STANDARD TERMS AND CONDITIONS SALES (Excalibur Systems Inc. - USA)
1) SCOPE. These terms and conditions of sale (“Terms”) are the entire agreement between you, the Buyer, and us, the Seller with respect to the goods and services (“work”) subject to the Terms. Our sales are expressly conditioned upon the Terms, which supersede all prior negotiations, correspondence and statements. We expressly reject any conflicting terms of yours in any P.O. or other document. Acceptance of your order for any work is expressly conditioned upon your acceptance of the Terms, which shall be established by a written acknowledgment, or by implication, acceptance, retention, or payment. Our failure to object to terms in any communication from you is not a waiver of the Terms. We must specifically agree to any order, offer, contract, and any change therein or in the Terms in a writing signed by an officer of ours from our home office in Elmont, New York, USA. You may not assign any right or obligation hereunder without our prior written consent.
2) TERMS OF PAYMENT. Payment terms are net thirty (30) days from receipt of invoice. We reserve a purchase money security interest in all work delivered until all of our claims have been paid, and you will sign such financing statements and other documents as we may request to perfect our security interest. We may change our credit terms if your financial condition changes in our opinion. Each shipment is considered a separate and independent transaction. Buyer is responsible for all transaction, wire or Electronic transfer fees. Interest shall accrue at the rate of one and one half percent (1.5%) per month on any invoice balance unpaid after thirty days.
3) TITLE AND DELIVERY. All shipments by us are F.O.B. Elmont, New York, USA. Title and risk of loss pass to you upon delivery to carrier at shipping point, and you will pay all transportation charges. We will select the carrier if you do not. Claims for shortages must be made within ten (10) days after arrival and shall not give the customer and right to reject the goods. We may modify specifications or components, provided the modifications do not adversely affect the form, fit, or function of the work. Delivery schedules are approximate onlyand in regard to such schedule, date shall not be of the essence. In estimating delivery dates, no allowance has been made, nor will we be liable directly or indirectly for, delays of carriers or delays from labor difficulties, shortages, strikes, stoppages of any sort, fires, accidents, failure or delay in obtaining materials or manufacturing facilities, weather, Acts of God, acts of government affecting us directly or indirectly, or any other cause beyond our control. If such delays arise, estimated delivery dates will be extended accordingly. Excalibur shall be entitled to make partial deliveries or deliveries by installments
4) TAXES AND DUTIES. All prices are exclusive of any applicable present or future sales, revenue or excise tax, import duty, brokerage fees or other tax applicable to the manufacture or sale of any work. You will pay such taxes unless you provide a proper tax exemption certificate. All prices are also exclusive of shipping and insurance.
5) ACCEPTANCE. You or your authorized agent will inspect all work immediately upon receipt. If you do not notify us in writing within ten (10) days thereafter of any defect, shortage, or other failure to conform to the Terms, the work delivered will be deemed conclusively accepted and to have fulfilled the terms of the contract between you and us. We may charge a restocking fee of twenty five percent (25%) of the sale price plus shipping charges if you return work to us for your convenience. If such a return is more than 30 days after receipt, we may add an additional ten percent (10%) handling charge. You may not make any such return for convenience more than sixty (60) days after original receipt. Such returns will be returned to the buyer freight collect.
6) CANCELLATION. You may cancel or reschedule work only upon our prior written consent and only if you pay all of our reasonable cancellation costs. Buyer shall be liable for any quantity price adjustments resulting from such cancellation or rescheduling.
7) FORCE MAJEURE. We will not be liable for any damage or loss for delay in delivery or for failure to give notice of delay when such delay is due to the elements, acts of God, your act or omission, act of civil or military authority, war, riot, labor disturbance, or any other cause beyond our reasonable control. Anticipated delivery dates will be deemed extended for a period of time equal to the time lost due to any excusable delay.
8) WARRANTY. We warrant that the work will be free of defects in workmanship and materials and will conform to our published specifications or other specifications we have accepted in writing (“Warranty”) for a period of one year from the date of our shipment (“Warranty Period”). The Warranty does not apply to any work which has been subject to misuse (including static discharge), neglect, accident, or modification or which has been altered and is not capable of being tested by us under normal test conditions. (i.e. ESD precautions). This Warranty does not apply to any software sold, licensed or issued by Excalibur. Warranty does not cover return shipping charges.
9) GOVERNING LAW. The terms and any agreement between you and us will be governed by and construed according to the laws of the State of New York without regard to conflict of laws principles. The parties consent to the exclusive personal jurisdiction of the Courts of New York if there is any dispute between them.
10) CONFIDENTIALITY. No information will be deemed to be given or received in confidence by you or us unless covered by a separate written agreement.
11) LIMITATION OF LIABILITY. Our sole obligation to you if work fails to meet the Warranty will be, at our option, to replace the nonconforming work or issue you credit for the purchase price of the nonconforming work, provided that, within the Warranty Period: (a) you have notified us in writing of any nonconformity, and (b) you have returned the nonconforming work to us, freight prepaid, after our written authorization to do so, and (c) we have determined that the work is nonconforming and such non-conformity is not a result of improper installation, repair or other misuse. We will have a reasonable time to make repairs or replace work or to credit your account. Any replacement work will carry only the unexpired term of Warranty which was applicable to the replaced work.
12) EXCLUSION OF WARRANTIES. The foregoing Warranty and remedies are exclusive and are made expressly in lieu of all other warranties expressed or implied, either in fact or by operation of law, statutory or otherwise, including warranties of merchantability and fitness for a particular purpose. We neither assume nor authorize any other person to assume any other liability in connection with the sale, installation or use of the work, and we make no warranty whatsoever for work we do not manufacture. We will not be liable for damages due to delays in delivery or use or work and will in no event be liable for incidental or consequential damages of any kind, whether arising from contract, tort, or negligence, including but not limited to, procurement costs, lost profits or goodwill, overhead or other like damages. We make no representation or warranty either express or otherwise, as to the ability to export the work. You have the express obligation to ascertain the legality of exporting any work, and you are solely responsible for acquiring any export license or consent.
13) ASSIGNMENT. Buyer may not assign its rights under this Agreement or any portion hereof without prior consent of Excalibur. In no event shall assignment relieve Buyer of liability for performance of Buyer’s obligations under this Agreement.
14) LICENSES AND CONSENTS. If any license or consent of any government or other authority shall be required for the acquisition or use of the work by the buyer the buyer shall obtain the same at its own expense or if necessary produce evidence of the same to Excalibur upon demand. If Excalibur needs to obtain an export license from the United States government the buyer shall furnish Excalibur all information required by the company for such purpose including but not limited to the country of ultimate destination and the names and addresses of all end users. The buyer further agrees to take all necessary procedures in connection therewith including but not limited to applications for an acquisition of international import certificate , import license and delivery verification, as applicable. The buyer shall not directly or indirectly reexport the goods in whole or in part or any relevant data to those countries in which the export of such goods or data is restricted under the laws of the United States. The buyer agrees to obey the United States Code of Federal Regulations.
15) PATENT INDEMNIFICATION. We will defend any suit or proceeding against you to the extent based on a claim that any work, or any part thereof, made to our design by or for us and furnished to us infringes any now-issued U.S. patent, provided you have notified us promptly in writing and given us full and complete authority, information and assistance for the defense of such suit or proceeding. We will pay damages and costs assessed or incurred in every such suit or proceeding but you may not make any compromise or settlement thereof without our written consent. We retain the right, in our sole discretion, to: (1) procure for the you the right to continue using such work, or part thereof, (2) modify such work, or part thereof, so that it becomes non-infringing, or (3) recall such work, or part thereof, and grant you a credit for the depreciated value. In no event will our totally liability to you under the foregoing indemnity exceed the purchase price of the alleged infringing work. We make no expressed or implied warranty regarding any other infringement. The sale of any work does not convey any license by implication, estoppel, or otherwise. You will hold us harmless against any expense or liability from claims of unfair competition or infringement or contributory infringement of any intellectual property arising from: (a) compliance with your design, specification, or instruction, (b) use of any good in combination with work not supplied by us, or (c) use of any work in connection with any manufacturing or other process.
16) SOLVENCY. You certify that on the date of this order and recertify on the date of shipment and at acceptance that you are solvent and have not filed for protection from creditors under any bankruptcy or similar laws. We may terminate this order in whole or in part if you become insolvent or make a general assignment for the benefit of creditors or file a petition under any bankruptcy act or statute.
17) NON-WAIVER. If we fail at any time to require strict performance from you, that will not waive or diminish our right thereafter to demand strict compliance by you with any Term. We will not be deemed to have waived any rights unless such waiver is in writing and signed by our duly authorized officer.