1. PRICING. All price quotations for Climate Remediation Foundation, Inc (“Company”) products (“Products”) or services (“Services”) provided hereunder are valid for thirty (30) days unless otherwise noted.
2. PAYMENT. Unless otherwise quoted or agreed to in writing by Company, terms of payment to U.S. customers for Products shall be net fifteen (15) days from the date of invoice. Travel and living expenses incidental to Services shall be reimbursed by Buyer monthly based on actual, reasonable and documented expenses incurred by Company. Any travel and/or waiting times shall be invoiced at the agreed rate for Services. For international orders, Company may require prepayment or a letter of credit prior to shipment or performance. Company may alter or suspend credit whenever the payment history or financial condition of Buyer warrants such action. Overdue payments will be subject to a 1.5% monthly interest rate, or the maximum permitted by law. Buyer shall be liable for all costs and attorneys’ fees incurred by Company in the collection of delinquent accounts.
3. TAXES AND DUTIES. Prices for Products or Services do not include applicable federal, state or local taxes, now or hereafter enacted, which tax or taxes (i) will be added by Company to the sales price whenever Company has the legal obligation to collect same, and (ii) shall be paid by Buyer unless Buyer provides Company with an appropriate tax-exemption certificate. For sales to points outside the U.S., all duties, taxes, licenses, and fees, including customs, are in addition to the quoted prices and shall be Buyer’s responsibility, and any such cost incurred by Company shall be passed on to Buyer.
4. FREIGHT AND SHIPMENTS. Product delivery terms for U.S. sales are EX Works Boston, MA, U.S.A. Subject to the limitation set forth in Section 16 hereof, title to all goods sold hereunder shall pass to Buyer upon delivery. Any freight and delivery charges paid by Company in connection with shipments to Buyer will be passed on to Buyer. Buyer shall notify Company in writing relative to any shipment shortage within ten (10) days of receipt. Company shall not be liable for delays in delivery or performance due to causes beyond its reasonable control. In the event of any such delay or failure, Company shall be entitled to extend the delivery date by a commensurate period of time. Company shall have the right to cancel any order or to refuse or delay shipment if Buyer fails to meet payment terms or if there is any materially adverse change in Buyer’s financial status. Export of Company Products or Services outside the U.S. is subject to the latest U.S. Export Regulations issued by the U.S. Department of Commerce, adherence to which is Buyer’s responsibility after initial shipment by Company.
5. CANCELLATION OR SCHEDULE CHANGES. Buyer schedule changes made within thirty (30) days of scheduled Product shipment or commencement of Services are subject to a 5% rescheduling fee. Orders canceled by Buyer prior to the date scheduled for Product shipment or commencement of performance of Services will be subject to the following cancellation charges: 0-30 days before shipment/performance – 20% of order value; 31-60 days before shipment/performance – 10% of order value; 60+ days – 0. Orders or order line items for custom parts or products are non-cancelable.
6. SOFTWARE LICENSE. All Company software (“Software”) is provided to Buyer under license only, and not by sale. Subject to Buyer’s compliance with these Terms and Conditions, Company grants to Buyer a non-exclusive, non-transferable license to use and sub-license the Software object code, as supplied by Company, for use on or in conjunction with a single Company vision processor or other single hardware module capable of operating the Software. Except as may be required by applicable third party licenses or as expressly permitted by these Terms and Conditions, Buyer’s reverse-engineering, decompilation, or disassembling of any portion or version of the Software, or the attempting of any of the foregoing, or the aiding or abetting of others to do so, is strictly prohibited and Buyer hereby waives any rights under any applicable law with respect thereto. Buyer further acknowledges that the Software qualifies as original works and constitutes copyrighted material, and that Buyer and/or its sub-licensees shall neither (i) make or distribute unauthorized copies of the Software, nor (ii) acquire any ownership rights in the Software. Except as expressly licensed to Buyer hereunder, all rights, title and interests to and in the Software and all extensions, enhancements and modifications thereof shall remain at all times with Company and any third party holding a valid interest in the Software. Buyer is expressly prohibited from using any portion or version of the Software with any other software or copyrighted work in such a way that any portion or version of the Software would be required by the license terms applicable to the other software or work to be (a) made available in source code form, (b) made available without charge or at minimal charge, (c) licensed for the creation of derivative works or (d) which would require Company or its licensors to grant any third party any rights or immunities under any intellectual property owned by or licensed to Company. Portions of the Software may include one or more components that are derived from software subject to a General Public License (‘GPL”), Lesser General Public License (“LGPL”) or other open source license. Any such components are licensed exclusively under such GPL, LGPL or other open source license, as applicable, and not under the Software license Terms and Conditions hereinabove.
8. SUITABILITY DISCLAIMER. The performance of the Products depends on a variety of parameters (such as network performance) which are beyond the control of Company. Performance of the Products may vary considerably from one application to the next. COMPANY MAKES NO CLAIM, REPRESENTATION OR WARRANTY CONCERNING THE PERFORMANCE OR SUITABILITY OF THE PRODUCTS FOR OR IN BUYER’S APPLICATION.
9. WARRANTY. Company warrants Product Software to operate in accordance with its documentation for a period of twelve (12) months from shipment, unless a different period is otherwise quoted in writing by Company. If a Product unit fails during the warranty period, the original Buyer (not other parties which may have physical possession of the Product) shall notify Company and request a return authorization. The defective unit shall then be returned to Company’s repair center by Buyer or its designate, freight prepaid, together with a failure report. It will either be repaired or replaced, at Company’s option, and returned to Buyer or its designate, freight prepaid. Company is not responsible for providing a replacement unit during the repair period. The foregoing warranty shall not apply to defects resulting from (i) improper or inadequate maintenance by Buyer; (ii) Buyer-supplied equipment, hardware, software or interfacing; (iii) unauthorized modifications, misuse or accidents; (iv) operation outside of the environmental specifications of the Product; or (v) improper site preparation and maintenance. All Services shall be performed in professional manner, in conformity with industry standards. EXCEPT AS EXPRESSLY STATED HEREIN, ALL SOFTWARE IS PROVIDED “AS IS”. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
10. COMPANY INDEMNIFICATION. Company shall indemnify and defend Buyer against any claim, suit, or proceeding brought against Buyer by a third party insofar as such claim, suit or proceeding is based upon an assertion that any Product delivered hereunder infringes upon a U.S. patent or registered copyright, provided Buyer (i) notifies Company promptly in writing as to any such claim, suit or proceeding, (ii) grants Company sole control over the defense and settlement thereof, and (iii) reasonably cooperates in response to a Company request for assistance. Should any Product become, or in Company’s opinion be likely to become, the subject of a cause of action of infringement, Company may, at its sole discretion and expense, (a) obtain for Buyer the right to make continued use of such Product, (b) replace or modify such Product so that it is no longer infringing, or (c) request return of the Product and upon receipt thereof refund to Buyer the residual value thereof, calculated using straight line depreciation over a five (5) year useful life. Company shall have no liability if the alleged infringement is based upon (1) the manner of combination with non-Company products; (2) the inspection application or manner of use of the Product; (3) Buyer’s use of any older version of Software when use of a newer Company revision would have avoided the infringement; (4) any modification made without Company’s written approval; (5) any modification made by Company pursuant to Buyer’s specific instructions; or (6) any intellectual property right owned by Buyer, any of its affiliates or any end user, or licensed by any of the foregoing from a third party. Notwithstanding the foregoing, in no event shall Company’s liability to Buyer under this Section 10 exceed the amount paid by Buyer to Company for any allegedly infringing Product. THIS SECTION 10 STATES BUYER’S SOLE AND EXCLUSIVE REMEDY AND COMPANY’S ENTIRE LIABILITY TO BUYER FOR THIRD PARTY INFRINGEMENT CLAIMS.
11. PRECEDENCE. In the absence of a separate, duly executed agreement between Company and Buyer, BUYER’S PURCHASE OF COMPANY PRODUCTS HEREUNDER REPRESENTS ACCEPTANCE OF THE TERMS AND CONDITIONS HEREIN, WHICH CONSTITUTE THE ENTIRE AGREEMENT BETWEEN THE PARTIES AND SUPERSEDE ANY PRIOR OR CONTEMPORANEOUS COMMUNICATIONS, REPRESENTATIONS, UNDERSTANDINGS OR AGREEMENTS BY EITHER PARTY, WHETHER VERBAL OR WRITTEN, CONCERNING THE SUBJECT MATTER HEREOF. The Terms and Conditions contained herein take precedence over Buyer’s additional or different terms and conditions, to which notice of objection is hereby given. Neither Company’s commencement of performance nor delivery shall be deemed or construed as acceptance of Buyer’s additional or different terms and conditions. No change or modification to the Terms and Conditions herein shall be valid or binding unless in writing and signed by authorized representatives of both parties.
12. WAIVER. No failure to exercise, delay in exercising or course of dealing under these Terms and Conditions shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege under these Terms and Conditions preclude any further exercise thereof, or the exercise of any other right, power or privilege. The remedies provided herein are cumulative and not exclusive of any remedies provided by law.
13. ASSIGNMENT. Any order subject to these Terms and Conditions may not be assigned by Buyer without prior written consent from a duly authorized representative of Company.
14. SURVIVAL. The completion or termination of any order governed by these Terms and Conditions shall not prejudice any rights or relieve any obligations that have arisen on or before the date of such completion or termination. Any provision herein that by its very nature or context is intended to survive order completion or termination, including but not limited to provisions concerning payment of outstanding amounts, indemnities and limitations of liabilities, shall so survive.
15. DATA PRIVACY. Company will take all necessary steps to comply with any applicable data privacy laws when handling any personal data which Buyer may provide.
16. MISCELLANEOUS. The illegality or unenforceability of any provision herein shall not affect the validity and enforceability of any other legal and enforceable provisions hereof unless such illegality or unenforceability destroys the underlying business purpose of the affected transaction. Except as prohibited by U.S. bankruptcy laws, in the event of Buyer’s insolvency, inability to pay debts due, or voluntary or involuntary bankruptcy proceeding by or against Buyer, or appointment of a receiver or assignee for the benefit of Buyer’s creditors, Company may elect to cancel any unfulfilled obligations to Buyer hereunder. Company shall have all rights and remedies of a secured creditor under the Uniform Commercial Code (UCC). This order and these Terms and Conditions shall constitute the security agreement required by the UCC of the appropriate state. Buyer grants Company full authority to execute and file on Buyer’s behalf such financing statements necessary for Company to perfect Company’s security interest. Any dispute regarding these Terms and Conditions or relating in any manner to the Products or Services sold hereunder shall be governed by the laws of the Commonwealth of Massachusetts, U.S.A., irrespective of its choice of law principles and the United Nations Convention on Contracts for the International Sale of Goods, and subject to the exclusive jurisdiction of its courts. Notwithstanding the foregoing, Company may, without limiting its other rights and remedies, be entitled to seek equitable relief, including but not limited to injunctive relief, in any court of competent jurisdiction.