HomeMy WebLinkAboutCORRESPONDENCE - PURCHASE ORDER - 91916651
Sense Labs, Inc.
Distribution Agreement
THIS DISTRIBUTION AGREEMENT (“Agreement”) sets forth the terms and conditions between
Sense Labs, Inc., a Delaware corporation with principal offices at 485 Massachusetts Ave., Cambridge,
Massachusetts (“Sense Labs”) and The City of Fort Collins, Colorado, a Municipal Corporation, with
principal offices at 222 Laporte Avenue, Fort Collins, Colorado (“City”). Sense Labs and City may be
referenced herein as “party” or collectively the “parties”. The parties agree as follows:
1. Scope and Definitions.
The City of Fort Collins (City) has received the Bloomberg Mayors Challenge project to establish a
research initiative to measure and evaluate the impact of indoor environmental quality changes
related to energy efficiency improvements in single family homes.
A subcontract/subgrant is established with Colorado State University (CSU), in which CSU will lead
the design and execution of the indoor environmental quality assessment and air pollution
measurement protocols.
The “Product,” as described in Exhibit A, will help the City and CSU achieve their goal of
measuring and evaluating indoor environmental quality changes related to energy efficiency
improvements (the “Grant Project”).
Definitions
“Product(s)” shall mean the product(s) set forth in Exhibit A.
“Territory” shall mean the electric service area served by the City.
“Effective Date” shall mean the date on which both Sense Labs and City have executed this
Agreement.
“Termination Date” shall mean the date at which the Agreement terminates.
“End Users” shall mean the resident(s) of the home in which Product(s) are installed.
2. Sale of Products.
Subject to the terms and conditions of this Agreement, City is authorized to procure Products in
volume from Sense Labs or its authorized distributors under this Agreement according to the discount
schedule in Exhibit A, and to provide Products to utility users within the Territory as part of the Grant
Project. Sense Labs has not authorized City to, and City agrees not to, provide Products to consumers
outside of the Territory or at retail.
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3. Term of Agreement.
This Agreement shall be effective on its Effective Date and shall remain in effect through the
Termination Date, which will initially be December 31 of the year of the Effective Date.
The Agreement shall automatically renew for up to four successive one-year periods unless either
party provides written notice at least sixty (60) days before December 31 of its intention not to renew
for the succeeding year. This Agreement may be terminated at any time: (a) by Sense Labs
immediately upon written notice to City in the event of a breach by City of Sections 2, 4, 5, 7, 8, or 9
of this Agreement; or (b) by Sense Labs or City, without cause, upon sixty (60) days’ prior written
notice to the other party. In the event of early termination by City, Sense Labs shall be paid for
services rendered to the date of termination including non-cancelable obligations for the term of this
Agreement, subject to the performance of Sense Labs’ obligations under this Agreement and
obligation to mitigate damages. . The provisions of Sections 9, 12 through 16 and 21 shall survive any
expiration or termination of this Agreement.
4. Terms of Purchase.
City shall comply with Sense Labs' current Program and Purchase Terms as provided in Exhibit B of
this Agreement.
5. City Obligations.
City shall preserve the reputation and goodwill of Sense Labs and the Products and avoid any illegal or
unethical actions and conduct and maintain at all times its operation in accordance with all applicable
laws of the jurisdiction(s) in which it operates.
Furthermore, if City is installing the Product(s) in any utility user’s home, City will ensure Product(s)
are installed in accordance with Sense Lab’s installation instructions by qualified personnel.
Furthermore, City and CSU will ensure that utility user has accepted the Sense Labs Terms of Service.
6. City Records.
City shall maintain records of distribution or installation of Products, including the unique serial
numbers of Products installed, in the event such data is needed for support and warranty returns.
7. Product Resale.
City shall not resell or advertise for resale the Products, on the Internet or otherwise, except as
authorized under this Agreement. If agreed to by both Parties, the City may dispose of the Products
through other City programs or donate the Products to CSU on the Grant Project. City shall not sell or
transfer the Products to a third party for resale, except as may be required by the Fort Collins
Purchasing Code. City will not offer a product with a Sense Labs trademark that City obtained from a
source other than Sense Labs.
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8. City's Use of Sense Labs' Goodwill and Intellectual Property.
City recognizes the right, title and interest of Sense Labs in all trademarks, tradenames, service marks,
logos, trade dress, copyrights, and other intellectual property used on or in connection with the
Products and associated software and services (collectively “Sense Labs Intellectual Property”). Sense
Labs grants City a limited non-exclusive, non-sub licensable license to use the Sense Labs Intellectual
Property in marketing and service literature, only in a lawful manner, and only to the extent required
by City to advertise, display, promote, and provide the Products in a quality manner and in accordance
with the terms of this Agreement. Sense Labs further grants City a limited non-exclusive, non-sub
licensable license under the Sense Labs Intellectual Property to distribute (without modification)
Sense Labs’ software as a component of the Products, only in a lawful manner. The licenses granted
in this Section shall automatically terminate upon termination or expiration of this Agreement. City
shall comply at all times with all the obligations of Exhibit C ("Using Sense Labs Intellectual
Property"). Except for the licenses expressly granted elsewhere in this Agreement, no licenses or other
rights in or to Sense Labs' patents, copyrights, trademarks, trade secrets, designs, software or services,
or any related Sense Labs Intellectual Property, are granted.
9. No Reverse Engineering or Product Modification.
City shall not modify, make derivatives of, or reverse engineer the Product or any software or services
provided by Sense Labs. City further agrees that it (and its affiliates and subcontractors) shall not,
unless elsewhere authorized under this Agreement: (a) gain entry or attempt to gain entry into Sense
Labs' control software or services for the Products or any other software, network, service, or system
of Sense Labs; (b) attempt to take or gain control over, or attempt to take or gain access to, the
Product or any Sense Labs service or software; or (c) use, control, or attempt to use or control (other
than as may be approved in writing and permitted by Sense Labs), the Products with a control service
or system other than that managed by or for Sense Labs through an interface authorized or provided
by Sense Labs.
10. Product Returns.
City shall comply with the Sense Labs Product Return Policy, which is attached in Exhibit D. Sense
Labs may update such policy upon 90 days’ prior written notice to City, provided such update shall
only be applicable to Products purchased after the effective date of such update.
11. Product Changes by Sense Labs.
Sense Labs reserves the right at any time to discontinue the production, sale, allocation or distribution
of any of its Products, to change the design of its Products or any parts thereof, and to change its
service, warranty, price or other policies, without advance notice or obligation to City of any kind
whatsoever, provided such change does not materially lower the level of service or require City to
accept Products hereunder without a right of inspection.. City agrees that it shall have no claim
against Sense Labs or any of its agents or affiliates for failure to furnish such Products, whether or not
such Products are of a model, design, or type previously sold, provided the level of service for
Products already purchased by the City under this Agreement is maintained at a level acceptable to
City .
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12. Confidentiality.
This Agreement (including its terms), as well as any other confidential information disclosed by
Sense Labs relating to its products, pricing, supply logistics, intellectual property and business
(collectively "Sense Confidential Information"), are confidential. City agrees to keep such Sense
Confidential Information confidential within its organization and permit its use only on a need to
know basis. This obligation of confidentiality shall be in effect from the Effective Date of this
Agreement and shall survive the expiration or termination of this Agreement. This confidentiality
obligation shall not apply to information that is publicly available through no fault of City or that
must be disclosed under operation of law.
13. Indemnification.
Subject to all statutory protections and claim limitations under the Colorado Governmental Immunity
Act, City shall indemnify, defend and hold harmless Sense Labs, its affiliates, officers, directors,
employees, agents, successors and assigns ("Indemnified Parties") from and against any and all third
party claims, damages, penalties, fines and claims (including attorney's fees and costs of settlement),
related to or arising out of (i) and occurring as the direct result of City’s misuse of or modification to
the Products, (ii) and occurring as the direct result of City’s advertising and marketing activities, and
(iii) any breach under this Agreement.
Sense Labs shall indemnify, defend and hold harmless City, its affiliates, officers, directors,
employees, agents, successors and assigns from and against any losses, damages, costs, penalties,
fines or claims occurring as the direct result of Sense Lab’s misconduct and intentional actions related
to the Products and Sense Labs’ design or manufacture of the Products, including but not limited to
any alleged infringement by Sense Labs of the patent, copyright, trademark or trade secret rights of
any third party.
Each party will promptly notify the other party upon learning of any claim, action or proceeding
arising out of or relating to a breach subject to this indemnity, provided that delay or failure to do so
will not relieve any indemnifying party of any of its obligations under this paragraph. For any claim
defended by City, Sense Labs may, and for any claim defended by Sense Labs, the City may choose to
be separately represented at its own expense. No settlement may admit liability or bind an indemnified
party without such party’s written consent.
14. Limitation on Liability.
CITY ACKNOWLEDGES AND AGREES THAT SENSE LABS SHALL NOT BE RESPONSIBLE
FOR ANY DAMAGES THAT CITY MAY INCUR FROM DELAYED SHIPMENT, OR
PRODUCT SELECTION, WHETHER LIABILITY IS ASSERTED IN CONTRACT, TORT
(INCLUDING NEGLIGENCE AND STRICT PRODUCT LIABILITY), WARRANTY, OR
OTHERWISE. IN NO EVENT SHALL SENSE LABS BE LIABLE FOR ANY INDIRECT,
INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND (INCLUDING
WITHOUT LIMITATION LOSS OF PROFITS OR LOSS OF USE), WHETHER OR NOT IT WAS
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OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR
DAMAGE. EXCEPT AS MAY BE SPECIFICALLY STATED HEREIN, SENSE LABS
DISCLAIMS ANY AND ALL OTHER WARRANTIES TO CITY, ITS CUSTOMERS, END-
USERS, AND OTHERS, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF
MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. THIS SECTION SHALL
SURVIVE EXPIRATION OR TERMINATION OF THIS AGREEMENT. SENSE LABS' TOTAL
LIABILITY ARISING OUT OF OR UNDER THIS AGREEMENT OR FOR BREACH OF THIS
AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION
NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, SHALL NOT EXCEED THE FEES PAID
OR PAYABLE BY CITY TO SENSE LABS IN THE TWELVE MONTH PERIOD PRIOR TO ANY
CLAIM.
15. Injunctive Relief and Other Remedies.
City acknowledges that its breach or threatened breach of Sections 2, 7, 8 or 12 would result in
irreparable injury to Sense Labs. In addition to its other remedies at equity and law, Sense Labs will
be entitled to injunctive relief to restrain any such threatened or continuing breach. City specifically
understands and agrees that upon any breach by City of the restrictions set forth in these Sections,
Sense Labs may (in addition to seeking injunctive relief) (i) preclude the further sale or provision of
Products to City; (ii) terminate the rights granted to City in this Agreement; (iii) require the return of any
Products provided to City (subject to refund or partial refund); and/or (iv) suspend or terminate
cooperation and support to City.
16. Reserved
17. Assignment.
This Agreement, and its rights and obligations, shall not be assigned or transferred by either party
without prior written authorization of the other party; provided that Sense Labs may assign this
Agreement without consent in the event of a merger, a change of control, or a sale of all or
substantially all of its assets or business.
18. Amendments and Waivers.
Except as otherwise set forth herein, this Agreement may be amended, waived, or modified only by a
written instrument signed by an authorized officer of both parties stating specifically that it is an
amendment, waiver, or modification. No waiver of any provision at any particular time shall be
deemed a permanent waiver of such provision, or a waiver of any other provision of this Agreement.
Failure to enforce a provision shall not be deemed a waiver. Sense Labs may amend any Exhibit in this
Agreement or the price list by providing such amended material in writing (including by email) to City,
and any such amendment shall become effective immediately upon delivery of such notice.
19. Entire Agreement.
This Agreement and the attached Exhibits shall constitute the terms and conditions mutually agreed
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upon in writing by the parties, set forth the entire understanding and agreement of the parties, and
supersede any and all oral or written agreements or understandings between the parties as to the subject
matter of this Agreement.
20. Independent Contractors.
Sense Labs and City are independent contractors and neither is an agent or principal of the other. City
shall not describe itself as Sense Labs' agent.
21. Governing Law and Venue.
This Agreement shall be governed by and construed in accordance with the laws of the State of
Colorado without regard for the conflicts of laws rules thereof. Any suit between the parties relating
to this Agreement, other than for payment of the purchase price of the Products, shall be commenced,
if at all, within one (1) year of the date that it occurs.
22. Contract Interpretation.
If any provision (or part thereof) of this Agreement shall be deemed invalid or unenforceable, the
remainder of the provisions of this Agreement shall continue in full force and effect to the maximum
extend consistent with the intent of the parties.
23. Notices.
Notices under this Agreement shall be in writing and shall be deemed given on the day of any
confirmed delivery by express courier or telecopy transmission or three (3) business days after mailing.
Notices to City and Sense Labs shall be sent to the respective addresses first listed atop this Agreement
unless a subsequent address is designated in writing by City or Sense Labs. All notices to Sense Labs
shall be sent to the attention of its Legal Department.
24. Electronic Execution.
The parties hereby agree that they may execute this Agreement using electronic means including the
use of electronic signatures by the parties, which the parties agree shall have the full force and legal
effect as if the electronic signatures were traditional hand-written signatures. City acknowledges that
it has the ability to retain this Agreement either by printing or saving it. Each signatory agrees that he
or she has been authorized and has the authority to enter into the Agreement with an electronic
signature on behalf of the applicable party and intends to sign this Agreement by applying his or her
electronic signature as indicated.
Service Provider: City: Copy to:
Sense Labs, Inc.
Attn: Charles H. Rutledge, Jr.
485 Massachusetts Ave.
Cambridge, Massachusetts
02139
City of Fort Collins
Attn: Terra Sampson
PO Box 580
Fort Collins, CO 80522
City of Fort Collins
Attn: Purchasing Dept.
PO Box 580
Fort Collins, CO 80522
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EXECUTED as of the day and year first set forth above.
SENSE LABS, INC.
By: ________________________________ By: ______________________________
Name: Charles H. Rutledge, Jr. Name: Gerry Paul
Title: VP Operations Title: Purchasing Director
ATTEST:
APPROVED AS TO FORM:
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12/30/2019
Assistant City Attorney ll
12/30/2019
City Clerk
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EXHIBIT A
Products, Uses, and Pricing Schedule
The following Products are authorized for use under this Agreement:
The Sense Home Energy Monitor
The Solar Compatible Sense Home Energy Monitor
City will use Sense Labs monitors in its Epic Homes Indoor Environmental Quality Study, performed in
collaboration with Colorado State University and Bloomberg Philanthropies.
Sense Labs will provide:
The monitors and access to the Sense Labs application (both the phone and web versions), with
any software enhancements moving forward
An installation training session via webinar, including the process for uninstalling and re-
installing the monitor in another home with another customer
Access via Sense's Fleet Manager web portal to the data (e.g., total consumption and
consumption by appliance) from all the monitors
o The portal also provides other information, such as the status of data-sharing permission
by monitor, online/offline status and installation date.
o Please note that, to respect customer data privacy, access to data for any given monitor
requires that customer's consent for Sense Labs to share the data with City and CSU.
Partner support to City, for example for individual monitors or for installation
City may purchase Products for use and at the pricing shown in the table below:
Use Pricing
Temporary installation* in customer
homes for purposes of supporting the
Epic Homes Indoor Environmental
Quality Study
10% discount from list price as follows:
o Standard monitor
Retail price: $299.00
10% discount: $29.90
Resulting discounted price: $269.10
o Solar monitor
Retail price: $349.00
10% discount: $34.90
Resulting discounted price: $314.10
Please note that prices exclude shipping costs
Data access fee waived during the three year
period of the pilot
*If Products are installed temporarily and subsequently removed for re-use at another location, City is
responsible for ensuring that proper procedures are followed for resetting and re-installing Products.
These procedures are available from Sense Labs’ Support Team.
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EXHIBIT B
Program and Purchase Terms
Effective October 5, 2016
The pricing and delivery terms set forth herein shall apply only to purchases of Product directly
from Sense Labs (and not from a distributor or any other source of Product). Sense Labs retains the
right to change its pricing and delivery terms upon 60 days’ written notice to City.
1. Pricing. The price for each Product sold by Sense Labs to City pursuant to this Agreement
shall be in accordance with Sense Labs’ Product Price List and with discounts applied per the
discounting schedule in Exhibit A.
2. Taxes. Prior to purchasing any Products, City, if located in the U.S., shall furnish to Sense Labs
a resale certificate and identification sufficient to show City's exemption from associated sales
tax for Product purchases.
3. Shipping Terms. All shipments shall be made FOB City dock , freight prepaid. The cost of
shipping will be added to orders.
4. Orders. The terms and conditions of this Agreement shall apply to all orders submitted to
Sense Labs by City. City shall initiate purchases either through a Sense Labs online ordering
process, or by submitting Purchase Orders (each, a “PO”) to Sense Labs. Unless otherwise
mutually agreed, if a Purchase Order is used, the minimum quantity for each shipment shall
be four (4) units of Product, and orders shall be in multiples of four (4) units. Each PO shall
be rejected or accepted by Sense Labs in writing within five (5) business days of receipt by
Sense Labs. Upon acceptance of such PO in writing, Sense Labs will agree to fulfill that order
placed by City within thirty (30) days, or consistent with the delivery date requested in the PO
if such date is more than thirty (30) days after acceptance of the PO. Should Product be
backordered, discontinued or otherwise unavailable to ship to meet a requested PO, Sense
Labs will advise City and work with City to modify the PO, which may (if necessary) include
canceling the PO or any portion thereof, adjusting item quantities, or changing the requested
ship and/or delivery dates. Any term, provision or condition of any PO inconsistent herewith
or in addition hereto shall be of no force or effect.
5. Payment Terms. Payment will be due on delivery via wire transfer or credit card, or other
payment methods accepted by Sense Labs at its sole discretion.
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EXHIBIT C
Using Sense Labs Intellectual Property
Effective October 5, 2016
As an authorized licensee of certain Sense Labs Intellectual Property, you will benefit from the
goodwill and inherent value signified by the Sense Labs brand name and our various product
trademarks. In addition to being under agreement to use Sense Labs trademarks properly, it is in your
best interest to assist in protecting the Sense Labs marks by using them properly in all advertising and
promotional materials.
The following guidelines must be followed when using all trademarks owned by Sense Labs. These
guidelines are in addition to those provided for print advertising of a particular Product:
City shall not use in a manner that purports ownership or register any Internet domain name
containing any Sense Labs Intellectual Property.
City shall not use Sense Labs Intellectual Property on social media venues (such as
Facebook, LinkedIn, etc.).
City shall not, without express written permission from Sense Labs purchase Sense Labs
Intellectual Property through Google's or Yahoo's Adwords programs and/or other web
service providers' similar programs.
The Sense Labs trademarks must be reproduced exactly from artwork provided by Sense
Labs.
There must be no confusion with which entity the customer is dealing. City's name must be
the most prominent name on the page. The Sense Labs trademarks may not be the only
source identifier on the page. The Sense Labs trademarks may not appear at the top of the
page.
The Sense Labs trademarks must not be used in combination with another City or
company mark in such a manner that the marks appear to be joined or associated in any way.
Ample space must appear between the two marks to distinguish them as separate entities.
The Sense Labs trademarks may not be used in a way that will dilute or diminish its value
to Sense Labs, such as on others' goods or in any non-approved form.
Any use of any Sense Labs trademarks on a web page must adhere to these guidelines.
A superscript indicating a registered trademark (®) or trademark (™) or service mark (SM)
symbol must appear next to all marks in all printed literature. It is critical to adhere to these
regulations, as this helps ensure proper legal protection. Please check with your Sense Labs
representative for proper trademark superscript designation.
Any use of a Sense Labs trademark which is not addressed in the guidelines set forth herein,
must be approved by Sense Labs prior to its use.
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EXHIBIT D
Warranty and Defective Product Returns Policy
Effective October 5, 2016
Sense Labs, Inc. provides a one-year warranty and will accept return of a Sense Labs’ product that
fails to conform to the warranty from resellers, wholesalers and installers (each a "Returning
Party") that have been sold to end customers (i.e., not unsold product in inventory) for credit under
the terms and conditions below. This Defective Product Returns Policy is subject to modification or
termination by Sense Labs in its sole and absolute discretion at any time.
The warranty policy can be found at the Sense Labs website here: https://help.sense.com/hc/en-
us/articles/211975338-Warranty
Return Process
1. Return Deadline. Sense Labs will only accept product returns from Returning Party within
one-year from the date of delivery from Sense Labs to City or to End User.
2. RMA. Sense Labs’ products can only be returned with a Return Merchandise Authorization
(RMA) number obtained from Sense Labs in advance of returning the product. A RMA
number will only cover specified items and quantities authorized for return by Sense Labs. A
RMA number will expire 30 days after issuance. Any returns that vary from the authorized
items or quantity or are delivered after expiration date of a RMA number may not be eligible
for credit, as determined by Sense Labs in its sole discretion.
3. Return Contents. Sense Labs’ products must be returned to the address provided by Sense
Labs and must be accompanied by a RMA number and a description of the specific defect (i.e.,
reason for return) for the Sense Labs product being returned.
Product Condition and Eligibility
1. Packaging, Documentation and Accessories. A Sense Labs’ product must be returned in its
original packaging with all documentation and accessories. If the original packaging or any
documentation or accessory is unavailable, Returning Party should include everything in its
possession; however, these returns will be subject to additional screening and the failure to
submit any item could impact the Sense Labs’ product's eligibility for credit or could reduce
the credit by the value of the missing items.
2. Condition. Upon receipt, Sense Labs will assess the condition of a Sense Labs’ product and
determine if: (i) a defect exists in the materials or workmanship of the product, (ii) a defect
resulted from the act or omission of Returning Party, or (iii) no trouble found with the
product. Sense Labs is the final arbiter of the condition of the product.
3. No Trouble Found. If Sense Labs determines that no trouble is found with more than 10% of
Sense Labs’ products returned in a calendar quarter (excluding customer remorse returns),
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Returning Party may be charged for failure analysis/testing and shipping costs associated with
such product, as determined by Sense Labs in its sole discretion.
4. Product Discontinuation. Notwithstanding anything herein, Sense Labs must receive a
product within 90 days of the official discontinuation date for a product to be eligible for credit.
Sense Labs may discontinue a product in its sole discretion, but will use commercially
reasonable efforts to provide notice of discontinuance in advance of the official discontinuation
date. The limited warranty provided with a product is not affected by discontinuation.
5. Final Judgment. Sense Labs will in its sole discretion assess the condition of the product
and determine whether the product is eligible for either repair, replacement or credit.
Repair and Replacement
1. Repair or Replacement. Repair or replacement may be made with a new or refurbished
product or components, at Sense Labs’ sole discretion. If the hardware or a component
incorporated within it is no longer available, Sense Labs may, at Sense Labs’ sole discretion,
replace the hardware with a similar product of similar or greater function. This is your sole
and exclusive remedy for breach of this Hardware Limited Warranty. Any hardware that has
either been repaired or replaced under this Hardware Limited Warranty will be covered by the
terms of this Hardware Limited Warranty for the longer of (a) ninety (90) days from the date
of delivery of the repaired hardware or replacement hardware, or (b) the remaining Hardware
Warranty Period.
Credit
1. Credit Issuance. Sense Labs will issue a credit for an approved return within 30 days of
receipt of the returned product by Sense Labs. No cash will be refunded.
2. Credit Amount. Sense Labs will calculate the credit amount for a Sense Labs’ product based
on the lower of the: (i) then-current list price for the product, or (ii) net price actually paid.
3. Products Not Receiving Credit. Returning Party may claim a Sense Labs’ product not
receiving credit at its expense if Returning Party makes a request to Sense Labs within 10 days
of receiving the credit decision.
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