Last Updated: 11 July, 2022
These CaPow Services Terms and Conditions (the “Terms“) apply to, and govern, the mutually signed ordering document (such as an Order Form, Sales Order, Quote, Statement of Work, Proposal, or Order) to which they are attached, hyperlinked, or otherwise incorporated (the “Order“). These Terms are hereby incorporated by reference into, and made a part of, such Order. These Terms and the Order are collectively referred to as this “Agreement“. To the extent of any conflict or inconsistency between a provision in these Terms and a provision in the Order, the former shall prevail, unless the Order specifically states otherwise.
The Agreement constitutes a binding agreement between Capow Technologies Ltd. (or the other CaPow entity specified in the Order, if applicable) (“CaPow“) and the customer specified in the Order (“Customer“). An individual entering into this Agreement on behalf of the Customer, represents that he/she has the right, authority and capacity to act on behalf of the Customer and to bind the Customer to this Agreement. CaPow and Customer may be collectively referred to herein as the “Parties“, and each individually as a “Party“.
1. DEFINITIONS
“Affiliate” means, with respect to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with such Party, whereby “control” means the possession, directly or indirectly, of the power to direct, or cause the direction of, the management and policies of such person, whether through the ownership of voting securities, by contract, or otherwise.
“CaPow Solution” means CaPow’s wireless power transfer solution comprised, inter alia, of transmitter electronics, recieveable electronics and antenas.
“Intellectual Property Rights” means any and all rights, titles, and interests (under any jurisdiction or treaty, whether protectable or not, whether registered or unregistered, and whether vested, contingent, or future) in and to inventions, discoveries, works of authorship, designs, software, technical information, databases, formulas, know-how, mask works, methods, technology, and other intellectual property (collectively, “Intellectual Property“), and includes but is not limited to patents, copyrights and similar authorship rights, moral (and similar personal) rights, mask work rights, data and database rights, trade secret rights and similar rights in confidential information and other non-public information, design rights, trademark, service mark, trade name, trade dress and similar branding rights, as well as: (i) all applications, registrations, renewals, reexaminations, extensions, continuations, continuations-in-part, provisionals, substitutions, divisions or reissues of or for the foregoing; and (ii) all goodwill associated with the foregoing.
“Location” means the geographic location(s) specified in the Order, at which the Services will be conducted.
“Location Owner” means, collectively and individually, the individuals and/or entities that own and/or operate the Location.
“Services” means the wireless power transfer solution, deployed at customer’s Location and fulfills the services specified in the Order.
2. SERVICES
2.1 General. The Services will be performed in a professional and workmanlike manner by any of the Customer, CaPow and/or its Affiliates, and are provided for the benefit of Customer only. CaPow, in its sole discretion, shall determine which components of the CaPow Solution are to be utilized for the Services. Customer shall fully cooperate with CaPow in connection with the Services. With Customer’s prior approval (not to be unreasonably withheld, conditioned, or delayed) CaPow may subcontract Services (in whole or in part) to a third party contractor, and CaPow shall remain primarily responsible for such contractor’s performance of the Services. Unless specified otherwise in the Order, CaPow shall also be entitled to reimbursement for travel and lodging costs and expenses incurred in connection with the Services.
2.2 Customer Resources and Insurance. Except for the CaPow Solution and the Services, Customer shall be solely responsible: (a) for providing (or otherwise procuring from third parties) all hardware, software, systems, warehouse, assets, facilities, electrical power, and ancillary goods and services needed for the Services; (b) for ensuring their compatibility and suitability with the CaPow Solution and Services; and (c) for obtaining (and maintaining) all permits, consents and licenses necessary for the Services to be performed. Moreover, Customer shall ensure that CaPow is included as additional insured in the relevant insurance policies (including without limitation for third party liability) maintained by Customer (or the owner of the Location) in connection with the Services (and that such policies include a waiver of subrogation towards CaPow). Without derogating from any limitations or exclusions of liability in this Agreement, Customer hereby irrevocably waives any claims against CaPow for sums to which Customer is entitled under any policy carried by Customer (or on its behalf) or the Location Owner.
2.3 Location Owner. Without limiting the generality of Section (Customer Resources) above, Customer represents and warrants that: (a) it has obtained, and will maintain, all permits, consents, licenses, and other rights from the Location Owner to enable the Services to be performed at the Location; and (b) its contract with the Location Owner is not inconsistent or conflicting with any of the terms and conditions of this Agreement (such as those provisions herein governing usage scope and restrictions, ownership rights, confidentiality, warranties, and liability), and releases CaPow and its Affiliates (and Customer shall otherwise procure the Location Owner’s release of CaPow and its Affiliates) from any obligation or liability towards the Location Owner. In the event Location Owner makes or institutes any demand, claim, or action (each, a “Location Owner Claim“) against CaPow, its Affiliates, and/or its personnel (each, an “CaPow Indemnitee“), Customer shall at its cost and expense defend the CaPow Indemnitee against the Location Owner Claim, and indemnify and hold harmless the CaPow Indemnitee for any amounts awarded or imposed (or agreed in settlement) under the Location Owner Claim, as well as for any reasonable costs and expenses (including attorney’s fees, legal costs, etc.) incurred by the CaPow Indemnitee in connection with the Location Owner Claim.
3. CAPOW SOLUTION
For the avoidance of doubt, no part of the CaPow Solution is licensed, sold, or otherwise distributed to Customer pursuant to this Agreement. Any rights not expressly granted herein are hereby reserved by CaPow and its suppliers and licensors. To the extent, however, that Customer is given or otherwise obtains any access to any part of the CaPow Solution, Customer:
(a) shall use the CaPow Solution solely in connection with its receipt of the Services, and solely in accordance with any accompanying manuals and documentation; and
(b) shall not do (or permit to be done) any of the following, in whole or in part: (i) make, reproduce, “frame” or “mirror” the CaPow Solution; (i) distribute or otherwise make available CaPow Solution to any third party (such as offering it as part of a time-sharing, outsourcing or service bureau environment), or publicly perform or display the CaPow Solution; (iii) modify, adapt, or create a derivative work of, the CaPow Solution; (iv) decompile, disassemble, decrypt, reverse engineer, or otherwise attempt to discover the source code or non-literal aspects (such as the underlying structure, sequence, organization, file formats, non-public APIs, ideas, or algorithms) or internal composition (such as wiring, architecture, or chemical composition) of the CaPow Solution; (v) remove, alter, or conceal any copyright, trademark, or other proprietary rights notices displayed on or in the CaPow Solution; (vi) circumvent, disable or otherwise interfere with security-related or technical features or protocols of the CaPow Solution; (vii) use the CaPow Solution to develop any service or product that is the same as (or substantially similar to) them; or (viii) use the CaPow Solution in connection with any stress test, penetration test, competitive benchmarking or analysis, or vulnerability scanning, or otherwise publish or disclose (without CaPow’s prior express written approval) any the results of such activities or other performance data of the CaPow Solution. Customer recognizes and agrees that, without limitation, all internal hardware, software, and functionality not readily visible from external view of the CaPow Solution constitute trade secrets belonging to CaPow and/or its licensors and suppliers, and that efforts to determine such internal hardware, software or functionality may constitute misappropriation of trade secrets.
4. PAYMENT TERMS
4.1 Fees. Customer shall pay CaPow the fees and other charges set forth in the Order (the “Fees“).
4.2 Payment Terms. Except as may be expressly stated otherwise in the Order or these Terms: (a) all Fees are stated, and are to be paid, in US Dollars; (b) all Fees are shall be paid in advance at the commencement of each billing cycle (except for Fees for overages, which are charged in arrears); (c) all payments and payment obligations under this Agreement are non-refundable, and are without any right of set-off or cancellation; and (d) any amount not paid when due will accrue interest on a daily basis until paid in full, at the lesser of the rate of one and a half percent (1.5%) per month and the highest amount permitted by applicable law.
4.3 Taxes. Amounts payable under this Agreement are exclusive of all applicable sales, use, consumption, VAT, GST, and other taxes, duties or governmental charges (except for taxes based upon CaPow’s net income), as well as transportation or insurance. Customer must provide a valid tax exemption certificate if claiming a tax exemption. In the event that Customer is required by any law applicable to it to withhold or deduct taxes for any payment under this Agreement, then the amounts due to CaPow shall be increased by the amount necessary so that CaPow receives and retains, free from liability for any deduction or withholding, an amount equal to the amount it would have received had Customer not made any such withholding or deduction.
5. INTELLECTUAL PROPERTY
CaPow (and/or its licensors and suppliers, as applicable) is and shall be the sole and exclusive owner of (and is hereby assigned) all right, title, and interest (including without limitation all Intellectual Property Rights) in and to: (a) the CaPow Solution; (b) the Services; (c) ideas, suggestions, enhancement requests, or similar feedback for or about the Services and/or CaPow Solution; (d) CaPow’s other Confidential Information; and (e) regardless of inventorship or authorship, any modifications, derivative works, enhancements, and/or improvements of or to any of the foregoing. To the extent any of the foregoing Intellectual Property Rights do not automatically vest in CaPow, Customer hereby assigns (and shall assign) same to CaPow.
6. CONFIDENTIALITY
6.1 General. Each Party (the “Recipient“) may have access to certain Confidential Information of the other Party (the “Discloser“), whether in tangible or intangible form (“Confidential Information“). “Confidential Information” means information and/or material (whether in written, oral, visual, electronic, or other form) disclosed or made available, directly or indirectly, by Discloser and/or its Affiliates to Recipient and/or its Affiliates, or otherwise learned by Recipient by inspection, and that (A) is designated as confidential or proprietary by the Discloser, or (B) would be understood by a reasonable business person to be confidential or sensitive given the nature of the information or material, and/or the circumstances surrounding its disclosure. Confidential Information includes, but is not limited to: (a) any information related to Discloser’s business, such as cost data, pricing methodologies, price lists, business plans and opportunities, marketing plans, financial and accounting information, forecasts and valuations, market share data, sales volumes, discounts, and budgets; (b) information relating to actual or potential customers, suppliers, products and services; and (c) technical data, computer programs and software code (including firmware and source code), ideas, inventions, algorithms, know-how, analyses, lab notebooks, specifications, processes, techniques, formulas, engineering designs and drawings, architectures, circuit schematics and circuit layouts, models, samples, hardware configuration information, and other technology and intellectual property. For the avoidance of doubt, CaPow Solution is Confidential Information of CaPow.
6.2 Exceptions. Confidential Information shall not include information and material which: (a) at the time of disclosure by Discloser to Recipient hereunder, is in the public domain; (b) after disclosure by Discloser to Recipient hereunder, becomes part of the public domain through no fault of the Recipient; (c) was rightfully in the Recipient’s possession at the time of disclosure by the Discloser hereunder, and which is not subject to prior continuing obligations of confidentiality; (d) is rightfully disclosed to the Recipient by a third party having the lawful right to do so; or (e) independently developed by the Recipient without use of, or reliance upon, Confidential Information received from the Discloser.
6.3 Safeguarding. The Recipient shall not use the Confidential Information for any purpose, except to perform under this Agreement. Recipient agrees to use the same degree of care it employs for the protection of its own Confidential Information (and in any event, a reasonable degree of care), and to procure that all such measures and safeguards are taken by its Representatives (defined below).
6.4 Non-Disclosure. Recipient shall not disclose or make available any Confidential Information to any person other than to its Representatives (defined below) who have a strict need to know the Confidential Information for the purpose of Recipient performing its obligations under this Agreement, and who are bound to the Recipient by an agreement of confidentiality that contains substantially the same confidentiality obligations contained in this Agreement (or by comparable fiduciary or professional duties of confidentiality). Recipient shall remain primarily responsible and liable for its Representatives’ acts and omissions in respect of the Confidential Information, as fully as if they were the acts and omissions of Recipient itself. “Representatives” means Recipient’s and/or its Affiliates’ directors, officers, employees, professional advisors (including, without limitation, attorneys, financiers, and accountants), contractors, and agents.
6.5 Compelled Disclosure. Recipient may disclose Confidential Information to the minimum extent required by a Legal Requirement; provided, however, that before Recipient does so disclose it shall, to the extent legally permitted, use reasonable endeavours to give the Discloser as much notice of such disclosure as possible, and reasonably assist Discloser in seeking a protective order or other appropriate remedy. “Legal Requirement” means (a) an order of any court of competent jurisdiction, any regulatory, judicial, governmental or similar body, or any taxation authority of competent jurisdiction, (b) the rules of any listing authority or stock exchange on which its shares or those of any of its Affiliates are listed or traded, and/or (c) the laws or regulations of any country to which its affairs or those of any of its Affiliates are subject.
6.6 Return/Destruction of Confidential Information. Promptly following written request by Discloser at any time (including within a reasonable time following termination of this Agreement), and subject to any ongoing rights that Recipient has pursuant to this Agreement, Recipient shall, as reasonably directed, return, destroy, and/or permanently delete all Confidential Information in its possession or control, and shall thereafter, upon written request, have one of its officers certify in a signed writing compliance with the foregoing. Notwithstanding the foregoing, the Recipient may retain an archival copy of Confidential Information solely to the extent that: (a) such archival copy is contained in electronic files as part of the Recipient’s regular data backup or archiving procedures, and/or (b) such retention is required by any Legal Requirement; and in each of the foregoing cases under paragraphs (a) and (b), provided further that the Recipient shall refrain from accessing or using such Confidential Information, and shall treat such Confidential Information at all times in accordance with the provisions of this Agreement and shall refrain from any use thereof. For the avoidance of doubt, and notwithstanding this paragraph, no portion of the CaPow Solution may be retained by Customer.
7. DISCLAIMER.
EXCEPT AS MAY BE EXPRESSLY STATED OTHERWISE IN THIS AGREEMENT, THE SERVICES, THE CAPOW SOLUTION, AS WELL AS ANY OTHER GOODS AND SERVICES PROVIDED OR MADE AVAILABLE BY CAPOW HEREUNDER (COLLECTIVELY, THE “CAPOW MATERIALS“), ARE PROVIDED AND MADE AVAILABLE ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL DEFECTS, AND ALL EXPRESS, IMPLIED AND STATUTORY CONDITIONS AND WARRANTIES (INCLUDING WITHOUT LIMITATION ANY IMPLIED CONDITIONS OR WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET POSSESSION, NON-INFRINGEMENT, OR QUALITY OF SERVICE, OR THAT OTHERWISE ARISE FROM A COURSE OF PERFORMANCE OR USAGE OF TRADE) ARE HEREBY DISCLAIMED BY CAPOW AND ITS SUPPLIERS AND LICENSORS. CAPOW DOES NOT MAKE ANY REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION: (A) REGARDING THE EFFECTIVENESS, USEFULNESS, RELIABILITY, TIMELINESS, COMPLETENESS, OR QUALITY OF CAPOW MATERIALS; (B) THAT CUSTOMER’S USE OF CAPOW MATERIALS WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE; (C) REGARDING THE OPERATION OF ANY CELLULAR NETWORKS, THE PASSING OR TRANSMISSION OF DATA VIA ANY NETWORKS OR THE CLOUD, OR ANY OTHER CELLULAR OR DATA CONNECTIVITY PROBLEMS; OR (D) REGARDING THE SATISFACTION OF, OR COMPLIANCE WITH, ANY LAWS, REGULATIONS, OR OTHER GOVERNMENT OR INDUSTRY RULES OR STANDARDS. CAPOW WILL NOT BE LIABLE OR OBLIGATED IN RESPECT OF DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR FOR ISSUES RELATED TO HOSTING PROVIDERS OR PUBLIC NETWORKS.
8. LIMITATION OF LIABILITY
8.1 EXCEPT FOR A BREACH OF CONFIDENTIALITY UNDER SECTION 6 (CONFIDENTIALITY) OR A BREACH OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS (SUCH AS A BREACH UNDER SECTION 3 (CAPOW SOLUTION)), IN NO EVENT SHALL EITHER PARTY, ITS AFFILIATES, SUPPLIERS, OR LICENSORS BE LIABLE UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT, FOR:
(a) ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE LOSSES OR DAMAGES;
(b) ANY LOSS OF PROFITS, BUSINESS, OPPORTUNITY, REVENUE, CONTRACTS, ANTICIPATED SAVINGS, OR WASTED EXPENDITURE;
(c) ANY LOSS OF, OR DAMAGE OR INTERRUPTION TO, DATA, NETWORKS, INFORMATION SYSTEMS, REPUTATION, OR GOODWILL; AND/OR
(d) THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES.
8.2 THE COMBINED AGGREGATE LIABILITY OF CAPOW AND ALL CAPOW AFFILIATES UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY CUSTOMER TO CAPOW UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE GIVING RISE TO LIABILITY.
8.3 THE FOREGOING EXCLUSIONS AND LIMITATION SHALL APPLY: (A) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW; (B) EVEN IF A PARTY HAS BEEN ADVISED, OR SHOULD HAVE BEEN AWARE, OF THE POSSIBILITY OF LOSSES, DAMAGES, OR COSTS; (C) EVEN IF ANY REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE; AND (D) REGARDLESS OF THE THEORY OR BASIS OF LIABILITY, AND WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION FOR NEGLIGENCE OR BREACH OF STATUTORY DUTY), STRICT LIABILITY, MISREPRESENTATION, RESTITUTION, OR OTHERWISE.
9. TERM AND TERMINATION
9.1 Term. This Agreement commences on the Order execution date (or any other commencement date specified in the Order) (the “Effective Date“) and shall remain in full force and effect until completion of the Services or until the expiration of any fixed period specified in the Order (the “Term“).
9.2 Termination for Cause. Each Party may terminate this Agreement immediately upon written notice to the other Party if: (a) the other Party commits a material breach under this Agreement and, if curable, fails to cure that breach within thirty (30) days after receipt of written notice specifying the material breach (except that for payment defaults, such cure period will be seven days); and/or (b) upon the occurrence of any of the following events in respect of such other Party: (i) a receiver is appointed for the other Party or its property, which appointment is not dismissed within sixty (60) days; (ii) the other Party makes a general assignment for the benefit of its creditors; (iii) the other Party commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief Law, which proceedings are not dismissed within sixty (60) days; or (iv) the other Party is liquidating, dissolving or ceasing normal business operations.
9.3 Survival. Upon effective date of termination of this Agreement, Customer shall pay any outstanding Fees and other charges that accrued as of such date. Any right, obligation or provision that is expressly stated to survive or that ought by its nature to survive termination of this Agreement, shall survive (including without limitation Sections 5 (Intellectual Property) through 10 (Miscellaneous)). Termination shall not affect any rights and obligations accrued as of the effective date of termination.
10. MISCELLANEOUS
10.1 Entire Agreement. This Agreement represents the entire agreement of the Parties with respect to the subject matter hereof, and supersedes and replaces all prior and contemporaneous oral or written understandings and statements by the Parties with respect to such subject matter. Any terms or conditions – whether printed, hyperlinked, or otherwise – in any purchase order, invoice or other standardized business forms exchanged between the Parties, which purport to modify, supplement, or supersede this Agreement, shall be void and of no effect. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument. Section headings are for convenience of reading only.
10.2 Amendment. Material modification or supplementation to this Agreement may only be by a written instrument duly signed by each Party.
10.3 Assignment. This Agreement may not be assigned, in whole or in part, by either Party without the prior express written consent of the other Party; except, however, that either Party may, upon written notice, assign this Agreement in whole to: (A) an Affiliate; or (B) a successor in connection with a merger, consolidation, or acquisition of all or substantially all of the assigning Party’s assets or business relating to this Agreement. Any prohibited assignment will be null and void. Subject to the provisions of this Section (Assignment), this Agreement will bind and inure to the benefit of each Party and its respective successors and assigns. Furthermore, any CaPow obligation hereunder may be performed (in whole or in part), and any CaPow right (including invoice and payment rights) or remedy may be exercised (in whole or in part), by an Affiliate of CaPow.
10.4 Governing Law; Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Israel, without regard to any conflicts of laws rules or principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement and is hereby disclaimed. Any claim, dispute or controversy between the Parties under, or otherwise in connection with, this Agreement will be subject to the exclusive jurisdiction and venue of the competent courts located in the Tel Aviv, Israel and each Party hereby irrevocably submits to the personal jurisdiction of such courts and waives any jurisdictional, venue, or inconvenient forum objections to such courts. Notwithstanding the foregoing, each Party may seek equitable relief in any court of competent jurisdiction, as applicable. EXCEPT TO SEEK EQUITABLE RELIEF, PAYMENT OF FEES, OR TO OTHERWISE PROTECT OR ENFORCE A PARTY’S INTELLECTUAL PROPERTY RIGHTS OR CONFIDENTIALITY OBLIGATIONS, NO ACTION, REGARDLESS OF FORM, UNDER THIS AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE THAN ONE (1) YEAR AFTER THE DATE ON WHICH THE CORRESPONDING LIABILITY AROSE. Any claims or damages that Reseller may have against CaPow shall only be enforceable against CaPow, and not any other entity or CaPow’s officers, directors, representatives, or agents.
10.5 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, then: (a) the remaining provisions of this Agreement shall remain in full force and effect; and (b) such provision will be ineffective solely as to such jurisdiction (and only to the extent and for the duration of such illegality, invalidity or unenforceability), and will be substituted (in respect of such jurisdiction) with a valid, legal and enforceable provision that most closely approximates the original legal intent and economic impact of such provision.
10.6 Publicity. CaPow may use Customer’s name and logo on CaPow’s website and in its promotional materials to state that Customer is a customer of CaPow.
10.7 Waiver and Remedies. No failure or delay on the part of either Party in exercising any right or remedy hereunder will operate as a waiver thereof. Any waiver granted hereunder must be in writing, duly signed by the waiving Party. Except as may be expressly provided otherwise in this Agreement, any right or remedy specified herein shall be in addition to any other right or remedy under this Agreement, at law, or in equity.
10.8 No Third Party Beneficiaries. Except as may be expressly provided otherwise in this Agreement (such as CaPow’s Affiliates), there shall be no third-party beneficiaries of or under this Agreement.
10.9 Relationship. The relationship of the Parties is solely that of independent contractors, neither Party nor its employees are the servants, agents, or employees of the other, and no exclusivities arise out of this Agreement. Nothing in this Agreement shall be construed to create a relationship of employer and employee, principal and agent, joint venture, franchise, fiduciary, partnership, association, or otherwise between the Parties. Neither Party has any authority to enter into agreements of any kind on behalf of the other Party and neither Party will create or attempt to create any obligation, express or implied, on behalf of the other Party.
10.10 Force Majeure. Neither Party shall have any liability, or otherwise be deemed in breach, for any performance (excluding payment obligations) under this Agreement that is prevented, hindered, or delayed by reason of an event of Force Majeure (defined below). The Party so affected shall be excused from such performance to the extent that, and for so long as, performance is prevented, interrupted, or delayed by the Force Majeure. If and when performance is resumed, all dates specified under this Agreement shall be automatically adjusted to reflect the period of such prevention, interruption, or delay by reason of such Force Majeure. For purposes of this Agreement, an event of “Force Majeure” shall be defined as: (a) fire, flood, earthquake, explosion, pandemic or epidemic (or similar regional health crisis), or act of God; (b) strikes, lockouts, picketing, concerted labor action, work stoppages, other labor or industrial disturbances, or shortages of materials or equipment, or failure of (or delay in) delivery by CaPow’s suppliers or carriers; (c) invasion, war (declared or undeclared), terrorism, riot, insurrection, or civil commotion; (d) an act of governmental or quasi-governmental authorities (such as lockdowns); (e) failure of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, shortage of adequate power or transportation facilities; and/or (f) any matter beyond the reasonable control of the affected Party.
10.11 Notices. Except as may be specified otherwise in this Agreement, all notices, consents, or other communications provided for in connection with this Agreement shall be in writing, and shall be deemed given upon: (a) personal delivery; (b) the second business day after mailing via either U.S. mail or mailing via registered or certified mail with postage prepaid and return receipt requested; (c) upon delivery confirmation by nationally recognized overnight delivery service (“Courier“); (d) the second business day after sending confirmed by facsimile; (e) the first business day after sending by email.
10.12 Expense. Except as may be expressly stated otherwise in this Agreement, each Party shall pay its own costs and expenses incurred in connection with the negotiation, preparation, signature and performance of this Agreement (and any documents referred to in it).
10.13 Anti-Corruption. Customer acknowledges and agrees that it has not received or been offered any illegal or improper bribe, kickback, payment, gift or thing of value from any of CaPow’s or its Affiliates’ employees, partners, representatives, or agents, in connection with this Agreement.
10.14 Technical Advice. CaPow shall have no obligation or liability for any technical or scientific advice furnished to Customer, all such advice being given and accepted at Customer’s risk.
