SensoScientific Product as a Service (PaaS) Terms and Conditions

These Product as a Service (PaaS) Terms and Conditions (the “Terms and Conditions” and together with the Product as a Service Order Form (the “Order Form”) in which these Terms and Conditions are referenced or attached, the “Agreement”), exclusively govern and contain all of the terms and conditions which apply to the purchase of a PaaS Subscription (as defined below) from SensoScientific, LLC, a DwyerOmega brand (“Company”) to the company listed on the Subscription Order Form (“Customer”) of such Devices.

Customer agrees that any order for, acceptance of, or payment for the Services (as defined below) described on the Order Form shall conclusively be deemed to constitute Customer’s acceptance of the Agreement, including these Terms and Conditions. Company may modify these Terms and Conditions at any time without notice, provided that no such modification shall apply in respect of any Agreement which has been fully signed by Company and Customer.

Customer agrees that all Customer requests for quotation, any purchase order(s), requests for shipment and all other Customer terms, documents, or oral statements, and all prior performance, courses of dealing, and industry practices are excluded and shall not apply to the Agreement or be used to waive, modify, vary, explain, or supplement all or any part of the Agreement and are hereby objected to and rejected by Company.

1. Scope of Product as a Service (PaaS) Subscription.

1. Access to and Use of the PaaS Subscription. Subject to the terms and conditions of this Agreement, including Customer’s payment of all relevant fees, Company grants to Customer a nonexclusive, non-transferable, non-sublicensable subscription to access and use the Devices and the related online portal and associated tools provided by Company (collectively, the “Portal”) and any applicable Documentation at each customer location during the Term. The Devices together with the Portal and any related Onsite Services as referred to on the Order Form or technical support shall be collectively referred to herein as the “Services”. If Customer is required to agree to any third-party software licenses or other third-party terms and conditions, Customer shall be responsible for complying with such third-party terms and conditions and for compliance by its End Users. “End Users” means Customer’s employees, contractors, and representatives who are authorized to access and use the Services on Customer’s behalf.
2. Included Hardware Devices; Ownership: During the Term, Customer shall pay an annual fee for the PaaS Subscription which includes access to Company’s monitoring and reporting services, use of the type and quantity of hardware devices described on the Order Form (each a “Device” and collectively the “Devices”), annual cloud access and data storage, routine calibration services, and online technical support. All Devices provided in connection with a PaaS Subscription shall remain the sole and exclusive property of Company. Customer shall be granted the right to use the Devices solely in connection with the Services provided under this PaaS Subscription and only for the Term. Additional Services are available to purchase as an enhancement to the standard Services provided with the PaaS Subscription.
3. Restrictions. Customer and its End Users may only use the Devices and Services as described in this Agreement, including the applicable Order Form, and in the then-current documentation, specifications, and instructions regarding the Services, including online help screens contained within the Portal, made generally available by Company to their respective customers and modified from time to time (the “Documentation”). Customer is responsible for ensuring its End Users comply with all relevant terms of this Agreement, and any and any failure to comply will constitute a breach by Customer. Except as expressly authorized by this Agreement, Customer will not, and will not allow any End User or other third party to, (a) permit any third party to access or use the Devices or Services other than an End User, (b) decompile, disassemble, reverse engineer, or otherwise attempt to derive the trade secrets embodied in the Devices and Services, except to the extent expressly permitted by Applicable Law, (c) use the Devices or Services or any Company Confidential Information to develop a competing product or service, (d) use, or allow the transfer, transmission, export, or re-export, of the Devices or Services or portion thereof, in violation of any export control laws, or (e) remove or modify any copyright, trademark, proprietary rights, disclaimers, or other marks included or embedded in the Devices, Documentation or Services. Company reserves the right to modify the Devices, Documentation or Services for any reason, without notice and without liability to Customer, to comply with Applicable Law.
4. Term and Renewal. PaaS Subscriptions shall be for a term of five (5) years (or such other term as may be set forth on the Order Form and agreed by Customer and Company (the “Initial Term”). The Initial Term will automatically renew for successive one-year periods (each a “Renewal Term” and together with the Initial Term, the “Term”) unless one party provides written notice of cancellation to the other party not less than sixty (60) days prior to the end of the Term. Company reserves the right to update pricing prior to renewal.
5. Warranty and Replacement. During the Term, each Device provided under the PaaS Subscription shall include the Limited Warranty set forth in Section 6 below. All warranty and replacement claims shall be administered in accordance with the terms and conditions set forth below
6. Device Return and End of Term. Upon the cancellation, termination, or expiration of the Term, Customer shall return all Devices to Company within thirty (30) calendar days. Customer’s failure to return all Devices in good working condition, normal wear and tear excepted, may result in additional charges, up to the full cost of each Device not returned in such condition.
7. Early Termination. If Customer terminates the PaaS Subscription prior to the end of the Term, Customer shall pay Company an early termination fee equal to seventy-five percent (75%) of the total remaining Agreement value.
8. Onsite Services. Customer may purchase additional services, including installation, validation, calibration services or other technical and support services or Company’s optional Carefree Service, which includes onsite installation, technical services, and support. The scope of all such services provided will be set forth in the Documentation. All Onsite Services shall be itemized on the Order Form and are available on a time and materials basis with a minimum of two hours per incident plus actual travel expenses.
9. Telephonic and E-mail Support. During the Term, Company shall provide telephonic and email support to Customer at no charge to Customer. Company shall have the right to change the terms of its technical support, including without limitation, the right to limit the amount of technical support and/or charge for the same.
10. Training. Training is not included in the PaaS Subscription. If requested by Customer, training is available during the installation process for individuals designated by Customer. Additional training, either online or person, is available. All requested training shall be separately itemized on an Order Form.

2. Pricing and Payment.

1. Pricing For Orders. All prices on the Order Form shall be in U.S. Dollars, shall not be subject to any offsets or credits, and shall be based on delivery of the Devices Free Carrier (FCA) Incoterms 2020 Company’s location. The pricing for all Onsite or additional Services or Training shall be set forth separately on the Order Form. The quoted pricing and terms on the Order Form shall be valid for a period of ninety (90) days from the date of the quote is issued.
2. Invoices and Payment Terms: Subject to Company’s credit requirements, the PaaS Subscription shall be billed annually during the Term. Payments for the PaaS Subscription and any other amounts for Onsite or additional Services shall each be itemized on the invoice. Payment of all invoices is due within thirty (30) days of the date of each invoice. Unpaid invoices outstanding past their due dates may, in Company’s sole discretion, be assessed a late fee in the amount of one and one half percent (1.5%) per month or, if less, the maximum amount allowed by applicable law. Company shall not be obligated to accept an Order From, or deliver Devices or any Services to, Customer if Customer does not currently or in the future cannot meet Company’s credit requirements. In such case full or partial payment in advance may be required prior to fulfilling an order or providing any services.
3. Taxes. Prices shall not include any taxes, fees, duties, licenses, tariffs or levies or similar charges however designated (“Taxes”), now or hereafter enacted that are imposed on the Devices or any onsite or additional services provided under this Agreement. All such Taxes shall be paid by the Customer. Taxes shall be added to the price where the Company is required by law to collect such Taxes, unless Customer shall provide Company with the proper tax exemption certificate.
4. Cancellation or Changes to Order. For a period of thirty (30) days Customer may request changes to the Order Form to cancel Onsite Services, support or training (not already performed or in process of performance) or to change the number of Devices to be provided in connection with the PaaS Subscription. The request for modification of the Order Form shall be made to the Company in writing. Any Devices returned as a result of such modification are subject to a restocking fee of up to $100 per Device. Customer shall pay for all return shipping for any cancellations/returns.

3. Installation of Equipment.

1. Installation Services. If installation or other similar services or the Carefree Services plan are purchased, the Company or an installer designated by Company shall install the Devices. At the time of installation, it may be determined because of the conditions present at the installation site that more (or fewer) Devices are necessary. Any installation charges, per diem and travel costs listed on the Order Form above are estimates only and actual charges shall be adjusted at the time of installation.
2. Charges for Services. Charges for Services, as well as the annual PaaS Subscription fees shall be adjusted, upward or downward as required, to reflect charges for the actual number of Devices installed, the cost of installation for the number of Devices installed, and the related per diem and travel costs, all as set forth on the Installation Acceptance Form to be signed by Customer upon completion of the installation. Unless Customer otherwise indicates in writing, signing of the Installation Acceptance Form shall reflect the mutual agreement of Customer and Company that the Device(s) listed thereon were installed, were in good condition and operating in accordance with their written specifications, and that Customer has accepted and approved the same.

4. Customer responsibilities:

1. When Company is provided Onsite Services at Customer’s facility, Customer shall designate a person responsible for helping Company with any issues related to such services, including timely access to all areas of the facility as needed to provide the services. If timely access to all such locations is not provided within a reasonable period and the failure to provide such access delays the services, additional charges at Company’s then current rates may apply.
2. Customer shall provide Company with all necessary network or other information required prior to shipment of Devices or installation or other Onsite Services. If the failure to provide such information delays the installation or other services, additional charges at Company’s then current rates may apply.
3. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access, or otherwise use the PaaS Subscription services at each Site, including power, telecommunication and Internet connections, and the like. Customer shall also be responsible for maintaining the security of the Devices, Documentation and Services, Customer’s login information, passwords and files at its installation locations. For the avoidance of doubt, Customer acknowledges and agrees that Company does not operate or control the installation locations and will not be responsible for any damage or unauthorized access to the Devices, Documentation or Services.

5. Limited Warranty

1. Warranty. During the Term, Company warrants that the PaaS Subscription and the related Devices and Services, together with software and/or firmware embedded in any of the Devices, will conform to the Documentation for such PaaS Subscription and the related Devices and Services shall conform to the written agreed to specifications and descriptions set forth in the Documentation and shall be free from defects in materials and workmanship under normal use.
2. Exclusions. The limited warranty does not cover and excludes: (i) any failure, losses, damages, deficiencies, costs or expenses arising from or relating to any misuse (including abnormal conditions of use, use for purposes not intended for the Device, use beyond the Device’s useful life, and use with ancillary or peripheral equipment or software not manufactured, furnished, supplied or otherwise certified by Company for use with the Devices or any damage to the Devices or such ancillary equipment because of such use), accident, abuse or neglect; normal wear and tear; improper storage, handling, installation, and any similar acts, events or circumstances; (ii) Devices which have been altered, repaired, modified, serviced by anyone other than Company or as authorized by the Company, or relocated; (iii) Devices for which there is no active PaaS Subscription, (iv) activity intended to circumvent the security incorporated into the Devices; (v) criminal activity, (vi) high voltage surges from external sources such as power lines or other connected equipment; (vii) contact with rain, moisture or extreme humidity; (viii) contact with extreme heat (unless the Devices are certified to be used with such extreme heat; (ix) an event or condition that could have been covered by casualty or liability insurance; or (x) the failure of (A) the internet provider to which Customer subscribes; (B) failure of any phone/paging service, including phone lines, pagers, and cellular phone; (C) failure of any equipment such as serial ports, modems, wiring, cabling, other software or personal computers; and (D) failure of any radio frequency transmissions.
3. No Other Warranties. EXCEPT AS PROVIDED IN SECTION 6 ABOVE, THE PAAS SUBSCRIPTION AND RELATED DEVICES AND SERVICES ARE PROVIDED “AS IS,” “AS AVAILABLE,” WITH ALL FAULTS, AND WITHOUT WARRANTY OF ANY KIND EXCEPT AS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT. COMPANY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, BY STATUTE OR OTHERWISE, WITH RESPECT TO THE DEVICES, ASSOCIATED SOFTWARE AND SERVICES AND DOCUMENTATION, INCLUDING WITHOUT LIMITATION ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO CONTENT, QUALITY, ACCURACY, TITLE, QUIET ENJOYMENT, NON-INFRINGEMENT, TIMELINESS OF DELIVERY OR CURRENCY OF THE EQUIPMENT, PERFORMANCE, ERCHANTABILITY, DESIGN OR FITNESS FOR A PARTICULAR PURPOSE. COMPANY DOES NOT WARRANT THAT THE PAAS SUBSCRIPTION, DOCUMENTATION, THE DEVICES OR THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, OR BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS IN THE PAAS SUBSCRIPTION, DOCUMENTATION, DEVICES OR SERVICES WILL BE CORRECTED, OR THAT ANY DATA PROVIDED BY COMPANY OR THROUGH THE SERVICES WILL BE ACCURATE OR COMPLETE. THE PAAS SUBSCRIPTION MAY BE USED TO ACCESS AND TRANSFER INFORMATION OVER THE INTERNET. CUSTOMER ACKNOWLEDGES AND AGREES THAT COMPANY AND ITS VENDORS AND LICENSORS DO NOT OPERATE OR CONTROL THE INTERNET AND THAT: (A) VIRUSES, WORMS, TROJAN HORSES, AND OTHER UNDESIRABLE DATA OR SOFTWARE MAY BE TRANSFERRED OVER THE INTERNET; AND (B) UNAUTHORIZED USERS MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE CUSTOMER’S DATA, PROPERTIES, OR SYSTEMS. COMPANNY WILL NOT BE RESPONSIBLE FOR SUCH ACTIVITIES.

6. Software/Firmware:

Other than the limited warranty provided above, no specific warranty as is made with respect to any software or firmware. No updates to software or firmware shall be provided.

7. Warranty Claim Process

1. Submitting a Warranty Claim. All claims under the limited warranty shall be submitted to the Company in writing. All Devices returned to Company must be accompanied by an authorized Return Materials Authorization number (RMA #) obtained from Company as part of the warranty and replacements process. A non-refundable administrative fee of $50 will be charged for each Device returned.
2. Application of Limited Warranty. Each Device returned will be evaluated to determine whether it is covered under the Limited Warranty. Upon determination that a claim is covered by the Limited Warranty, the Company shall have the option to repair or replace the Device(s). Company may, in its sole discretion, use functionally equivalent Devices that have been reconditioned, refurbished, or previously returned. Expedited shipping is available upon request and will incur additional charges.
3. Warranty Not Applicable. If repair or replacement of the Device(s) is not covered by the limited warranty, Customer will be billed according to Company’s then current repair/replacement policy and rates for the retuned Device(s).
4. Return of Devices. Customer shall promptly return defective Device(s) to the Company, but, if applicable, in no event longer than five (5) business days from receiving a replacement Device. The failure to timely return such Device(s) will result in a charge to Customer of up to $250 per Device, plus applicable shipping charges.

8. Loss, Theft of Damage.

Except as otherwise set forth herein, Customer shall bear the entire risk of loss, theft, damage or destruction of the Devices (up to $250 per Device) from any cause whatsoever, and no loss, theft, damage or destruction of the Devices shall relieve the Customer of the obligation to pay the PaaS Subscription Fees or any other fees and costs or perform any other obligation set forth in this Agreement.

9. Insurance.

Customer will, at its expense, procure and maintain liability insurance with the coverage and limits which are required, or if no requirement, which are commercially reasonable, for the activities contemplated under this Agreement. If Company requests, Customer will provide certificate(s) of insurance evidencing the coverage and limits required under this Section. In no event will the coverage or limits of any insurance required under this Section be deemed to limit or diminish Customer’s obligations or liability under this Agreement. Upon request, Customer will provide copies of any or all policies of Insurance maintained in fulfillment hereof. Customer agrees that the obligation to provide the insurance required hereunder is its sole responsibility and this requirement cannot be waived by any conduct or inaction by Company.

10. Confidentiality.

Customer shall hold in confidence any Company proprietary and/or confidential commercial or technical information and shall protect any such information from any disclosure to others and shall not use such information other than in connection with the sale of products and services by Company to Customer. Upon request of the Company or termination of the Agreement, all such information in whatever form shall be returned to Company immediately without retaining any copies thereof. The above is in addition to all other obligations set forth in any confidentiality or similar agreement entered between the parties. The prices and other terms of this Agreement shall be confidential information. Each of Customer and Company may disclose that Customer has agreed to purchase a PaaS Subscription but shall not disclose any terms of this Agreement without the prior written consent of the other.

11. Use and Ownership of Data.

All data collected in connection with the PaaS Subscription shall belong to the Customer and shall be treated by Company as confidential information of Customer. Notwithstanding the foregoing, so long as the Company does not disclose or publish the specifics of such data, including the location or origination of such data, the Company reserves the right to use the data, statistics and other information collected about the Device(s) operation and performance. Customer Data will be archived for as long as this Agreement is in effect. At the conclusion of the Agreement, Customer may obtain a copy of its

Customer’s archived data at Company’s then current rates for such services.

12. Default.

If Customer fails to comply with any of the material terms of this Agreement, including non-payment for the PaaS Subscription or any Services provided hereunder, and fails to promptly cure such default, Company shall be entitled to all remedies available at law or equity, including termination of the Subscription and Services. Customer shall promptly return all Devices and pay damages in the amount of 70% of the value of the remaining months of the subscription. Additional charges for any damages Devices may apply.

13. Indemnification.

Customer agrees to indemnify, hold harmless and defend Company, its parent and affiliated companies and its and their officers, director and employees from and against any and all claims (whether based on contract, tort, strict liability or otherwise), judgments, liabilities, damages, losses, expenses and costs (including, but not limited to, court costs and attorneys’ fees) incurred or suffered by Company, which relate to or arise out of (i) Customer’s or Customer’s customers use, handling, installation, the PaaS Subscription, the related Devices or services, or (ii) Customer’s breach of any representation, warranty or obligation hereunder. Customer shall defend any such matter with counsel reasonably acceptable to Company and shall not settle any such matter except with the consent of Company which consent shall not be unnecessarily withheld. If Customer fails to promptly and diligently investigate and defend or settle any claim, then Company shall have the right, at Customer’s cost, expense and risk, from that time forward to have sole control of the defense of the claim and the terms of any settlement or compromise.

14. Limitation of Liability.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT SHALL COMPANY BE LIABLE TO CUSTOMER FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE DEVICE, THE SERVICES, ACCESS

THE WEBSITE OR ANY DOCUMENTATION (COLLECTIVELY “LOSSES”), EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES, AND REGARDLESS OF WHETHER LOSSES ARE SUFFERED BY CUSTOMER. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT THE TOTAL LIABILITY OF COMPANY AND THE EXCLUSIVE REMEDY OF CUSTOMER FOR ANY CAUSE OF ACTION ARISING FROM THIS AGREEMENT, WHETHER BASED IN TORT, CONTRACT, STRICT LIABILITY OR ANY OTHER LEGAL THEORY IS EXPRESSLY LIMITED TO REPLACEMENT OF DEVICES OR CORRECTION OF SERVICES PROVIDED OR PAYMENT IN AN AMOUNT NOT TO EXCEED FEES PAID BY THE CUSTOMER IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR SERIES OF RELATED CLAIMS.

15. Governing Law; Dispute Resolution.

1. Governing Law. This Agreement shall be construed and interpreted in accordance with the laws of the State of California without regard to or application of its principles or laws regarding conflicts of laws and excluding the United Nations Convention on Contracts for the International Sale of Goods.
2. Dispute Resolution. Any controversy or claim out of or relating to this agreement, or the breach thereof, shall be resolved by the following procedure: (i) officers of Company and Customer, in each case with final decision making authority, shall discuss and negotiate in good faith a solution acceptable to both parties, and (ii) if after negotiating in good faith pursuant to the foregoing clause, the parties fail to reach agreement within thirty (30) days (or such longer period as the parties may agree), then such dispute shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, including the Expedited Procedures and the Optional Rules for Emergency Measures of Protection, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Notwithstanding anything contained in this section to the contrary, the Company shall have the right to institute judicial proceedings against Customer or anyone acting by, through or under Customer as necessary to prevent imminent and irreparable harm to Company’s interests.
3. Prevailing Party. In the event that any action shall be instituted by either of the parties hereto for the enforcement of any of it rights or remedies in and under this Agreement, the prevailing party, whether in court or by way of out-of-court settlement, shall be entitled to recover from the non-prevailing party or parties such prevailing party’s attorney’s fees, court costs, expert witness fees and/or other expense relating to such controversy, including attorney’s fees, court costs and/or expense on appeal, if any.

16. Compliance with Laws.

Customer shall comply with laws applicable to the application, operation and use of the PaaS Subscription and the related Devices and Services. Company’s obligations are conditioned upon Customer’s compliance with all U.S. and other applicable trade control laws and regulations. The export or re-export of the PaaS Subscription and the related Documentation, Devices or Services and related technical data supplied hereunder, if any, may be subject to regulation or restriction under the United States Export Administration Act, the Arms Export Control Act, the U.K. Export Control Organization, or other similar laws. Customer shall not sell, re-export, transfer or otherwise dispose of any of the foregoing Products or any related technical data in violation of U.S. laws, U.K. laws or any other applicable export laws. Customer shall have sole responsibility for obtaining all applicable licenses or authorizations at its sole cost and expense.

17. Compliance with Anti-Corruption Law.

In carrying out their responsibilities under this Agreement, the Parties shall comply with all applicable anti-corruption laws in the countries where the Parties have their principal or other places of business and where they conduct activities under this Agreement. Additionally, the Parties understand and agree to comply with the U.S. Foreign Corrupt Practices Act of 1977 (“US Act”) and the UK Bribery Act of 2010 (“UK Act”), in each case as revised.

18. General Provisions.

1. Entire Agreement /Modification /Waiver. This Agreement constitutes the entire agreement between the parties. This Agreement supersedes all written or oral prior agreements or understandings with respect thereto. This Agreement may not be modified or amended except by a written instrument signed by both parties. E-mail communications containing typed name and/or typed signature blocks do not constitute a written instrument within the context of this paragraph. No waiver will be implied from conduct or failure to enforce rights, and no waiver will be effective unless in writing signed on behalf of the party against whom the waiver is asserted. The exercise of any right or remedy provided in this Agreement shall be without prejudice to the right to exercise any other right or remedy provided by law or equity, except as expressly limited in this Agreement. This Agreement shall survive any completion of the sale of or any cancellation or termination of any order of products.
2. Severability. This Agreement is subject to the restrictions, limitations, terms and conditions of all applicable laws and governmental regulations, approvals and clearances. If any term or provision of this Agreement shall for any reason be held invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other term or provision hereof, and this Agreement shall be interpreted and construed as if such term or provision, to the extent the same shall have been held to be invalid, illegal or unenforceable, had never been contained herein.
3. Notices. All notices, demands and other communications which may or are required to be given to or made by either party to the other in connection with this Agreement shall be in writing (including fax or other similar writing) and shall be deemed to have been duly given or made (i) if sent by certified mail, return receipt requested, five days after the posting thereof with first class postage attached, (ii) if sent by hand or overnight delivery, upon the delivery thereof, and (iii) if sent by fax, upon confirmation of receipt of such fax, in each case addressed to the business unit president and principal place of business of each party or to such other address as either party hereto may specify from time to time by notice to the other party.
4. Assignment; Parties in Interest. This Agreement may not be assigned (by operation of law or otherwise) or transferred, in whole or in part, by either party without the prior written consent of the other party; provided, however, that Company shall be entitled to assign this Agreement, without the prior written consent of Customer, to an affiliate, any direct or indirect subsidiary, or to any successor which succeeds as a going concern to the business or operations of Company or a portion thereof pursuant to a merger, consolidation or sale of all or substantially all of its assets, if such successor assumes Company’s obligations hereunder. Except as specifically provided herein, this Agreement is not intended to and does not create any rights in favor of any person or entity not a party hereto.
5. No Agency. The relationship between Customer and Company under this Agreement is that of buyer and seller, and Customer shall have no right and shall not attempt to enter into contracts or commitments in the name of or on behalf of or to bind Company in any respect whatsoever. Nothing herein shall be construed to make Customer the joint venturer, partner, agent, servant, franchisee or employee of Company, and Customer shall not have the power to bind or obligate Company.
6. Headings. The Paragraph headings of this Agreement are inserted for convenience only and shall not constitute a part of this Agreement in construing or interpreting any provision hereof.