Terms and Conditions
Shipping. Shipments are F.O.B. Seller’s facility, and Buyer will bear all shipping, duties, taxes, insurance, and similar costs, in addition to the price. Products may be new or refurbished units.
Payment. Payment terms are 30 days from invoice in U.S. dollars unless otherwise indicated above, subject to Buyer’s acceptable credit and Seller’s standard late payment charges. If ordered with a credit card, Buyer’s card will be charged upon shipment from Seller.
Ownership Rights. No intellectual property rights are transferred. Buyer may not publish or provide results of any benchmark or comparison tests of the Products to any third-party without Seller’s prior written consent. To the fullest extent allowed by applicable law, Buyer will not (and will not allow any third party to): (i) reverse engineer or attempt to discover any underlying ideas or algorithms of any Product, (ii) modify the Products; or (iii) allow the removal, alteration, covering or obscuring or of any notice or mark that appears on the Product or any documentation.
LIMITED WARRANTY; DISCLAIMER. Seller warrants only to Buyer that the Products, when shipped to Buyer by Seller, will conform in all material respects to the applicable specification sheets shipped with the Products. Such warranty does not apply to units that have been damaged, mishandled, mistreated or used or maintained or stored other than in conformity with such specifications and Seller’s instructions. Seller warrants only to Buyer that Services will be rendered in a professional and workmanlike manner. EXCEPT FOR BODILY INJURY, BUYER’S SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF THE FOREGOING WARRANTY SHALL BE (A) WITH RESPECT TO PRODUCTS, THE REPAIR OR REPLACEMENT OF OR (AT SELLER’S OPTION OR IF REPAIR OR REPLACEMENT IS IMPRACTICAL) REFUND FOR RETURNED NON-CONFORMING UNITS OF PRODUCT FOR WHICH FULL DOCUMENTATION AND PROOF OF NON-CONFORMITY IS PROVIDED TO SELLER (AND FOR WHICH A SELLER RMA HAS BEEN ISSUED) WITHIN 90 DAYS, AFTER THE ORIGINAL NON-CONFORMING UNITS (BUT NOT REPLACEMENTS) ARE SHIPPED BY SELLER, AND (B) WITH RESPECT TO SERVICES, AT SELLER’S OPTION REPERFORMANCE OF THE SERVICES OR REFUND OF THE FEES PAID TO SELLER BY BUYER WITH RESPECT TO SUCH SERVICES. EXCEPT FOR THE FOREGOING WARRANTIES, SELLER DOES NOT MAKE (AND HAS NOT AUTHORIZED ANYONE TO MAKE) ANY EXPRESS OR IMPLIED WARRANTY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. SELLER HAS NOT AUTHORIZED ANYONE TO MAKE ANY REPRESENTATION OR WARRANTY OTHER THAN AS PROVIDED ABOVE.
LIMITED LIABILITY. EXCEPT FOR BODILY INJURY, SELLER WILL NOT BE LIABLE WITH RESPECT TO ANY PRODUCT, SERVICE OR SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR (I) ANY AMOUNTS IN EXCESS IN THE AGGREGATE OF THE AMOUNTS PAID TO SELLER HEREUNDER DURING THE TWELVE MONTH PERIOD PRIOR TO DATE THE CAUSE OF ACTION AROSE OR (II) ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR (III) COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES. SELLER SHALL HAVE NO LIABILITY FOR ANY FAILURE OR DELAY DUE TO MATTERS BEYOND ITS REASONABLE CONTROL OR FOR ANY ALLOCATION OF PRODUCTS BETWEEN ITS CUSTOMERS IN THE EVENT OF A SHORTAGE.
High Risk Activities; Indemnity. The Products are not designed, manufactured, or intended for use in hazardous environments requiring fail-safe performance where the failure of the product could lead to death, personal injury, or significant physical or environmental damage (“high risk activities”). Use of the Products in high risk activities is not authorized, and Buyer shall indemnify and hold harmless, Seller and its suppliers and shareholders from any liability, damages, costs and expenses (including, without limitation, the costs and fees of attorneys and other professionals) arising from or relating to any violation of Buyer’s obligations under this Order or use of the Products or Services by Buyer or any party obtaining use or exposure to the Products or Services through Buyer.
Services. Seller will use reasonable commercial efforts to render the services specified in the Order (“Services”). All changes and modifications to the scope or details of any Services are subject to Seller’s express prior written consent. All Services are deemed accepted upon performance. Any Services rendered by Seller that are not specified in the Order shall be rendered (and paid for) on a time and materials basis at Seller’s general commercial rates in effect at the time the Services are rendered.
Miscellaneous. This Quote is deemed made and performed entirely within Illinois and is governed by Illinois law (without reference to conflicts of laws provisions) and neither UNCISG nor UCITA will apply. If any clause or portion thereof is found to be unenforceable, it will be modified or excised to the minimum extent so that this Quote shall otherwise remain in full force and effect. Buyer’s rights and obligations are not assignable or transferable; Seller may freely assign, delegate and transfer any or all of its rights and obligations. Buyer agrees to comply with all laws and regulations, including those relating to export control. In the event that Buyer allows the Products to be used in a network accessible by third parties, or deploys the Products in a third party network, Buyer will indemnify Seller from any and all claims, liabilities, damages, debts, settlements, costs, attorneys’ fees, expenses, and liabilities of any type whatsoever that may arise on account of such activities. THIS QUOTE CONSTITUTES THE ENTIRE AGREEMENT BETWEEN SELLER AND BUYER WITH RESPECT TO THE ABOVE-REFERENCED PRODUCT(S) AND SERVICES, TO THE EXCLUSION OF ANY PRE-PRINTED OR CONTRARY TERMS OF ANY PURCHASE ORDER (OR SIMILAR DOCUMENT) AND SUPERSEDES AND CANCELS ANY PRIOR DISCUSSIONS, UNDERSTANDINGS OR REPRESENTATIONS BETWEEN THE PARTIES. THIS QUOTE MAY NOT BE MODIFIED OR WAIVED, EXCEPT BY A MUTUALLY SIGNED WRITING, AND, IF THIS QUOTE IS DEEMED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS. If there is already a mutually signed agreement (not including any purchase order or similar document) covering this order, however, then the express terms of that agreement will govern to the extent they are expressly contrary to this Quote. If Buyer is part of an agency, department, or other entity of the United States Government (“Government”), the use, duplication, reproduction, release, modification, disclosure or transfer of the Services and Product is restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulation Supplement as applied to military agencies. The Product and software are each a “commercial item.” In accordance with such provisions, any use of the Product or Services by the Government shall be governed solely by the terms of this Quote.
ADVANCED DIAMOND TECHNOLOGIES, INC.
Phone: 815-293-0900 www.thindiamond.com rev. 2008-02-02