Terms and Conditions of Sale These Terms and Conditions of Sale only apply to purchases of ProSoft Technology products and related services made directly from ProSoft Technology (“ProSoft”.) Purchases made from appointed distributors or other independent resellers will be subject to terms and conditions of sale as may be separately established by each such distributor or reseller, which will in no event be binding upon ProSoft unless otherwise expressly agreed to. However, ProSoft extends its standard Manufacturer’s Warranty to customers purchasing ProSoft products and related services from their local authorized ProSoft Technology distributor or reseller. Such Manufacturer’s Warranty is in lieu of all other warranties, which are expressly disclaimed. General These terms and conditions of sale (along with any associated written specification, quotation and/or supplemental terms and conditions provided by ProSoft) will exclusively govern the sale or licensing by ProSoft of all goods and services (including without limitation, hardware, firmware and software products, training, programming, maintenance, engineering, parts, repair and re-manufacturing services – hereinafter, "Products") furnished to Buyer hereunder, whether such sale or licensing is affected by paper-based transactions or via facsimile or other forms of electronic data interchange (“EDI”) or electronic commerce, and represents the entire agreement between Buyer and ProSoft with respect thereto. Buyer's receipt or acceptance of delivery of any of the Products ordered or purchased hereunder will constitute its acceptance of these terms and conditions. No alteration or variation to these terms and conditions shall apply unless agreed to in writing by both parties. However, ProSoft reserves the right to affect minor modifications and/or improvements to the Goods before delivery provided that the performance of the Goods is not adversely affected and that neither the Agreement Price nor the delivery date is affected. ProSoft objects to and rejects other terms and conditions that may be proposed by Buyer or that appear on or are referenced in Buyer's purchase order or requisition that are in addition to or otherwise not consistent with the terms and conditions set forth or referenced herein. If any provision of the Agreement is invalid under any statute or rule of law, such provision, to that extent only, shall be deemed to be omitted without affecting the validity of the remainder of the Agreement. Payment Terms Prices are firm for delivery within the period stated in ProSoft's quotation and unless otherwise stated in the Agreement, are exclusive of Value Added Tax, any similar and other taxes, duties, levies or other like charges arising in connection with the performance of the Agreement. Unless otherwise agreed to in writing, payment shall be made in the currency of ProSoft’s quotation within thirty (30) days from date of invoice with ongoing approved credit as determined by ProSoft. ProSoft reserves the right to render invoices electronically and to receive payment by way of electronic funds transfer. Payment by credit card, when permitted, is subject to credit card validation and authorization both at time of agreement and immediately prior to shipment. ProSoft reserves the right to suspend any further performance hereunder or otherwise in the event payment is not made when due. No payment by offset is permitted. Interest charges may be added to overdue invoices at the rate applicable by law. Without prejudice to ProSoft's other rights, ProSoft reserves the right to suspend performance of the Agreement (including withholding shipment) in the event that Buyer fails or in ProSoft’s reasonable opinion it appears that Buyer is likely to fail to make payment when due under the Agreement or any other Agreement; and under the same conditions require reasonable security for payment. Delivery Terms Unless otherwise expressly stated in the Agreement, the Goods will be delivered Carriage Paid To (CPT) the destination named in the Agreement; freight, packing and handling will be charged at ProSoft’s standard rates. Risk of loss or damage to the Goods shall pass to Buyer upon delivery as aforesaid and Buyer shall be responsible for insurance of the Goods after risk has so passed. Alternatively, if it is expressly stated in the Agreement that ProSoft is responsible for the insurance of the Goods after their delivery to the carrier; such insurance will be charged at ProSoft’s standard rates. "Ex-works", "FCA", “CPT” and any other delivery terms used in the Agreement shall be defined in accordance with the specific version of Incoterms used at the time of delivery. ProSoft will specify on the Agreement which version is used. All title to all intellectual property rights associated with the Products remains with ProSoft or its suppliers and licensors. Acknowledged shipping dates are approximate only and based on prompt receipt of all necessary information from Buyer. If Customer requires special production service for unusual shipments, an additional charge (expedite fee) shall be imposed by ProSoft as deemed necessary to cover any costs of such service. Where applicable, prepaid shipping will be billed as a separate invoice item. If delivery is delayed due to any act or omission of Buyer, or if having been notified that the Goods are ready for dispatch, Buyer fails to take delivery, ProSoft shall be entitled to place the Goods into a suitable storage at Buyer's expense. Upon placing the Goods into the storage, delivery shall be deemed to be complete, risk in the Goods shall pass to Buyer and Buyer shall pay ProSoft accordingly. If a delivery is not expected to be made on-time, ProSoft will notify Buyer and will take all reasonable steps at ProSoft’s own cost to expedite delivery; provided, however, when not prohibited at the time the order is placed, Buyer reserves the right, without liability, in addition to its other rights and remedies, to cancel the order if necessary by notice to ProSoft and arrange for completion and/or purchase of substitute items elsewhere and to charge ProSoft with any loss or additional costs incurred as a result of delivery deviation. Warranty
- New Products: ProSoft warrants that new ProSoft branded hardware Products furnished hereunder will be free from defects in material, workmanship and design for a period of three (3) years from the date of invoice from ProSoft or its appointed distributor, as the case may be. Goods repaired and parts replaced by ProSoft during the warranty period shall be in warranty for the remainder of the original warranty period or ninety (90) days, whichever is longer.
- Software and Firmware: Unless otherwise provided in a ProSoft or third party license, ProSoft warrants that standard ProSoft branded software or firmware Products furnished hereunder, when used with ProSoft-specified hardware, will perform in accordance with published specifications prepared, approved, and issued by ProSoft for a period of three (3) years from the date of invoice from ProSoft or its appointed distributor, as the case may be. ProSoft makes no representation or warranty, express or implied, that the operation of the software or firmware Products will be uninterrupted or error free, or that the functions contained therein will meet or satisfy Buyer's intended use or requirements.
- Partner Products: ProSoft and its appointed distributors sell partner products. All partner products are subject to the original manufacturer’s warranty.
- Services: Materials and labor performed by ProSoft to upgrade previously purchased firmware, repair a verified malfunction or defect are warranted in the terms specified above for new Product, provided said warranty will be for the period remaining on the original new equipment warranty or, if the original warranty is no longer in effect, for a period of ninety (90) days from the date of invoice.
- "Refurbished" Products: ProSoft warrants that hardware Products sold as “Refurbished” (e.g., customer and distributor returns, factory repaired or reconditioned, etc.) will be free from defects in material and workmanship for a period of six (6) months from the date of invoice from ProSoft or its appointed distributor, as the case may be. Repaired or replacement Products provided as a result of this warranty sub-paragraph are similarly warranted for a period of three (3) months from the date of shipment to Buyer or the remainder of the original warranty term for that particular Product, whichever is longer.
- Buyer Specifications/Compatibility: ProSoft does not warrant and will not be liable for any design, materials, construction criteria or goods furnished or specified by Buyer (including that sourced from other manufacturers or vendors ). Any warranty applicable to such Buyer-specified items will be limited solely to the warranty, if any, extended by the original manufacturer or vendor directly or indirectly to Buyer. ProSoft does not warrant the compatibility of its Products with the goods of other manufacturers or Buyer's application except to the extent expressly represented in ProSoft's published specifications or written quotation.
- Recyclable Materials: In keeping with environmental policies and practices, ProSoft reserves the right to utilize in its product manufacturing, repair and re-manufacturing processes certain recyclable materials (e.g., fasteners, plastics and the like) or re-manufactured parts equivalent to new in performance or parts which may have been subject to incidental use. However, such utilization will not affect any provided Product warranty or published reliability statistics.
- Remedies: Remedies under the above warranties will be limited, at ProSoft's option, to the replacement, repair, re-performance or modification of, or issuance of a credit for the purchase price, of the Products involved, and only after the return of such Products pursuant to ProSoft's Return Material Authorization instructions. Replacement Products may be new, re-manufactured, refurbished or reconditioned at ProSoft's discretion. Costs in connection with or as a result of such defective or nonconforming Products, including, cost to transport the Products from Buyer to ProSoft and return shipment to Buyer, will be borne by ProSoft. The foregoing will be the exclusive remedies for any breach of warranty or breach of the Agreement arising there from.
- General: Warranty satisfaction is available only if (a) ProSoft is provided prompt notice of the warranty claim and (b) ProSoft's examination discloses that any alleged defect has not been caused by misuse; neglect; improper installation, operation, maintenance, repair, alteration or modification by another party other than ProSoft; accident; or unusual deterioration or degradation of the Products or parts thereof due to physical environment or electrical or electromagnetic noise environment.
- THE ABOVE WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESSED, IMPLIED OR STATUTORY, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE, OR PERFORMANCE OR APPLICATION WARRANTIES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. Rights under the above warranties (subject to noted limitations) extend to Buyer's customers if Buyer is a ProSoft-appointed distributor or reseller for the Products.
Limitation of Liability TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, PROSOFT AND BUYER WILL NOT BE LIABLE FOR ANY BUSINESS INTERRUPTION OR LOSS OF PROFIT, REVENUE, MATERIALS, ANTICIPATED SAVINGS, DATA, AGREEMENT, GOODWILL OR THE LIKE (WHETHER DIRECT OR INDIRECT IN NATURE) OR FOR ANY OTHER FORM OF INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND. PROSOFT'S AND BUYER'S MAXIMUM CUMULATIVE LIABILITY RELATIVE TO ALL OTHER CLAIMS AND LIABILITIES, INCLUDING OBLIGATIONS UNDER ANY INDEMNITY, WHETHER OR NOT INSURED, WILL NOT EXCEED TWO MILLION DOLLARS ($2,000,000). PROSOFT DISCLAIMS ALL LIABILITY RELATIVE TO GRATUITOUS INFORMATION OR ASSISTANCE PROVIDED BY, BUT NOT REQUIRED OF PROSOFT HEREUNDER. ANY ACTION AGAINST PROSOFT MUST BE BROUGHT WITHIN EIGHTEEN (18) MONTHS AFTER THE CAUSE OF ACTION ACCRUES. THESE DISCLAIMERS AND LIMITATIONS OF LIABILITY WILL APPLY REGARDLESS OF ANY OTHER CONTRARY PROVISION HEREOF AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN AGREEMENT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE, EACH PROVISION HEREOF WHICH PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTY OR CONDITION OR EXCLUSION OF DAMAGES IS SEVERABLE AND INDEPENDENT OF ANY OTHER PROVISION AND IS TO BE ENFORCED AS SUCH. Intellectual Property Indemnity Except as excluded herein, ProSoft will defend any suit or proceeding brought against Buyer arising out of a claim that the design or construction of ProSoft branded Products sold or licensed hereunder by ProSoft infringes any patent, copyright or trademark granted or registered in any country, provided (a) Buyer promptly notifies ProSoft in writing of any such claim and any suit or proceeding, (b) at ProSoft's expense, Buyer gives ProSoft the sole right to defend, settle and control the defense of the suit or proceeding, (c) Buyer provides all necessary information and assistance for such defense or settlement, and (d) Buyer takes no position adverse to ProSoft in connection with such claim. In the event ProSoft is obligated to defend such suit or proceeding, ProSoft will pay all costs and damages finally awarded or agreed upon by ProSoft that are directly related thereto. ProSoft's obligations under this paragraph will be fulfilled if ProSoft, at its option and expense: (i) procures for Buyer the right to continue using such Products, (ii) replaces the same with non-infringing equipment/software having functionality similar to that of the Products, (iii) modifies the Products to make them non-infringing while retaining similar functionality, or (iv) if (i)-(iii) are not commercially practical, refunds to Buyer the purchase price of the affected Products in exchange for their return. ProSoft will have no obligation to defend or for any other liability with respect to: [a] any suit or proceeding to the extent based on or arising out of a configuration or modification made, specified or requested by Buyer and which is incorporated into or constitutes the Products, [b] the use of the Products in a process or application specified, requested or controlled by Buyer or any third parties. As used in this paragraph, the term “Products” shall mean only ProSoft's standard hardware, firmware and software that are generally commercially available, and expressly excludes third-party-branded equipment/software. THIS PARAGRAPH IS IN LIEU OF ALL WARRANTIES OR REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, THAT THE PRODUCTS WILL BE FREE OF THE RIGHTFUL CLAIM OF ANY THIRD PARTY BY WAY OF INFRINGEMENT OR THE LIKE. Resale of Third-Party Branded Products and Services NOTWITHSTANDING ANY OTHER PROVISION HEREIN, PROSOFT MAKES NO REPRESENTATIONS, PROVIDES NO INDEMNITIES (INTELLECTUAL PROPERTY OR OTHERWISE), AND DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED RELATIVE TO ANY THIRD-PARTY BRANDED PRODUCT OR SERVICE (INCLUDING TRAINING) WHICH MAY BE RESOLD OR SUBLICENSED BY PROSOFT AS A DISCRETE ITEM HEREUNDER. Licensed Software and Firmware Use of Products comprised of software or firmware may be subject to Buyer's acceptance of additional terms and conditions set forth in separate ProSoft or third-party license agreements that will control to the extent necessary to resolve any conflict with the terms and conditions stated or otherwise referenced herein. In the absence of a separate ProSoft's license agreement, Buyer is granted a non-exclusive, non-transferable license to use provided ProSoft's software or firmware only in object code form and solely in conjunction with ProSoft-provided Products, with no rights to sublicense, disclose, disassemble, decompile, reverse engineer, or otherwise modify the software or firmware. Packing and Marking Buyer-specified packing or marking may be subject to additional charges not otherwise included in the price of the Products. Weights and Dimensions Published or advertised weights and dimensions are estimates or approximations only and are not warranted. Prices Prices and other information shown in any ProSoft publication (including product catalogs and brochures) are subject to change without notice and to confirmation by specific quotation. Such publications are not offers to sell and are maintained only as a source of general information. Prices do not include sales, use, excise, customs, value-added or similar taxes. Buyer will pay or reimburse ProSoft for all such taxes as may be applicable. Time and material services will be provided in accordance with ProSoft's published service rates (including applicable overtime and travel expenses) in effect as of the date such services are provided, unless otherwise confirmed by ProSoft's written quotation or order acknowledgment. Billable service time includes travel time to and from the job site and all time ProSoft's representatives are available for work and waiting (whether on or off the job site) to perform the services. Changes and Substitutions Buyer-requested order changes, including those affecting the identity, scope and delivery of the Products, must be documented in writing and are subject to ProSoft's prior approval and adjustments in price, scheduling and other affected terms and conditions. In any event, ProSoft reserves the right to reject any change that it deems unsafe, technically unadvisable or inconsistent with established engineering or quality guidelines and standards, or incompatible with ProSoft's design or manufacturing capabilities. ProSoft further reserves the right to substitute using the latest superseding revision or series, or equivalent Product having comparable form, fit and function. Returns All returns of Products will be pursuant to ProSoft's instructions. Warranty returns of unused and resalable Products for credit will be subject to ProSoft's return policies in affect at the time, including applicable restocking charges and other conditions of return. Products returned under warranty must be properly packed and include all accessory items included in the original shipment. ProSoft reserves the right to adjust the credit amount due to customer should these items not be returned. Returned products should be shipped to ProSoft-specified locations. Shipping containers must be clearly marked per ProSoft's instruction and shipped freight prepaid by Buyer. Order Cancellation Cancellation by Buyer prior to shipment is permitted only by written notice and is subject to ProSoft's prior approval and upon payment to ProSoft of reasonable cancellation and restocking charges, including reimbursement for direct costs. Cancellation charges associated with orders for custom Products, large quantity orders or Products specifically manufactured to Buyer's specification may equal the actual selling price of the Products. ProSoft has the right to cancel an order for cause at any time by written notice, and ProSoft will be entitled to cancellation and restocking charges as identified above. No cancellation by Buyer for cause will be effective unless and until ProSoft has failed to correct such alleged cause within forty-five (45) days after receipt of Buyer's written notice specifying such cause. Force Majeure The Agreement (other than Buyer's obligation to pay all sums due to ProSoft in accordance with the Agreement) shall be suspended, without liability, in the event and to the extent that its performance is prevented or delayed due to any circumstance beyond the reasonable control of the party affected, including but not limited to: Act of God, war, armed conflict or terrorist attack, riot, fire, explosion, accident, flood, sabotage; governmental decisions or actions (including but not limited to prohibition of exports, re-exports or the failure to grant or the revocation of applicable export licenses), or labor trouble, strike, lockout or injunction. . For purposes of this paragraph, a “cause beyond its reasonable control” will not include international currency fluctuations or revaluations. ProSoft shall have no obligation to supply hardware, software or technology or to provide services in the absence of government permits or fulfillment of statutory conditions of exemption from such permits within the framework of import and export control (in particular, according to the regulations applicable in the United States, the European Union and the jurisdiction in which ProSoft has its registered office or from which components of the Goods are supplied) and the underlying circumstances could not be foreseen by ProSoft and are outside of ProSoft’s sphere of influence. In the event of revocation of issued government permits or in the event of a change in the applicable statutory import and export control regulations such that ProSoft is prevented from fulfilling the Agreement, ProSoft is discharged from the contractual obligation without any liability of ProSoft. If the delay is caused by the delay of a subcontractor of ProSoft and if the delay arises out of causes beyond the reasonable control of both ProSoft and the subcontractor, and without the fault or negligence of either of them, ProSoft will not be liable to the Buyer for damages unless the articles or services to be furnished by the subcontractor were obtainable from other sources in sufficient time to permit the ProSoft to meet the required delivery schedule. If either party is delayed or prevented from performance of its obligations by reason of this Clause for more than 180 consecutive calendar days, either party may terminate the then unperformed portion of the Agreement by notice in writing given to the other party, without liability provided that Buyer shall be obliged to pay the reasonable cost and expense of any work in progress and to pay for all Goods delivered and Services performed as accrued at the date of termination. Government Clauses and Contracts Application of government contract regulations and clauses to the Products or the agreement evidenced by these terms and conditions are subject to the separate review and consent by an authorized representative at ProSoft's headquarters. Products sold or licensed hereunder are not intended to be used, nor should they be used, in any nuclear-related application either as a "Basic Component" as defined under United States nuclear regulations or under similar nuclear laws and regulations of any other country or otherwise. Export Control Products and associated materials supplied or licensed hereunder may be subject to various export laws and regulations. It is the responsibility of the exporter to comply with all such laws and regulations. Notwithstanding any other provision herein to the contrary, in the event that U.S. or local law requires export authorization for the export or re-export of any Product or associated technology, no delivery can be made until such export authorization is obtained, regardless of any otherwise promised delivery date. In the event that any required export authorization is denied, ProSoft will be relieved of any further obligation relative to the sale and/or license and delivery of the Product(s) subject to such denial without liability of any kind relative to Buyer or any other party. ProSoft will not comply with boycott related requests except to the extent permitted by U.S. or international laws and then only at ProSoft's discretion. Disputes The parties will attempt in good faith to promptly resolve any dispute arising hereunder by negotiations between representatives of the parties who have authority to settle the dispute. If unsuccessful, the parties further will attempt in good faith to settle the dispute by non-binding third-party mediation, with mediator fees and expenses apportioned equally to each side. Any dispute not so resolved by negotiation or mediation may then be submitted to a court of competent jurisdiction in accordance with the terms hereof. These procedures are the exclusive procedures for the resolution of all such disputes between the parties. Governing Law and Forum The agreement evidenced hereby and all disputes arising there under will be governed by and interpreted in accordance with the internal laws and will be subject to the exclusive jurisdiction of the courts of the state, province or other governmental jurisdiction in which ProSoft's principal place of business resides, but specifically excluding the provisions of the 1980 UN Convention on Contracts for the International Sales of Goods. Should any term or provision hereof be held wholly or partly invalid or unenforceable under applicable law, the remainder of the agreement evidenced hereby will not be affected thereby. Assignment The agreement evidenced hereby may not be assigned by either party without the written consent of the other (which consent will not be unreasonably withheld). However, consent will not be required for internal transfers and assignments as between ProSoft and its parent company, subsidiaries or affiliates as part of a consolidation, merger or any other form of corporate reorganization. Language The parties acknowledge that they have required that the agreement evidenced hereby be drawn up in English. In the event of a conflict between the English and other language versions, the English version will prevail. Insurance ProSoft agrees to carry insurance covering product liability and general liability in amounts of not less than $5,000,000.00 per occurrence. All such policies shall provide for at least thirty (30) days prior written notice, to Buyer, of cancellation, non-renewal or material change in the terms and conditions of coverage and name Buyer as an additional named insured. At Buyer’s request, ProSoft will provide Buyer with a certificate or certificates of insurance evidencing such coverage. In the event ProSoft ceases to carry adequate insurance that names Buyer as an additional insured, Buyer may immediately cancel this Purchase Order by giving ProSoft written notice of Buyer’s election to cancel. Proprietary Information Each party agrees that they will keep confidential all information in connection with this Agreement (“Proprietary Information”) and will disclose Proprietary Information only to those of its employees as will be directly concerned with performance under this Agreement. Each party agrees that it will not disclose Proprietary Information to any other person or entity without the express, prior written consent of the other party. Each party agrees that it will protect the confidentiality of Proprietary Information with the same degree of care with which it protects its own proprietary information, but with no less than reasonable care, and will return all copies (in any medium recorded) of Proprietary Information to the other party immediately upon written request. The parties agree that Proprietary Information shall be considered commercial secrets qualified for protection under applicable law. Notwithstanding the foregoing, either party may disclose Proprietary Information that must be disclosed to any government, any agency or department thereof, or any stock exchange to the extent required by law, provided immediate notification to the other party of such requirement and the terms thereof prior to such disclosure so that the party may seek an appropriate protective agreement or order prior to the disclosure. The foregoing obligations will survive termination of this Agreement and will remain binding to each party, its respective affiliates, successors and assigns forever. This Agreement is designated as Proprietary Information subject to this Section.
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