Terms and Conditions of Product Sales and Services
PLEASE READ THESE TERMS AND CONDITIONS VERY CAREFULLY. THE TERMS AND CONDITIONS OF PRODUCT SALES AND SERVICES (collectively "TERMS AND CONDITIONS") ARE LIMITED TO THOSE DESCRIBED BELOW.
Descriptions of products and services offered by seller ("Products" and "Services"), as well as descriptions of results and benefits thereof, do not constitute part of the agreement between TangentBlue ("Seller") and you ("Buyer").
By shopping on the Seller's web site ("Site"), placing an order with Seller or engaging Seller to perform any Services, Buyer accepts and agrees to be bound by these Terms and Conditions.
These Terms and Conditions are subject to change without prior notice, except that the Terms and Conditions posted on the Site at the time Buyer places an order or signs a Statement of Work will control the order in question, unless otherwise agreed to in writing by Seller and Buyer.
These Terms and Conditions contain the entire understanding between Buyer and Seller. They supersede and replace all other communications (prior, concurrent, or subsequent) and any other agreements and understandings in their entirety, whether oral, documented or implied between the parties with respect to the terms and conditions governing the rights and obligations between Buyer and Seller unless Buyer and Seller have a separate signed agreement.
Any separate agreements between Buyer and Seller incorporate these Terms and Conditions by reference, and only serve to amend specific provisions of these Terms and Conditions.
Other terms or conditions in any form delivered by Buyer to Seller are hereby deemed to be alterations of these Terms and Conditions, and notice of Seller's rejection of such terms and conditions is hereby given.
Services
Certain Services (e.g. warranties for third party products), are sold by Seller as a sales agent ("Third Party Services"). In the case of Third Party Services, the third party will be responsible for providing the Services to the Buyer and Buyer will look solely to the third party for any claims or damages related to the delivery of such Services. Buyer hereby releases Seller from any and all claims resulting from the purchase or delivery of Third Party Services.
In the case where Services are provided by Seller, the terms and conditions will be controlled by a statement of work ("Statement of Work") signed by both parties. No other agreements for the performance of Services, whether oral, documented or implied, exist between Buyer and Seller.
Each Statement of Work is a separate agreement for specific Services to be performed that incorporates these Terms and Conditions by reference. In the event of a conflict between the Statement of Work and these Terms and Conditions, these Terms and Conditions will control except where the Statement of Work is amended by specific reference to these Terms and Conditions.
Performance of Seller's Services
Seller may perform the Services at Buyer's place of business, at Seller's own facilities or such other locations as Seller and Buyer deem appropriate.
In addition to any specific Buyer duties set forth in any applicable Statement of Work, Buyer agrees to cooperate with Seller in connection with performance of the Services by providing (i) timely responses to Seller's questions related to issues that arise as part of the ongoing process of performing the Services, (ii) access to information or equipment that Seller determines is necessary to provide the Services, including, but not limited to, physical or remote access to Buyer's computer systems, and (iii) consents required by Seller to perform the Services, including the right or license to access and use necessary third party products.
Quotations and Proposals
Price quotations provided by Seller for Products and Services are valid for 30 days unless Seller agrees otherwise in writing.
Shipping and completion dates provided by Seller, whether verbal, implied or contained in a Statement of Work, quotation, or other document are estimates provided for planning purposes only.
Prices and Availability
Seller reserves the right to make adjustments to pricing and Products and Services offerings at Seller's sole discretion and for any reason.
Services are performed on a time and materials basis. Buyer will reimburse Seller for reasonable out-of-pocket expenses related to the performance of Services including, but not limited to, travel and living expenses.
All orders are subject to Product availability and the availability of personnel to perform the Services. Seller does not guarantee that it will be able to fulfill Buyer's orders.
Taxes and Fees
Buyer will pay for, and will indemnify and hold Seller harmless from, all sales, use, transaction, excise or similar taxes and federal, state or local fees, imposed on or associated with Products or Services.
Buyer must claim any exemption from such taxes, fees or charges at the time of purchase and provide Seller with an appropriate exemption certificate or other supporting documentation.
Orders Subject to Acceptance
Orders placed on this Site or by other means are not binding upon Seller until accepted by Seller. An order booked by Seller constitutes acceptance of that order by Seller.
Shipping
Buyer agrees to pay all shipping charges related to Products and Services, including charges billed to Seller resulting from the use of carrier account numbers provided by the Buyer.
Seller will deliver Products and any other items for shipment to a carrier in Austin, Texas. Buyer will pay all charges for delivery of shipped items to the Buyer's ship-to address.
The date on which Products are delivered to carrier ("Ship Date") will be used to determine the beginning of Product Warranties and other provisions of these Terms and Conditions where Ship Date is specifically referenced.
Buyer must report shipment shortage claims to Seller in writing within thirty (30) days of the ship date.
Title and Security Interest
Title to Product will pass to Buyer on Seller's delivery of Product to the shipping carrier. Buyer is responsible for purchasing insurance or making other provisions to protect Buyer from loss or damage while Product is in carrier's possession.
Seller will retain a security interest in Product until full payment is received for the Product and related shipping costs, applicable taxes and fees, and interest.
Invoicing
Seller may invoice Buyer separately for partial shipments and partial completion of Services according to the payment schedule defined in a Statement of Work.
Payment
Terms of payment are within the Seller's sole discretion.
Buyer will make payment for Product in full prior to or upon delivery by cashier's check, credit card or money order, unless other payment terms are provided by Seller to Buyer in writing.
For Services performed under a Statement of Work, Buyer will pay for the Services according to the payment schedule defined in the Statement of Work.
All sums not paid when due will accrue interest daily at the lesser of a monthly rate of 1.5% or the highest rate permissible by law on the unpaid balance until paid in full.
In the event of a payment default, Buyer will be responsible for all of Seller's costs of collection, including, but not limited to, court costs, filing fees and attorneys' fees. Furthermore, Seller reserves the right to suspend Services until the collection costs and past due payments for Services with interest are received.
Cancellations, Changes and Returns
Buyer may reduce or cancel an order for Product that has not yet shipped. Buyer will pay a ten percent (10%) cancellation fee on the reduced or cancelled portion of the purchase order.
Buyer may return Product in new and unopened condition within thirty (30) days of the ship date. Buyer must request an authorization number before returning Products to Seller, and clearly mark the container with the authorization number. Buyer will pay a restocking charge of fifteen percent (15%) on returned Product. No returns will be accepted for open (used) Product or after the thirty (30) day period has expired.
In addition to cancellation and return fees, Buyer will reimburse Seller for any restocking fees incurred by Seller for third-party products.
Changes to a Statement of Work, including but not limited to pricing, scope, terms or conditions, will not be accepted after that Statement of Work is signed by both parties. Services contracted under a Statement of Work may be terminated before completion by mutual agreement between Buyer and Seller. Conditions and terms of such termination must be in writing, either in the Statement of Work or in a separate agreement signed by both parties.
Warranty
Other than as set forth below, Seller makes no other express or implied warranties with respect to Products, Services or recommendations that Seller may make, including, but not limited to, the results to be obtained and implied warranties concerning the performance, merchantability, suitability, or fitness for any particular purpose.
Seller's Products
Seller's Products are warranted against defects in materials and workmanship for one (1) year from the Ship Date.
Buyer must obtain an authorization number before returning any Products under warranty to Seller and make arrangements with Seller to pay any applicable charges for warranty service.
Buyer will pay for all shipping charges to and from Seller related to warranty service.
Seller will examine Product returned under warranty to determine whether it is defective. If Product is found to be defective, the Seller will repair or replace the Product at Seller's sole discretion. If Seller concludes that a returned product is not defective, the product will be returned and inspection and/or test fees will be charged to Buyer.
This Limited Warranty is void if Product is damaged as the result of accident, misuse, modification or unauthorized repair.
Seller's Services
Seller warrants that Services provided by Seller will be performed in a workmanlike manner.
Third Party Products
Certain Products are sold by Seller as a sales agent ("Third Party Products"). In the case of Third Party Products, the third party will provide warranty service to the Buyer. Buyer will look solely to the third party for any claims or damages related to Third Party Products, including warranty services. Buyer hereby releases Seller from any and all warranty claims or damages resulting from the purchase of Third Party Products.
Buyer must NOT return Third Party Products to Seller for warranty service.
Third Party Services
Seller makes no express or implied warranties with respect to Third Party Services, including, but not limited to, any warranty concerning the results to be obtained from Third Party Services or the results of any recommendation Seller may make regarding Third Party Services, including without limit any implied warranties concerning the performance, merchantability, suitability, or fitness of the deliverables for any particular purpose.
Force Majeure
Seller and its suppliers will be excused for, and no liability will accrue to Seller for, delays or failures to perform resulting from circumstances beyond Seller's reasonable control, including, but not limited to, Product unavailability, shipping delays, delays due to fire, earthquakes, weather conditions, power failures and other natural or man-made catastrophes, acts of war, and acts of laws imposed on Products and Services by governments and agencies. In these circumstances, Seller may cancel orders without liability to Buyer.
Remedies
IN THE EVENT OF ANY LIABILITY INCURRED BY SELLER, THE ENTIRE LIABILITY (AND SOLE REMEDY OF BUYER) FOR DAMAGES FROM ANY CAUSE WHATSOEVER WILL NOT EXCEED THE LESSER OF: (A) THE DOLLAR AMOUNT PAID BY BUYER FOR THE SPECIFIC PRODUCT(S) OR THE SPECIFIC SERVICES GIVING RISE TO THE CLAIM; OR (B) $50,000.00.
BUYER MUST BRING ANY ACTION TO ENFORCE THESE REMEDIES WITHIN ONE (1) YEAR AFTER THE ACCRUAL OF SUCH CAUSE OF ACTION, AFTER WHICH BUYER WAIVES ITS RIGHT TO BRING SUCH ACTION.
THE ENTIRE LIABILITY OF SELLER (INCLUDING SELLER'S OFFICERS, OWNERS AND EMPLOYEES) AND SELLER'S SUPPLIERS AND AGENTS IS SET FORTH ABOVE. UNDER NO CIRCUMSTANCES, WILL SELLER OR ITS SUPPLIERS, SUBCONTRACTORS OR AGENTS BE LIABLE FOR: (A) INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF REVENUES, OR LOSS OF BUSINESS, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES WERE OTHERWISE FORESEEABLE, WHETHER THE CLAIM FOR LIABILITY IS BASED UPON BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, OR OTHER THEORIES OF LIABILITY; (B) UNAVAILABILITY OF THE PRODUC T FOR USE; (C) LOST, DAMAGED OR CORRUPTED DATA OR SOFTWARE; (D) CLAIMS, DEMANDS OR ACTIONS AGAINST BUYER BY ANY THIRD PARTY; OR (E) CLAIMS ARISING OUT OF BUYER'S APPLICATION OF SELLER'S RECOMMENDATIONS OR OTHERWISE RESULTING FROM BUYER'S USE OF PRODUCT(S) OR SERVICES.
Indemnification
Buyer accepts responsibility for, and agrees to indemnify and hold Seller harmless from, all claims, losses, expenses, damages and liabilities arising from (A) Buyer's failure to obtain the licenses, intellectual property rights, or other permissions from third parties necessary to support Products or Seller's performance of the Services; (B) Buyer's use of Products or Services in applications that could potentially cause injury to humans, including, but not limited to, medical, transportation, and power generation applications; or (C) Buyer's failure to use Products or to implement recommendations resulting from performance of Services according to best engineering practices.
Export
By placing an order or signing a Statement of Work, Buyer certifies that:
- The end user application for Products and Services is located within the United States.
- Buyer is not located in countries under U.S. Economic embargo or sanction, nor is Buyer a citizen or legal resident of embargoed or sanctioned countries.
- Buyer is not identified on any exclusions lists, including:
- US State Department Debarred Parties List
- U.S. Department of Commerce Denied Persons List
- U.S. Department of Commerce Entity List
- U.S. Department of Commerce Unverified List
- Treasury Department Specially Designated Nationals list
- Buyer is not directly or indirectly involved in terrorist activities or the development, manufacture or distribution of nuclear, chemical, biological weapons or other weapons technology as described in the U.S. Export Administration Regulations (15 CRF 744).
- Buyer will not transfer, in any form or by any means (direct or indirect), the Products or the results of Services to any entity involved in such activities.
- Buyer will not otherwise divert, export or re-export the Products or the results of Services in any manner contrary to US Export Administration Regulations or other applicable United States laws.
Reverse Engineering
Seller retains all intellectual property rights and trade secrets related to Products. Buyer and Buyer’s officers, employees, affiliates and agents agree not to reverse engineer, decompile or disassemble, or otherwise attempt to derive the design of hardware or software Products by any means or for any purpose, except to the extent allowed under applicable law. Unauthorized extraction of Seller’s intellectual property from Products may result in violations of copyright and other applicable laws.
Governing Law
These Terms and Conditions, any Statements of Work, and the sale of Products and provision of Services hereunder, will be governed by the laws of the state of Texas without regard to principles of conflicts of laws.
Any arbitration, enforcement of an arbitration or litigation will be brought exclusively in Travis County, Texas, and Buyer consents to the jurisdiction of the federal and state courts located therein, submits to the jurisdiction thereof and waives the right to change venue.
Except for the case of nonpayment, neither party may institute any action in any form arising out of these Terms and Conditions more than one (1) year after the cause of action has arisen.
A waiver or modification of any provision of these Terms and Conditions will not be construed as a waiver or modification of any other term hereof.