Terms and Conditions of Sale
Customer and Nuand LLC (hereinafter "NUAND") agree that the purchase and sales of NUAND hardware products (the .Products") are made under these terms and conditions, and that NUAND SHALL NOT BE BOUND BY CUSTOMER'S ADDITIONAL OR DIFFERENT TERMS, whether contained in a purchase order or any other document. Customer's order and purchase of the Products shall constitute acceptance of these terms and conditions.
1. TITLE. Title to the Products shall pass at NUAND's plant. NUAND retains a security interest and right of possession in the Products until Customer makes full payment.
2. TAXES. Product prices are exclusive of, and Customer shall pay, all applicable sales, use, service, value added or like taxes, unless Customer has provided NUAND with an appropriate exemption certificate for the delivery destination acceptable to the applicable taxing authorities.
3. PRICES AND PAYMENT. All quotations shall expire thirty (30) days from date of issuance, unless otherwise set forth on the quotation or agreed in writing. Customer shall make payment in full prior to or upon delivery by cashier's check, credit card, or money order. Payments for orders accepted in the United States shall be made in U.S. Dollars. In the event of any order for several units, each unit(s) will be invoiced when shipped. Exceptions will be made for government purchase orders.
4. ORDERS. All orders are subject to acceptance by NUAND.
5. DELIVERY. NUAND shall deliver the Products to a carrier at NUAND's facilities. Customer shall pay all applicable freight charges. Nuand shall prepay all freight charges and other necessary fees. Any export orders are subject to approval by Nuand in its sole discretion.Nuand will invoice Customer for applicable charges as shipping and handling fees. Orders are entered as close as possible to the Customer's requested shipment date, if any. Shipment dates are scheduled after acceptance of orders and receipt of payment in full and all necessary documents. Claims for shipment shortage shall be deemed waived.
6. LIMITED WARRANTY. NUAND hardware Products are warranted against defects in materials and workmanship only for 30 days from the date NUAND ships the Products to Customer ("Delivery Date"). Customer must obtain a Return Material Authorization number from NUAND before returning any Products under warranty to NUAND. Customer shall pay all expenses for shipment of repaired or replacement Products to and from NUAND. After examining and testing a returned product, if NUAND concludes that a returned product is not defective, Customer will be notified, the product returned at Customer's expense, and a charge made for examination and testing. This Limited Warranty is void if failure of the Products has resulted from accident, abuse, misapplication, modification, improper calibration by Customer, Customer supplied third party software not intended for use with the applicable NUAND firmware and FPGA code, or unauthorized maintenance or repair.
7. CUSTOMER REMEDIES. NUAND's sole obligation (and Customer's sole remedy) with respect to the foregoing Limited Warranty shall be to, at its option, return the fees paid or repair/replace any defective Products, provided that NUAND receives written notice of such defects during the applicable warranty period. Customer may not bring an action to enforce its remedies under the foregoing Limited Warranty more than one (1) year after the accrual of such cause of action.
8. RETURN/CANCELLATION/CHANGE POLICY. Customer may return unwanted Products within thirty (30) days of the Delivery Date. Customer shall pay a twenty-five percent (25%) restocking charge on any unwanted Products returned to NUAND and the shipping, handling, and customs fees/duties associated with the original shipment from NUAND to Customer and the return of the unwanted Products to NUAND. No returns will be accepted after such thirty (30) day period has expired. Where special equipment or services are involved, Customer shall be responsible for all related work in progress; however, NUAND shall take reasonable steps to mitigate damages immediately upon receipt of a written cancellation notice from Customer. A Return Material Authorization number must be obtained from NUAND for return of any Products. NUAND may terminate any order if any representations made by Customer to NUAND are false or misleading or if payment shall fail. Changes to orders shall not be binding upon nor be put into effect by NUAND unless confirmed in writing by NUAND's appropriate representative.
9. NO OTHER WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH ABOVE, THE PRODUCTS ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, AND NO OTHER WARRANTIES, EITHER EXPRESSED OR IMPLIED ARE MADE WITH RESPECT TO THE PRODUCTS, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ANY OTHER WARRANTIES THAT MAY ARISE FROM USAGE OF TRADE OR COURSE OF DEALING. NUAND DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE OF OR THE RESULTS OF THE USE OF THE PRODUCTS IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE AND DOES NOT WARRANT THAT THE OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE. NUAND EXPRESSLY DISCLAIMS ANY WARRANTIES NOT STATED HEREIN.
10. NO LIABILITY FOR CONSEQUENTIAL DAMAGES. The entire liability of NUAND and its licensors, distributors, and suppliers (including its and their directors, officers, employees, and agents) is as set forth above only. Nuand will have no further liability for the use or misuse of the Products or for their adaptation, integration, reverse engineering or .hacking. by Customer. To the maximum extent permitted by applicable law, in no event shall NUAND and its licensors, distributors, and suppliers (including its and their directors, officers, employees, and agents) be liable for any damages, including, but not limited to, any special, direct, indirect, incidental, exemplary, or consequential damages, expenses, lost profits, lost savings, business interruption, lost business information, or any other damages arising out of the use or inability to use the Products, even if NUAND or its licensors, distributors, and suppliers has been advised of the possibility of such damages. Customer acknowledges that the applicable purchase price for the Products reflects this allocation of risk. Because some states/jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply. If the foregoing limitation of liability is not enforceable because an NUAND product sold or licensed to Customer is determined by a court of competent jurisdiction in a final, non-appealable judgment to be defective and to have directly caused bodily injury, death, or property damage, in no event shall NUAND's liability for property damage exceed the greater of $10,000 or fees paid for the specific product that caused such damage.
11. WARNING: (1) NUAND PRODUCTS ARE NOT DESIGNED WITH COMPONENTS AND TESTING FOR A LEVEL OF RELIABILITY SUITABLE FOR USE IN OR IN CONNECTION WITH SURGICAL IMPLANTS OR AS CRITICAL COMPONENTS IN ANY LIFE SUPPORT SYSTEMS WHOSE FAILURE TO PERFORM CAN REASONABLY BE EXPECTED TO CAUSE SIGNIFICANT INJURY TO A HUMAN. (2) IN ANY APPLICATION, INCLUDING THE ABOVE (FOR WHICH NUAND PRODUCTS SHOULD NOT BE USED) , RELIABILITY OF OPERATION OF THE SOFTWARE PRODUCTS CAN BE IMPAIRED BY ADVERSE FACTORS, INCLUDING BUT NOT LIMITED TO FLUCTUATIONS IN ELECTRICAL POWER SUPPLY, COMPUTER HARDWARE MALFUNCTIONS, COMPUTER OPERATING SYSTEM SOFTWARE FITNESS, FITNESS OF COMPILERS AND DEVELOPMENT SOFTWARE USED TO DEVELOP AN APPLICATION, INSTALLATION ERRORS, SOFTWARE AND HARDWARE COMPATIBILITY PROBLEMS, MALFUNCTIONS OR FAILURES OF ELECTRONIC MONITORING OR CONTROL DEVICES, TRANSIENT FAILURES OF ELECTRONIC SYSTEMS (HARDWARE AND/OR SOFTWARE), UNANTICIPATED USES OR MISUSES, OR ERRORS ON THE PART OF THE USER OR APPLICATIONS DESIGNER (ADVERSE FACTORS SUCH AS THESE ARE HEREAFTER COLLECTIVELY TERMED "SYSTEM FAILURES"). ANY APPLICATION WHERE A SYSTEM FAILURE WOULD CREATE A RISK OF HARM TO PROPERTY OR PERSONS (INCLUDING THE RISK OF BODILY INJURY AND DEATH) SHOULD NOT BE RELIANT SOLELY UPON ONE FORM OF ELECTRONIC SYSTEM DUE TO THE RISK OF SYSTEM FAILURE. TO AVOID DAMAGE, INJURY, OR DEATH, THE USER OR APPLICATION DESIGNER MUST TAKE REASONABLY PRUDENT STEPS TO PROTECT AGAINST SYSTEM FAILURES, INCLUDING BUT NOT LIMITED TO BACK-UP OR SHUT DOWN MECHANISMS. BECAUSE EACH END-USER SYSTEM IS CUSTOMIZED AND DIFFERS FROM NUAND'S TESTING PLATFORMS AND BECAUSE A USER OR APPLICATION DESIGNER MAY USE NUAND PRODUCTS IN COMBINATION WITH OTHER PRODUCTS IN A MANNER NOT EVALUATED OR CONTEMPLATED BY NUAND, THE USER OR APPLICATION DESIGNER IS ULTIMATELY RESPONSIBLE FOR VERIFYING AND VALIDATING THE SUITABILITY OF NUAND PRODUCTS WHENEVER NUAND PRODUCTS ARE INCORPORATED IN A SYSTEM OR APPLICATION, INCLUDING, WITHOUT LIMITATION, THE APPROPRIATE DESIGN, PROCESS, BACK UP AND SAFETY LEVEL OF SUCH SYSTEM OR APPLICATION.
12. FORCE MAJEURE. NUAND shall be excused for any delay or failure to perform due to any cause beyond its reasonable control, including but not limited to acts of governments, acts of God, natural catastrophes, acts of Customer, interruptions of transportation or inability to obtain necessary labor or materials. NUAND's estimated shipping schedule shall be extended by a period of time equal to the time lost because of any excusable delay. In the event NUAND is unable to perform in whole or in part because of any excusable failure to perform, NUAND may cancel orders without liability to Customer.
13. ACKNOWLEDGMENT/GOVERNING LAW. Customer acknowledges reading these Terms and Conditions, understands them and agrees to be bound by them. A waiver of any provision of this agreement shall not be construed as a waiver or modification of any other term hereof. With respect to all orders accepted by NUAND in the United States, disputes arising in connection with these Terms and Conditions of Sale shall be governed by the laws of the State of New York without regard to principles of conflicts of laws. Customer agrees and consents to the exclusive jurisdiction of the appropriate state and federal courts in the State of New York. With respect to all orders accepted by NUAND outside the United States, disputes arising in connection with these Terms and Conditions of Sale shall be governed by the laws of the country and locality in which NUAND accepts the order without regard to principles of conflicts of laws. The Convention on the International Sale of Goods shall not be applicable to the within transactions.
14. EXPORT LAWS. The Products are subject to control under the U.S. Export Administration Regulations (15 CFR Part 730 et. seq.) and other applicable U.S. export control laws and regulations. Customer agrees that it will not export, re-export or transfer the Products, whether modified or .as is., via any means to any prohibited destination, entity or individual without the required export license(s) or authorization(s) from the U.S. Government. NUAND reserves the right not to ship the Products ordered if, at any time, NUAND believes that such shipment may violate U.S. export control laws. Additionally, the Products may also be regulated under the federal Arms Export Control Act and the rules and regulations enacted thereunder (22 CFR Part 120 et seq.) Therefore, the technical data or defense service contained in the Products and any defense article which may be produced or manufactured from such technical data or defense service may not be transferred to a person in a third country or to a national of a third country except as specifically authorized by Nuand or unless the prior written approval of the US Department of State has been obtained .
15. Rev (01/01/2013)