchase Occipital products for resale, and we reserve the right to refuse or cancel your order, or to deny you any return rights, if we suspect you are doing so.

Export Controls

You agree to comply with all applicable laws, regulations and orders applicable to the export, re-export, transfer or resale of Products. You also acknowledge that we will not take, and will not be required to take any action contrary to such applicable laws. Among other restrictions, note in particular that certain products may not be exported to certain countries, or may be exported only with individual licenses.

Limitations

Documentation in or available through the Store, including these Terms, the End User Software License Agreement, and the Hardware Limited Warranty, may only be in the English language. Product documentation, including manuals, instructions, and safety warnings, may only be available in the English language. The Products (and accompanying materials) may not be designed in accordance with destination country standards, specifications, and labeling requirements.

Contact Us

If you have any questions or inquiries regarding these Terms or any order or purchase, please contact the Occipital Structure Sensor support team at . Please note that e-mail communications will not necessarily be secure, so please do not include credit card information or other sensitive information in your e-mail correspondence with us.

Other Important Terms

These Terms are governed by the laws of the State of Colorado without giving effect to any conflict of laws principles that may provide the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods (CISG) will not apply.

We may transfer our rights and obligations under an order to another organization, but this will not affect your rights or our obligations under these Terms.

When you visit the Store, place an order, or send e-mails to us, you are communicating with us electronically. For contractual purposes, you consent to receive communications electronically from us and you agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. This condition does not affect your statutory rights related to electronic communications.