Terms and Conditions
All quotations are made and all orders are accepted by VNetSoftware subject only to these terms and conditions.
The following terms and conditions shall be a part of any contract of sale, which may be entered into between the Buyer and VNetSoftware (herein called "Seller"). Any terms and conditions in Buyer's purchase order, acknowledgement or any other writing pertaining to such Order, irrespective of its wording or of when received by Seller, which are in conflict or inconsistent with or add to the terms and conditions hereof, will not be acceptable or become a part of any resulting contract without Seller's express typed or handwritten consent. Neither acknowledgement and return of a copy of Buyer's purchase order or other form, irrespective of its terms, nor the filling and shipment of such order, shall constitute acceptance of such conflicting, inconsistent or additional terms, nor shall they in any way operate to modify or change the full effect of the terms and conditions herein.
A. INTERPRETATION
In these conditions:
(i) "Buyer" means the person who accepts a quotation of the Seller for the sale of the Products or whose order for the Products is accepted by the Seller.
(ii) "Product" means the Product or Products which the seller is to supply to in accordance with these conditions. These "Products" may be manifested in the form of goods, professional services, or creation of intellectual property the Seller is expected to deliver to the Buyer.
(iii) "Seller" means VNetSoftware.
(iv) "Conditions" means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and Seller.
(v) "Contract" means the contract for the purchase for the purchase and sale of the Product.
(vi) "Writing" includes letter, email, telex, cable, facsimile transmission and comparable means of communication.
If any document issued by any party hereto is sent by facsimile or another form of electronic document transmission, the parties hereto agree that (a) the copy of any such document printed on the facsimile machine or printer of the recipient thereof is a counterpart original copy thereof and is a "writing," (b) delivery of any such document to the recipient thereof by facsimile or such other form of electronic document transmission is authorized by the recipient thereof and is legally sufficient for all purposes as is delivered by United States mail, (c) the typewritten name of an authorized agent of the party sending such document on any such document is sufficient as a signature thereon and behalf of such party and the intent of such signature is to authenticate the writing, and (d) an electronically stored and reproduced copy of any such document shall be deemed to be legally sufficient evidence of the terms of such documents for all purposes.
Any reference in these conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended as the relevant time.
Unless otherwise agreed upon in writing, the following specific terms and conditions for sale apply to all sales and offers to sell Seller's products:
1. Prices and Terms of Payment
A. Prices, freight policy, and terms of payment relating to products are published separately. The acceptance of orders is subjected to approval by a competent member of the Seller's organization. All payments are to be made in United States funds at par.
B. Export orders shall be accompanied by a confirmed irrevocable letter of credit for Seller's account with an accredited United States bank, subject to Seller's draft with shipping documents attached, payable in United States funds. All documentary collection costs will be charged to the Buyer.
C. The prices at which Seller will invoice will be those in effect at the time of delivery, or, for goods, time of shipment, which will be done under Free on Board conditions. The offer to sell at prices shown is Seller's quotation may be withdrawn at any time prior to receipt and acceptance of Buyer's purchase order, or Buyer's other appropriate instrument used to enter into agreement with the Seller, at Seller's place of business. Seller reserves the right to place a service charge on past due accounts at the lower of the highest rate permitted by law or $100 and 1.5% each month.
D. Taxes. Unless otherwise indicated, no Sales, Use, Retailers Occupation, Service Occupation, Service Use, or other similar taxes are included in Seller's prices. The amount of any such taxes which are paid or payable, or assessment in connection with any order, and which are not specifically stated as being included in the purchase price, shall be paid by the Buyer to the Seller or, if authorized by law, by the Buyer directly to the taxing authority.
2. Shipment and Export
(i) Shipping dates are approximate. If conditions arise which prevent compliance with delivery schedules, the Seller shall not be liable for any damage or penalty for delay in delivery, or failure to give notice of delay, and such delay shall not constitute grounds for cancellation. Seller will not be liable for delays in delivery caused by any reason beyond Seller's control, including but not limited to acts of God, casualty, civil disturbance, labor disputes, transportation or supply difficulties, any interruption of Seller's facilities including strikes of Seller's own labor force, or act of any governmental or licensing authority and the time for delivery specified herein shall be extended during the continuance of such conditions and for a reasonable time thereafter.
(ii) All shipments are F.C.A./F.O.B. Seller's facilities or the facilities from third party vendors from which the material is manufactured or stored. Seller is not responsible for damage or loss of products after delivery to the respective transportation company; however Seller will cooperate in attempting to secure an adjustment when so requested.
(iii) Seller will decide how to pack and to ship unless specific instructions are given.
(iv) Where shipment from stock is indicated, the material is subject to prior sale.
(v) Buyer is responsible for all shipping and handling charges.
(vi) Buyer shall be responsible for complying with any regulation or regulations governing the importation of the Product into the country of destination and for the payment of any duties thereon.
(vii) Buyer and Seller shall be responsible for complying with any regulation or regulations governing the exportation of the Product. If, while executing the contract, either Seller or Buyer discovers that the product cannot legally be exported from the country of origin to the destination country or that execution of the contract will violate United States law then Buyer understands that the portion of the contract in conflict with statute will not be executed and that Buyer must compensate Seller for costs that have been reasonably incurred up to that time.
(viii) Buyer may inspect goods to be shipped from Seller's premises prior to shipment. Buyer may inspect goods shipped from third party vendors when Buyer has made the prior arrangements, complies with the pre-shipment inspection policies established by the vendor, and performs the inspection on a basis that will not unduly interfere with Seller's delivery schedule or cause Seller to incur costs for which Buyer will not compensate Seller.
(ix) Pro-rata payments shall become due as shipments are made. If shipments are delayed by the Buyer for any cause, payments shall be become due from the date on which Seller is prepared to make shipment and storage shall be at Buyer's risk and expenses as provided in Section 17 and Section 19 hereof. If manufacture, procurement, development, or shipment is delayed by the Buyer for any cause, a partial payment based upon the proportion of the order completed shall become due from the date on which Seller is notified of the delay.
3. Minimum Order Charge
The minimum order charge will be the greater of $200 (USD) or the sale price of two labor hours.
4. Orders and Specifications
(i) No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in writing by the Seller's authorized representative.
(ii) The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer, and for giving the Seller any necessary information relating to the Products within a sufficient time to enable the Seller to perform the contract in accordance with its terms.
(iii) The quantity, quality and description of any specification for the Goods shall be those set out in the Seller's quotation (if accepted by the Buyer), or the Buyer's order (if accepted by the Seller). In the event of a conflict between the two the Seller's quotation will prevail.
(iv) If the goods are to be manufactured or any process is to be applied to the products by the Seller in accordance with specifications submitted by the Buyer, the Buyer shall indemnify the Seller against all loss, damages, costs, and expenses awarded against or incurred by the Seller in connection with or paid or agreed to be paid by the Seller in settlement of any claim for infringement of patent, copyright, design, trade mark, service mark, or other industrial or intellectual property rights of any other person which results from the Seller's use of the Buyer's specification.
(v) The Seller reserves the right to make any changes in the specification of the Product which are required to conform with any applicable safety or other statutory requirements or, where the Products are to be supplied to the Seller's specification, which do not materially affect their quality or performance.
(vi) No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labor and material used), damages, charges and expenses incurred by the seller as a result of cancellation including any consequential loss and (by way of example and without limitation) any damages which the Seller must pay to suppliers with whom the Seller has contracted in furtherance of the performance of the contract.
5. Warranty - Liability
A. Seller warrants to Buyer, for a period of one year from the date of shipment (for manufactured goods) or delivery (for services or intellectual property) that all products provided by the Seller will at the shipment or delivery, respectively, be (I) free from defects in material and workmanship; (II) will accurately process dates before, in and after the year 2000; and will materially meet specific performance criteria formally stated in the contract. This warranty does not apply to any product:
Which Buyer selected or which was manufactured or otherwise created pursuant to Buyer's design or specification; or
1. Which has been subject to misuse, misapplication, neglect (including but not limited to improper maintenance and storage); accident; improper installation; modification (including but not limited to use of unauthorized parts, attachments, original or third party supplier "patches," or other "plug-ins"), adjustment or repair, improper lubrication, deterioration because or harsh or non-standard environmental factors; or
2. Which fails to operate properly due to the interface or use in connection with elements, equipment, or software not supplied by the Seller; or
3. Which is manufactured by others, whether affixed to, installed in or otherwise supplied with Seller's product(s). If permitted by the originating supplier, Seller will assign to the Buyer the express warranty, if any, which the original supplier makes with any product described in clause IV above; or
4. Was a defect that should have been detected by the Buyer during the standard ninety (90) day "debug" period authorized by the Seller for the Buyer's benefit after the initial delivery of the product.
B. If Buyer submits a warranty claim to Seller within ten (10) days of the discovery, within the warranty period, that a product or part which Seller has supplied to the Buyer is defective or is unable to process (as provided in and subject to the exceptions of clause 5A above) and if Seller finds that such defect or inability to process is attributable exclusively to a product or part thereof which Seller supplied to Buyer, then Seller, at Seller's sole option, repair, replace, or redesign the product which is so defective or unable to process, without charge. This is Seller's only obligation to Buyer with respect to such products or parts thereof on damaged, defective, or inadequate products.
C. The foregoing is in lieu of all other warranties, whether express, implied, or statutory, including those of merchantability and fitness of any product for a particular purpose, and of any other obligation or liability on Seller's part of any kind or nature whatsoever.
D. No representative of Seller has any authority to waive, alter, vary, or add to the terms thereof without prior approval in writing signed by an officer of the Seller's company.
6. Architectures and Properties of Offerings
Because Seller is constantly improving Seller's products and services, the architectures, properties, processes, and methods of Seller's offerings may vary from what is described in Seller's literature. While the literature is sufficiently accurate for most purposes there are occasions when a high degree of accuracy or specificity is required. Additional information to meet this need will be provided upon request after receipt of order or prior to placement of an order when discussions between the Seller and the prospective Buyer merit providing this information.
7. Overruns and Shortages
Orders for special, made-to-order, or custom configured hardware devices (such as security hasps) will occasionally be over or under-run. In those cases invoices will be adjusted to accurately reflect the true value of quantities shipped. Unless specified by contract prior to the sale, Seller will not expect Buyer to purchase overruns.
8. Returned Goods
No goods will be accepted for return unless authorized in writing by Seller and are subject to 20% restocking fee. All returned goods must be returned in a resalable condition. Return and reissue of the article must not violate any applicable license agreements, statutes, or terms of use.
9. Changes
If a quotation provides for products or services to be custom developed or built for the Buyer, the quoted price is applicable only when the correct performance requirements and specifications are provided by the Buyer. If changes in architecture, configuration, design, construction, or implementation are required as a result of failure of the Buyer to provide the correct information or because the Buyer elects to change the scope of identified in the contract the cost of such changes shall be at the Buyer's expense and shall be added to the quoted price. Seller will invoice the Buyer on a "time and material" basis. Seller will make a good faith effort to, but does not guarantee that it can, minimize these costs and keep them at or below market value for the services rendered.
10. Cancellations or Suspension
Cancellation or suspension or orders may be made only upon Seller's written approval and on terms that will indemnify Seller against all loss.
11. Order Acceptance
Seller reserves the right to refuse any order. An order shall be deemed accepted and a binding contract formed when the order is accepted in writing. This may occur at Seller's place of business, when an order is fulfilled, or by the Seller's purchase of supplies or commitment of other resources to fulfill the order, whichever occurs first.
12. Security Interest
Seller shall retain a security interest in the products, including but not limited to goods, services, real estate, proprietary information, patents, trademarks, or other intellectual property, covered hereby until the Buyer has completed payment of the purchase price plus accrued interest.
13. Intellectual Property and Proprietary Information Rights
All rights in and to materials, methods, techniques, specifications, information, pictures, videos, drawings, other unspecified media, ideas, tools, apparatus, patterns, physical processes, business processes, algorithms, heuristics, other proprietary mathematical formulae, compiled and un-compiled computer code, patterns, and/or inventions disclosed in connection with any proposal or any order resulting from this Acceptance, and patents, trademarks, service marks, or copyrights which may be granted thereon, disclosing or employing the materials, methods, techniques, specifications, information, pictures, videos, drawings, other unspecified media, ideas, tools, apparatus, patterns, physical processes, business processes, algorithms, heuristics, other proprietary mathematical formulae, compiled and un-compiled computer code, patterns, and/or inventions made, conceived, developed, or acquired by Seller in connection with procuring and/or executing Buyer's order will vest and inure to Seller's sole benefit not withstanding any charges therefore which may have been or may imposed by Seller. No disclosures of the aforementioned Intellectual Property or Proprietary Information shall be made to any other person or company unless (i) the Seller provides the Buyer with expressed written permission to do so, or (ii) Seller has already placed this information into the public domain. Seller does not agree to submit as a result of the consideration paid on any order resulting from this Acceptance, any information that is proprietary to Seller; nor does Seller agree to grant any "Rights in Inventions."
Buyer shall not give, loan, exhibit, sell, or transfer to any person not then employed by Buyer and authorized to receive such information, or to any organization or entity, any proprietary information in any media that may enable such person, organization, or entity to furnish similar Products or use the information for a purpose not expressly authorized by Seller.
A. Reverse Engineering
Buyer covenants that it will not attempt to "reverse-engineer" or otherwise discover Seller's intellectual property, patentable, patented, or non-patented invention or design, trade secrets, secret processes, or other confidential information embodied or contained in Seller's Products.
B. Standard User License Agreement and Terms of Use
Seller's standard user license agreement for the development of proprietary software applications is that Buyer has unlimited, subject to the restrictions of this terms and conditions document, internal use of Products supplied by Seller. Buyer also has unlimited, subject to the restrictions of this terms and conditions document, ability to incorporate Products sold by Seller into Buyer's products that will be resold, given, or otherwise provided to Buyer's customers, partners, or other affiliates, as long as the intent to, or possibility of, doing so is disclosed to Seller in writing before Seller accepts Buyer's purchase order, as defined in article 11 of this document. Successors in interest, including direct competitors of Seller, have the same privilege of use.
C. Non-Standard User License Agreement and Terms of Use
Seller and Buyer agree to use the standard user license agreement contained in this document unless they agree that they will use a non-standard user license agreement they jointly develop. This non-standard user agreement will be null and void unless it has been authorized in writing by an officer of the Seller's organization.
D. Safeguarding of Buyer's Intellectual Property and Proprietary Information
Seller covenants that it will make a good faith effort to protect Buyer's intellectual property and proprietary information using industry standard practices, internally sharing information on a "need to know" basis only, and utilizing Buyer's specifications for protecting information. Buyer agrees that it will indemnify and hold harmless Seller for all claims stemming from the disclosure of proprietary information unless all of the following conditions are met: (i) the disclosure by Seller or one of Seller's suppliers, sub-contractors, or other affiliates was either malicious or negligent, (ii) the disclosed information, as well had previously been explicitly identified by the Buyer to the Seller as proprietary, and Buyer explicitly specified to Seller the method for safeguarding the information, (iii) the disclosed information was not otherwise available, or soon to be available, to the unintended recipient(s), (iv) the disclosure caused both material and irreparable harm to Buyer, (v) Seller and Buyer had previously executed a mutually satisfactory non-disclosure agreement that was in effect at the time of the disclosure.
E. Ownership of Buyer's Intellectual Property and Proprietary Information
Subject to the terms and conditions stated in article 13, including sub-paragraphs A, B, C, and D above, of this document, Seller covenants that it will not attempt to benefit from Buyer's intellectual property or other proprietary information without negotiating and providing fair and reasonable compensation to Buyer, as long as the following conditions are met: (i) Buyer has explicitly identified in writing what information it wishes to protect, and (ii) the greater time period of two (2) years or the time specified by non-compete, non-disclosure, or other appropriate agreement has not elapsed.
14. Safety Features
It is understood that (I) Seller has relied upon data furnished by or on behalf of Buyer with respect to the application, manner of use, location, connection to other pieces of equipment and safety aspects of the Goods or upon representations made by Buyer or on behalf of Buyer that the Goods will not be applied or used by Buyer or its customers in such a way as to detract materially from their safety in use, including without limitation in an installation of which the Goods will be a part or in the manufacture or another product or system in which the Goods will be a component; and (II) that it is Buyer's responsibility to assure that the Goods when installed and put in use will be in compliance with safety requirements fixed by applicable law and will be otherwise adequate to safeguard against accident, injury, or other reasonably foreseeable harm.
15. Patent Infringement
Seller disclaims all warranties, either express or implied, relating to freedom from claims of others with respect to infringement and the like.
16. Insurance
Until payment in full of the purchase price, Buyer shall maintain insurance covering all Product sold by Seller to Buyer in such amounts and against all such risks as is customary by companies engaged in the same or similar business and similarly located, and shall, upon Seller's request, furnish evidence of such insurance satisfactory to Seller.
17. Risk
(i) Risk of damage to or loss of the Product shall pass to the Buyer.
(ii) In the case of the Product to be delivered at the Seller's premises, at the time when the Seller notifies the Buyer that the Goods are available for collection; or
(iii) In the case of Product to be delivered otherwise that at the Seller's premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Product, the time when the Seller has tendered delivery of the Product.
(iv) The Buyer shall insure the Product from the date of delivery to Buyer until their title has passed to Buyer and the Seller shall be entitled to call for details of the insurance.
(v) If the Buyer shall not insure the Product or shall fail to supply details for its policy on demand to the Seller then the Buyer shall reimburse the Seller for the cost of any insurance which the Seller may reasonably arrange in respect of any Product during the whole or any part of the period from the date of the Seller's delivery of the Product until the date of payment to the Seller of the price.
18. Indemnification
Without limiting Seller's obligations as provided above to remedy substandard performance of supplied Products and to indemnify Buyer with respect to patent infringement, Buyer shall indemnify, release, defend, and hold harmless, Seller, its subsidiaries and affiliates and Seller's and its affiliates' directors, officers, employees, and agents from and against any and all loss, cost, damages, claims, liabilities, or expenses (including reasonable attorneys', consultants' and experts' fees and amounts paid in settlement or judgment), or resulting from any injury or death to any person or damage to any property, including product or environmental contamination or pollution, caused by the inadequacy of the safety features, devices, or characteristics of the Products or in the installation use, operation, maintenance or condition of the Products or the provision of the Services and whether arising or asserted as a claim of negligence, strict liability in tort, breach of any type of claim. These provisions shall survive termination or assignment of this agreement. Buyer represents that it has liability insurance coverage, in sufficient and adequate amounts, to support the indemnification obligations set forth in these provisions.
19. Storage
If Product is not shipped within thirty (30) days after notification has been made to Buyer that it is ready for shipping, for any reason beyond Seller's control, including Buyer's failure to give shipping instructions, Seller may store equipment, media, and other such materials at Buyer's risk and expense in a warehouse or on Seller's premises, and Buyer shall pay all handling, transportation, and storage costs at the prevailing commercial rate promptly following Seller's submission of invoices for such costs.
20. Force Majeure
Seller shall not be liable any ordinary, incidental, or consequential loss or damage as a result of Seller's delay in or failure of delivery or installation due to (i) any cause beyond Seller's reasonable control, (ii) an act of God, act of the Buyer, embargo or other government act, authority, regulation or request, fire, theft, accident, strike, slowdown or other labor disturbance, war, riot, delay in transportation, or (iii) inability to obtain necessary labor materials, components, facilities. Should any of the aforementioned events of force majeure occur, Seller, at its option, may cancel Buyer's order with respect to any undelivered Products or extend the delivery date for a period equal to the time lost because of delay. Notice of such election shall be given promptly to the Buyer. In the event Seller elects to so cancel the order, Seller shall be released from all liability for failure to deliver the equipment, including, but not limited to, any and all claims on behalf of Buyer for lost profits, or any other claim of any nature that Buyer might have.
21. General
(i) Governing Law. These Terms and Conditions, and the contract of sale between Seller and Buyer, shall be governed by and construed in accordance with the laws of the State of Massachusetts. Seller and Buyer hereby agree that any legal action deemed necessary by either party hereto must by brought in the Circuit Court in and for Worcester County, Massachusetts and hereby consent to the personal jurisdiction of such court in any such action over the parties hereto. The rights and obligations of Seller and Buyer shall not be governed by the provisions of the United Nations Convention on Contracts for the International Sale of Goods.
(ii) Unless otherwise stated, a quotation is valid only for a period of thirty (30) days from the date of the quotation.
(iii) The Seller reserves the right to subcontract the fulfillment of the contract (including any installation) or any part thereof.
(iv) Salvatory Clause. The invalidity, in whole or in part, or any of the provisions of these Terms and Conditions, shall not affect the enforceability of any of the other provisions thereof.
(v) Attorney's Fees. Buyer agrees to pay all of Seller's costs and expenses of collection and related litigation, including but not limited to attorney's fees and costs.
(vi) Applicability. The Terms and Conditions as stated herein are applicable as of the date of this printing and until such time as changed by Seller.
22. Assignability
Successors in Interest for either Buyer or Seller are bound by the conditions of these Terms and Conditions other superseding agreement.
23. Severability
Severability of the agreement between is covered by articles 10 and 20 of these Terms and Conditions or by the conditions or by other superseding agreement placed in force by the mutual agreement of the Buyer and the Seller.