Connectpoint Standard Warranty, Terms and Conditions of Sale
GENERAL. All orders for equipment are accepted by Connectpoint, Inc., a California corporation (“Seller”), subject to these terms and conditions of sale. In case of a conflict, inconsistency or addition not expressly accepted in writing by Seller, the terms and conditions of sale provided herein shall be considered as superseding the conflicting, inconsistent or additional terms stated in or attached to any purchase order, statement of work or otherwise. The acceptance of an order will supersede all prior communications and constitute a complete and binding contract between the party purchasing equipment hereunder (“Buyer”) and Seller, which contract cannot be modified or canceled without the written agreement of both parties.
SOFTWARE LICENSE. If any equipment purchased hereunder includes Seller software (whether built into equipment circuitry as firmware, provided as a standalone computer software product, embedded in flash memory, or stored on magnetic or other media), such software is licensed, not sold, pursuant to the terms of the Master Software and Services Agreement between Seller and Buyer (the “License Agreement”). Use of any such software will be subject to the terms and conditions of the License Agreement (including any differing limited warranty terms, exclusions and limitations). Nothing in these terms and conditions of sale shall be construed to grant any rights or license to use any software in any manner or for any purpose not expressly permitted by the License Agreement.
SHIPMENT. Equipment will be delivered within a reasonable time after the receipt of Buyer’s order and acceptance thereof by Seller, subject to availability of ordered equipment. Seller shall not be liable for any delays, loss or damage in transit. Seller may, in its sole discretion, without liability or penalty, make partial shipments of equipment to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the equipment shipped, subject to the terms hereof, whether such shipment is in whole or partial fulfillment of Buyer’s order. In the event of a default by Buyer, Seller may decline to make further shipments without waiving any of its rights under such order. If, despite such default, Seller elects to continue to make shipment, its action shall not constitute a waiver regarding, or otherwise diminish, Seller’s legal remedies with respect to such default or any future default.
TITLE AND DELIVERY. All sales are made FOB Destination “freight prepaid and added.” As collateral security for the payment of the purchase price of the equipment purchased hereunder, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under such equipment, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this Section constitutes a purchase money security interest under the California Commercial Code.
INTELLECTUAL PROPERTY OWNERSHIP. As between Buyer and Seller, Buyer agrees that Seller owns all right, title and interest to all intellectual property and other proprietary rights to the technology, designs, engineering details, schematics and similar data relating to or incorporated in the equipment and any accompanying documentation or information derived from the foregoing. To the extent permitted by relevant law, Buyer shall not, or allow any third party to disassemble or otherwise reverse engineer the equipment or attempt to do so. Buyer is prohibited from, and shall prevent any third party from, removing, covering or altering any of Seller’s patent, copyright or trademark notices placed upon, embedded in or displayed by the equipment or their packaging and related materials.
CUSTOM DESIGN WORK. Any custom design work performed by Seller at Buyer’s request will be subject to additional charges. Seller will retain all copyright and other proprietary rights to the equipment and any additional custom design work, and shall have the right and authority to use, sell and distribute the equipment and utilize the custom design work for any other purpose, in Seller’s sole discretion, without requirement of notification or liability to Buyer of any kind (including, without limitation, monetary remuneration).
PRICES. Total dollar amounts specified in a purchase order or statement of work as estimated charges shall be considered reasonably accurate estimates only, and unless expressly identified as a fixed fee or not-to-exceed amount, Buyer shall pay actual costs, charges and fees as invoiced. Shipping charges specified in a purchase order or statement of work reflect estimated charges. In all cases, Seller shall invoice Buyer for actual shipping costs as incurred and Buyer shall pay such invoice in accordance with the terms hereof.
A. Buyer shall pay all invoiced amounts due to Seller within 30 days from the date of Seller’s invoice. Subject to Buyer’s compliance with all other terms and conditions set forth herein, Seller shall not issue an invoice for the equipment until the Trial Expiration Date (as defined below); provided that Buyer has not validly exercised its right to return the equipment, as provided for in Section 13 (in which case no invoice will be issued). Buyer shall make all payments hereunder in US dollars.
B. Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees.
C. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise.
D. If the financial condition of Buyer at any time is such as to give Seller, in its judgment, reasonable grounds for insecurity concerning Buyer’s ability to perform Buyer’s obligations under these terms and conditions of sale, Seller may require full or partial payment in advance or may suspend any further deliveries until such payment has been received. In the event of bankruptcy or insolvency of Buyer or in the event any proceeding is brought by or against Buyer under the bankruptcy or insolvency laws, Seller shall be entitled to cancel any order outstanding at any time during the period allowed for filing claims against the estate and shall receive reimbursement for its cancellation charges.
TAXES. Quoted prices do not include federal, state or local excise, sales, use or similar taxes. Accordingly, in addition to the prices specified in any quotation, the amount of any applicable excise, sales, use and/or similar taxes will appear as separate items on the invoice and will be paid by Buyer unless prior to shipment Seller receives an appropriate tax exemption certificate from Buyer; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel or real or personal property or other assets.
FORCE MAJEURE. Seller shall not be liable for failure to perform occasioned by strikes, lockouts, labor difficulties, riots, inability or difficulty in obtaining or procuring supplies, labor or transportation, fires, storms, floods, earthquakes, explosions, accidents, acts of God, interference by civil or military authorities, whether legal or de facto, acts of the public enemy, war, rebellion, insurrection, sabotage, embargoes, orders given priority by any public authority or any other cause beyond the reasonable control of Seller.
INTELLECTUAL PROPERTY INDEMNIFICATION. If a third party claims that Seller equipment infringes that party’s patent or copyright, Seller will defend Buyer against that claim and will pay all costs, damages and attorneys’ fees that a court finally awards, provided that Buyer: (a) promptly notifies Seller in writing of the claim, and (b) allows Seller to control, and cooperates with Seller in, the defense and any related settlement negotiations. If such a claim is made or appears likely, Seller, at its option, may obtain a license to enable Buyer to continue to use the equipment, may modify the equipment or may replace it with one that is functionally equivalent. If Seller determines that none of these alternatives is reasonably available, Buyer will return the equipment to Seller upon Seller’s written request, in which case Seller will credit Buyer with an amount equal to the price paid for such equipment less a reasonable amount for depreciation. Seller’s liability is limited to repair, replacement or adjustment as determined by Seller. Seller shall not be liable for any claim based on (i) anything Buyer provides which is incorporated into any equipment, (ii) Buyer’s modification of equipment or use thereof other than in its specified operating environment, or (iii) the combination, operation or use of equipment with equipment provided by other manufacturers or other equipment not provided by Seller as a system. This is the exclusive warranty and liability of Seller with respect to intellectual property matters and is in lieu of all other warranties and remedies, express or implied. Sale of equipment or parts thereof does not confer on Buyer any license relating to (a) the structure of any devices to which the equipment or parts may be applied or (b) a process or machine in connection with which they may be used.
CANCELATIONS. Buyer may cancel its order prior to shipment only upon written notice and upon payment to Seller of cancellation charges which shall take into account, among other things, expenses incurred, and commitments already made by Seller.
A. Seller warrants to the Buyer that new equipment will materially conform to Seller’s published specifications in effect as of the date of manufacture, if any, and be free of defects in material and workmanship for a period of one year (365) days from the shipping date.
B. Seller’s obligation under the warranties in this Section 14 is limited to repairing or replacing at Seller’s option defective equipment. These services will be performed, at Seller’s option, at either Seller’s facility or Buyer’s business location. For repairs performed at Seller’s facility, Buyer must contact Seller in advance for authorization to return equipment and must follow Seller’s shipping instructions. Freight charges and shipments to Seller are Buyer’s responsibility. Seller will return the equipment to Buyer at Seller’s expense.
C. The warranty obligation of Seller shall not (i) extend to defects that do not impair service or (ii) require Seller to provide warranty service beyond normal business hours, Monday through Friday (excluding Seller holidays). No claim will be allowed for any defect unless Seller shall have received notice of the defect within thirty (30) days following its discovery by Buyer. Within thirty (30) days of Buyer’s receipt of equipment, Seller must receive notice of any defect which Buyer could have discovered by prompt inspection.
D. All used equipment, including demo equipment, is sold AS IS, WHERE IS, WITHOUT ANY WARRANTY, EXPRESS OR IMPLIED. Regular maintenance is excluded from this warranty.
E. Equipment manufactured by a third party (“Third Party Product”) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, Seller’s equipment. Third Party Products are not covered by the warranties in this Section 14. For the avoidance of doubt, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (iii) WARRANTY OF TITLE; OR (iv) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
F. Seller assumes no liability under the above warranties, or at any time after delivery of the equipment to Buyer, including, without limitation, during the trial period set forth in Section 13, for equipment or system failures resulting from (i) abuse, misuse, vandalism, modification or mishandling; (ii) damage due to forces external to the equipment including, but not limited to, acts of God, flooding, power surges, power failures, defective electrical work, transportation, foreign equipment/attachments or Buyer-supplied replacement parts or utilities or services such as electricity; (iii) improper operation or maintenance; or (iv) failure to perform preventive maintenance in accordance with Seller’s recommendations (including keeping an accurate log of preventive maintenance). In addition, this warranty does not apply if any equipment or part has been modified without the written permission of Seller or if any Seller serial number has been removed or defaced.
G. No person is authorized to extend or alter these warranties on Seller’s behalf without the written authorization of Seller.
H. THE ABOVE WARRANTIES ARE EXPRESSLY IN LIEU OF ANY OTHER EXPRESS OR IMPLIED WARRANTIES (INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE), AND OF ANY OTHER OBLIGATION ON THE PART OF SELLER. SELLER DOES NOT WARRANT THAT ANY EQUIPMENT CAN BE USED FOR ANY PARTICULAR PURPOSE OR WITH ANY PARTICULAR PROCESS OTHER THAN THAT COVERED BY THE APPLICABLE PUBLISHED SPECIFICATIONS (IF ANY).
NO CONSEQUENTIAL DAMAGES; LIMITATION OF LIABILITY. IN NO EVENT WILL SELLER BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS OR LOSS OF DATA, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL SELLER’S LIABILITY FOR DAMAGES HEREUNDER EXCEED THE AMOUNTS ACTUALLY PAID BY BUYER UNDER ANY APPLICABLE ORDER, STATEMENT OF WORK OR OTHER AGREEMENT. THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION 15 ARE INTEGRAL TO THE AMOUNT OF CONSIDERATION LEVIED IN CONNECTION WITH THESE TERMS AND CONDITIONS OF SALE, AND BUYER FURTHER ACKNOWLEDGES THAT SELLER’S PRICING REFLECTS THIS ALLOCATION OF RISK AND THE LIMITATION OF LIABILITY SPECIFIED HEREIN.
APPLICABLE LAW AND JURISDICTION.
A. These terms and conditions of sale shall be governed by and construed in accordance with the substantive laws of the United States and the State of California, without regarding to conflicts of law principles. The parties may initiate any dispute resolution proceeding in the State of California and irrevocably consent to non-exclusive personal jurisdiction therein.
B. Notwithstanding Section 17.a. above, if Buyer is a governmental entity, these terms and conditions of sale shall be governed by and construed in accordance with the substantive laws of the United States and the state where Buyer is located, without regarding to conflicts of law principles. The parties may initiate any dispute resolution proceeding in such designated state and irrevocably consent to non-exclusive personal jurisdiction
C. The U.N. Convention on Contracts for the International Sale of Goods and the Unfair Contracts Act in the United Kingdom shall not apply to this Agreement.
D. Any claim arising out of or relating to these terms and conditions of sale shall be initiated in a tribunal in accordance with this Section within two (2) years after the claim arose or be barred. Claims for infringement of proprietary rights shall arise upon actual discovery by the aggrieved party. This Section is intended to override and supersede any statute of limitation periods that may be proscribed by applicable law
ASSIGNMENT. Buyer shall not assign this order or any portion thereof without the prior written consent of Seller.
RELATIONSHIP OF THE PARTIES. Each party and its directors, employees and agents are independent contractors in relation to the other party with respect to all matters arising under this Agreement. Nothing herein shall be deemed to establish a partnership, joint venture, association or employment relationship between the parties
NOTICES. All notices, authorizations, and requests in connection with this Agreement shall be deemed given (i) five (5) days after being deposited in the U.S. mail, postage prepaid, certified or registered, return receipt requested; or (ii) one (1) day (two (2) days if international) after being sent by overnight courier, charges prepaid, and addressed to the notice address indicated on the applicable purchase order or statement of work or to such other address as the party to receive the notice or request so designates by written notice to the other.
SEVERABILITY. If any provision of these terms and conditions of sale shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect.
NATURE OF TRANSACTION. The parties acknowledge and agree that the purchase and sale of the equipment hereunder shall be construed as a transaction between merchants and does not include the sale of consumer goods.