1. ACCEPTANCE OF TERMS These terms and conditions apply to all goods and services supplied directly or indirectly by Proportion LLC (also doing business as VitalVu and hereafter referred to herein as ‘VitalVu’) and upon use of VitalVu products or services anyone who is or seeks to become a customer (the ‘Customer’) of VitalVu is deemed to accept these terms and conditions which are clearly set out or referred to in writing on the VitalVu web-site and/or in any quotation or invoice for the supply of goods and/or services by VitalVu.
  2. ENTIRE AGREEMENT: Except as otherwise specified in writing and signed by authorized representatives of both the Customer and VitalVu, the terms and conditions which govern the sale of the goods and / or the supply of services by VitalVu to a Customer are limited to the terms and conditions specified herein, and formation of any contract between the Customer and VitalVu is expressly made conditional on the Customer’s agreement to these terms. These terms and conditions supersede all prior discussions, proposals, negotiations, representations and agreements between the Customer and VitalVu insofar as the same are incompatible or inconsistent with these terms and conditions and VitalVu will not be bound by any additional, different or inconsistent terms which may be contained or referred to in a Customer’s purchase order or other documents from the Customer, and shipment of goods or the provision of services pursuant to a purchase order of Customer that contains additional, different or inconsistent terms does not constitute acceptance of such terms. No conditions, understandings or agreements purporting to waive, modify or vary the terms hereof will be binding unless made in writing and signed by an authorized representative of both parties.
  3. PRICE: Except where the price or prices for the supply of goods and services from VitalVu to the Customer are otherwise agreed in writing and signed by VitalVu and the Customer, all orders will be priced in accordance with VitalVu’s price quotation to the Customer or in the absence of a written price quotation in line with VitalVu’s current pricing policy.
  4. PAYMENT TERMS: The Customer will make payment for all goods and / or services supplied by VitalVu in strict accordance with any contract signed by both the Customer and VitalVu relating to such goods and / or services. In the event that no such contract exists then the following payment terms shall apply:
    1. All survey fees are to be paid for by the Customer to VitalVu at the time the order for such survey is placed with VitalVu
    2. All well-head supplies and installations and other orders (including all materials equipment labor and associated charges) for and from any Customer are to be paid 50% by the Customer to VitalVu at the time the order is placed with VitalVu and the balance to be paid upon notification being sent to the Customer that VitalVu is ready to install or deliver.
    3. On all orders where VitalVu is responsible for numerous physical installation on-site then beyond the first 15 item units per customer, 50% of the total cost of installation (including all materials, equipment, labor and associated charges) shall be paid at the time the order is placed with VitalVu for such installations; a further 12.5% shall be paid when one quarter of the installations in that order is complete; a further 12.5% when one half are complete ; a further 12.5% when three-quarters are complete and the final 12.5% when the final batch of installations comprised in the order are ready for delivery/installation.
    4. VitalVu may impose a finance charge of 1.5% per month on overdue amounts. If at any time, in VitalVu’s opinion, the financial situation of the Customer becomes impaired or otherwise unsatisfactory to VitalVu the terms of payment may, at VitalVu’s sole option, be revised or withdrawn, and VitalVu may require cash or other satisfactory security before making further shipments or providing further services to the Customer.
  5. TAXES: Any tax, duty or other governmental charge upon the sale and/or shipment of the goods and/or provision of services herein specified or hereafter imposed by federal, state, provincial or local authorities will be added to the price and will be paid by the Customer.
  6. DELIVERY, TITLE, RISK OF LOSS: All product shipment and installation dates agreed are based upon reasonable judgment and may be subject to production limitations, supplier factory schedules, weather, and other factors beyond VitalVu’s control and whilst VitalVu shall use reasonable endeavors to adhere to such agreed dates and schedules such dates are not guaranteed nor is time of the essence and VitalVu shall not be liable in any way arising out of any delay or failure to meet agreed dates or schedules. Risk of loss with respect to any goods to be supplied will pass to the Customer when the same are delivered per Customer’s instructions. Title to the goods will pass and the Customer will become the sole owner and take legal possession of the goods only when paid for in full.
  7. OWNERSHIP OF INTELLECTUAL PROPERTY etc. Unless otherwise expressly stated in writing and signed by an authorized officer on behalf of VitalVu all devices, designs (including drawings, plans and specifications), computer codes and programs, software, estimates, prices, notes, electronic data and other documents or information that VitalVu creates or prepares and licenses or otherwise discloses to the Customer, and all related intellectual property rights thereto (whether existing at the date of this contract or subsequently developed during the course of the contract) shall be VitalVu’s sole and exclusive property regardless of how paid for or created. Any License granted by VitalVu to the customer to use the same is a limited, non-exclusive, non-transferable license to use any such devices, designs and software solely for the Customer’s own use on the equipment provided by or through VitalVu, and the continuance of such license is subject always to due subscription payments being kept up-to-date and compliance with all other applicable license or contract terms. The Customer will not utilize or use or allow to be used any such designs, devices or software on equipment not supplied by VitalVu. The Customer will not utilize any such material for third parties without VitalVu’s prior written consent.
  8. WARRANTIES VitalVu warrants to the Customer that any goods supplied by VitalVu will materially conform to the description in the manufacturer’s documentation and warrants that VitalVu will perform its contractual obligations in a professional and workmanlike manner in accordance with generally accepted practices for the nature of the same. If the Customer gives VitalVu prompt written notice of breach of a warranty within the manufacturers specified warranty period (for goods) or within 3 months from performance (for services) (the “Warranty Period”), then VitalVu will, as the Customer’s sole remedy, repair or replace the subject goods within 14 working days or at VitalVu’s option refund the price paid. If VitalVu determines that any claimed breach is not, in fact, covered by the warranty, the Customer will pay VitalVu at its then going charge and rate for any repair or replacement carried out and/or installed. VitalVu’s warranty is conditional upon the Customer (a) using, maintaining and properly handling the goods in accordance with the manufacturers and VitalVu’s instructions, (b) not making any unauthorized alterations, and (c) not being in default of any payment obligation to VitalVu. VitalVu’s warranty does not cover damage caused by chemical action or abrasive material, misuse or improper use; accidents and natural phenomena. The warranties set forth in this section are VitalVu’s sole warranties to the Customer and VitalVu makes no other warranties of any kind and specifically disclaims all implied warranties whether relating to merchantability, non-infringement or otherwise and furthermore does not warrant that the services will be interruption free.
  9. REMEDIES OF THE CUSTOMER: The Customer’s exclusive and only remedy is limited to replacement of the goods concerned or repayment of the price paid for the goods or services with respect to which damages are claimed. Failure by the Customer to give notice of claim to VitalVu within 30 days from the date of delivery of the goods or provision of services or from any subsequent event giving rise to a claim, will constitute a waiver by the Customer of all claims of any kind.
  10. INDEMNITY. The Customer will indemnify, defend and hold VitalVu harmless from any claim, cause of action or liability incurred by VitalVu as a result of third party claims for personal injury, death or damage to tangible property, to the extent caused by the Customer’s negligence, wilful or reckless acts or those of its agents, visitors or licensees.
  11. LIMITATION OF LIABILITY: The total liability of VitalVu with respect to the goods or services covered hereby or otherwise arising in connection with this contract, whether such liability is based on contract, warranty, negligence, strict liability or otherwise, will not exceed the purchase price of the specific goods or services in respect of which the claim is made. VitalVu will in no event be liable for loss of profits or for any special, incidental, indirect, punitive or consequential damages arising out of the provision, delivery, non-delivery, sale, resale, or use of the goods or services provided, whether based on contract, warranty, negligence, strict liability or otherwise. These limitations shall apply notwithstanding any failure of essential purpose of any limited remedy. The parties agree that the foregoing limitations represent a reasonable allocation of risk.
  12. FORCE MAJEURE: In case performance of any terms or provisions hereof is delayed or prevented in whole or in part because of or related to compliance with any law, decree, request, or order of any governmental agency or authority, whether local, state, provincial or federal, or because of riots, war, public disturbances, strikes, lockouts, differences with workmen, fires, explosions, storms, floods, acts of God, accidents of navigation, breakdown or failure of transportation, manufacturing, distribution, storage or processing facilities, failure of or interference with the manufacture, receiving, handling, delivery or consumption of the goods or services covered hereby, inability to obtain raw materials, chemicals, catalysts, fuel, power, labor, containers or transportation facilities at commercially reasonable prices, or for any other reason (whether or not of the same class or kind as herein set forth) which is not within the reasonable control of the party whose performance is interfered with and which by the exercise of reasonable diligence said party is unable to prevent (such occurrences referred to herein as “force majeure”), the party so suffering may at its option suspend deliveries or receipts during the period such cause continues, and no liability will attach against either party on account thereof. The provisions of this paragraph will not be available to either party who fails to use reasonable diligence to remedy the situation and remove the cause in an adequate manner and with reasonable dispatch. The Customer will not be relieved of the obligation to pay for services rendered or for goods whose title has passed to Customer.
  13. CANCELLATION: If the Customer cancels its order for any reason other than VitalVu’s breach, then VitalVu shall be entitled to keep any monies already paid by the Customer and the Customer will pay VitalVu for work performed over and above such sum prior to cancellation and any other costs incurred by VitalVu as a result of such cancellation together with an amount in respect of loss of profit on the cancelled order.
  14. PATENTS, TECHNICAL INFORMATION: VitalVu reserves the right to discontinue services or the delivery of any goods, the manufacture, sale or use of which in its opinion may involve patent infringement. Any technical advice given by VitalVu in reference to the use of goods supplied is given gratis and without any warranty whatsoever as to advice given or results obtained.
  15. WAIVER: Other than as may be specified herein, waiver by either party of any breach, or failure to enforce any of these terms and conditions at any time will not in any way affect, limit or waive the right of that party thereafter to enforce these terms and conditions.
  16. APPLICABLE LAW: The construction of these terms and conditions of sale and the rights and obligations of the parties hereunder will be governed by the laws of the state of Utah, excluding any choice of law rules which may direct the application of the laws of any other jurisdiction and any matters relating hereto will be tried and heard before a court in Utah.
  17. SECURITY AND DATA PRIVACY: VitalVu will implement reasonable measures for the security of Customer data held within its system but shall not be liable in any way should unauthorized access occur to its own or Customer data. VitalVu will not knowingly release for third party use any Customer data or information except where as a body of anonymous data analytics or as authorized by the Customer to do so or where it is involved in the operation or improvement of the service provided to the Customer.
  18. SOFTWARE LICENSE: (i) Subject to the terms and conditions contained or referred to herein (and contained in any relevant purchase order or other relevant signed written agreement between the Parties) VitalVu grants to the Customer a non-exclusive, non-transferable license to (a) to use the proprietary VitalVu software loaded on any equipment supplied hereunder and (b) to access the online web interface dashboard provided by VitalVu for viewing the data transmitted by any equipment supplied hereunder. This license granted to the Customer is subject to the following terms and conditions and restrictions : (a) the said software is specifically only to be used on the equipment purchased from VitalVu except the VitalVu online dash may be viewed on any equipment; (b) the said License is conditional upon the Customer maintaining up-to-date payment of monthly subscriptions to VitalVu in respect of all such equipment; (c) the said License is personal to the Customer and shall not (other than by sub-license as specified below) be assigned, transferred, or otherwise used by any third party without the prior written agreement of VitalVu. (d) VitalVu may upon 30 days written notice withdraw any such License at anytime should the Customer fall into arrears of payment exceeding 30 days, or if the Customer is otherwise in breach or fails to abide by any of these terms and conditions, or should VitalVu cease in its absolute discretion to continue offering the service in question. VitalVu shall guarantee a minimum of six months continued operation and available software service after any Customer purchase of equipment from VitalVu except in the event of breach by the Customer or arrears of payment by the Customer. (e) In connection with Customer’s use of any Proprietary software or designs of VitalVu the Customer shall comply with all applicable laws and regulations and the Customer shall not, and shall not allow any third party to: (i) copy or create derivative works of any such design or software; (ii) reverse engineer or otherwise attempt reconstruct, discover any source code or algorithms of such software and design; and (iii) lend, lease, or otherwise use the Service for the benefit of third parties other than by approved sublicensing as outlined herein; and (iv) attempt to circumvent any terms of this contract or of any license.
  19. SUB-LICENSINGWhere the Customer is a reseller of VitalVu equipment, products and services the Customer may sub-license the use of the software to its own customers but only on the following conditions: (i) That any sub-licensing is granted on all the same terms conditions and restrictions as the License from VitalVu to the Customer (except that no further sub-licensing shall be permitted under any sub-license); and (ii) Any sub-license granted is not any more extensive in any way than the original License from VitalVu to the Customer; and (iii) The sub-license shall include a provision that if the License out of which it is granted is terminated for any reason then the sub-license may, in VitalVu’s sole and absolute discretion, be either terminated or alternatively changed into a direct License from VitalVu.
  20. DATA TRANSMISSION SUBSCRIPTIONWhere the Customer subscribes to data transmission via satellite or cellular means by or via VitalVu additional terms and conditions may apply from time to time as notified by VitalVu to the Customer.Such subscription fees are not entirely under VitalVu’s control and may change at any time such changes to be notified to the Customer by VitalVu. Any proprietary VitalVu software including inter alia the VitalVu online web interface and all software loaded by VitalVu onto a VitalVu supplied satellite terminal or other device may only be used under the terms of the License granted hereunder and not with any other data transmission service or means.
    1. If any provision or provisions hereof are found to be illegal invalid or unenforceable under the applicable law then such provision or provisions shall be fully severable and the remainder of these terms and conditions shall continue in full force and effect. Furthermore in lieu of any such provision or provisions that are severed from these terms and conditions shall be substituted a new provision or provisions as similar as possible to the severed provisions to the maximum extent as is permitted and lawfully enforceable.
    2. During the continuance of any Agreement between the Customer and VitalVu and for a period of two years after the termination of any such Agreement the Customer agrees not to create any competing product to the VitalVu product used by the Customer nor to deal directly or indirectly with any sources; clients; suppliers or other entities made known by VitalVu relating to its products nor to adopt VitalVu’s business model or substantial aspects thereof in such a way as to compete with VitalVu.
    3. Where Customer has provided site survey and / or operational information as a basis for the supply of goods and installation, any costs incurred that are associated with any such information being inaccurate shall be borne by the Customer.