Sales Terms and Conditions
THE SALE AND PURCHASE OF YOUR UNEEKOR PRODUCT IS SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS.
PLEASE READ THESE TERMS AND CONDITIONS VERY CAREFULLY.
Acceptance of Terms and Conditions
These Terms and Conditions constitute a binding contract between Customer and Seller and are referred to herein as either “Terms and Conditions” or this “Agreement.” Customer accepts these Terms and Conditions by making a purchase from or placing an order with Seller or shopping on Seller’s Website (the “Site”) or otherwise requesting products (the “Products”). These Terms and Conditions are subject to change without prior notice, except that the Terms and Conditions posted on the Site at the time Customer places an order will govern the order in question, unless otherwise agreed in writing by Seller and Customer.
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. 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 or any purchase order or invoice. This Agreement contains the entire understanding of the parties with respect to the matters contained herein and supersedes and replaces in its entirety any and all prior communications and contemporaneous agreements and understandings, whether oral, written, electronic or implied, if any, between the parties with respect to the subject matter hereof.
THESE TERMS AND CONDITIONS WILL BE GOVERNED BY THE LAWS OF THE STATE OF MICHIGAN, WITHOUT REGARD TO CONFLICTS OF LAWS RULES. ANY ARBITRATION, ENFORCEMENT OF AN ARBITRATION OR LITIGATION BROUGHT IN CONNECTION WITH THE PRODUCTS OR THESE TERMS AND CONDITIONS WILL BE BROUGHT EXCLUSIVELY IN OAKLAND COUNTY, MICHIGAN, AND CUSTOMER CONSENTS TO THE JURISDICTION OF THE FEDERAL AND STATE COURTS LOCATED THEREIN AND WAIVES THE RIGHT TO CHANGE VENUE.
Risk of Loss
Title to Products and risk of loss or damage during shipment pass from Seller to Customer upon delivery to the specified destination (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.
Seller may perform the Services at Customer’s place of business, at Seller’s own facilities or such other locations as Seller and Customer deem appropriate. When the Services are performed at Customer’s premises, Seller will attempt to perform such Services within Customer’s normal business hours unless otherwise jointly agreed to by the parties. Customer will also provide Seller access to Customer’s staff and any other Customer resources (and when the Services are provided at another location designated by Customer, the staff and resources at such location) that Seller determines are useful or necessary for Seller to provide the Services. When the Services are provided on Customer’s premises or at another location designated by Customer, Customer agrees to maintain adequate insurance coverage to protect Seller and Customer’s premises and to indemnify and hold Seller and its Affiliates, and its and their agents and employees harmless from any loss, cost, damage or expense (including, but not limited to, attorneys’ fees and expenses) arising out of any product liability, death, personal injury or property damage or destruction occurring at such location in connection with the performance of the Services, other than solely as a result of Seller’s gross negligence or willful misconduct.
Customer agrees to pay the total purchase price for the Products plus shipping (to the extent shipping is not prepaid by Customer), including shipping charges that are billed to Seller as a result of using Customer’s carrier account number. Customer acknowledges, understands and agrees that Seller will not ship any Products until it has received payment in full for the Products ordered. Customer will pay for, and will indemnify and hold Seller and its Affiliates harmless from, any applicable sales, use, transaction, excise or similar taxes and 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 any Statement of Work, the Products or the Services. Customer must claim any exemption from such taxes, fees or charges at the time of purchase and provide Seller with the necessary supporting documentation.
Pricing Information; Availability Disclaimer
SELLER AND ITS AFFILIATES HEREBY EXPRESSLY DISCLAIM ALL WARRANTIES EITHER EXPRESS OR IMPLIED, RELATED TO PRODUCTS, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF TITLE, ACCURACY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE EXCEPT FOR THOSE SET FORTH ON THE UNEEKOR LIMITED WARRANTY.
Seller reserves the right to adjust pricing, and Product offerings for reasons including, but not limited to, changing market conditions, Product discontinuation, Product unavailability, manufacturer price changes, supplier price changes and errors in advertisements. All orders are subject to Product availability and the availability of Personnel to perform installation services. Therefore, Seller cannot guarantee that it will be able to fulfill Customer’s orders.
Limitation of Liability
EXCEPT AS EXPRESSLY PROVIDED HEREIN AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY SET FORTH HEREIN, IN NO EVENT SHALL SELLER, ITS AFFILIATES OR ITS OR THEIR SUPPLIERS, SUBCONTRACTORS OR AGENTS BE LIABLE FOR: (A) ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, BUSINESS, REVENUES OR SAVINGS , EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITIES OF SUCH DAMAGES OR IF SUCH DAMAGES ARE OTHERWISE FORESEEABLE, WHETHER A CLAIM FOR ANY SUCH LIABILITY IS PREMISED UPON BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY OF LIABILITY; (B) ANY 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 SELLER OR ITS AFFILIATES BASED ON, RESULTING FROM, ARISING OUT OF OR OTHERWISE RELATED TO THE PRODUCTS OR SERVICES; OR (D) ANY UNAVAILABILITY OF THE PRODUCT FOR USE OR ANY LOST, DAMAGED OR CORRUPTED DATA OR SOFTWARE.
IN THE EVENT OF ANY LIABILITY INCURRED BY SELLER OR ANY OF ITS AFFILIATES, THE ENTIRE LIABILITY OF SELLER AND ITS AFFILIATES FOR DAMAGES FROM ANY CAUSE WHATSOEVER WILL NOT EXCEED THE LESSER OF: (A) THE DEPRECIATED VALUE OF THE DOLLAR AMOUNT PAID BY CUSTOMER FOR THE PRODUCT(S) GIVING RISE TO THE CLAIM OR THE SPECIFIC SERVICES GIVING RISE TO THE CLAIM; OR (B) $50,000.00.
Customer will indemnify, defend and hold harmless Seller and its officers, agents, shareholders, employees, and affiliates from any claim, demand, loss, damage and liability, including reasonable attorneys’ fees, arising out of or related to Customer’s misuse of the Products, or Customer’s sale, or offer to sell, any service involving the use of the Products.
Except as otherwise provided in these Terms and Conditions, all content and information on the Site and incorporated into any software related to the Products, including, but not limited to, messages, data, information, text, music, sound, photos, graphics, video, maps, icons, software, code or other material, as well as the infrastructure used to provide such content and information, is proprietary to Seller or its licensors. Customer agrees not to modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell or re-sell any content, information, software, or Products obtained from or through Seller. Additionally, Customer agrees not to: (i) use the Site or its contents for any commercial purpose; (ii) use the Site or Products for any unlawful purpose; (iii) access, monitor or copy any content or information of the Site or any software related to the Products using any robot, spider, scraper or other automated means or any manual process for any purpose; or (iv) attempt to modify, translate, adapt, edit, decompile, disassemble, or reverse engineer any software programs licensed by Seller in connection with the Site or the Products.
Provisions Related to Custom Imaging
If in connection with the provision of Products or Services, Customer desires to have Seller provide installation of custom software images, Customer will be required to execute an Installation Indemnity Agreement.
Any claim, dispute, or controversy (whether in contract, tort or otherwise, whether preexisting, present or future, and including, but not limited to, statutory, common law, intentional tort and equitable claims) arising from or relating to the Products, the Services, any software or software license related to the Products, the interpretation or application of these Terms and Conditions or any Statement of Work or the breach, termination or validity thereof, the relationships which result from these Terms and Conditions or any Statement of Work (including, to the full extent permitted by applicable law, relationships with third parties who are not signatories hereto), or Seller’s or any of its Affiliates’ advertising or marketing (collectively, a “Claim”) will be resolved exclusively and finally by binding arbitration. Such arbitration will be conducted pursuant to the Rules of the American Arbitration Association. Further, Customer agrees that it shall not 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, this arbitration provision is subject to the Federal Arbitration Act (9 U.S.C. §§ 1-16). The arbitration will take place exclusively in Oakland County, Michigan. Any court having jurisdiction may enter judgment on the award rendered by the arbitrator(s). Each party involved 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.
Seller may assign or subcontract all or any portion of its rights or obligations with respect to the sale of Products or the performance of Services or assign the right to receive payments, without Customer’s consent. Any Purchase Orders which have been accepted by Seller, but which have not been fulfilled by Seller, shall not be binding on successors of Seller and shall be cancellable on reasonable notice to Customer with return of any deposit payments received. Subject to the restrictions in assignment contained herein, these Terms and Conditions will be binding on and inure to the benefit of the parties hereto and their successors and assigns. No provision of this Agreement or any Statement of Work will be deemed waived, amended or modified by either party unless such waiver, amendment or modification is in writing and signed by both parties. Any delay or failure by either party to exercise any right or remedy will not constitute a waiver of that party to thereafter enforce such rights. The relationship between Seller and Customer is that of seller and customer, and not that of independent contractors, employer/employee, partnership or joint venture. If any term or condition of this Agreement or a Statement of Work is found by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, the same shall not affect the other terms or conditions hereof or thereof or the whole of this Agreement or the applicable Statement of Work.
Customer consents to receiving notices electronically from Seller, which may be provided via a Web browser or e-mail application connected to the Internet; Customer may withdraw consent to receiving electronic notices or have the notice provided in non-electronic form by contacting Seller.
All notices to Seller required under this Agreement shall be in writing and shall be served on Seller either (a) in person or (b) by mail utilizing the United States Post Office Express Mail, Federal Express, DHL, or other recognized international mail service, with postage prepaid, overnight delivery, and a return receipt requested, addressed as follows:
3155 W. Big Beaver Rd. Suite 108
Troy, Michigan 48084
Attention: Legal Notices
Notices provided in accordance with this provision shall be deemed received upon the earlier of actual receipt or three (3) days after mailing if mailed postage prepaid by regular mail or airmail or one (1) day after such notice is sent by courier or facsimile transmission.