TERMS AND CONDITONS OF SALES
CONTROLLING TERMS AND CONDITIONS:
All purchases and sales of products, including all parts, spare parts and components thereof (the “Products”) or services (the “Services”) between Buyer and Mightex Systems, and/or its direct and indirect subsidiaries (collectively,”Mightex”), shall be made pursuant to Mightex’s quote and/or order acknowledgement and shall be governed by these Terms and Conditions. These Terms and Conditions and Mightex’s quote and/or order acknowledgement shall constitute the entire agreement between the parties pertaining to the subject matter hereof, and shall supersede all prior or contemporaneous oral or written negotiations, agreements, understanding or representations with respect thereto. These Terms and Conditions shall supersede any conflicting provision contained in any purchase order of Buyer. Unless otherwise agreed in writing, nothing contained in any purchase order of Buyer shall in any way modify or add any provision to these Terms and Conditions. These Terms and Conditions may not be amended or any provision hereof waived in any way except by an instrument in writing signed by both parties. IN THE EVENT THAT MIGHTEX’S QUOTE IS DEEMED AN OFFER, ACCEPTANCE BY BUYER OF SUCH OFFER IS EXPRESSLY LIMITED TO THE TERMS CONTAINED HEREIN. ISSUANCE BY BUYER’S OF A PURCHASE ORDER SHALL BE DEEMED AN ACCEPTANCE OF THESE TERMS AND CONDITIONS. IN THE EVENT THAT MIGHTEX’S ORDER ACKNOWLEDGMENT IS DEEMED AN ACCEPTANCE OF BUYER’S PURCHASE ORDER, SUCH ACCEPTANCE BY MIGHTEX OF BUYER’S PURCHASE ORDER IS EXPRESSLY MADE CONDITIONAL ON ASSENT TO ANY ADDITIONAL AND DIFFERENT TERMS CONTAINED HEREIN.
LICENSE TO USE SOFTWARE:
Buyer acknowledges that the software or firmware components and applications, if any, accompanying the Products sold hereunder (the “Software”) are licensed and not sold to Buyer. Upon receipt of full payment therefore, Mightex grants to Buyer a nonexclusive, personal, nontransferable, limited and royalty-free license to use and execute such Software in object code form only and only in conjunction with the operation of the associated Product. Buyer shall receive no rights to the Software except as expressly provided herein. No license to use the source code of the Software is provided hereunder. Buyer agrees that it shall not use, distribute, license, sublicense, resell or otherwise transfer all or any part of the Software or supporting documentation other than as expressly permitted hereunder without the prior written consent of Mightex. Buyer agrees that it shall not, nor shall it permit any employee or agent of Buyer to, adapt, modify, copy, reproduce, reverse engineer, decompile, or disassemble the Software in any way without the prior written consent of Mightex. Except as expressly set forth herein, Mightex shall have no obligations to Buyer whatsoever with regard to the Software. Without limiting the generality of foregoing, Mightex has no obligation to develop updates or modifications to the Software or develop or provide Software development tools to Buyer, unless otherwise specified.
The prices for all Products and Services shall be as set forth in Mightex’s quote and/or order acknowledgement and such prices shall be exclusive of all taxes and other charges referenced hereafter, all of which shall be paid by Buyer. A handling fee will apply for using customer’s own shipping account. Buyer shall pay all transportation, handling, insurance, applicable taxes, license fees, import, export and customs fees and duties, tariffs and other charges related to the Products or Services purchased hereunder. If claiming tax exemption, Buyer must provide Mightex with valid tax exemption certificates. For Buyer having existing credit terms with Mightex, each invoice shall be due and payable in U.S. Dollars net thirty (30) days from the date of shipment. Such payment terms are subject to credit approval. Mightex reserves the right, at its sole discretion, to limit, cancel or modify Buyer’s credit terms as to time or amount from time to time and without prior notice. Mightex reserves the right to require alternative payment terms, including but not limited to sight draft, letter of credit or payment in advance. For credit card orders, and for all international orders, Buyer’s account will be charged upon purchase of the Products.
If Buyer fails to pay any invoice when due, Mightex may charge Buyer interest in an amount equal to one and one-quarter percent (1.25%) per month on any past due balance. Mightex may withhold delivery of any Products or Services at any time in which Buyer’s account is past due or exceeds its approved credit limit. If Mightex employs any legal process to recover any amount due and payable from Buyer hereunder, Buyer shall pay all costs of collection and reasonable attorney’s fees.
DEVIVERY, TITLE AND RISK OF LOSS:
Unless otherwise agreed to in writing, all Products will be delivered FOB, Calfiornia. Delivery shall occur, title to the Products (except for title to any Software which shall at all times remain with Mightex) shall pass from Mightex to Buyer, and Buyer shall assume all risk of loss or damage, upon delivery of the Products to the carrier, unless otherwise agreed by both parties in writing. In no event shall Mightex be liable for any delay in delivery, or assume any liability in connection with shipment, nor shall the carrier be deemed an agent of Mightex.
ACCEPTANCE OF PRODUCTS:
Buyer shall inspect all Products promptly upon receipt. Delivery by Mightex of Product to Buyer shall constitute acceptance unless Mightex receives a written notice of defect or nonconformity within ten (10) business days, after receipt by Buyer, provided, that such acceptance shall not relieve Mightex of its warranty obligations hereunder.
CHANGES, CANCELLATION AND RETURNS:
Mightex’s Cancellation and Return Policy.
PROPRIETARY RIGHTS AND CONFIDENTIALITY:
Mightex Rights. Unless otherwise specifically agreed in writing by Buyer and Mightex, as between Buyer and Mightex, Mightex retains all right, title and interest in and to the Software, all inventions, ideas, processes, methods, know-how, skills and techniques developed, discovered or conceived by Mightex or its employees, including without limitation those developed and/or used in connection with the manufacture of the Products or performing Services hereunder (collectively, “Mightex Rights”). Such rights include, but are not limited to, patent rights, copyrights, trade secret rights, trademark rights, mask work rights and other proprietary rights throughout the world. Mightex hereby grants to Buyer a nonexclusive, nontransferable, worldwide, limited license to use Mightex’s Rights solely to the extent required for Buyer to use the Products or Software sold or licensed hereunder. Mightex shall retain all right, title and interest in and to all materials, fixtures or tools designed, developed or manufactured by Mightex in connection with the manufacture of the Products.
Buyer Rights. Unless otherwise specifically agreed in writing by Buyer and Mightex, as between Buyer and Mightex, Buyer retains all right, title and interest in and to all specifications and materials provided by Buyer to Mightex, and all inventions, ideas, processes, methods, know-how, skills and techniques developed, discovered or conceived by Buyer or its employees (the “Buyer Rights”). Such rights include, but are not limited to, patent rights, copyrights, trade secret rights, trademark rights, mask work rights and other proprietary rights throughout the world. Buyer hereby grants to Mightex a nonexclusive, worldwide, limited license to use and exploit the Buyer Rights solely to the extent required for Mightex to perform its obligations and exercise its rights hereunder.
Confidentiality. Each of Buyer and Mightex acknowledges that in connection with the purchase and sale of Products or Services, each party may make available to the other party certain confidential and proprietary business and technical information and materials, including the Software (the “Confidential Information”). Confidential Information shall be clearly marked with proprietary legends of the disclosing party at the time of disclosure. If Confidential Information is orally or visually disclosed, it shall be reduced to writing and clearly marked with proprietary legends by disclosing party within 30 days of disclosure. All of the protections and restrictions in these Terms and Conditions as to the use and disclosure of Confidential Information shall apply during such 30-day period. Notwithstanding the foregoing, any information or material which by its nature and under the circumstances surrounding its disclosure is generally considered proprietary and confidential shall be deemed Confidential Information regardless of whether it is properly marked with legends or properly reduced to writing. Each party agrees that it (a) will hold the Confidential Information in strict confidence and use its reasonable efforts to prevent the unauthorized disclosure of the Confidential Information; (b) will not disclose the Confidential Information in any manner whatsoever, except as required by applicable law; (c) will use the Confidential Information only for the purpose of performing its obligations hereunder or in conjunction with the operation of the Products or Software and for no other purpose; and (d) will provide access to the Confidential Information to only those of its employees or representatives who need to know the Confidential Information for the purpose of performing their duties in connection with the Products or Services. These obligations shall not apply to information that: (i) was independently developed by or for the receiving party without use of the disclosing party’s Confidential Information, in whole or in part, as demonstrated by written evidence; (ii) is or becomes generally available to the public without breach of confidentiality obligations by the receiving party; (iii) was in the receiving party’s possession or was known by the receiving party without restriction at the time of disclosure by disclosing party, as demonstrated by written evidence; or (iv) is lawfully received by the receiving party on a nonconfidential basis from a third party without breach by such third party of any legal, contractual, or fiduciary obligation to the disclosing party.
Mightex’s Warranty Terms and Conditions.
LIMITATION OF LIABILITY:
Mightex shall not be liable for any commercial losses, loss of revenues or profits, loss of goodwill, inconvenience, or exemplary, special, incidental, indirect, consequential or punitive damages whatsoever, or claims of third parties, regardless of the form of any claim, whether in contract or tort, whether from breach of this agreement, or defective products, or loss of data or from any other use, even if Mightex has been advised or should be aware of the possibility of such damage. Mightex’s liability for loss or damages shall not exceed the purchase price paid for the particular product.
If any provision of these Terms and Conditions is held to be invalid by a court of competent jurisdiction, then the remaining provisions shall remain, nevertheless, in full force and effect. The parties agree to renegotiate in good faith any term held invalid and to be bound by the mutually agreed substitute provision in order to give the most approximate effect intended by the parties.
No waiver of any provision of these Terms and Conditions shall be valid or binding on any party unless agreed to in writing by the party to be charged. The failure of either party to enforce at any time any of the provisions of these Terms and Conditions, or the failure to require at any time performance by the other party of any of the provisions of these Terms and Conditions, shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the validity of either party to enforce each and every such provision thereafter.
Mightex hall have the right to terminate any order, or to delay the shipment thereof, by reason of (a) Buyer’s bankruptcy or insolvency, or the pendency of any proceedings against Buyer under any statute for the relief of debtors; (b) Buyer’s breach of these Terms and Conditions; (c) Mightex’s learning that the ultimate destination of the Products is other than that set forth in the Mightex quote; or (d) failure of Buyer to meet any other reasonable requirements established by Mightex or to provide timely responses to requests from Mightex (including acts or omissions of Buyer which may delay production).
These Terms and Conditions shall be construed under and according to the laws of the Province of Ontario, Canada, without regard to its conflict of law provisions.
In the event of any action, suit or proceeding relating to the subject matter hereof, the prevailing party shall be entitled, in addition to any other rights and remedies it may have, to recover its reasonable attorneys’ fees and related costs from the non-prevailing party.