Eversound CMP Grant Order Terms and Conditions

Last updated August 2, 2022

Terms and Conditions

I. Orders Placed and Accepted as Purchase Agent for Participants

Subject to this Agreement, Eversound will accept Orders for Services and Equipment as specified in such order from the CMP Grant Administrator (the “Administrator”) on behalf of participating Grant communities (Participants)

II. Participant Agreements

Each of the Participants will execute individual Participant Agreements with Eversound. These Agreements detail Services and other obligations of the Parties related to the Grant.

III. Ownership

All equipment provided by Eversound under this Agreement will become the property of the Participant upon receipt of payment by Eversound from the Administrator for such equipment.

IV. Term and Termination

This Agreement will last throughout the life of the Grant project and will terminate when the Grant terminates, which shall be three years after it is initiated unless terminated earlier as defined herein.

The Grant can be terminated in writing by LeadingAge Washington with 30 days written notice.

The Agreement can be terminated by Eversound if LeadingAge Washington fails to pay Eversound for scheduled payments for 60 days and is then notified by Eversound of breach and fails to remedy the breach within an additional 30 days.

V. Orders, Invoices and Payments

The Administrator will place an initial order for Services and Equipment at the start of the Grant period based on agreed descriptions and prices in the Grant Application. Eversound will invoice the Administrator for initial equipment purchases upon delivery of the equipment to the Participant. Eversounud will invoice the Administrator quarterly for all ordered Services provided, in arrears. Payment is due 60 days after invoicing.

In the event that an invoice is disputed, Administrator must give notice of the dispute within 15 days of receipt of such invoice. Any dispute not raised within this 15-day period will be considered waived, and all amounts will be deemed undisputed and due within 60 days of the receipt of the invoice.

VI. Late Payment

Unpaid balances exceeding 30 days from receipt of Administrator’s undisputed invoice will accrue interest at 12% per annum.

VII. Refunds

Eversound shall have no obligation to refund to Administrator any amounts paid by Administrator to Eversound hereunder.

VIII. Limitation of Liability & Warranty Disclaimers

Eversound shall not be liable to Administrator with respect to physical injury, death or property damage incurred through the use of the Services.

In no event shall Eversound be liable for special, consequential or indirect damages, regardless of whether arising from tort, contract or any other theory of liability and regardless if Eversound was made aware of the possibility or probability of such damages in advance. Further, Eversound’s liability with respect to any Party to this Agreement is limited to the sum of the amount actually received by Eversound for the six-month period directly prior to the event or omission which would render Eversound liable.

The Services and equipment provided by Eversound are offered "AS IS" and Eversound makes no representations of any kind, whether express or implied or otherwise regarding the Services or equipment except as explicitly set forth in this Agreement. EVERSOUND DISCLAIMS ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR OTHERWISE. Administrator agrees that Participant shall use the Services solely at their own risk. The Services may include content which is produced, created, promoted, or provided by third parties and Eversound makes no warranties of any kind with respect to any content or programs.

IX. Indemnification

Eversound shall indemnify, defend and hold harmless Administrator from and against all losses, claims, damages or other costs of any nature or kind whatsoever arising directly or indirectly out of (i) the breach of any warranty or representation or provision of this Agreement made by Eversound to Administrator in this Agreement, or (ii) any infringement claim related to the Services or equipment and the Trademarks, copyrights or trade names used by Eversound. Such indemnify shall include, but not be limited to, reasonable expenses, attorneys’ fees, court costs, investigations, litigation and the settlement of any such claim provided Eversound has had the opportunity to participate in the defense and settlement of any such claim.

Administrator shall indemnify, defend and hold harmless Eversound from and against all losses, claims, damages or other costs of any nature or kind whatsoever arising directly or indirectly out of: (1) the breach of any warranty, representation or provision of this Agreement made by Administrator to Eversound; (2) the negligence or intentional misconduct of Administrator, its officers, employees, agents or contractors, residents, users or invitees, with respect to the use of the Services or any equipment; and (3) any personal injury or death of any end user of the Services or property damage incurred in the use of the Services. Such indemnity shall include, but not be limited to, reasonable expenses, attorneys’ fees, court costs, investigations, litigation and the settlement of any such claim provided Administrator has had the opportunity to participate in the defense and settlement of any such claim.

X. Confidentiality (Pricing and Technology)

In the course of performing its obligations hereunder and otherwise, the parties will from time to time have access to confidential records, data, customer lists, trade secrets, technology and similar confidential information owned or used in the course of business by one of the parties or its subsidiaries and affiliates (the “Confidential Information”). The party having access to such Confidential Information agrees (i) to hold the Confidential Information in strict confidence, (ii) not to disclose the Confidential Information to any third party (except as required to complete its obligations under this agreement) and (iii) not to use, directly or indirectly, any of the Confidential Information for any competitive or commercial purpose; provided, however, that the limitations set forth above shall not apply to any Confidential Information which (A) is then generally known to the public, (B) became or becomes generally known to the public through no fault of the party having access, or (C) is disclosed in accordance with an order of a court of competent jurisdiction or applicable law. Eversound’s pricing terms and amounts are considered a trade secret for terms of the Agreement. This provision shall survive the termination of this Agreement for any reason.

XI. Additional Terms and Conditions

No Resale: Administrator will not sub-lease, or “private label” the equipment or Services in any way. All original factory markings on the Equipment must remain intact.

Survivability: This Agreement is binding upon the Parties and their successive heirs, successors and transferees. If a majority of the Administrator’s assets or equity is acquired by a third party, or if the Administrator enters into a merger, reorganization or other transaction where Administrator is not the surviving party, the acquirer or successor, whatever the case may be, shall be liable, in addition to the Administrator, to pay all costs and for other obligations to Eversound hereunder.

Entire Agreement: This Agreement, including any exhibits, related acknowledgements, and amendments constitutes the entire agreement between the parties with respect to the subject matter, and supersedes and terminates all prior agreements and understandings, either oral or in writing. No term or conditions contained in an Administrator purchase order shall supersede or otherwise supplement this Agreement. Any representations, warranties, inducements, promises, understandings or agreements between the parties are void and unenforceable.

No Oral Modifications: Oral modifications to this Agreement, including those by way of release, amendment, waiver or otherwise, are not valid or enforceable. The parties may modify this Agreement only by a written agreement signed by a duly authorized representative of each party.

No Waiver: The failure, refusal or neglect of one party to require the other party to comply with any provision of this Agreement, in whole or in part, does not constitute a waiver by such party of its right to require full compliance with the same or different provisions in the future, regardless of the acceptance of payments or performance by the party seeking compliance.

Authority to Sign: The individual signing this Agreement on behalf of Administrator represents and warrants that he/she is fully authorized to execute this Agreement on behalf of and bind Administrator to the terms set forth herein.

Headings: The headings of each section are for convenience only, and do not define, limit, or construe their contents.

Copies: The parties may sign more than one identical copy of this Agreement, each of which is an original. When the parties sign different, but identical copies of this Agreement, the copies constitute one Agreement.

Severability: All provisions of this Agreement are severable. If any court having jurisdiction finds any provisions, in whole or in part not enforceable, the remainder of this Agreement will continue to be in full force and effect, and the applicable parts of the affected provisions are superseded and modified by such applicable law.

Governing Law: This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to any conflict of law principles, except as may be otherwise provided in this Agreement. The exclusive venue of any action, proceeding or litigation arising out of or in connection with this Agreement shall be in the State or Federal Courts located in any County in the State of New York.