|
|
Terms and Conditions of Product SalesPLEASE READ THESE TERMS AND CONDITIONS VERY CAREFULLY. THE TERMS AND CONDITIONS OF PRODUCT SALES ARE LIMITED TO THOSE CONTAINED HEREIN. ANY ADDITIONAL OR DIFFERENT TERMS IN ANY FORMS DELIVERED BY YOU ("CUSTOMER") ARE HEREBY DEEMED TO BE MATERIAL ALTERATIONS AND NOTICE OF OBJECTION TO THEM AND REJECTION OF THEM IS HEREBY GIVEN. BY ACCEPTING DELIVERY OF THE PRODUCTS DESCRIBED IN CTI’S INVOICE OR OTHER CTI DOCUMENTATION, CUSTOMER AGREES TO BE BOUND BY AND ACCEPTS THESE TERMS AND CONDITIONS OF PRODUCT SALES UNLESS CUSTOMER AND CTI HAVE SIGNED A SEPARATE AGREEMENT, IN WHICH CASE THE SEPARATE AGREEMENT WILL GOVERN. ANY GENERAL DESCRIPTION OF THE TYPES OF PRODUCTS AND RESULTS THEREOF POSTED ON THE WEBSITE DO NOT CONSTITUTE PART OF THE AGREEMENT BETWEEN CTI AND CUSTOMER. Important Information About These Terms and Conditions of Product SalesThese Terms and Conditions of Product Sales constitute a binding contract between Customer and the Creekbed Technology, Inc. identified on Customer's invoice and are referred to herein as either "Terms and Conditions of Product Sales" or this "Agreement". Customer accepts these Terms and Conditions of Product Sales by making a purchase, placing an order or otherwise shopping on CTI's Website (the "Site"). These Terms and Conditions of Product Sales are subject to change without prior notice, except that the Terms and Conditions of Product Sales posted on the Site at the time Customer places an order will govern the order in question, unless otherwise agreed in writing by CTI and Customer. Customer consents to receiving electronic records, which may be provided via a Web browser or e-mail application connected to the Internet; individual consumers may withdraw consent to receiving electronic records or have the record provided in non-electronic form by contacting CTI at the address provided below. In addition, Internet connectivity requires access services from an Internet access provider. Contact your local access provider for details. IN CASE OF PROCUREMENT OF SERVICES, INDEPENDENTLY OR IN CONJUNCTION WITH THE PURCHASE OF PRODUCTS, SUCH SERVICES SHALL BE ON AND SUBJECT TO THE TERMS AND CONDITIONS OF SERVICE PROJECTS ON THE SITE.Customer may issue a purchase order for administrative purposes only. Additional or different terms and conditions contained in any such purchase order will be null and void. Customer agrees that the Terms and Conditions of Product Sales contained herein and in CTI’s invoice or other CTI documentation will control. No course of prior dealings between the parties and no usage of trade will be relevant to determine the meaning of these Terms and Conditions of Product Sales or any purchase order or invoice related thereto. Governing LawTHESE TERMS AND CONDITIONS OF PRODUCT SALES AND ANY SALE OF PRODUCTS HEREUNDER WILL BE GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD TO CONFLICTS OF LAWS RULES. ANY ARBITRATION, ENFORCEMENT OF AN ARBITRATION OR LITIGATION WILL BE BROUGHT EXCLUSIVELY IN LOS ANGELES COUNTY, CALIFORNIA AND CUSTOMER CONSENTS TO THE JURISDICTION OF THE FEDERAL AND STATE COURTS LOCATED THEREIN, SUBMITS TO THE JURISDICTION THEREOF AND WAIVES THE RIGHT TO CHANGE VENUE. CUSTOMER FURTHER CONSENTS TO THE EXERCISE OF PERSONAL JURISDICTION BY ANY SUCH COURT WITH RESPECT TO ANY SUCH PROCEEDING. Except in the case of nonpayment, neither party may institute any action in any form arising out of these Terms and Conditions of Product Sales more than one (1) year after the cause of action has arisen. Title; Risk of LossIf Customer provides CTI with Customer’s carrier account number or selects a carrier other than a carrier that regularly ships for CTI, title to products and risk of loss or damage during shipment passes from CTI to Customer upon shipment from CTI’s facility (F.O.B. Origin, freight collect). For all other shipments, title to products and risk of loss or damage during shipment passes from CTI to Customer upon receipt by Customer (F.O.B. Destination, freight prepaid and added). Notwithstanding the foregoing, title to software will remain with the applicable licensor(s) and Customer's rights therein are contained in the license agreement between such licensor(s) and Customer. CTI retains a security interest in the products until payment in full is received. WarrantiesCustomer understands that CTI is not the manufacturer of the products purchased by Customer hereunder and the only warranties offered are those of the manufacturer, not CTI. In purchasing the products, Customer is relying on the manufacturer’s specifications only and is not relying on any statements, specifications, photographs or other illustrations representing the products that may be provided by CTI or its affiliates. CTI HEREBY EXPRESSLY DISCLAIM ALL WARRANTIES EITHER EXPRESS OR IMPLIED, RELATED TO PRODUCTS, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTY OF NONINFRINGEMENT. THIS DISCLAIMER DOES NOT AFFECT THE TERMS OF THE MANUFACTURER'S WARRANTY, IF ANY. Pricing Information; Availability DisclaimerAll pricing is subject to change. CTI reserves the right to make adjustments to pricing and products for reasons including, but not limited to, changing market conditions, product discontinuation, product unavailability, manufacturer price changes and errors in advertisements. All orders are subject to product availability. Therefore, CTI cannot guarantee that it will be able to fulfill Customer’s orders. Limitation of LiabilityUNDER NO CIRCUMSTANCES WILL CTI AGENTS BE LIABILE FOR: (A) ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES WHICH INCLUDES BUT IS NOT LIMITED TO, LOSS OF PROFITS, REVENUES OR SAVINGS, EVEN IF CTI HAS BEEN ADVISED OF THE POSSIBILITIES OF SUCH DAMAGES, WHETHER A CLAIM FOR ANY SUCH LIABILITY IS PREMISED UPON BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY OF LIABILITY; (B) CLAIMS, DEMANDS OR ACTIONS AGAINST CUSTOMER BY ANY THIRD PARTY; (C) ANY LOSS OR CLAIM ARISING OUT OF OR IN CONNECTION WITH CUSTOMER'S IMPLEMENTATION OF ANY CONCLUSIONS OR RECOMMENDATIONS BY CTI IN CONNECTION WITH THE PRODUCTS; OR (D) THE PRODUCT BEING UNAVAILABLE FOR USE OR FOR LOST OR CORRUPTED DATA OR SOFTWARE. NOTWITHSTANDING THE FOREGOING, IN THE EVENT OF ANY LIABILITY INCURRED BY CTI, CTI'S ENTIRE LIABILITY FOR DAMAGES FROM ANY CAUSE WHATSOEVER WILL NOT EXCEED THE LESSER OF: (A) THE DOLLAR AMOUNT PAID BY CUSTOMER FOR THE PRODUCT(S) GIVING RISE TO THE CLAIM; OR (B) $50,000.00. CTI will not be responsible for any delays in delivery which result from any circumstances beyond its control, including without limitation, product unavailability, carrier delays, delays due to fire, severe weather conditions, failure of power, labor problems, acts of war, terrorism, general insurrection, acts of God or acts of any government or agency. Any shipping dates provided by CTI are estimates only. Proprietary InformationEach party anticipates that it may be necessary to provide access to information of a confidential or proprietary nature of such party (hereinafter referred to as "Proprietary Information") to the other party in the performance of this Agreement. "Proprietary Information" means any information or data in oral and/or in written form which the receiving party knows or has reason to know is proprietary information and which is disclosed by a party in connection with this Agreement or which the receiving party may have access to in connection with this Agreement. Proprietary Information will not include information which: (a) becomes known to the public from a source other than the receiving party; (b) was known to the receiving party, or becomes known to the receiving party from a third party having the right to disclose it and having no obligation of confidentiality to the disclosing party with respect to the applicable information; or (c) is independently developed by personnel of the receiving party who have not had access to such information. To the extent practicable, Proprietary Information should be clearly identified or labeled as such by the disclosing party at the time of disclosure or as promptly thereafter as possible, however, failure to so identify or label such Proprietary Information will not be evidence that such information is not proprietary or protectable. Each party agrees to hold such Proprietary Information confidential in the same manner as it holds its own Proprietary Information of like kind. Disclosures of Proprietary Information will be restricted to those individuals who are participating in the performance of this Agreement and need to know such Proprietary Information for purposes of this Agreement. Upon the request of a party, the other party will either return or certify the destruction of the Proprietary Information of the other party. If a receiving party is required by law, rule or regulation, or requested in any judicial or administrative proceeding or by any governmental or regulatory authority, to disclose the Proprietary Information, the receiving party will give the disclosing party prompt notice of such request so that disclosing party may seek an appropriate protective order or similar protective measure. ArbitrationAny claim, dispute, or controversy (whether in contract, tort or otherwise, whether preexisting, present or future, and including statutory, common law, intentional tort and equitable claims) arising from or relating to the products sold pursuant to these Terms and Conditions of Product Sales, the interpretation or application of these Terms and Conditions of Product Sales or the breach, termination or validity thereof, the relationships which result from these Terms and Conditions of Product Sales (including, to the full extent permitted by applicable law, relationships with third parties who are not signatories hereto), or CTI's advertising and marketing (collectively, a “Claim”) WILL BE RESOLVED, UPON THE ELECTION OF CTI, CUSTOMER OR THIRD PARTIES INVOLVED, EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION. If arbitration is chosen, it will be conducted pursuant to the Rules of the American Arbitration Association. If arbitration is chosen by any party with respect to a Claim, neither CTI nor Customer will have the right to litigate that Claim in court or to have a jury trial on that Claim or to engage in pre-arbitration discovery, except as provided for in the applicable arbitration rules or by agreement of the parties. Further, Customer will not have the right to participate as a representative or member of any class of claimants pertaining to any Claim. Notwithstanding any choice of law provision included in these Terms and Conditions of Product Sales, this arbitration agreement is subject to the Federal Arbitration Act (9 U.S.C. §§ 1-16). The arbitration will take place exclusively in Glendale, CA. Any court having jurisdiction may enter judgment on the award rendered by the arbitrator(s). Each party will bear its own cost of any legal representation, discovery or research required to complete arbitration. The existence or results of any arbitration will be treated as confidential. Notwithstanding anything to the contrary contained herein, all matters pertaining to the collection of amounts due to CTI arising out of sales hereunder will be exclusively litigated in court rather than through arbitration. Orders; Payment Terms; Interest; TaxesOrders are not binding upon CTI until accepted by CTI. Terms of payment are within CTI's sole discretion. Invoices are due and payable within the time period specified on the invoice, measured from the date of invoice, subject to continuing credit approval by CTI. CTI may invoice Customer separately for partial shipments. Customer agrees to pay interest on all past-due sums at the lower of one and one-half percent (1 1/2%) per month or at the highest rate allowed by law. Customer is responsible for, and will indemnify and hold CTI harmless from, any applicable sales, use, transaction, excise or similar taxes (but not taxes imposed or measured by CTI's net income), and from any federal, state or local fees or charges (including, but not limited to, environmental or similar fees), imposed on, in respect of, or otherwise associated with the order. Customer must claim any exemption from such taxes, fees or charges at the time of purchase and provide CTI with the necessary supporting documentation. Any sales, use or other applicable tax or fees or assessments is based on the location to which the order is shipped. In the event of a payment default, Customer will be responsible for all of CTI’s costs of collection, including court costs, filing fees and attorney’s fees. Return Privileges
Damaged ProductsIf Customer receives damaged products; please refuse the products upon original delivery attempt. If damaged products are accepted from the carrier, such damage should be noted on the carrier delivery record. Please save the product and the original box and packaging and notify CTI immediately to arrange for a carrier inspection and a pick up of damaged products. Please notify CTI Customer Relations at service@creekbedtech.com of damaged products WITHIN THE FIRST 10 DAYS of receipt. Timely receipt of this information is necessary for CTI to file a damage claim. Check Payment PolicyCTI will accept a cashiers check or money order on all COD orders. CTI will accept personal or business checks up to $12,000 at the Business Technology Centers, subject to verification. CTI will accept personal and business checks for prepay orders. Allow 10 business days for clearing. Contacting CTI |