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This document contains the terms and conditions that apply to Customer’s purchases of a Gateway and any other goods and services (“Products”) from Machfu Inc. (“Seller”).
Acceptance of Customer’s order is based on these terms and conditions of sale applying. By accepting delivery of products from Seller, Customer agrees to be bound and to accept these terms and conditions. These terms and conditions shall apply unless Customer and Seller have signed a separate purchase agreement with different terms and conditions which expressly control. Customer’s receipt or acceptance of delivery of any Products constitute its acceptance of these terms. No addition or modification of these terms and conditions will be binding on Seller unless agreed to in writing by Seller’s Officer.
Payment terms are net 30 days from invoice date with approved credit. If credit has not been established with Seller, terms may be designated as payment in advance. Seller reserves the right at any time and for any reason to require payment in advance, or otherwise to modify, suspend, or terminate any credit terms previously extended to Customer. Seller reserves the right to require payment by electronic funds transfer and may bill in increments or refuse any delivery prior to payment. Seller shall be entitled to refuse or delay shipments for failure by Customer to pay within terms any payments due Seller, whether on this or any other contract between Seller and Customer. All shipments are F.O.B. shipping point for U.S. domestic shipments and Ex Works (INCOTERMS 2010) for shipments to locations outside the U.S. The full purchase price may be invoiced upon delivery to a common carrier. Title to products and risk of loss passes from Seller to Customer upon shipment from Seller’s facilities and delivery of product to a common carrier. Title to Products will remain with the Seller or its licensors until paid in full, except that title to all intellectual property rights associated with the Products remains with Seller or its suppliers and licensors at all times. Seller will provide Customer with an estimate of shipping dates. Seller disclaims all liability for late delivery. Where applicable, prepaid shipping will be billed as a separate invoice item. Except as set forth herein or unless otherwise agreed in writing signed by an Officer of Seller, all order for Products are noncancelable and non-returnable. The Products may not be purchased for resale purposes by Customer unless Customer is an authorized reseller of Seller Products. Products may not be resold, leased, loaned or gifted to another party without prior written consent by Seller. Customer agrees that all software is subject to the License Agreement attached to these terms and conditions as Exhibit A.
A 1.5% per month service charge, or the maximum permitted by law, whichever is less, may be added to delinquent accounts. In the event that it becomes necessary for Seller to incur collection costs or institute a suit to collect any amount due and payable, Customer agrees to pay any additional collection costs, charges, and expenses, including attorney’s fees.
Separate charges for shipping and handling will be shown on the invoice(s). Customer is responsible for sales and all other taxes associated with the order, unless Customer provides Seller with a valid tax-free certificate.
The parties agree that this Agreement shall be drawn up in English and that English shall be the governing language of this Agreement. In the event of conflict between an English version and any translation of this Agreement, the English version shall prevail.
Any claims by Customer for omission of Products in the shipped goods, shortages of Product, or damaged goods in a shipment are waived by Customer unless Customer provides notice to Seller within 10 days after Customer’s receipt of shipment.
Seller warrants the Products against defects in materials and workmanship under normal use (the “Warranty”) for a period of twelve months (12) from the ship date of the Products (“Warranty Period”), on the condition that the Products has been completely paid for on time in accordance with the payment schedule set forth herein. Unless as otherwise require by applicable law, the Warranty Period does not restart if Customer receives a replacement Product. After the Warranty Period, Seller will repair any defects in workmanship or materials at its then current labor, travel, and materials costs.
This Warranty does not apply: (a) to damage caused to the Products by accident, abuse, misuse, flood, fire, earthquake or other external causes; (b) to damage caused by operating the Products outside the permitted or intended uses described by Seller; (c) to damage caused to the Products by service (including upgrades and expansions) performed by anyone who is not a representative of Seller or authorized by Seller; (d) to any of the Products that have been modified to alter functionality or capability without the written permission of Seller; (e) to cosmetic damage to the Products, including but not limited scratches, dents and broken plastic on ports; or (f) to normal wear and tear of the Products.
Seller does not warrant that the Products will be free from vulnerability, intrusion, attack, or other damage. Seller does not warrant that the operation of the Products will be uninterrupted or error-free. Seller is not responsible for damage arising from failure to follow instructions relating to the Products’ use. This Warranty does not apply: (a) to consumable parts, such as batteries, unless damage has occurred due to a defect in materials or workmanship; (b) to cosmetic damage, including but not limited to scratches, dents and broken plastic on ports; (c) to damage caused by accident, abuse, misuse, neglect or failure to properly maintain (to include but not limited to water damage and/or condensation or improper temperatures during storage), or improper installation; (d) to damage caused by electrical disturbances or acts of God, to include but not limited to civil disturbance, war, flood, fire, rodents or insects; or (e) where manufacturer’s serial numbers have been removed from the Products.
As a condition to Seller’s obligations under the immediately preceding paragraphs, Customer shall return Products to be examined and replaced to Seller’s facilities, in shipping cartons which clearly display a valid return materials authorization number provided by Seller. Customer acknowledges that replacement products may be repaired, refurbished or tested and found to be complying. Customer shall bear the risk of loss for such return shipment and shall bear all shipping costs. Seller shall deliver replacements for Products determined by Seller to be properly returned and shall bear the risk of loss and costs of shipment of repaired products or replacements. Products
determined by Seller to be not properly returned shall be redelivered to Customer FOB Seller’s facilities upon payment of shipping costs by Customer.
Seller’s sole obligation under the warranty described herein shall be to repair or replace non-conforming products, or to refund the documented purchase price for non-conforming Products to Customer. Seller’s warranty obligations shall run solely to Customer, and Seller shall have no obligation to customers of Customer or other users of the Products.
On a case-by-case basis, Seller, at its sole discretion, reserves the right to authorize a refund of any Products made within 30 days of delivery. In such event, Customer shall return the Products at its own expense and risk, and such return is subject to a 10% restocking fee.
THE WARRANTY SET FORTH HEREIN IS THE ONLY WARRANTY APPLICABLE TO PRODUCTS PURCHASED BY CUSTOMER. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT ARE EXPRESSLY DISCLAIMED. CUSTOMER’S LIABILITY UNDER ANY THEORY OF LAW SHALL NOT EXCEED THE PURCHASE PRICE PAID BY CUSTOMER FOR THE PRODUCT. UNDER NO CIRCUMSTANCES SHALL SELLER BE
LIABLE FOR PUNITIVE, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. THE PARTIES AGREE THAT IF NOT FOR THE LIMITATIONS IN THIS SECTION, SELLER WOULD REQUIRE AN INCREASE IN PRICE FOR THE PRODUCTS AND THAT, AS SUCH, THE WAIVER AND LIMITATIONS SET FORTH HEREIN ARE FULLY BARGAINED FOR. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THIS AGREEMENT MAY BE BROUGHT BY CUSTOMER MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED.
THE LIMITATIONS SET FORTH HEREIN SHALL EXTEND TO THE SELLER’S VENDORS, SUPPLIERS, DISTRIBUTORS, RESELLERS AND OTHERS AND CUSTOMER ACKNOWLEDGES AND AGREES THAT IT SHALL ALSO LIMIT THE ACTIONS OF ANY THIRD PARTIES THAT MAY CLAIM THROUGH CUSTOMER.
NOTWITHSTANDING ANY OTHER PROVISION HEREIN, SELLER MAKES NO REPRESENTATIONS, PROVIDES NO INDEMNITIES (INTELLECTUAL PROPERTY OR OTHERWISE), AND DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED RELATIVE TO ANY THIRD-PARTY BRANDED PRODUCT OR SERVICE (INCLUDING TRAINING) WHICH MAY BE RESOLD OR SUBLICENSED BY SELLER AS A DISCRETE ITEM HEREUNDER
Seller shall defend or settle any claim, suit, or action against Customer based on an allegation that any Product purchased by Customer from Seller infringes any third party’s U.S. patent or copyright; provided, that Customer has made no modification or alterations to the product and that Customer gives Seller prompt written notice of any claim or suit, sole authority to defend or settle as it sees fit, and full cooperation. Seller may, at its sole option and expense (i) procure for Customer the right to continue using the Product (ii) modify the Product so that it is non-infringing (iii) procure a replacement product that has substantially the same functionality, or if none of the above options is reasonably available (iv) refund to Customer the purchase price originally paid less a use credit for the period of use.
Seller has no liability for any claim, suit or action based in whole or in part upon or arising out of compliance with Customer’s designs, specifications or instructions, modification of the Hardware or Software, or the combination of the Hardware or Software with products or items not furnished by Seller. THIS SECTION STATES SELLER’S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM, SUIT, OR ACTION ALLEGING INFRINGEMENT OF ANY THIRD-PARTY PATENT OR COPYRIGHT.
All software is owned by Seller or a third party licensor who shall retain exclusive right, title and ownership of the software. Customer is granted a limited, personal, nonexclusive license, without the right to sublicense, to use the software only with the specific Seller manufactured hardware that such software is intended to operate with or, if not for use with specific Seller manufactured hardware, then for the use intended by the Product specification.
THIS AGREEMENT AND ANY SALES THEREUNDER SHALL BE GOVERNED BY THE LAWS OF THE STATE OF MARYLAND, WITHOUT REFERENCE TO ITS CHOICE OF LAW PROVISIONS. The United Nations Convention on Contracts for the International Sale of goods shall not apply. Customer agrees to comply with all applicable laws and regulations of the various states and of the United States. Customer agrees to
comply with all United States laws concerning export or reexport of products and related technology and documentation.
The parties will attempt in good faith promptly to resolve any dispute arising hereunder by negotiations between representatives of the parties who have authority to settle the dispute. If unsuccessful, the parties further will attempt in good faith to settle the dispute by non-binding third-party mediation, with mediator fees and expenses apportioned equally to each side. Any dispute not so resolved by negotiation or mediation may then be submitted to a court of competent jurisdiction located in Maryland. These procedures are the
exclusive procedures for the resolution of all such disputes between the parties. The parties agree that the courts of the State of Maryland shall have exclusive jurisdiction over any claim, or dispute or controversy. Customer agrees to appear in any such action and hereby consents to the jurisdiction of such court.
Seller shall not be liable for any damages or penalty for delay in delivery or for any other failure to perform in accordance with the terms and conditions hereof if such delay or failure to perform is due in whole or in part to factors beyond Seller’s reasonable control, including, but not limited to, delay in transportation or delay in delivery by Seller’s vendors.
Customer agrees to comply with all applicable United States export control laws and regulations concerning export and re-export of Products, technology and documentation.
Any waiver of or modification to the terms of this Agreement will not be effective unless executed in writing and signed by Seller. If any provision of these terms and conditions are held to be unenforceable, in whole or in part, such holding shall not affect the validity of the other provisions of this document (In the event of any inconsistency between these terms and conditions and any other related agreements between Customer and Seller, the terms of this document shall prevail unless any other agreement(s) are signed by both parties and state its/their terms and conditions control). The Agreement evidenced hereby may not be assigned by Customer without the written consent of the Seller.
The terms and conditions set forth herein constitute the entire agreement between Seller and Customer. Seller’s offer to sell is expressly limited to the terms stated herein. Seller shall not be bound by any terms of Customer’s order which add to, modify, or are in any way
different from the terms set forth in this document.
This License Agreement is a legal agreement between the “user” and Machfu Inc. (“Machfu”) for the MACH Gateway Product (“Product”). The software subject to this Agreement includes software programs (“Software”) shipped with the Product or downloaded, along with the documentation of any form, paper or electronic (“Documentation”) associated with the Software. The parties acknowledge that this License Agreement is an attachment to the Gateway Terms and Conditions (“Gateway Agreement”) and is further subject to the terms of that agreement. In the event of conflict between this License Agreement and the Gateway Agreement, this License Agreement shall control with respect to the Software and the Documentation. In the event that the user submits a PO or other ordering form that contains term and conditions, the user agrees that such terms and conditions shall not be in effect and shall not be binding upon Machfu.
By using the Software, the user agrees to be bound by the terms of this License Agreement. If the user does not want to be bound by the terms of this License Agreement, Machfu is unwilling to license the Software to the user, in which event the user must promptly return the Software and all accompanying items (including manuals, binders or other containers, and any other printed materials) within 30 days. By downloading and by using the Software, you acknowledge that you have read this Agreement and accept its terms. Your registration information is proof that you are a licensed user. Please treat it as valuable property.
Grant of License. So long as the user complies with the terms of this License Agreement and the Gateway Agreement, Machfu grants nonexclusive right to use the Software and Documentation. Except for the limited license granted herein, Machfu shall at all times retain full and exclusive rights, titles and ownership interests in and to the Software, including, without limitation, all patent, trademark, copyright, trade secret rights relating thereto. Machfu reserves the right to terminate your rights under this Agreement and to seek any other legal remedies if you violate any provisions hereof or the Gateway Agreement and, in the event of such termination; you agree to return the Product to Machfu. The Software, which may include user documentation provided in the Software or in electronic form, is licensed as a single Product.
This License shall be in effect from the date of the Gateway Agreement and shall terminate upon the termination of the Gateway Agreement.
Copyrights, Trademarks, Patents and other Intellectual Property Rights. All rights, titles, and ownership interests in and to the Software and the Documentation, including all copyrights, patents, trade secret rights, trademarks, and other intellectual property rights therein shall remain the property of Machfu or its licensors. Other than as set forth in this License Agreement, all rights, including but not limited to intellectual property rights, are reserved by Machfu, and Licensee has no ownership rights to the Software the Documentation. If Licensee breaches this License Agreement in any way that may adversely affect the intellectual property or proprietary rights of Machfu in the Software or the Documentation, such a breach may cause irreparable injury to Machfu, for which monetary damages may not be an adequate remedy. In the event of such a breach, Machfu shall be entitled to equitable relief in addition to seeking any other available legal or equitable remedy. Under such circumstances, Licensee agrees to reimburse Machfu the reasonable attorneys’ fees and costs expended in connection with such proceeding.
a. Create derivative works, which shall include, but shall not be limited to translations, adaptations, arrangements or any other alteration, or make copies of the Software or the Documentation;
b. Rent, lease, sublicense, redistribute, assign, transfer, time-share or lend the Software, Documentation or any rights under this License Agreement;
c. Alter, decompile, disassemble or reverse-engineer the Software;
d. Make any attempt to unlock or bypass any initialization system or encryption techniques utilized by the Software; or
e. Alter, remove, or obscure any proprietary legend, copyright, trademark, patent or other proprietary intellectual property notice contained in or on the Software or the Documentation.
You may make the number of copies for backup or archival purposes that you make in the normal conduct of your business. You must label any copies with all information included on the original media label. You agree not to distribute copies of the Product to others. You further agree to take all reasonable steps and to exercise due diligence to protect the Software from unauthorized reproduction, publication, or distribution. If the Software is copied to or used on a computer attached to a network, you must have a reasonable mechanism in place to ensure that the Software may not be used or copied by unlicensed persons.
Licensee shall not export or allow the export or re-export of the Software or any portions thereof without the express written consent of Machfu and compliance with all export laws and regulations of the U.S. Department of Commerce and all other U.S. agencies and authorities, including without limitation, the Export Administration Regulations of the U.S. Department of Commerce, Bureau of Export Administration, and, if applicable, relevant foreign laws and regulations.
THE SOFTWARE AND DOCUMENTATION ARE PROVIDED “AS IS”. EXCEPT AS MAY OTHERWISE BE EXPRESSLY SET FORTH HEREIN, MACHFU MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SOFTWARE OR DOCUMENTATION, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. BY WAY OF FURTHER EXAMPLE AND NOT LIMITATION, MACHFU MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE NONINFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND THE ACCURACY, RELIABILITY OR COMPLETENESS OF THE SOFTWARE AND THE DOCUMENTATION. THE ENTIRE RISK AS TO THE USE OF THE SOFTWARE AND THE DOCUMENTATION IS ASSUMED BY LICENSEE. IN NO EVENT SHALL MACHFU BE LIABLE TO LICENSEE OR ANY OTHER PERSON, REGARDLESS OF THE CAUSE, FOR THE EFFECTIVENESS OR ACCURACY OF THE SOFTWARE OR THE DOCUMENTATION, OR FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING FROM OR OCCASIONED BY LICENSEE’S USE OF THE SOFTWARE OR THE DOCUMENTATION, INCLUDING BUT NOT LIMITED TO LOSS OF DATA, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. IN THE EVENT THE FOREGOING IS FOUND BY A COURT OF COMPETENT JURISDICTION TO BE INEFFECTIVE, LICENSEE HEREBY AGREES THAT MACHFU’S MAXIMUM LIABILITY FOR ANY CLAIM ARISING IN CONNECTION WITH THE SOFTWARE OR THE DOCUMENTATION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE) SHALL NOT EXCEED $100.
Licensee agrees to indemnify, defend, and hold harmless Machfu and its directors, officers, employees, agents, successors and assigns from and against any and all third-party liabilities, claims, demands, losses, damages, costs and expenses (including reasonable attorney’s fees) which may be assessed against or incurred by Licensee relating to or arising out of: (i) any material breach of this License Agreement or the Gateway Agreement by Licensee; or (ii) any negligent, grossly negligent or intentional misconduct or omission by Licensee or Licensee’s directors, officers, employees, agents, successors and assigns in connection with its use of the Software.
Licensee acknowledges that Licensee has read the section entitled Disclaimer, understands it, and agrees to be bound by its terms and conditions. Licensee also agrees that (i) No oral or written information or advice given by Machfu, its agents or employees shall in any way increase the scope of this Limited Warranty, and Licensee may not rely on any such information or advice; (ii) This License Agreement, along with the Gateway Agreement, is the complete and exclusive statement of agreement between the Parties, and supersedes all proposals or prior agreements, oral or written, and any other communications Licensee may have had prior to purchasing entering into this License Agreement and purchasing the media containing the Software and Documentation; (iii) If Licensee’s organization has multiple users using the Software, Licensee agrees to assure that copies of this License Agreement are distributed, read and agreed to by each person using the Software and Documentation.
Licensee may not assign, delegate or otherwise transfer Licensee’s rights and obligations under this License Agreement, whether by agreement, operation of law, or otherwise, without the express prior written consent of Machfu, and any attempt to assign, delegate or otherwise transfer any of Licensee’s rights or obligations hereunder, without such consent, shall be void.
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