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| Actox's Terms and Conditions of Sale |
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1. Definitions. As used herein, the following terms have the means set forth below.
(a) “BUYER” means the party issuing the Purchase Order and agreeing to the terms and conditions set forth herein for purchase of the Products specified in the Purchase Order.
(b) “Licensed Software” means a computer program, including any
modifications, updates or additions which may be supplied by ACTOX to BUYER, in object code or executable form only, and in any medium, such as magnetic tape, disks, or optical media; and related materials such as flow charts, logic diagrams, manuals, and other documentation which are provided to BUYER by ACTOX in or for use in particular Products sold by ACTOX to BUYER. Licensed Software may reside within Products at the time of delivery to BUYER, or it may be provided separately for installation on Products.
(c) “Products” mean those ACTOX hardware and software products and services available for sale at the prices set forth in ACTOX’s letter of offer, or that may be listed on a subsequent Purchase Order.
(d) “Purchase Order” means a written order for Products from the BUYER.
(e) “ACTOX” means ACTOX Corporation, the party selling the Products ordered hereunder by BUYER.
2. Acceptance. The BUYER’s Purchase Order is not binding upon ACTOX until it has been accepted in writing by an authorized representative of ACTOX. BUYER’s Purchase Order(s) shall reference and be subject to these terms and conditions. Any other terms and conditions on any order printed or otherwise, shall only be valid if accepted in writing by ACTOX. Prices are exclusive of all taxes, excises or other charges by any government authority, whether local, state, national or foreign no matter how designated, including but not limited to sales, use, withholding, value added, import/export customs fees and duties, and BUYER shall pay such taxes or charges either to ACTOX or to the government authority as applicable. Products ordered are non-cancelable without ACTOX’s written permission.
3. Delivery. Requested delivery dates are subject to ACTOX's acceptance and lead times. ACTOX will use commercially reasonable efforts to meet agreed upon delivery dates. “Delivery” shall occur upon delivery to the carrier at ACTOX's selected shipment point or facility. Delivery schedule changes must be mutually agreed to. ACTOX is however not liable for any loss, consequential or otherwise, due to delay in performance or shipment hereunder due to unforeseen circumstances or causes beyond our control. Claims for shortages or damages must be made in writing to ACTOX within ten (10) days of receipt of the products. Deliveries will be shipped pursuant to BUYER’s written instructions. Products shall be packaged in accordance with good commercial practices to assure safe arrival of Products at destination. BUYER is responsible for obtaining insurance and for filing and processing all insurance claims. BUYER may request that ACTOX organizes a transportation on BUYER’s behalf, in which case BUYER shall be responsible for all costs and risk associated with such transport. Purchase of insurance by ACTOX must be explicitly requested by BUYER in writing. ACTOX will declare the value of the shipment at full invoice price unless otherwise directed in writing by BUYER. Products held or stored for BUYER shall be at BUYER's risk and subject to reasonable storage charges. The ownership of the product changes from ACTOX to BUYER at the moment when product is handed to a freight forwarder.
4. Payment. Payment shall be made with a wire transfer, cashier’s check, check (if agreed upon) or credit card. The price reflects 3.5% cash discount. If payment is made via a credit card cash discount cannot be applied. Partial deliveries shall be allowed. Arrangements for alternate methods of payment may be agreed to between the Parties. ACTOX may, at any time, decline to fulfill any outstanding orders in the event the current payment arrangements with BUYER become unsatisfactory. Late payments, if due via wire transfer or in cash, shall be subject to a late payment charge of two percent (2%) per month, or the legal maximum which ever is less, plus reasonable collection charges including attorneys’ fees. Payment is not subject to inspection/acceptance of the Products since protection to BUYER for nonconforming Products is provided exclusively under ACTOX's warranty. BUYER waives any right which it may have to -set off any payment obligation.
5. Product Responsibility. BUYER assumes all responsibility for the
Products in connection with the systems engineering, other third party equipment, installation, start-up, system operation and maintenance, including any requirements for licenses, permits or other governmental approvals. ACTOX's responsibility shall be limited solely to BUYER under the warranty stated herein.
6. Warranty. All Products are warranted against defects in materials and workmanship for up to thirty six (36) months from date of shipment depending on the product (the exact warranty period is determined and agreed at the time of shipping), unless offered otherwise. ACTOX’s obligation covers repairing, or at our option replacing products that prove to be defective during the warranty period. The obligation is limited to the original purchase amount. All Products shall be returned to ACTOX with transportation charges to ACTOX facility prepaid by the BUYER. Repaired Products shall be shipped to the BUYER at ACTOX’s expense. ACTOX shall not be responsible for defects caused by misuse, improper application, operation, or installation, use in any way with equipment not previously approved in writing ACTOX, and/or has been subject to the opening of any sealed cabinet boxes without ACTOX’s prior written consent, and/or has been used in any way other than in strict compliance with ACTOX’s installation and operation instructions provided with the Products, unauthorized repair or negligence in use. BUYER shall provide for any removal of the defective unit or component from any Product with which it has been integrated subsequent to leaving ACTOX's plant. Replacement parts may be reconditioned and will not extend the warranty period. BUYER is responsible for all risk of loss and for all import/export documents, licenses, customs clearances and other requirements and charges associated with returns to and from the United States; and for installation. This warranty is not assignable nor is any third party intended to be benefited hereby. All Products returned under a warranty claim must be returned in accordance with ACTOX's standard return material authorization procedures, including a written claim reciting the nature and details of the claim, the date the cause of the claim was first observed and the unit serial number.
EXCEPT FOR THE FOREGOING EXPRESS WARRANTY AS TO
HARDWARE AND SOFTWARE PRODUCTS ACTOX MAKES NO OTHER REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED OF ANY KIND WITH RESPECT TO THE PRODUCTS, WHETHER WRITTEN OR ORAL, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR BASED ON ANY SAMPLE OR MODEL. THE ABOVE EXPRESS WARRANTY SHALL CONSTITUTE THE SOLE REMEDY OF BUYER AND SOLE LIABILITY OF ACTOX WHETHER IN WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) STRICT LIABILITY OR OTHERWISE AND IN NO EVENT SHALL ACTOX BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO, INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS, REVENUE, GOOD WILL OR LOSS OF USE OR DATA) OR ANY COSTS OF SUBSTITUTE PRODUCTS ARISING OUT OF OR RELATED TO THE
PRODUCTS OR ANY USE OR THE RESULTS OF ANY USE THEREOF OR OTHERWISE RELATING TO THE FUNCTIONING THEREOF OR ARISING OUT OF THIS AGREEMENT, WHICH MAY BE SUSTAINED BY BUYER, ITS CUSTOMERS OR OTHERS, EVEN IF ACTOX HAD BEEN ADVISED, KNOWN OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES OR COSTS, AND BUYER SHALL HOLD HARMLESS AND DEFEND ACTOX THEREFROM.
7. Re-stocking Fee. ACTOX Corporation reserves the right to charge certain amount for accepting sold product without defect. This amount may vary between 10% - 25% of the original product cost depending on condition of the returned product.
8. Software License. ACTOX grants to BUYER a paid-up, worldwide, perpetual, royalty-free, nonexclusive, non-transferable (other than defined below) right to use the Licensed Software solely in connection with the Products delivered hereunder. BUYER may sublicense the Licensed Software to third party end users under terms substantially similar to these terms under this Section 7. The Licensed Software shall only be delivered to BUYER or end users in object (executable) code. Neither BUYER nor end users may modify, reproduce, decompile, reverse engineer or transfer the Licensed Software, or remove any proprietary, regulatory or safety notices of ACTOX or third parties found in or on Licensed Software, without ACTOX’s prior written consent. The Licensed Software provided to BUYER and end users under this Contract are ACTOX’s or its licensors’ proprietary, trade secret and copyrighted property and neither BUYER nor end users will have any ownership or title to the Licensed Software. In the event of a breach by either BUYER or any End User, ACTOX is entitled to injunctive relief, in addition to any other remedies available, it being acknowledged that ACTOX will suffer irreparable harm and other legal remedies may be inadequate. BUYER and end users’ obligations with respect to the Licensed Software shall survive any termination or expiration of this Contract. The Products described in this Contract may include copyrighted ACTOX and third party software stored in semiconductor memories or other media. Laws in the United States and other countries preserve for ACTOX and third party software providers certain exclusive rights for copyrighted software, such as the exclusive rights to distribute or reproduce the copyrighted software. Accordingly, any copyrighted software contained in the Products may not be modified, reverse engineered, distributed, or reproduced in any manner to the extent allowed by law. Furthermore, the purchase of the Products shall not be deemed to grant either directly or by implication, estoppel, or otherwise, any license under the copyrights, patents or patent applications of ACTOX or any third-party software provider, except for the license to use (as provided in this Section 7) that arises by operation of law in the sale of a Product. BUYER may make one (1) copy of Licensed Software (but not including read only memories or similar devices) for archival purposes only and shall reproduce and attach all copyright and proprietary notices. BUYER shall not otherwise copy or allow to be copied Licensed Software except to install Licensed Software on the applicable Products. BUYER agrees that ACTOX shall have the right to have an independent accounting firm conduct an audit at BUYER's premises during normal business hours to verify the number of copies of Licensed Software in use by BUYER. BUYER agrees not to disclose, release, or make available in any form any portion of Licensed Software to any person other than BUYER's own employees or ACTOX’s. BUYER represents that its employees and ACTOX’s having access to Licensed Software are or shall be party to written agreements acknowledging a duty to protect ACTOX's confidential materials, including the Licensed Software. BUYER shall keep Licensed Software (including archival copies, if any), in a secure environment and shall take all steps reasonably necessary to protect Licensed Software or any part thereof from unauthorized disclosure or release. BUYER may not export or re - export the Licensed Software in any form except in compliance with all applicable laws and regulations.
9. Force Majeure. Neither Party shall be liable for delay in performance or for non-performance caused by circumstances beyond the control of the Party affected, including for example but not limited to, acts of God, fire, flood, war, government action, accident, labor trouble, shortages, inability to obtain materials, equipment or transportation from suppliers when such inability is due to causes of
Force Majeure on the part of the affected Party’s suppliers or subcontractors; provided, however, that the Party so affected notifies the other Party in writing as soon as possible of the existence of such condition. ACTOX reserves the right to make reasonable allocations among its customers if there is an excusable shortage of Products without liability for failure of performance.
10. Termination. ACTOX and BUYER may terminate a Purchase Order upon the material breach of any of these terms if such breach is not cured within thirty (30) days of receipt of written notification by the breaching party. BUYER’s failure to make a payment when due hereunder constitutes a material breach of this Agreement and affords Seller the right to suspend its performance without liability to Buyer and cancel this Agreement and any purchase orders. In addition, ACTOX may terminate this Purchase Order with written notification to BUYER in the event BUYER attempts to assign this Purchase Order without ACTOX’s written consent or commits an act of insolvency, reorganization or bankruptcy. Termination in accordance with this provision shall entitle ACTOX to cancel all undelivered orders without liability or obligation to BUYER. Nothing herein shall prejudice ACTOX’s rights to collection of outstanding payments or other remedies as may be determined by a court of law.
11. Intellectual Property Rights. All patents, trademarks, trade names, copyrights, designs, and any other intellectual property in relation to the Products whether registered or not shall be and remain the ACTOX property and BUYER shall not claim any right or property therein or register or cause to be registered in any part of the world, any patent, trademark, trade name, copyright or design which is ACTOX’s property. ACTOX retains all intellectual property and production rights in and to all designs, engineering details, and other data pertaining to the Products. BUYER shall not remove, destroy, deface, conceal or alter any name, markings, copyright, notice, number or the like on or contained in or attached to the Products or alter or modify the Products without the ACTOX’s prior written consent.
12. Intellectual Property Indemnity. ACTOX agrees to pay all costs , damages and attorneys’ fees finally awarded in any suit by a third party against BUYER to the extent based upon a finding that the design or the construction of the Products, as furnished, infringes the intellectual property rights of such third party. The foregoing obligation shall be conditioned on BUYER promptly notifying ACTOX, in writing, of such claims, and giving ACTOX the right to defend and/or settle such claim at its expense with counsel of its choice. BUYER shall cooperate with ACTOX in the defense or settlement of the claim. If the manufacture, use or sale of the Products is permanently enjoined, ACTOX shall use reasonable commercial efforts, at its option and expense, to do one of the following: (a) obtain for BUYER the right to use the Product, (b) modify the Product(s) so that it becomes non-infringing or (c) replace it with a non-infringing product which is substantially in compliance with the specifications for the Product in all material respects. If none of the foregoing is commercially feasible, ACTOX shall refund the purchase price paid by BUYER for the allegedly infringing Product. If ACTOX has not completed delivery of the Product, ACTOX shall not be obligated to continue delivering further Product. If ACTOX believes the Product is likely to be the subject of a claim, suit, proceeding or injunction, ACTOX shall also have the right, at its option, to do any of the above. ACTOX shall not have any liability for infringement arising from or occurring as a result of the use of the Product in combination with other items, incorporation of a specific design or modification at the request of BUYER, or the failure by BUYER to implement changes, replacements or new releases recommended by ACTOX, where the infringement would have been avoided by making such changes, replacements or new releases. In addition, ACTOX shall not be liable for royalties payable or damages awarded based on utilization of the Product in combination with other equipment or products for recording of video, audio or data. ACTOX’s obligation to indemnify BUYER hereunder, shall not exceed the total amount paid to ACTOX by BUYER for the allegedly infringing Product purchased under this Contract. This article specifies the entire liability of ACTOX to BUYER with respect to infringement or misappropriation of any copyrights, patents, trademarks, trade secrets, or other proprietary rights pertaining to the Product. ACTOX makes no warranty of non-infringement, express or implied.
13. General.
(a) Assignment. BUYER may not assign this Purchase Order in whole or in part, by operation of law or otherwise, without the prior written consent of ACTOX.
(b) Export. Contractor shall have no obligation to deliver any Product in violation of U.S. export laws or the import laws of any country. The hardware, software, technical data and information exported from the United States in furtherance of this Contract and any immediate product (including processes and services) produced directly by use of such technical data and information shall not be transferred directly or indirectly to a person in a third country or to a national of a third country without the prior written consent, if required, of the U.S. Bureau of Industry and Security. Currently, the third countries to which the export of this equipment is not allowed without such consent are: Cuba, Iran, Libya, Syria, Sudan, and North Korea. BUYER shall flow down the export limitation provisions of this clause to its customers and distributors. Upon written notice from the Contractor, BUYER shall provide such information as the Contractor shall reasonably consider necessary to verify compliance by BUYER with the provisions of this Section 12 (b). If so requested by BUYER, Contractor shall obtain any required U.S. export clearance, provided, however, that BUYER shall remain obligated to provide Contractor with any documentation or information required in connection therewith and any delays in obtaining such U.S. export clearance shall be deemed to be delays outside the reasonable control of Contractor.
(c) Disputes and Governing Law. This Purchase Order shall be governed by and construed in its English language version and in accordance with the laws of the State of California, exclusive of its conflicts of laws provisions except to the extent required otherwise under the laws of the jurisdiction of BUYER. In the event of any dispute under this Purchase Order, the Parties agree that nonexclusive jurisdiction and venue will be in a competent court in the County of San Diego, State of California. The International Sale of Goods Convention shall not apply to this Agreement.
(d) Waiver; Severability. The waiver or failure of either Party to exercise any right provided herein shall not be deemed a waiver of any further right hereunder under such provision or any other provisions. If any provision herein shall be held to be invalid or unenforceable, the other provisions shall remain in full force and effect.
(e) Limitation of Liability. ACTOX's liability for damages to BUYER for any cause whatsoever, and regardless of the form of action, whether in contract or in tort, including negligence, warranty, strict liability or otherwise, shall be limited to the amount of payments received hereunder by ACTOX for the Product relating to such liability. The essential purpose of this provision is to limit ACTOX's liability under or arising out of this Agreement.
(f) Business Ethics. In the event that BUYER has cause to believe that Contractor or any employee or agent of Contractor has acted improperly or unethically under this Contract, BUYER will report such conduct to Contractor’s ethics hotline at 1-866-888-6087. Copies of Contractor’s Guide to Business Conduct are available upon request. Although Contractor will not under any circumstances use the failure to make such a report as a basis for claiming breach of contract by BUYER, BUYER is encouraged to make such reports when warranted.
(g) Surviving Provisions. All provisions contained herein which by their language or context are intended to survive, such as, without limitation, ownership and confidentiality of proprietary information, indemnification and payment provisions, shall survive any termination of this Purchase Order.
(h) No Third Party to Benefit; Non-Exclusive Remedies. All remedies provided herein are cumulative and are in addition to any and all legal rights of the Parties except as are expressly limited by the terms hereof.
(i) Entire Agreement/Amendments. These terms constitute the entire agreement between the Parties with respect to this Purchase Order, and supersede all other agreements, understandings and contracts whether oral or written with respect thereto. No modification, change, amendment to these terms shall be of any force or effect unless in writing and signed by authorized representatives of both Parties.
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