Terms and Conditions of Sale

Last Updated: March 2024

These Terms and Conditions of Sale (these “Terms”) govern any sale of hardware or other products (collectively, “Products”) and/or supply of services (collectively, “Services”) by TouchThink Smart Corporation (“TouchThink Smart”) to the entity identified on the applicable quotation (“Quotation”) or sales order (“Sales Order”) issued by TouchThink Smart (“Customer”). TouchThink Smart and Customer may be referred to herein collectively as the “Parties” or individually as a “Party.” The individual who accepts these Terms on Customer’s behalf represents that they have the authority to bind Customer.

1. Acceptance; Order of Precedence

1.1. When Customer evidences its acceptance of these Terms, either by executing an initial sales order with TouchThink Smart or otherwise first authorizing or accepting an order for Products or Services, these Terms will constitute a binding agreement between TouchThink Smart and Customer, effective on the date of Customer’s initial acceptance.

2. Quotations and Prices

2.1. All Quotations are subject to change due to the delivery capabilities of our manufacturing partners. Should a manufacturer/supplier of TouchThink Smart CORPORATION reject an order, the applicable Quotation becomes invalid.

2.2. Unless otherwise set forth in the applicable Sales Order, prices are exclusive of, and Customer shall pay for all applicable taxes, including, without limitation, sales tax, and all transport and handling costs; provided, however, that Customer shall not be responsible for any taxes imposed on, or with respect to, TouchThink Smart’s income, revenues, gross receipts, personnel or real or personal property or other assets. Quotations that are not expressly identified therein as being firm shall be regarded as unbinding price offers.

2.3. All Quotations are valid for 30 days from the date set forth on the Quotation, as long as no alternative arrangement has been agreed upon in writing between the Parties. If the order for an agreed Service/Product is placed more than 30 days after the date of the Quotation, the prices for the Products or Services are subject to change.

2.4. On a non-exclusive basis, TouchThink Smart shall sell to Customer and Customer shall purchase from TouchThink Smart the Products and/or Services set forth in the applicable Sales Order upon the terms and conditions set forth in these Terms and such Sales Order.

2.5. Customer shall purchase the Products from TouchThink Smart at the prices set forth in the related Sales Order (“Purchase Price”).

3. Shipment and Delivery

3.1. Unless otherwise expressly set forth in the Sales Order or otherwise agreed to by TouchThink Smart in writing, TouchThink Smart will select the means of transportation and the mode of dispatch for all Products. If Customer requires alternative arrangements, Customer shall notify TouchThink Smart in writing (via email) prior to any anticipated delivery, and any additional costs associated therewith will be charged to Customer’s account.

3.2. TouchThink Smart may, in its sole discretion, without liability or penalty, make partial shipments of Products to Customer. Each shipment will constitute a separate sale, and Customer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of a Sales Order. Customer acknowledges that certain Product components (e.g., batteries) may be shipped separate from the Product units.

3.3. Any time quoted by TouchThink Smart for delivery, including any delivery date specified on the Sales Order, is an estimate only. TouchThink Smart is not liable for or in respect of any loss or damage arising from any delay in filling any order, failure to deliver or delay in delivery. No delay in the shipment or delivery of any Products relieves Customer of its obligations under these Terms, including, without limitation, accepting delivery of any remaining installment(s) of Products.

3.4. All Product deliveries are made on the account of and at the risk of Customer. TouchThink Smart shall not be liable for any delays, loss, or damage in transit.

3.5. Customer must submit any complaints relating to damage, delays or loss to TouchThink Smart within 8 calendar days of receipt of the Product (with the exception of complaints about poor packaging which must be claimed on the day of receipt).

3.6. Charges resulting from undeliverable shipments (including reshipments where needed) will be charged to Customer.

4. Title and Risk of Loss

4.1. Title to ordered Products passes to Customer upon the later to occur of (i) delivery of such Products to the delivery location specified in the Sales Order (or such other delivery location as agreed to by the Parties in writing), or (ii) full payment by Customer to TouchThink Smart for such Products.

4.2. Risk of loss to all ordered Products under any Sales Order passes to Customer upon TouchThink Smart’s tender of such units to the carrier.

5. Direct Deliveries/Drop Shipments

5.1. In the case of direct delivery and billing by a supplier/manufacturer of TouchThink Smart, the terms and conditions of sale of the relevant supplier/manufacturer shall apply. In the event of direct deliveries, claims for compensation or other types of demand cannot be asserted against TouchThink Smart and should be directed to the applicable supplier/manufacturer.

6. Terms of Payment/Credit Limits

6.1. Except as expressly stated otherwise on a Sales Order, Customer shall pay all invoiced amounts within 15 days of the invoice date. Notwithstanding the foregoing, for initial orders for new Customers, as well as deliveries outside of the continental USA, Customer shall prepay the Purchase Price. Customer shall make all payments in US dollars by check or wire transfer in accordance with the wire instructions provided to Customer by TouchThink Smart.

6.2. Should payment not be made to TouchThink Smart when due, TouchThink Smart reserves the right, until the amounts have been fully paid, to charge Customer with interest on such overdue payments calculated daily and compounded monthly at the rate of 1.5% per month (18% per annum). In the event any third parties are engaged to collect any outstanding monies owed by Customer, Customer shall also be responsible for reimbursing TouchThink Smart for all reasonable collection costs incurred in connection with such collection efforts, including attorneys’ fees, whether or not litigation has commenced, and all costs of litigation incurred.

6.3. Claims asserted by Customer resulting from warranties or due to any shortcomings do not release Customer from the obligation to pay all invoiced amounts when due. TouchThink Smart reserves the right to supply Products only against security, prepayment or COD. For the avoidance of doubt, prepayment shall always apply to new Customers. Prepayments will not be subject to interest.

6.4. In the event of late payment, TouchThink Smart reserves the right to (i) cancel or suspend the remaining portion of the order if the affected shipment (or Service) is a part of a larger order, and/or (ii) cancel or suspend other pending or subsequent orders. TouchThink Smart may also take back Products to which retention of title applies. The refusal of Products ordered shall not release Customer from the obligation to pay the Purchase Price and all other charges, fees or costs due and owing to TouchThink Smart. All reminder and debt collection fees in the event of a delay in acceptance of Products or late payment will be assessed to Customer.

6.5. Customer shall not, and acknowledges that it will have no right, under these Terms, any Sales Order, any other agreement, document, or law, to withhold, offset, recoup or debit any amounts owed (or to become due and owing ) to TouchThink Smart or any of its affiliates, whether under these Terms or otherwise, against any other amount owed (or to become due and owing) to it by TouchThink Smart or TouchThink Smart’s affiliates, whether relating to TouchThink Smart’s or its affiliates’ breach or non-performance of these Terms, any Sales Order, any other agreement between (i) Customer or any of its affiliates and (ii) TouchThink Smart or any of its affiliates, or otherwise.

7. Retention of Title – Special Cases

7.1. In the case of amalgamation or processing, TouchThink Smart shall have joint ownership of the new Product. In the event of resale of Products on credit, the retention of title is transferred to the asking price. TouchThink Smart can inform the debtor, who Customer must nominate, of this at any time. The holder of the Products shall immediately inform TouchThink Smart of measures that could endanger retention of title, and the third party is to be made aware of the retention of title.

8. Warranty

8.1. Claims under warranty are limited to the conditions of the underlying manufacturer/supplier of that Product (the “Manufacturer’s Warranty”). If, on acceptance, the delivery proves to be not in accordance with the Manufacturer’s Warranty, then TouchThink Smart may, at its option, rectify the shortcoming or have it rectified by the manufacturer/supplier. If rectification of the problem or a replacement delivery proves impracticable or impossible, Customer may request a reduction in the Purchase Price via email to Customer’s TouchThink Smart point of contact. TouchThink Smart provides a bring-in warranty against verifiable material and manufacturing defects of 12 months from the TouchThink Smart invoice date on industrial and medical computers and complete systems. Excluded from the foregoing are software errors and configuration errors relating to software, as well as faults caused by external hardware integrated retrospectively. Also excluded is damage resulting from normal wear and tear, peripherals, Force Majeure, disregard of operating instructions or interference with the equipment by Customer or affiliated or unaffiliated third parties without the prior written approval TouchThink Smart. If a Product serial number (sticker/printed) is missing, has been removed or is illegible, all claims under warranty automatically become null and void.

8.2. Customer acknowledges and agrees that should TouchThink Smart provide or otherwise make available to Customer certain software (including software as loaded onto Products delivered to Customer), such software is provided on an “as is” basis and, accordingly, should any such software prove defective following their purchase, Customer (and not TouchThink Smart or its suppliers), assumes the entire cost of necessary servicing, repair or correction.

9. Bring-in Warranty for Repairs/Claims under Warranty – RMAs

9.1. The warranty provided by TouchThink Smart is a “bring-in” warranty. This means that in the event of a claim, the Product will be returned, insured and freight-paid by Customer, to an address specified by TouchThink Smart. Customer is responsible for filing and paying for all re-import documents related to international shipments of returned Product. All costs associated with improper value declaration are to be covered by shipper. TouchThink Smart will bear the costs of return transport to Customer via ground transportation for the repaired Product within the continental USA.

9.2. Unless otherwise set forth on the applicable invoice, for all items of new Product a warranty of 12 months (the warranty period starts on the date indicated on the applicable invoice) according to current statutory provisions shall apply. In the case of second-hand Products, the relevant warranty period shall be 3 months, unless otherwise agreed upon between the Parties in writing. The warranty covers necessary spare parts, labor and return transport. Not included are software and its installation after replacement of a part or Product. In the event of improper handling of a Product (for example damage resulting from a drop), the warranty becomes null and void. As batteries and fans are wearing parts, TouchThink Smart can offer a maximum warranty of 12 months on such parts. The supply of spare parts or repairs does not extend the original warranty.

9.3. Extended Warranties must be purchased at the time of original sale and are tied to serialized inventory. TouchThink Smart can only rectify defects up to system interfaces. Defects that arise in connection with the use of peripheral equipment that was not acquired from TouchThink Smart are excluded from the warrantied performance and can only be addressed if Customer agrees to pay for the necessary repairs. In the event of repairs to equipment outside the warranty, Customer will receive a cost estimate or quote in advance for approval.

9.4. In the case of warranty claims/returns please include wherever possible:

Proof of warranty, for example a copy of the packing slip or invoice.
A comprehensible description of the defect, which should be as detailed as possible. Please note that the system will undergo a general operating test, but it is primarily the specified defect that will be remedied.
Send returns in original packaging or at least packaging of equivalent quality. Please purchase adequate transit insurance for any returns. TouchThink Smart is not liable for replacement due to loss or damage that is caused during transportation.

9.5. In the case of a defect or damage, please obtain an RMA number from TouchThink Smart prior to shipping the Product. Where Products are returned to TouchThink Smart, but, despite in-depth testing, no defects can be found, as well as in the case of password-protected systems, where Customer has failed to provide all necessary passwords, TouchThink Smart charges an administration fee of $150 USD. In the event of lack of proof of warranty, TouchThink Smart is forced to charge the full costs for parts and labor to Customer. Furthermore, please note:

Before sending Products back to us, please obtain an RMA number from TouchThink Smart.
Shipments will only be accepted if they arrive at our premises freight-paid.
No claims can be made under warranty if the Products have been damaged due to unsuitable packaging, or for Products where the warranty seal or serial number have been damaged or removed.
The same applies if the system has been opened incorrectly.
9.6. TouchThink Smart DISCLAIMS ANY AND ALL LIABILITY AND RESPONSIBILITY FOR LOSS OF DATA. CUSTOMER IS SOLELY RESPONSIBLE FOR BACKING UP ITS DATA BEFORE RETURNING PRODUCTS TO TouchThink Smart.

9.7. In the event of transport damage, Customer should notify the transport company responsible within 24 hours because otherwise Customer might lose any right to claim compensation. Customer should make a note of all agreements, contact persons, dates and times of conversations.

10. Service Warranty

10.1. TouchThink Smart warrants that parts installed under warranty will perform satisfactorily under conditions of normal use for a period of ninety (90) days after date of repair or the expiration of the original warranty term, whichever occurs later. Parts replaced by TouchThink Smart that become defective during such period shall be repaired, or TouchThink Smart’s option, replaced free of charge, at any of TouchThink Smart’s service centers.

10.2. TouchThink Smart MAKES NO WARRANTY OR GUARANTEE OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, OR OF ANY OTHER KIND, EXPRESSED OR IMPLIED, WITH RESPECT TO THE SERVICES PERFORMED OR PARTS FURNISHED BY TouchThink Smart. TouchThink Smart MAKES NO GUARANTEE WITH RESPECT TO ANY OTHER PARTS. IF REPAIRS LATER BECOME NECESSARY DUE TO OTHER DEFECTIVE PARTS, THEY WILL BE CHARGED SEPARATELY AS WILL THE LABOR CHARGE, IF ANY.

11. Out of Warranty Service

11.1. TouchThink Smart warrants that parts installed out of warranty will perform satisfactorily under normal conditions for a period of ninety (90) days. Parts replaced by TouchThink Smart that become defective during this period shall be repaired, or at TouchThink Smart’s option, replaced free of charge, at TouchThink Smart’s service center. This warranty applies only to parts replaced and does not cover any other part already in the Product.

11.2. FOR THE AVOIDANCE OF DOUBT, TouchThink Smart MAKES NO WARRANTY OR GUARANTEE OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SERVICES PERFORMED OR PARTS FURNISHED BY TouchThink Smart. IF REPAIRS LATER BECOME NECESSARY DUE TO OTHER DEFECTIVE PARTS, THEY WILL BE CHARGED SEPARATELY.

12. Liability for Defects and Compensation (DOA)

12.1. Obvious products defects must be indicated by Customer immediately, hidden defects must be communicated upon detection, always in writing, and with a detailed specification of the complaint. TouchThink Smart disclaims any and all liability and responsibility for technical application faults caused by Customer which have created damage or defects with the Product supplied.

12.2. In the case of a justified notification of defects, TouchThink Smart can, after written agreement with Customer:

Supply replacement Products upon the return of the Products under complaint (as long as they are still available on the market); or
Reimburse the Purchase Price or the reduced value of the Products.
12.3. Any DOA claims by Customer shall be regarded as null and void if they are not asserted within 30 days of Product receipt. Claims for damages against TouchThink Smart are excluded in all cases unless they are caused by illegal intentions or gross negligence on the part of TouchThink Smart. In this respect, Customer is obliged to provide proof of such illegal intentions or gross negligence.

13. DISCLAIMER OF WARRANTIES

13.1. EXCEPT AS SPECIFICALLY SET FORTH IN THESE TERMS, THE PRODUCTS, SERVICES, ANY HARDWARE OR SOFTWARE PROVIDED TO CUSTOMER (OR, IN THE CASE OF SOFTWARE, OTHERWISE LOADED ONTO ANY PRODUCTS) AND ANY ACCOMPANYING MANUALS AND MATERIALS ARE PROVIDED “AS IS” AND TouchThink Smart MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO ANY OF THE FOREGOING, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY; WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; WARRANTY OF TITLE; OR WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY.

14. Cancellations and Returns

14.1. Cancellations of orders (in whole or in part) and Product returns are only possible with the prior written approval of TouchThink Smart and are generally not permissible. In the case of an approved cancellation or return, (i) restocking and/or reworking fees may apply, and (ii) any costs that have already been incurred or price increases by the manufacturer/supplier are to be borne by Customer.

14.2. Partial deliveries from a blanket order may only be called off if and as agreed by TouchThink Smart in writing. If call-off is delayed, TouchThink Smart can initiate appropriate deliveries and invoicing.

14.3. TouchThink Smart may, without liability or penalty, cancel an order or shipment if Customer is in violation of its payment obligations or has breached these Terms.

14.4. Except as expressly provided in these Terms, Customer has no right to return Products (or Services) purchased under these Terms to TouchThink Smart.

15. LIMITATION OF LIABILITY

15.1. IN NO EVENT SHALL TouchThink Smart BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, OR IN CONNECTION WITH THESE TERMS, ANY QUOTATION, ANY SALES ORDER, ANY SALE OF PRODUCTS OR SERVICES, OR ANY PROVISION OF SOFTWARE OR HARDWARE, REGARDLESS OF (i) WHETHER SUCH DAMAGES WERE FORESEEABLE, (ii) WHETHER OR NOT TouchThink Smart WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (iii) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND (IV) THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

15.2. IN NO EVENT SHALL TouchThink Smart’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS AND ANY SALES ORDER OR QUOTATION, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL AMOUNTS PAID TO TouchThink Smart FOR THE PRODUCTS AND SERVICES SOLD HEREUNDER IN THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE THE CLAIM AROSE.

16. Indemnification

16.1. Customer shall indemnify, defend (at TouchThink Smart’s election) and hold harmless TouchThink Smart, its affiliates and its and their respective officers, directors, employees, agents, affiliates, successors and assigns (each, an “IndemnifiedParty”) against any and all losses, damages, liabilities, deficiencies, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, fees and the costs of enforcing any right to indemnification under these Terns and the cost of pursuing any insurance providers, incurred by any Indemnified Party, relating to/arising out of or resulting from any claim of a third party arising out of or occurring in connection with the Products and Services purchased from TouchThink Smart or Customer’s negligence, willful misconduct or breach of these Terms. Customer shall not enter into any settlement without TouchThink Smart’s or the Indemnified Party’s prior written consent.

17. Term; Termination

17.1. These Terms are effective as of Customer’s acceptance and shall continue in full force and effect until expiration of all Sales Orders between Customer and TouchThink Smart, unless earlier terminated in accordance with these Terms (the “Term”).

17.2. In addition to any remedies that may be provided in these Terms, TouchThink Smart may terminate all active Sales Orders (and Quotations) with immediate effect upon written notice to Customer, if Customer: (i) fails to pay any amount when due under these Terms or any Sales Order; (ii) has not otherwise performed or complied with the terms of these Terms, in whole or in part; or (iii) 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.

17.3. Provisions which by their express terms or nature are intended to survive the expiration or termination of these Terms shall so survive.

18. Confidential Information

18.1. All non-public, confidential or proprietary information of TouchThink Smart, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by TouchThink Smart to Customer, 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 these Terms is confidential, solely for the use of performing these Terms and may not be disclosed or copied unless authorized by TouchThink Smart in writing. Upon TouchThink Smart’s request, Customer shall promptly return all documents and other materials received from TouchThink Smart. TouchThink Smart shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is: (i) in the public domain; (ii) known to Customer at the time of disclosure; or (iii) rightfully obtained by Customer on a non-confidential basis from a third party.

19. Governing Law

19.1. These Terms, all Quotations, all Sales Order, and all matters arising out of or relating to these Terms are governed by, and construed in accordance with, the laws of the State of North Carolina, United States of America, without regard to the conflict of laws provisions thereof.

20. Dispute Resolution

20.1. The Parties shall first attempt to resolve any disputes arising out of these Terms, any Quotation, Sales Order or any sale of Products or Services through good faith negotiations between representatives of each Party having the authority to resolve such disputes. If such representatives cannot resolve the dispute within 30 days (or such longer period as the representatives may mutually agree), then the dispute shall be escalated to each Party’s senior leadership who shall attempt to resolve the dispute in good faith within 30 days (or such longer period as the senior leadership may mutually agree) after the date that the representatives give written notice of such dispute. In the event that the Parties are unable to reach an agreement pursuant to the foregoing procedures, then either Party may initiate mediation in accordance with Section 20.2.

20.2. If, after such negotiation, the dispute remains unresolved, either Party may require that non-binding confidential mediation take place. If neither Party initiates mediation within 30 days of failing to reach agreement pursuant to the procedures set forth in Section 20.1, then the Parties shall resolve the dispute in accordance with Section 20.3. If a Party initiates mediation under this Section 20.2, representatives of the Parties with authority to resolve the dispute shall meet (in person or virtually) for at least three (3) hours with a mediator whom they choose together. If the Parties are unable to agree on a mediator, then either Party is hereby empowered to request the American Arbitration Association (“AAA”) to appoint a mediator. The mediator’s fees and expenses shall be paid one-half by each Party. If the Parties fail to reach a resolution within 30 days of initiating mediation, then the Parties shall resolve the dispute in accordance with Section 20.3.

20.3. In the event any dispute is not resolved pursuant to Sections 20.1 and 20.2, the Parties agree to refer all disputes between them to final and binding confidential arbitration in Mecklenburg County, North Carolina (“Arbitration”). The AAA Commercial Arbitration Rules (most recent edition) are to govern this Arbitration. The Arbitration shall take place in the State of North Carolina or virtually. The arbitrator shall be bound to follow the applicable provisions of these Terms and North Carolina Law in adjudicating the dispute. It is agreed by both Parties that the arbitrator’s decision is final, and that no Party may take any action, judicial or administrative, to overturn this decision. The judgment rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitrator shall have the authority to award attorneys’ fees to the prevailing party in the Arbitration.

20.4. EACH PARTY EXPRESSLY WAIVES ANY RIGHT TO PURSUE ANY CLAIMS IN A CLASS ACTION AND/OR A REPRESENTATIVE ACTION.

20.5. EACH PARTY EXPRESSLY WAIVES ANY RIGHT TO A JURY TRIAL IRRESPECTIVE OF THE NATURE OF THE CLAIMS ASSERTED.

21. Severability; Waiver

21.1. If any term or provision of these Terms is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction.

21.2. No waiver by any Party of any of the provisions of these Terms shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in these Terms, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from these Terms shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

22. Assignment

22.1. Customer shall not assign, transfer, delegate or subcontract any of its rights or obligations under these Terms without the prior written consent of TouchThink Smart. Any purported assignment, transfer, delegation, or subcontract in violation of this Section shall be null and void. No assignment, transfer, delegation, or subcontract (including, without limitation, in connection with a change of control, reorganization or similar transaction) shall relieve Customer of any of its obligations hereunder. TouchThink Smart may at any time assign, transfer, delegate, or subcontract any or all of its rights or obligations under these Terms without Customer’s prior written consent. These Terms are binding on and inure to the benefit of the Parties and their respective permitted successors and permitted assigns.

23. Relationship of the Parties

23.1. The relationship between the Parties is that of independent contractors. Nothing contained in these Terms shall be construed as creating any agency, partnership, franchise, business opportunity, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever. No relationship of exclusivity shall be construed from these Terms.

24. Force Majeure

24.1. A “Force Majeure Event” shall mean any earthquake, volcanic eruption, landslide, flood, hurricane, cyclone, tornado or other catastrophic natural disaster; epidemic or plague, including coronavirus; fire, explosion or radioactive or chemical contamination; and war, hostilities, belligerence, blockade, act of terrorism, sabotage, civil commotion, civil disturbances, riot, revolution, or insurrection [or any other event or circumstance], that in each case: (i) is beyond the reasonable control of the Affected Party and its subcontractors or its other contractors and was not promoted, requested or caused by the Affected Party or any of its subcontractors or other contractors; (ii) is without fault or negligence on the part of the Affected Party or its subcontractors or other contractors and is not the direct or indirect result of a breach by the Affected Party or its subcontractors or its other contractors of any of its obligations hereunder; (iii) could not have been (including by reasonable anticipation) avoided or overcome by the Affected Party or its subcontractors or its other contractors acting in a reasonable, diligent and prudent manner; and (iv) directly prevents or delays the Affected Party in its performance of all (or part) of its obligations under this Contract.

25. Notices

25.1. All notices, requests, consents, claims, demands, waivers, and other communications under these Terms must be in writing and addressed to the other Party at its address set forth in the applicable Sales Order (or to such other address that the receiving Party may designate from time to time in writing). Unless otherwise agreed herein, all notices must be delivered by personal delivery, nationally recognized overnight courier, certified or registered mail (in each case, return receipt requested, postage prepaid) or email.

26. Entire Agreement; Amendments

26.1. These Terms, together with all Quotations and Sales Orders, constitute the sole and entire agreement of the Parties with respect to the subject matter contained herein and supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter. 26.2. TouchThink Smart reserves the right to modify these Terms at any time and in its sole discretion. TouchThink Smart may notify Customer of any changes to these Terms by: (i) posting an updated version of these Terms to TouchThink Smart’s website; or (ii) emailing a copy of the updated version of these Terms to Customer at the email address associated with Customer’s account. Customer should regularly review TouchThink Smart’s website and the email associated with Customer’s account for any such notices or messages, as Customer’s continued purchase of Products or Services after any such changes were so posted or sent to Customer (as applicable) constitutes Customer’s agreement to such changes