Uticom Systems, Inc. Terms & Conditions of Sale
TERMS AND CONDITIONS OF SALE
The following Terms and Conditions of Sale (“Terms and Conditions”) shall apply to all sales made by Uticom Systems, Inc. (“Uticom”) to a buyer of our goods (“Purchaser”), and every agreement or other undertaking by Uticom is expressly conditioned on Purchaser’s agreement to the following:
ACCEPTANCE OF ORDERS
A quotation, tender or request for information addressed to Purchaser from Uticom does not constitute an offer to sell, and in no circumstances shall any contract arise unless and until the Purchaser submits an order to Uticom, and Uticom issues a written acknowledgment of the order to the Purchaser.
PRICE / DELIVERY TERMS
Unless otherwise executed in writing by an authorized representative of Uticom, all prices quoted are valid for thirty (60) days from the date of the quote or until the earlier acceptance by the Purchaser after which the price may be changed or revised by Uticom without notice to Purchaser. Unless otherwise stated in writing, price and delivery terms are F.O.B. site of shipment, and such prices do not include sales, use or other taxes or any export package cost, transportation, freight handling charges, export/import license fee, customs duties and the like, all of which shall be paid by Purchaser, who shall indemnify Uticom against all claims and liabilities therefore. Unless otherwise specified in writing, delivery dates are estimates only, and Uticom shall not be liable for any damages, consequential or otherwise, resulting from the failure to deliver the goods by a particular date.
PAYMENT / SECURITY
Unless otherwise executed in writing by an authorized representative of Uticom, payment terms are thirty (30) days from the date of the invoice for customers with satisfactory credit. In the event payment is not received by the due date, interest shall accrue at the rate of one and one-half percent (1.5%) on the unpaid portion of the invoice for each period of thirty (30) days from the due date. Purchaser shall be liable for Uticom’s costs associated with the collection of any amounts past due, including but not limited to attorney’s fees and court costs. Uticom retains title and a security interest in the goods until full payment is received by Uticom. Payments made by credit card, charge cards or credit must be approved in writing by Uticom prior to acceptance of the order. In addition, payments made by credit card that exceed $10,000 shall be charged an additional three percent (3%) for the additional credit card fees incurred by Uticom.
Whenever Purchaser becomes insolvent or Uticom in good faith requires security, Uticom may cancel any outstanding contract with Purchaser; revoke any extension of credit to Purchaser; reduce any unpaid debt by enforcing its security interest in all goods (and proceeds therefrom) furnished by Uticom to Purchaser; and take any other steps necessary or desirable to secure Uticom fully with respect to Purchaser’s payment for goods furnished or to be furnished by Uticom.
INSPECTION / ACCEPTANCE / RETURN / CANCELLATION
In the absence of an appropriate written notice with full particulars of any deficiency in the quality or quantity of the goods, sent to Uticom after Purchaser’s inspection of the goods, Purchaser shall be conclusively deemed to have inspected and accepted the goods within sixty (60) days after receipt. Purchaser may not return any goods, under warranty claim or otherwise, without first reporting to Uticom the reasons for such return and first obtaining and then exercising such reasonable instructions as Uticom may give in authorizing any return. In the event Purchaser may accept such cancellation in its sole discretion, however such cancellation, modification, or suspension of order will not be accepted on terms that will not fully indemnify Uticom against its loss, including recovery of all direct costs incurred, including normal indirect and overhead charges.
Unless otherwise executed in writing by an authorized representative of Uticom, Uticom warrants that all goods will be free from defects in materials and workmanship for a period of one (1) year from the time of delivery by Uticom (“Limited Warranty”).
The Limited Warranty does not apply if (1) the defect is the result of use or handling of the goods in a manner, circumstances or purposes other than those approved or instructed by Uticom; or (2) the goods are misused or abused or there is evidence of tampering, mishandling, neglect, accidental damages, modification or repair without the approval of Uticom.
THE LIMITED WARRANTY PROVIDED ABOVE IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE LIMITED WARRANTY IS IN LIEU OF ANY OTHER LIABILITY OF OBLIGATION OF UTICOM FOR LOSSES, EXPENSES, INCONVENIENCES OR DAMAGES (WHETHER SPECIAL, INDIRECT, SECONDARY, OR CONSEQUENTIAL) ARISING FROM OWNERSHIP OR USE OF THE GOODS. REPAIR, REPLACEMENT, OR CREDIT (AT UTICOM’S OPTION) UPON RETURN OF THE GOODS IS PURCHASER’S SOLE REMEDY FOR ANY SUCH LOSSES, EXPENSES, INCONVENIENCES OR DAMAGES. PURCHASER HEREBY WAIVES ANY RIGHTS THAT IT MIGHT OTHERWISE BE ENTITLED TO IN CONNECTION WITH THE MATTERS COVERED IN THIS PARAGRAPH.
NO CONSEQUENTIAL DAMAGES
Under no circumstances whatsoever shall Uticom be liable to Purchaser for any indirect, special, or consequential damages, whether foreseeable or unforeseeable and whether based upon lost goodwill, lost resale profits, loss of use of money, work stoppage, impairment of other assets, or otherwise and whether arising out of breach of warranty, breach of contract, strict liability in tort, negligence, misrepresentation, or otherwise, except only in the case of personal injury where applicable law requires such liability.
PURCHASER MATERIALS AND DATA
(a) Purchaser represents and warrants that any matter or material it furnishes to Uticom for performance of services (i) does not infringe any copyright or trademark or other Intellectual Property Rights of any third party; (ii) is not libelous or obscene; (iii) does not invade any persons right to privacy; and (iv) does not otherwise violate any laws of infringe the rights of any third party. (b) Purchaser warrants that it has the right to use and to have Uticom use on behalf of Purchaser any data provided to Uticom by Purchaser including specifically customer names, identifying information, addresses and other contact information and related personal information (“Data”). Purchaser further warrants that it will designate on the applicable order if Data provided pursuant to that order is subject to any federal, state or local statutes or law providing enhanced data protection or requiring enhanced data security procedures.
Any and all inventions, discoveries, patent applications, patents, copyrights, trademarks and trade names, commercial symbols, trade secrets, work product and information embodying proprietary data existing and owned by Purchaser as of the date of the order or made or conceived by employees of Purchaser during the Term of the order shall be and remain the sole and exclusive property of Purchaser provided that Purchaser grants to Uticom a license to use, display and distribute (and to sub-license its affiliates and sub-contractors to use, display and distribute) any intellectual property rights delivered to Uticom as reasonably necessary to perform any order. Any and all inventions, discoveries, patent application, patents, copyrights, trademarks and trade names, commercial symbols, trade secrets, work product and information embodying proprietary data existing and owned by Uticom as of the date of the order or made or conceived by employees, consultants, representatives or agents of Uticom during the term of this Terms and Conditions shall be and remain the sole and exclusive property of Uticom. Without limiting the generality of the foregoing, the parties agree that Uticom will own systems (including all web source code) related to the Services provided hereunder, including all modifications, upgrades and enhancements thereto made during the term of the order. Without limiting the generality of the foregoing, Purchaser acknowledges and agrees that Uticom is in the business of developing customized print and signs, and that Uticom shall have the right to provide to third parties services which are the same or similar to the services and products provided herein and to use or otherwise exploit any Uticom materials in providing such services or products.
Any information that parties receive or otherwise have access to incidental to or in connection with an order (collectively, the “Confidential Information”), shall be and remain the property of the disclosing party. Confidential Information shall not include information which: (i) was in the possession of the Receiving Party at the time it was first disclosed by the Disclosing Party; (ii) was in the public domain at the time it was disclosed to the Receiving Party; (iii) enters the public domain through sources independent of the Receiving Party and through no breach of this provision by the Receiving Party; (iv) is made available by the Disclosing Party to a third party on an unrestricted, non-confidential basis; (v) was lawfully obtained by the Receiving Party from a third party not known by the Receiving Party to be under an obligation of confidentiality to the Disclosing Party; or (vi) was at any time developed by the Receiving Party independently of any disclosure by the Disclosing Party. Confidential Information may be used to the extent necessary to complete an order and the parties shall not disclose Confidential Information to any third party, except to its agents (who have executed confidentiality agreements containing terms substantially similar to the terms) as necessary to complete the order hereunder. In no event shall Purchaser acquire any right, title or interest in and to any product or process information, including related know how, either existing or developed during the course of the business relationship with Uticom and Purchaser, and in no event shall Uticom acquire and right, title, or interest in and to any materials or information provided to it by Purchaser.
PATENT, COPYRIGHT AND TRADEMARK INDEMNITY
In the event that a good supplied by Uticom is claimed to directly infringe a United States patent, copyright or trademark or a foreign patent, copyright or trademark corresponding thereto in effect at the time Uticom issues its invoice or written acknowledgment of the order, then Purchaser shall permit Uticom, at its option and expense, either to (1) procure the right to continue to use such good, (2) replace or modify such good so that the good supplied becomes non-infringing, or (3) accept return of such good and reimburse Purchaser for the purchaser price, less a charge for reasonable wear and depreciation.
Uticom shall at its expense defend any action against Purchaser based on a claim that a good infringes a United States patent, copyright or trademark or a foreign patent, copyright or trademark corresponding thereto, provided that Purchaser: (1) notifies Uticom promptly in writing of such action, and furnishes copies of all demands, process and pleadings; (2) gives Uticom sole control of the defense thereof (and any negotiations for settlement or compromise thereof); and (3) cooperates in the defense thereof at Uticom’s expense.
Uticom shall have no liability to Purchaser for any action or claim alleging infringement based upon any conduct involving: (1) the use of any good in a manner other than as specified by Uticom; (2) the use of any good in combination with other products, equipment, or devices not supplied by Uticom; or (3) the alteration, modification or customization of any good by any person other than Uticom, or by Uticom based on Purchaser’s specifications or otherwise at Purchaser’s direction (regardless of whether such alteration, modification or customization occurs before or after the good is originally shipped by Uticom to Purchaser). In the event of an infringement action or claim against Uticom which is based on any conduct described in the preceding sentence, Purchaser shall indemnify and hold Uticom harmless against all damages, costs or expenses, including reasonable attorneys’ fees paid or incurred by Uticom in connection with such action or claim.
THE FOREGOING STATES THE ENTIRE LIABILITY OF UTICOM FOR INFRINGEMENT CLAIMS AND ACTIONS, AND PURCHASER HEREBY WAIVES ANY RIGHTS THAT IT MIGHT OTHERWISE BE ENTITLED TO IN CONNECTION WITH THE FOREGOING.
TOOLING, NEGATIVES, PLATES, ARTWORK AND OVERRUNS
If Purchaser pays for tooling, negatives or plates (collectively “tooling”) then such tooling will be the property of Purchaser and will be maintained free of charge by Uticom while being used in production and for twenty-four (24) months following the last date of use, after which the tooling will be destroyed, unless otherwise agreed in writing. If Purchaser does not pay for tooling, then any such tooling will be the property of Uticom. All artwork submitted by Purchaser is subject to the approval of Uticom.
The invalidity or unenforceability (in whole or in part) of any provision, term or condition hereof, will not affect in any way the validity and enforceability of the remainder of such provision, term or condition, or any other provision, term or condition.
These Terms and Conditions may not be modified, terminated or repudiated, in whole or in part, except in a writing executed by the authorized representatives of Uticom and Purchaser. Uticom may, at its sole option, treat any attempted modification, termination, or repudiation to which it does not assent in writing, as a breach of these Terms and Conditions.
Upon any breach by Purchaser, or failure by Purchaser to comply with any of these Terms and Conditions, or if Purchaser becomes unable to conduct its normal business operations (including inability to meet its obligations as they mature), or if Purchaser becomes the subject of any proceeding under any state or federal bankruptcy law or other law, or makes any assignment for the benefit of creditors, Uticom will have the right to immediately cancel or terminate any and all agreements with or obligations to Purchaser relating to sales of the goods, in whole or in such part, which may result in the non-shipment or cancellation of Purchaser’s pending or future order(s) and/or termination of Purchaser’s relationship with Uticom, and to recover from Purchaser damages for breach (excluding consequential damages) and any unpaid installments due shall become immediately due and payable. All remedies in these Terms and Conditions will be cumulative, and not alternative or exclusive, and will be in addition to all other rights and remedies provided by applicable law. The exercise or failure to exercise any remedy by Uticom will not preclude the exercise of the same or other remedies under these Terms and Conditions.
Uticom will not be deemed to have waived any provision of these Terms and Conditions or any breach by Purchaser of any provision hereof, unless specifically set forth in writing and executed by an authorized representative of Uticom. No such waiver by Uticom will constitute a waiver of such provision or breach on any other occasion.
Uticom shall not be liable for any failure to perform or delay in performance of the services to the extent that any such failure arises from acts of God, war, civil insurrection or disruption, riots, government act or regulation, strikes, lockouts, labor disruption, cyber or hostile network attacks, inability to obtain raw or finished materials, inability to secure transport, or any cause beyond Uticom’s commercially reasonable control.
Any notice sent pursuant to the order or this Agreement shall be sent by certified mail, return receipt requested, or by overnight mail to the addresses on the order or to such address as either party may in the future designate.
The Purchaser shall not without the prior written consent of Uticom assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement. Uticom may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement.
Purchaser and Uticom are separate entities. Nothing in the order or this Agreement shall be construed as creating an employer-employee or joint venture relationship.
These Terms and Conditions, and the transactions contemplated hereby, will be governed by, construed and interpreted in accordance with the substantive laws of Pennsylvania without regard to its conflict of laws rules.
In the event that any of these terms, conditions or provisions or those of any schedule or attachment hereto will be determined by any competent authority to be invalid, unlawful or unenforceable to any extent such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law and with whatever modification is necessary to give effect to the commercial intention of the parties.
Any and all disputes arising under or relating to these Terms and Conditions and the transactions contemplated hereby shall be determined by binding arbitration in West Chester, Pennsylvania in accordance with the International Arbitration Rules of the American Arbitration Association, and be conducted in the English language.
These Terms and Conditions, together with any quotation, order, acceptance, or invoice subject to these Terms and Conditions, constitute the entire agreement and understanding of Uticom and Purchaser. Uticom assumes no liability except as expressly provided in these Terms and Conditions.