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TERMS AND CONDITIONS
Quail Technologies, Inc. Terms and Conditions of Sale
These Terms and Conditions of Sale (the “Terms”) constitute the terms and conditions that apply
as between Quail Technologies, Inc., Inc. (“Quail Technologies”) and You (the “Customer”) to
any equipment, software, support services or other items or services, that are sold,
licensed, rendered or otherwise provided by Quail Technologies, Inc. to Customer from time to
time (collectively, the “Products”). Customer’s placement of an order with Quail Technologies, Inc.
constitutes acceptance of these Terms. Customer’s acceptance of these Terms is a precondition
to Quail Technologies, Inc.’s agreement to provide Products to Customer. It is expressly agreed
that these Terms will supersede and take priority over any additional or inconsistent terms and
conditions in any existing or future purchase order, confirmation, invoice or other similar
document. Without limiting the generality of the foregoing, nothing contained in any purchase
order, confirmation, invoice or other similar document will in any way modify or add to these
Terms, and any terms or conditions contained in a purchase order, confirmation, invoice or other
similar document that are in any way inconsistent with or additional to these Terms are hereby
rejected.
1. ORDERS AND PAYMENT TERMS
a. All prices quoted are on a per occurrence basis and are subject to change without notice. All
quotes are subject to termination by Quail Technologies, Inc. at any time prior to receipt and
acceptance of Customer’s purchase order.
b. An accepted order can be canceled only with Quail Technologies, Inc.’s written consent, and
only on terms that will indemnify Quail Technologies, Inc. against any resulting losses. In no
event will a cancellation be allowed after Products have shipped. A cancellation charge may be
assessed to Customer, if applicable. Quail Technologies, Inc. grants to Customer the right to
cancel the outstanding portion of an accepted purchase order if Quail Technologies, Inc. fails to
ship the product within thirty (30) days of the scheduled ship date provided the delay in shipment
is not due to credit issues or other actions taken by Customer.
c. Customer shall pay all invoices in cash or cash equivalents, and such invoices shall be due
immediately as of the date of the applicable invoice. If Quail Technologies, Inc. has, in its sole
discretion, agreed to extend credit to Customer sufficient to cover the applicable invoice (and all
other outstanding invoices), then Customer shall make payment within thirty (30) days from the
date of invoice, otherwise such invoice shall be payable immediately upon receipt or, if required
by Quail Technologies, Inc., in advance of shipment. Quail Technologies, Inc. will issue invoices
for purchases at the time of delivery, and may issue partial invoices for partial shipments. Quail
Technologies, Inc. reserves the right to establish, terminate or alter credit limits and terms, to
delay shipment of orders, to require full or partial prepayment or to require alternate terms and
conditions based upon Customer’s payment history, financial condition or any other matter that in
Quail Technologies, Inc.’ determination affects the likelihood that Customer will make timely
payment in full. Without limiting the generality of the foregoing, if Customer fails to timely pay any
invoice, or if its financial condition becomes impaired or unsatisfactory to Quail Technologies,
Inc., Quail Technologies, Inc. may require Customer to provide satisfactory security and may
withhold further deliveries until such security is received. Any amount payable by Customer that
remains unpaid after the applicable payment due date will be subject to a late charge equal to the
lesser of one and one-half percent (1.5%) per month or the maximum rate allowable by law from
the due date until such amount is paid. Customer shall reimburse Quail Technologies, Inc. for
reasonable attorneys’ fees and any other costs associated with collecting delinquent payments.
d. Customer hereby grants, and agrees to grant, to Quail Technologies, Inc. a continuing security
interest, and a purchase money security interest, in all the Products and the proceeds thereof, to
secure payment of the amounts set forth in the invoices issued by Quail Technologies, Inc. to
Customer. These security interests will be satisfied by payment in full of all invoices. Customer
2 authorizes Quail Technologies, Inc. to file a copy of the invoice and/or a financing statement
with appropriate government authorities at any time in order to perfect the foregoing security
interests. On the request of Quail Technologies, Inc., Customer will execute financing statements
and other instruments Quail Technologies, Inc. requires to perfect its security interests.
2. TAXES, DUTIES AND CUSTOMS
All prices quoted and payable for Products are exclusive of taxes, duties, broker charges and
customs requirements. Customer shall pay all import duties, customs fees, sales and use taxes,
broker charges and value added taxes (unless Customer submits satisfactory tax-exemption
documentation to Quail Technologies, Inc.). Quail Technologies, Inc. may, in its discretion, either
pay such taxes, duties and charges directly for Customer’s benefit and include such amounts in
an invoice, or else require Customer to pay such taxes and duties directly to the appropriate
authorities. All special export packaging costs will be invoiced to Customer. Export of certain
products may be subject to government restrictions. Quail Technologies, Inc. shall not be
responsible for delays caused by third parties, including customs, strike, brokerage or other
delays.
3. DELIVERY, SETUP AND INSTALLATION
a. All deliveries shall be F.O.B. origin. Title and risk of loss will pass to Customer on delivery of
the Products to a common carrier. Customer shall be solely responsible for obtaining appropriate
insurance coverage for such shipments, unless insurance is included in a written quotation
provided by Quail Technologies, Inc. and accepted by Customer. Unless otherwise agreed by the
parties, Quail Technologies, Inc. shall arrange shipping on Customer’s behalf to the destination
specified by Customer in its order.
b. Delivery and shipping dates are approximate only, and Quail Technologies, Inc. will not be
liable for any damage, loss or expense incurred by Customer, if Quail Technologies, Inc. fails to
meet the specified shipping dates. Quail Technologies, Inc. reserves the right to make partial
shipments and to invoice separately for each such partial shipment.
c. Subject to the licensing requirements set forth below in subparagraph (d), at the Customer’s
request, Quail Technologies, Inc. may perform additional services after delivery of the Products:
Customer shall pay Quail Technologies, Inc. for the time spent in performing any such tasks at
Quail Technologies, Inc.’ standard hourly rates, plus reasonable travel and other out of pocket
expenses. If billable, specifics of services to be performed and rates applicable to this specific
work shall be laid out in an appropriate Statement of Work. Quail Technologies, Inc.’s standard
hourly rates for setup and installation services are available upon request. Customer may request
estimates of cost for such services.
d. If Customer requests that Quail Technologies, Inc. perform any setup, installation or other
service, Customer shall ensure that any software duplication through the loading of disk images is
legal, that Quail Technologies, Inc. has the right to load such disk images and software and
information contained therein onto Customer’s servers, and that each copy of software and
information embodied in such disk image(s) is legally licensed for Customer’s actual and
contemplated uses. Customer indemnifies and holds Quail Technologies, Inc. harmless from and
against any and all third party allegations, claims, damages, assertions, or losses or any kind or
nature arising from or based in whole or in part upon Quail Technologies, Inc.’ performance of
services for Customer. Quail Technologies, Inc. reserves the right to request proof that the
foregoing licensing requirements are met, and if Quail Technologies, Inc. determines that such
licensing requirements are not clearly satisfied, Customer shall be responsible for all nonhardware
setup tasks.
4. WARRANTY
Warranty is subject to the manufacturer’s written warrant.
5. LIMITATIONS OF LIABILITY
IN NO EVENT SHALL QUAIL TECHNOLOGIES, INC. BE LIABLE FOR ANY INCIDENTAL,
SPECIAL, PUNITIVE, CONSEQUENTIAL AND/OR INDIRECT DAMAGES, OR FOR ANY LOSS
OF BUSINESS, SALES OR PROFITS, WHETHER SOUNDING IN CONTRACT, TORT, STRICT
LIABILITY OR OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES OR LOSS. IN ADDITION, IN NO EVENT WILL QUAIL TECHNOLOGIES, INC.’S
TOTAL LIABILITY ARISING FROM OR RELATED TO THE PRODUCTS, THESE TERMS OR
THE SUBJECT MATTER HEREOF, WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL
THEORY, EXCEED THE AMOUNTS RECEIVED BY QUAIL TECHNOLOGIES, INC. FROM
CUSTOMER FOR THE PRODUCTS THAT ARE THE BASIS FOR THE LIABILITY.
Customer acknowledges that Quail Technologies, Inc. has set its prices and entered into these
Terms in reliance upon the limitations of liability and the disclaimers of warranties and damages
set forth herein, and that the same form an essential basis of the bargain between the parties.
Customer agrees that the limitations and exclusions of liability and disclaimers specified in these
Terms will survive and apply even if found to have failed of their essential purpose.
6. NOTICES
Any notice required to be given hereunder shall be in writing and shall be deemed to have been
delivered when deposited in the United States mail as registered or certified mail with a return
receipt requested, with adequate postage affixed and addressed to Quail Technologies, Inc. to
the attention of Quail Technologies, Inc.’ 217 South B Street, San Mateo, CA 94401 (or such
future address as Quail Technologies, Inc. may specify), or if to Customer at the address set forth
on Customer’s purchase order or any address at which the Products have been delivered (unless
a different notice address has been provided in writing by Customer).
7. FORCE MAJEURE
Neither party will incur any liability to the other party for any loss or damages resulting from any
delay or failure to perform its obligations under these Terms if such failure is caused by events
beyond its reasonable control (a “Force Majeure” event”), provided however if the Force Majeure
event continues for a period of 30 days or longer, either party may terminate these Terms upon
notice to the other party. Inability to timely make payment shall not in any event be deemed a
Force Majeure event.
8. PUBLICITY
Neither party shall disclose any of the terms and conditions of these Terms without the prior
written consent of the other.
9. APPLICABLE LAW
These Terms are deemed to be entered into in the State of California. The parties agree that
these Terms shall be governed by and construed in accordance with the laws of the State of
California, without regard to its conflict of law rules. The U.N. Convention on the International
Sale of Goods shall not apply to the sale of Products hereunder or otherwise to these Terms.
10. NO WAIVER
The failure of either party at any time to require performance by the other party of any provision
hereof will not affect, in any way, the full rights to require such performance at any time thereafter,
nor will the waiver by either party of a breach of any provision hereof be taken or held to be a
waiver of the provision itself.
11. EXPORT AND IMPORTANT REGULATION
Customer will comply fully with all relevant export laws and regulations of the United States,
including without limitation the U.S. Export Administration Regulations (collectively “Export
Controls”). Without limiting the generality of the foregoing, Customer will not and shall require its
representatives not to, export, direct, or transfer Products, or any direct product thereof, to any
destination, person, or entity restricted or prohibited by the Export Controls. Customer shall
promptly provide all information and certifications reasonably requested by Quail Technologies,
Inc. including without limitation certification of end-user identity and associated information) as
may be necessary or desirable for Quail Technologies, Inc. to fulfill its obligations under the
Export Controls. Customer shall comply fully with all relevant import laws and regulations of the
country or countries to which Products are delivered, and shall provide all necessary information
concerning actions that Quail Technologies, Inc. must take in order to comply with such foreign
laws and regulations to Quail Technologies, Inc. prior to Quail Technologies, Inc.’ acceptance of
any order.
12. ASSIGNMENT
Customer may not assign, delegate, or transfer these Terms or any right or obligation hereunder
without the prior written consent of Quail Technologies, Inc., and any attempt by Customer to
assign these Terms without such consent will be null and void. Subject to the preceding
sentence, these Terms will bind each party and its permitted successors and assigns. Quail
Technologies, Inc. may assign any of its rights or obligations under these Terms without the
consent of Customer.
13. LICENSES; NO IMPLIED RIGHTS
Software programs and other information embodied in the Products are licensed, not sold, for
Customers limited use as specified in the applicable license agreement. The applicable license
agreements are provided with the Products at delivery, and are also available from Quail
Technologies upon request. Customer shall comply with all such license agreements, and any
breach by Customer of any such license agreements shall be deemed a breach of these Terms.
Nothing in these Terms or the sale of the Products shall imply any other license or other rights
with respect to any intellectual property rights of Quail Technologies, Inc. or its suppliers except
as may be set forth in a written license agreement supplied by Quail Technologies, Inc. or its
suppliers as applicable, and Quail Technologies, Inc. reserves all rights in the Products.
14. ENTIRE TERMS
These Terms constitutes the complete agreement between the parties and supersede all prior or
contemporaneous agreements or representations, written or oral, concerning the subject matter
of these Terms.
15. AUTHORITY; EXECUTION AND MODIFICATION
The only persons authorized to amend or modify these Terms on behalf of Quail Technologies,
Inc. are the President, Chief Financial Officer or Chief Operating Officer of Quail Technologies,
Inc., and any such amendment or modification must be in writing signed by one of such officers of
Quail Technologies, Inc and Customer; the signature of any other officer, employee or agent
below shall not bind Quail Technologies, Inc.. No signature, promise, act, document, usage, or
custom will be deemed to amend or modify these Terms except as expressly provided above. |
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