Terms and Conditions

Terms and Conditions of Sale

Last updated: September 7, 2023

1. SCOPE: These Terms and Conditions of Sale (these “Terms”) apply to the sale of devices, services, support and training, and ancillary products (collectively, the “Products”) offered by Howard Company, Inc. (“Seller”) to the buyer (“Buyer”) identified in the accompanying quotation, credit application, purchase order, order acknowledgment, or invoice (the “ordering Document”). The End User License Addendum below (the “EULA”) applies to the licensing of any software provided with or embedded into any such Products (the “Software”) and is hereby expressly incorporated into and forms a part of these Terms, and such Software will be deemed part of the ”Products” hereunder. These Terms and the Ordering Document (collectively, this “Agreement”) comprise the entire agreement between the parties regarding the Products. Seller may assign its rights under this Agreement to any affiliate or successor to its rights in the Products. Buyer accepts these Terms by signing and returning Seller’s quotation, by sending a purchase order in response to the quotation, or by agreement that expressly supersedes these Terms, no other terms, conditions or warranties other that those identified in the quotation and no agreement or understanding, oral or written, in any way purporting to modify the terms and conditions, whether contained in Buyer’s purchase order or shipping release forms, or elsewhere, shall be binding on Seller unless made in writing and signed by Seller’s authorized representative. Buyer is hereby notified of Seller’s express rejection of any terms proposed by Buyer in accepting Seller’s quotation. Neither Seller’s subsequent lack of objections to any terms, nor the delivery of the Products, shall constitute an agreement by Seller to any other terms.

Buyer’s use of the Products may also be governed by Product-specific terms and conditions. In the event of a conflict between these Terms and Product-specific terms and conditions, Product-specific terms shall take precedence. These Terms may be updated from time to time at Seller’s sole discretion, and the change shall take effect on the date the updated terms are published. Buyer’s continued purchases from Seller constitutes acceptance of the terms and conditions as changed.

2. RESTRICTIONS ON USE. Except as otherwise permitted by law, Buyer may not modify, reformat, enhance, edit, translate, adapt, reverse engineer, decompile, reverse compile, disassemble, create derivative works based upon, remove, obscure, or alter any proprietary notices (including trademark and copyright notices) that may be affixed to or contained within the Products, or otherwise alter the Products(whether Products are hardware, software, or a combination thereof) without the Seller’s prior written consent.

3. SHIPMENT AND DELIVERY. For orders within the U.S., Seller will ship the Products FOB (UCC 2002) Seller’s distribution facility in Brookfield, Wisconsin. Title to the Products (except Software) and risk of loss will pass to Buyer upon Seller’s delivery of the Products to the carrier. For clarity, notwithstanding anything herein, all Software is licensed pursuant to the EULA and not sold. All delivery dates, unless otherwise specified on the Ordering Document as “firm” are estimates only and are not binding.

4. Prices for the Products will be as specified in an application Ordering Document or on Seller’s web store, or in applicable, current, and valid Seller-authorized price sheets. Prices in any Ordering Document are subject to change upon notice to Buyer at any time before an Ordering Document has been accepted. Prices for Products covered by these Terms may be adjusted by Seller, upon notice to Buyer, at any time prior to shipment, to reflect any increase in Seller’s cost of raw materials incurred by Seller after issuance of the applicable Ordering Document. All listed prices are in U.S. Dollars and are exclusive of any sales, use, excise, withholding, value-added and other taxes, duties, levies, tariffs, and other charges. Applicable sales tax and other required charges may be added by Seller in the Ordering Document.

5. TAXES AND DUTIES. In addition to any payments due to Seller under this Agreement, Buyer agrees to pay, indemnify, defend, and hold Seller harmless from any duty, tariff, custom or fee or any sales, use, excise, import or export, value-added and all other taxes of every kind and nature imposed by any governmental authority with respect to any payment to be made by Buyer to Seller under this Ag or any Product to be delivered by Seller and this Agreement excepting those taxes imposed upon Seller’s income.

6. RETURNS, CANCELLATIONS AND REFUNDS. Buyer is responsible for communicating with Seller prior to returning/shipping any products or materials back to the Seller. Seller will provide Return Materials Authorization (RMA) number for items that are potentially be accepted for return and refund. This RMA number should be written clearly on boxes and/or added to Shipping/Bill Of Lading paperwork. It is Buyer’s responsibility to get the product/item back to Seller’s warehouse safely and in original condition, at the Buyer’s expense, including any associated cost of packaging materials and insurance sourced from the chosen carrier. Refunds for materials/items authorized to be returned may be reduced from the original invoiced amount by either a fixed charge or a percentage of the item value and is considered a Restocking Fee. Restocking Fees may be applied to items even when returned in NEW condition. If any wear/tear/damage is assessed, Restocking Fees may be higher than originally estimated to cover the added expense of making the product sellable. Any refunds are only released after we have received your item, it may take an additional five to ten business days to process your return fully and issue your refund. CANCELLATIONS, EVEN IF MADE PRIOR TO SHIPPING PRODUCT, MAY BE SUBJECT TO RESTOCKING FEES.

7. SUBSCRIPTIONS AND AUTOMATIC RENEWALS. For Products that are sold as subscriptions, the term of the subscription (“Term”) will be indicated in the Ordering Document. UNLESS TIMELY CANCELED IN WRITING PRIOR TO THE EXPIRATION OF THE CURRENT TERM, BUYER’S SUBSCRIPTION WILL AUTOMATICALLY RENEW AT THE END OF THE APPLICABLE TERM (“RENEWAL TERM”). AND SELLER WILL AUTOMATICALLY CHARGE BUYER’S CREDIT CARD ON FILE OR BILL BUYER IF BUYER HAS PRE-APPROVED TERMS WITH AVAILABLE CREDIT WITH SELLER ON RENEWAL. If Buyer exceeds a contractual usage limit, Buyer will execute an Ordering Document for additional quantities of the applicable services and/or pay for excess usage. Except as otherwise specified here or in an Ordering Document, the term of a subscription commences on the subscription purchase date (and not on the date of first use). Payment obligations are non-cancellable, and the fees paid are non-refundable, and quantities purchased cannot be decreased during the applicable subscription term. Buyer agrees that its purchases are not contingent on the delivery of any functionality or features, or dependent on any oral or written public comments made by Seller regarding future functionality or features. Purchases must be prepaid unless a customer has been granted payment terms by the Seller in which case payments will be made when invoiced as per the payment terms that have been granted. Seller will notify Buyer of the automatic renewal prior to the automatic renewal date using the email address it has on file.

8. SUPPORT AND TRAINING. All payments for the purchased support and training (“Support Services”) will be due and payable upon ordering. Buyer must redeem all purchased Support Services within twelve (12) months from the date of the purchase. If not redeemed within one year, the delivery of the Support Services will expire, with no right to a refund or credit. All travel expenses billed to trainees are governed by Seller’s travel expense reimbursement policies which can be provided to Buyer upon request. For live certified training courses, cancellations must be made in writing at least seven (7) days prior to the scheduled training date or no refunds will be made. Training seats purchased may be transferred to other personnel at any time. No-shows not canceled seven (7) days in advance of a training session will not be entitled to a refund. All trainee travel costs, accommodations and meal expenses are the responsibility of the trainee.

9. PAYMENT TERMS

1. Credit Terms. Unless otherwise agreed in writing, all payments will be made promptly by Buyer as per payment terms that may granted by Seller to Buyer after Buyer completes a credit application. Payment terms may be revised by Seller from time to time during the Term at Seller’s sole discretion and any changes will apply to future orders All payments will be made in U.S. dollars, free of any currency controls or other restrictions.
2. Invoicing and Payment. Buyer will provide Seller with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Seller. If Buyer provides credit card information to Seller, Buyer authorizes Seller to charge such credit card for all purchased Products listed in the Ordering Document from the initial subscription term and any renewal subscription term. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order From. If the Order Form specifies that payment will be by a method other than a credit card, Seller will invoice Buyer in advance and otherwise in accordance with the relevant Ordering Document in accordance with the credit terms extended to Buyer by Seller.
3. Overdue Charges. If any invoiced amount is not received by Seller by the due date, then without limiting Seller’s rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) Seller may condition future subscription renewals and Order Forms on revised payment terms shorter than those currently specified in the Seller’s existing cred authorization to Buyer.
4. Suspension of Service and Acceleration. If any fees owed by Buyer are overdue, Seller may, without limiting its other rights and remedies, accelerate Buyer’s unpaid fee obligations so that all such obligations become immediately due and payable, and suspend Buyer’s access to and use of the Products until such amounts are paid in full, provided that, other than for customers paying by credit card or direct debit whose payment has been declined, Seller will give Buyer at least ten *(10) days prior notice that its account is overdue before suspending Buyer’s account. Seller will not exercise its rights under the “overdue Charges” or “Suspension of Service” sections in these Terms if Buyer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.

10. CONFIDENTIAL INFORMATION. All nonpublic, confidential or proprietary information of Seller, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written electronic or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer in a nonconfidential based from a third party.

11. In addition to any remedies that may be provided under this Agreement, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (a) fails to pay any amount when due under this Agreement and such failure continues for ten (10) days after Buyer’s receipt of written notice of nonpayment; (b) has not otherwise performed or complied with any of this Agreement, in whole or in part and has not cured its breach of this Agreement within thirty(30) days from the date of written notice from Seller; or (cs) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors. Upon termination of this Agreement, all licenses provided under this Agreement shall terminate and any support or maintenance shall cease.

12. NO ADDITIONAL WARRANTY. THE LIMITED WARRANTY SET FORTH IN THE DOCUMENTATION ACCOMPANYING THE PRODUCTS AND ON SELLER’S WEBSITE SHALL APPLY AND IS IN LIEU OF ANY OTHER WARRANTY OR REPRESENTATION, ORAL OR WRITTEN, OTHER THAN THE EXPRESS LIMITED WARRANTY, AND TO THE MAXIIMUM EXTENT PERMITTED BY APPLICABLE LAW, SELLER (I) MAKES NO OTHER EXPRESS WARRANTIES; (II)DISLAIMS ALL IMPLIED WARRANTIES, INCLUDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGMENT, AND (III) DISCLAIMS ANY WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING OR PERFORMANCE OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, SELLER DOES NOT WARRANT AGAINST INTERFERENCE WITH BUYER’s ENJOYMENT OF THE PRODUCTS, THAT THE OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE PRODUCTS WILL BE CORRECTED.

13. LIMITATIONS ON LIABILITY. IN NO EVENT WILL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY PUNITIVE, EXEMPLARY, SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES( INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE, USE, PROFITS, DATA, OR GOODWILL) OR COSTS OF PROCURING SUBSTITUTE PRODUCTS, IN NO EVENT WILL SELLER’S TOTAL LIABILITY ARISING FROM ANY CAUSE OF ACTION, AND UNDER ALL THEORIES OF LIABILITY, EXCEED THE ACTUAL AMOUNT PAID TO SELLER BY BUYER FOR THE PRODUCT IN THE TWELVE (12) MONTHS DIRECTLY PROCEEDING THE FILING OF THE CLAIM FROM WHICH DAMAGES AROSE.

14. GENERAL PROVISIONS

1. Trade Compliance. Buyer will not export or re-export the Products, or any technical information related thereto, to any destination or person prohibited or restricted by the export control laws and regulations of the United States. Buyer will not permit any user to access or use the Products in a U.S.-embargoed country or region (currently Cuba, Iran, North Korea, Sudan, Syria, and the region of Crimea). Buyer represents and warrants that it is not the subject or target of, and that Buyer is not located in a country or territory that is the subject or target of, these economic sanctions.
2. Severability and Waiver; Amendments. If any provision of this Agreement is held to be invalid or unenforceable, the remainder of the provisions shall remain in full force and effect. The invalid or unenforceable provision shall be modified so as to render it enforceable while giving effect, as nearly as possible to the original intent of the parties. Any waiver by either party of any breach of any term or condition of this agreement shall not be construed as or be deemed to be a waiver of any future breach of such term or condition.
3. Force Majeure Seller shall not be liable to Buyer for any delay or non-performance of its obligations under this Agreement arising from any cause or causes beyond its reasonable control or reasonable control of Seller’s suppliers, including without limitation, any of the following: acts of God, war, fire, flood, civil unrest or commotions, disease, epidemic, pandemic, embargos, or government intervention or action.
4. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
5. Governing Law and Venue. This Agreement will be governed and construed in accordance with the laws of the State of Wisconsin, without regard to the principles of conflicts of laws thereof.   The parties acknowledge and agree that a court of competent jurisdiction located in Waukesha County, Wisconsin shall have exclusive jurisdiction in any action or proceeding arising under or relating to this Agreement.

END-USER LICENSE ADDENDUM

 PLEASE READ THIS EULA CAREFULLY BEFORE USING OR DOWNLOADING HOWARD COMPANY DIGITAL SIGNGE SOFTWARE. BY DOWNLOADING OR USING THE SOFTWARE OR ANY SOFTWARE UPDATES, AS APPLICABLE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS EULA. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, DO NOT DOWNLOAD OR USE THE SOFTWARE OR ANY SOFTWARE UPDATES.

1. The Software may be updated or replaced by software updates or system restore software provided by Seller (“Updates”). All Updates are deemed part of the “Software” hereunder. Seller retains ownership of the Software itself and reserves all rights in the Software not expressly granted to you. This EULA will govern any Updates provided by Seller.
2. LICENSE AND RESTRICTIONS
   1. Subject to the terms and conditions of this Agreement, Seller grants Buyer a limited, non-exclusive, non-sublicensable, non-transferrable license to use the Software in connection with Buyer’s permitted use of hardware Products purchased in the Ordering Document, for Buyer’s internal business purposes and in accordance with the documentation provided by Seller in connection with the Products (the “License”).
   2. Buyer agrees not to install, use or run the Software on any non-Seller Product or device, or to enable others to do so. This License does not grant Buyer any rights to use Seller’s proprietary interfaces and other intellectual property in the design, development, manufacture, licensing or distribution of third-party devices and accessories, or third-party software applications. Features of the Seller Software and the Services may not be available in all languages or regions and some features may vary by region. Buyer will not rent, lease, lend, sell, redistribute or sublicense the Software or otherwise use or exploit the Software other than as expressly permitted herein.
3. CONSENT TO USE DATA. Buyer agrees that Seller and its subcontractors may collect and user technical and related information, including but not limited to technical information about Buyer’s computer, network, system and application software and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services to Buyer (if any) related to the Software. Seller may use this information to improve Seller’s products or to provide services or technologies to Buyer.

ADDENDUM REGARDING CREATIVE SERVICES

1. The Client acknowledges that any original artwork, designs, illustrations, graphics, or other creative works (hereinafter referred to as "Artwork") created by The Howard Company shall remain the exclusive property of The Howard Company, and the Client shall have no ownership rights to the original Artwork.
2. The Howard Company hereby grants the Client a non-exclusive, revocable license to use the final Artwork for the intended purposes as specified in the project agreement. This license is limited to the specific project and purpose agreed upon and does not grant ownership, transfer, or sublicense rights to the Client.
3. Provision for customer-provided creative Artwork: If the Client provides fully editable creative files for print, the Client retains ownership of the original Artwork under this condition: Any modifications made by The Howard Company are purely technical in nature and are necessary to ensure that the design can be successfully printed according to their specifications (e.g., adjusting color profiles, resolution, bleed, etc.), and The Howard Company's modifications are part of the service provided to make the design printable by The Howard Company.

TECHNICAL SUPPORT SLA

This Service Level Agreement (“SLA”) between Howard Company, Inc (“The Howard Company”,”THC”, “us” or “we”) and users of The Howard Company Digital Technical Support Services (“you”) governs the use of the service under the provisions of our General Terms & Conditions. Unless otherwise provided herein, this SLA is subject to the provisions of the Terms & Conditions of Sale.

SLA Exclusions

This SLA does not apply to other Howard Company service offerings, such as Professional Creative Content Services and Installation Department Services.

This service commitment does not apply to any Unavailability:

1. That results from a suspension or Remedial Action, as described in the Terms;
2. Caused b factors outside of our reasonable control, including any force majeure event, Internet access, or problems beyond the demarcation point of the Howard Digital Signage network;
3. That results from any actions or inactions of you or any third party;
4. That results from the equipment, software or other technology of you or any third party (other than third-party equipment within our direct control);
5. That results from failures of the service not attributable to Unavailability or
6. That results from any Maintenance.

Support Policy

This policy outlines The Howard Company’s Digital Signage Technical Support practices and resources.

Technical Support

We offer several options for technical support. All accounts that have paid their Annual Maintenance & Hosting agreements get support. Support included:

• Answering questions about our service, features and hardware
• Advice regarding best practices for our service
• Advice regarding hardware options
• Troubleshooting our services and hardware

Support does NOT include:

• Hardware not supported/supplied by us
• Third-party applications, services, and frameworks
• Owner-furnished networking gear/switches, firewalls and low-voltage cables

Support Business Hours

Normal business hours are 8AM-5PM Central Time. Customers shall have access to THC support during business hours with limited on-call support during off hours. Support can be contacted using the below information.

• 262-317-7766   (Staffed by Answering Service 24/7 or support ticket creation)
• digitalsupport@howardcompany.com

Response Times

CONTENT MANAGEMENT SLA

1. Introduction: This Service Level Agreement ("SLA") outlines the terms and expectations for the provision of content management services ("Services") by The Howard Company ("Service Provider") to the Client's company ("Client"). This SLA defines the roles, responsibilities, performance metrics, and remedies agreed upon by both parties.

2. Scope: The Services covered by this SLA include, but are not limited to:

• Content creation, editing, and formatting.
• Content uploading and organization within the content management system.
• Content optimization.
• User access management and permissions.
• Reporting related to content manager activities and time logs.

3. Performance Metrics:

• Content Accuracy and Quality:
  • Content shall meet agreed-upon quality standards and accuracy expectations, as specified by both parties.
• Timely Updates:
  • All content updates, additions, and modifications shall be completed according to the following parameters:
    • 2 business days for single-location updates to pricing, menu items, or LTOs, provided the updates do not require graphic design or modifications to the design template. 
    • 5 business days for multi-location updates or updates that require significant graphic design or modifications to the design template.
• Uptime and Availability:
  • The content management system shall be available and accessible at least 99.5% of the time, excluding scheduled maintenance.

3. Professional Services Hours and Billing:

• Professional Services hours are defined as the time spent on content management and graphic design projects by The Howard Company.
• Professional Services hours will be billed at an agreed-upon rate. 
• Upon request, The Client will be provided with regular detailed reports showing the Professional Services hours utilized and associated costs.

5. Responsibilities:

• Service Provider Responsibilities:

  • Create, edit, and optimize content in accordance with the agreed specifications and standards.
  • Ensure content is appropriately organized and accessible within the content management system.
  • Manage user access and permissions as per the agreed requirements.
  • Log time in 15-minute increments with a brief description of the activity.
  • Provide reports upon request regarding content manager activities and time logs.

• Client Responsibilities:

  • Provide necessary input, guidance, and approvals for content creation and editing.
  • Utilize the content update request form for new requests: https://www.howardcompany.com/services/digital-services/digital-content-update-request
  • Communicate content requirements, changes, and updates in a timely manner.
  • Collaborate with the Service Provider for content strategy and planning.
  • Pay for Professional Services hours in advance of service to be provided.

6. Reporting and Communication:

• Reports shall be provided to the Client on an as-needed basis, outlining designer activity and time log entries and how much time remains available in the Professional Services 
• Communication regarding content updates, issues, or concerns shall be conducted through email to design@howardcompany.com.

7. Dispute Resolution:

• In the event of a dispute, both parties agree to resolve the matter in good faith through negotiation and discussion within 5 business days.

8. Review and Modification:

• This SLA shall be reviewed annually or as needed, and updates may be made with mutual agreement between the parties.