HALL TECHNOLOGIES TERMS AND CONDITIONS OF SALE
1. PRICES:
All prices are firm for 90 days from the date of the quotation. Prices are quoted F.O.B. Seller’s place of shipment. Shipping costs and risk of loss or damage during shipping are Buyer’s responsibility. Prices do not include any sales, use, excise or other taxes, which may be imposed upon the Buyer, and be collectible by the Seller. If Buyer claims to be exempt from any such taxes, then Buyer shall deliver to Seller the appropriate exemption certification with the Buyer’s purchase order. Buyer shall pay for any value added or other taxes, custom duties, or similar tariffs and fees.
2. ORDER:
In the event that Buyer issues a purchase order or other document, it is specifically agreed that no terms and conditions in such document shall have any force or effect. A purchase order or other document may not alter, amend, supplement or waive these terms and conditions without an agreement in writing signed by Seller.
3. PAYMENT TERMS:
Unless otherwise agreed, the Buyer shall pay each invoice total in full, exclusively in United States dollars, within 30 days after the date of the related invoice. Interest shall accrue on any past due amount at the lesser of 18% per annum or the maximum rate permitted by applicable law.
4. DELIVERY, TITLE, AND RISK OF LOSS:
Seller will ship products (“Products”) as promptly as reasonably possible in accordance with the agreed upon shipment date. Title to the Product and risk of loss transfers to Seller upon delivery to common carrier; provided, however, title to any Software remains vested in Seller.
5. WARRANTY:
Seller warrants for 36 months from the date of shipment that the Product shall, under normal use and service, be free from defects in material and workmanship, and shall materially conform to Seller’s specifications in effect on the date of shipment. However, Seller makes no warranty that any Software will operate uninterrupted or error free. Seller’s sole obligation, and Buyer’s sole remedy, is limited to the repair or replacement, at Seller’s sole discretion, of the defective Product or correction of erroneous Software at no charge to Buyer. Corrections to Software shall be provided electronically or on suitable media chosen by Seller. Seller shall have no obligation to repair or replace any Product or correct any Software if (a) the Product has been modified, repaired or reworked by any party other than Seller without Seller’s prior written consent, or (b) the defect is the result of (i) any improper storage, handling or use of the Product by Buyer, (ii) any use of the Product by Buyer in conjunction with another product that is electronically or mechanically incompatible or of an inferior quality or (iii) any damage to the Product by power failure, fire, explosion or any act of God or other cause beyond Seller’s control. The warranties set forth in this Section shall be nontransferable. NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY, THE PROVISIONS OF THIS SECTION CONSTITUTE BUYER’S SOLE REMEDY UNDER THIS AGREEMENT WITH RESPECT TO ANY DEFECTIVE PRODUCT. EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION, SELLER MAKES NO WARRANTY OF ANY KIND WITH RESPECT TO ANY PRODUCT AND SELLER DISCLAIMS ANY AND ALL IMPLIED WARRANTIES RELATING THERETO, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY INTENDED OR PARTICULAR PURPOSE. The rights and obligations of the Buyer shall survive the expiration of the Agreement or sooner termination of this Agreement and/or the duration of the warranty period.
6. RETURN PROCEDURES:
Buyer shall obtain from Seller a Return Material Authorization (“RMA”) and return the defective Product or part thereof and RMA to Seller’s designated repair facility and Seller shall repair or replace the Product and return it to Buyer’s point of shipment. If Seller determines that the Product cannot be repaired, replaced or Software corrected, then Seller may, in its sole discretion, credit or refund to Buyer the purchase price of the Product, less a reasonable adjustment for beneficial use. Buyer will return defective Product to Seller’s designated repair facility, at the address provided herein, fully insured, at Buyer’s expense.
7. SOFTWARE LICENSE:
Upon delivery of the Product, Seller grants to Buyer and Buyer accepts a nonexclusive license to use any Software or firmware embedded in said Product solely in connection with the specific Product on which the Software was delivered. Buyer may not use the Software for any purpose apart from the unit of said Product on which the Software resides. Solely in connection with the sale of the Product or of any product incorporating said Product, Buyer may distribute, sell, and offer to sell the Product, and may sublicense the Software and authorize the granting of a sublicenses of all the license rights granted to Buyer herein. All Software shall be treated as Confidential Information under this Agreement.
8. CONFIDENTIAL INFORMATION:
If Seller delivers to Buyer any information or data marked or identified as confidential or proprietary (“Confidential Information”), then Buyer shall not (a) disclose or otherwise make available the Confidential Information to any third party (except that Buyer may disclose the Confidential Information to its contractors to the extent that they have a need to know the Confidential Information in connection with the operation and/or maintenance of the Product for Buyer, provided, however, that prior to the disclosure, contractor has agreed in writing to treat the Confidential Information as confidential in accordance with the terms and conditions stated herein), (b) modify, copy, transmit, alter, merge, decompile, disassemble, reverse engineer or adapt any portion of the Confidential Information (except to the extent otherwise expressly permitted by this Agreement) or (c) use the Confidential Information for any purpose except to operate and maintain the Product. The rights and obligations of Buyer under this Section shall survive the expiration of or sooner termination of this Agreement.
9. COMPLIANCE WITH LAWS AND EXPORT CONTROLS:
If any Product, documentation, or technology delivered or disclosed to Buyer under this Agreement is subject to the Export Administration Regulations administered by the United States Department of Commerce (the “EAR”) or any other United States export law, then Buyer shall not export or re-export such Product, documentation, or technology except in compliance with the EAR or such other law. The rights and obligations of Buyer under this Section shall survive the expiration of the term or sooner termination of this Agreement.
10. INDEMNIFICATION: Each party (the “Indemnitor”) hereby indemnifies and holds the other party (the “Indemnitee”), its directors, officers, agents and employees harmless against any and all claims, actions, damages, liabilities, or expenses including reasonable attorney’s fees and other legal costs for injury to or death of any person and loss or damage to any and all tangible property arising out of the negligent or wrongful acts or omissions of the Indemnitor under this Agreement.
11. LIMITATION OF LIABILITY:
NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY, NEITHER SELLER OR SELLER’S SUPPLIERS OR LICENSORS SHALL HAVE ANY LIABILITY TO BUYER FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL OR SPECIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, ANY LOST REVENUES OR PROFITS) ARISING OUT OF THIS AGREEMENT, AND (B) SELLER’S LIABILITY FOR ANY CLAIM ARISING OUT OF THIS AGREEMENT (OTHER THAN LIABILITY FOR PERSONAL INJURY CLAIMS) SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID AND RECEIVED FOR THE PRODUCT THAT IS THE SUBJECT OF SUCH CLAIM.
12. FORCE MAJEURE:
If either party is prevented from timely performing any obligation under this Agreement (other than the payment of money) because of any act of God or any other cause beyond its control (including, but not limited to, any restriction, strike, lock-out, plant shutdown, material shortage, delay in transportation or delay in performance by its suppliers or subcontractors for any similar cause), and the party delivers to the other party prompt written notice thereof, then the party shall be excused from timely performance of the obligation for as long as the act of God or other cause continues to prevent timely performance thereof. Upon the cessation of any such act of God or other cause, the party prevented from performing any obligation shall promptly perform the obligation.
13. GENERAL:
Buyer may not assign or transfer this Agreement or rights hereunder without the prior written consent of Seller. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any right hereunder. Any action against Seller under this Agreement must be brought within one year after the cause of action accrues. This Agreement and the performance hereunder shall be governed by and construed in accordance with laws of the State of Texas, without giving effect to the principles of conflicts of laws thereof.