|STANDARD TERMS AND CONDITIONS|
IF ANY OTHER TERMS AND CONDITIONS ARE PUT FORWARD BY THE SELLER OF THE EQUIPMENT (THE “SELLER”), THEY ARE OBJECTED TO BY THE BUYER AND SHALL HAVE NO FORCE OR EFFECT UNLESS THE BUYER EXPRESSLY AGREES TO THEM IN WRITING.
1. Terms and Acceptance Thereof. No provisions printed or otherwise contained in any acknowledgment hereof which are inconsistent with or in addition to the terms and conditions herein stated, and no alteration of this purchase agreement, shall have any force or effect unless the Buyer expressly agrees to them in writing through a duly authorized agent of the Buyer.
2. License of Software. Seller hereby grants Buyer a nonexclusive, nontransferable and perpetual license to use any and all software that is embedded in the equipment covered by this purchase agreement and any and all software that is otherwise pre-installed by the Seller on the equipment covered by this purchase agreement at the time of delivery, together with the documentation under each program element thereof.
3. Invoices, Due Dates and Payments. The Seller must submit an invoice to the Buyer before any payment will be processed. The Seller’s invoices shall be forwarded to the Buyer’s accounting office at XYZ Address and all line items must show the Buyer’s order number, the equipment that is the subject of the invoice and any premium freight authorization numbers.
4. Price and Shipping. The price shall be FOB destination, unless otherwise expressly indicated on any associated purchase order. No additional amounts shall be chargeable to the Buyer because of taxes or excises, presently or hereafter levied on the Seller with the exception of applicable sales and use taxes and customary applicable custom fees. Unless otherwise agreed to in writing by the Buyer, all currency amounts shall be United States dollars. Unless otherwise expressly consented to in writing by the Buyer, no payment will be made for packing, boxing, drayage or storage. The Buyer reserves the right to cancel all or any part of this order if equipment is not delivered on the date or dates specified herein; acceptance in such cases shall in no way bind the Buyer to accept further deliveries on any order. Partial delivery on time will not excuse non-delivery.
5. Acceptance. Equipment delivered hereunder shall be deemed to have been accepted (“Acceptance”) when all of the following have occurred: a. The equipment (including any licensed and operating software acquired in connection therewith) has been properly installed and is ready for use. b. The equipment (including any licensed and operating software acquired in connection therewith) operates in accordance with the Seller’s specifications and documentation provided to Buyer and any additional published specifications of the Seller and any other manufacturer of the equipment or developer of any licensed and operating software acquired in connection therewith and the Buyer has confirmed to the Seller in writing that it has accepted the equipment. In the event that the Buyer does not accept the equipment in the manner set forth above, the Buyer may request the removal of the equipment and the software, and the Buyer shall have no liability under these terms and conditions, and the Seller will return any monies paid to such date by the Buyer. In no event shall use of any piece of the equipment prior to acceptance, constitute acceptance of any piece of the equipment or part of the software by the Buyer.
6. New Equipment. The Seller covenants and warrants that the equipment and all of its parts and components are new and unused.
7. Warranties. The Seller warrants that (i) the equipment being purchased pursuant to these terms and conditions will conform to and perform in accordance with any and all performance specifications and documentation published by the Seller, any and all performance specifications and documentation otherwise delivered by the Seller to the Buyer in connection with securing the related purchase order and any and all expanded specifications put forward by the Buyer and identified by the Buyer, and to the extent that agreed specifications may not be complete, the equipment being purchased pursuant to these terms and conditions will also conform to the specifications standard in the industry, (ii) the equipment being purchased pursuant to these terms and conditions will be free from defects in material and workmanship, and (iii) all statements on the packing lists shall be accurate and the Buyer may rely thereon. The Seller further represents and warrants and guarantees that the equipment being purchased pursuant to these terms and conditions complies with all applicable provisions of laws, ordinances, codes and regulations, including those of the United States, the states of the United States and localities within such states.
8. Remedies for Breach of Warranty. The Buyer may reject any equipment and any software which do not conform to the Seller’s warranties at any time after delivery and before or after acceptance, when such breach of warranty becomes known to the Buyer, in any manner including recognition of latent defects (“non-conforming goods”); and the Seller shall be liable for all direct costs, damages and losses suffered by the Buyer by reason of such non-conforming goods but, absent gross negligence or willful misconduct on the part of the Seller, shall not be responsible for any indirect, punitive, exemplary or consequential damages. If the Buyer learns that non-conforming goods have been delivered, the Buyer shall have the right to do any one, or all, of the following: (i) cancel any undelivered portion of the order and, at the Buyer’s option, return either all of the equipment and any software or only the non-conforming goods at the Seller’s risk and expense for (at the Buyer’s option) credit or prompt replacement at the invoice price, (ii) repair and use the non-conforming goods, deducting the cost incurred in such repair and use from any sums due the Seller, or on demand, the Seller will reimburse the Buyer for all such costs, (iii) upon notice to the Seller, hold the non-conforming goods for a reasonable time and resell or return them according to the Seller’s instructions (the net proceeds of any such resale shall be credited to the Seller’s account), and (iv) exercise any other remedies that may be available under applicable law.
9. Indemnification Including Patent Indemnity. The Seller agrees to indemnify, defend and hold harmless the Buyer, its divisions, affiliates, subsidiaries, successors, or assigns, and its customers and agents, against and from all claims, suits, damages, costs, expenses and losses (including without limitation: all incidental and consequential damages, economic loss, property damage, personal injury or death) (i) which arises out of a breach by the Seller of these terms and conditions or any warranties applicable to the equipment and any licensed and operating software acquired by the Buyer from the Seller in connection with the equipment acquired hereunder, or which result from any non-conforming delivery (including late deliveries or incomplete deliveries), or any infringement of any copyright, patent, trademark, or design or the like (whether or not registered) based on the manufacture, use or sale of any of the equipment and any licensed and operating software acquired by the Buyer from the Seller in connection with the equipment, or (ii) which in any manner result from any defect in the equipment and any licensed and operating software acquired by the Buyer from the Seller in connection with the equipment, non-conformity to or non-compliance with any law, rule or regulation relating to the safety, quality or design of the equipment and any licensed and operating software acquired by the Buyer from the Seller in connection with the equipment, and any and all of the Buyer’s reasonable costs and expenses, including professional fees and costs, of investigating, settling or defending any suit, action or claim. Each defense obligation stated herein is hereby deemed a separate and distinct obligation, fully severable from any other duty stated herein.
10. Confidentiality. The Seller and the Buyer each agrees to hold in strictest confidence any information and material that is related to either party’s business or is designated as proprietary and confidential by the other party in connection with the transactions contemplated hereby. The parties’ obligations of confidentiality hereunder shall survive termination of these terms and conditions, and shall be in addition to, and not in place of, any other non-disclosure and/or confidentiality obligations that the parties may otherwise agree upon.
11. No Use of Brand Equity Without Permission. Without obtaining prior written permission from an officer of the Buyer, the Seller may not utilize the Buyer’s name in the promotion of its business or its products.
12. Insurance. The Seller shall procure and maintain products liability insurance acceptable to Buyer and shall furnish to the Buyer certificates thereof in connection with this order.
13. Non-Waiver; Remedies not Exclusive. The Buyer’s waiver of any breach or failure to enforce any of the terms or conditions of this agreement at any time shall in no way affect, limit or waive its rights hereafter to enforce strict compliance with this agreement.
14. Notice. All notices required or permitted by this contract shall be in writing, sent postage prepaid, registered or certified mail, return receipt requested to each party thereto at its address set forth herein or at such other address as may be designated by it in a notice and delivered to the other party.
15. Assignment. The Seller shall not delegate or assign any duties or claims under this contract without the Buyer’s prior written consent.
16. Entire Agreement; Amendment. This agreement represents the entire agreement of the parties. No amendment, modification or release from any provision hereof, shall arise out of a course of action or mutual agreement unless such agreement is in writing, signed by both parties. Notwithstanding any terms put forth by Seller (including any online terms and conditions on any of Seller’s websites) the terms of this document shall govern all transactions between the parties.
17. Governing Law. Any questions concerning validity, interpretation or performance of this contract shall be governed by the internal laws of the State of California and venue of any legal proceeding shall be in the state or federal courts of California.