DATAPRO SOLUTIONS INC. (DPS)
FORMATION OF CONTRACT OF SALE
Acceptance of Purchaser’s order is expressly made conditional on assent to the terms and conditions set forth herein and on attachment(s) hereto and they shall constitute the complete agreement between the parties. Purchaser’s acceptance of any goods covered by this acknowledgment shall constitute acceptance of said terms and conditions and they shall be controlling in every case. If any of the provisions of Purchaser’s purchase order or other writings are in addition to or in conflict with the terms and conditions of this acknowledgment, or are ambiguous, those additional, conflicting or ambiguous terms and conditions are expressly rejected and the terms and conditions of this acknowledgment shall govern. If Purchaser’s order contemplates subsequent orders for shipment of a portion of the initial quantity, all such subsequent orders shall be governed by the terms hereof. These terms and conditions may not be varied, or Purchaser’s order terminated in any manner, unless by a written agreement subsequently signed by an officer of DPS. Other representatives of DPS are not authorized to vary conditions herein set forth.
1) PRICES AND QUANTITY; OWNERSHIP OF TECHNICAL INFORMATION
The price for products ordered for shipment shall be determined by written quotation from DPS. Spare part prices shall be those prevailing at the time of their order. All prices are F.O.B. POINT OF SHIPMENT. All prices are quoted as United States dollars net to DPS.
The Purchaser does not acquire any right, title or interest in any tooling, set-up or fitting-up drawings, design information, computer programming or invention resulting there from.
2) DELIVERY SCHEDULES AND REVISIONS
This section shall apply to all orders. Purchaser’s orders subject to this section shall specify a firm shipment schedule for all units and such schedule shall be subject to acceptance by DPS.
3) DELIVERY, FREIGHT AND RISK OF LOSS
All purchase prices shall be F.O.B. POINT OF SHIPMENT. Title in and the right to possession to such goods passes to Purchaser upon delivery of goods by DPS to a carrier at point of shipment.
Arrangements for Insurance of Goods are the Responsibility of the Purchaser. Standard packaging is suitable for domestic surface and air shipment.
When shipping instructions are not furnished, DPS will ship via the most practical route considering cost and required date of delivery. Goods will be shipped Freight Pre-pay and add.
Upon approval of credit by DPS, terms of payment are net thirty (30) days from date of invoice unless otherwise stated in the proposal or quotation. Failing credit approval by DPS, terms of sale shall be C.O.D.. Amounts not paid within 30 days after the billing date, or as otherwise specified, are subject to a late payment charge. Such charge to be at the rate equal to the maximum amount permitted by law. This late payment charge from previous month(s) shall be added to the balance and the late payment charge will be calculated on the total balance.
5) INSPECTION, ACCEPTANCE AND RETURN
Purchaser understands that returns will be not accepted if the original shipping container is damaged or written on. Boxes that are damaged or written on cannot be returned to DPS or the manufacturer for refund.
Purchaser shall have thirty (30) days after the date of shipment of products to inspect the same and to notify DPS of any deficiency. If there is no such notice given within that time, then the products shall be deemed accepted and thereafter are returnable only for warranty repair. Purchaser may, during said 30-day period, return deficient products to DPS, where correction of deficiency reasonably requires return to factory. Prior to returning products, Purchaser must have been issued a Return Material Authorization number from DPS. Return shipping charges shall be collect and replacement or reshipment of product shall be F.O.B. POINT OF SHIPMENT as in the case of the original shipment. Purchaser is responsible for all costs associated with the return of products to DPS or the manufacturer.
Equipment, subassemblies, or supplies returned shall be packaged in the original shipping containers and related packing material or equivalent. If not so packed, DPS may refuse acceptance.
Restocking charges may apply to customer; returns depending upon individual circumstances and vendor/supplier policies.
Manufacturer’s warranties apply. DataPro Solutions Inc. does not offer or imply coverage of non-manufacturer’s warranty under any circumstances.
- All Hardware devices, consumable supplies and spare parts – Manufacturers warranties apply.
- Software – Manufacturers warranties apply except as noted below.
DPS warrants to the original Licensee that the disk(s) on which the software is recorded is free from defects in materials and workmanship under normal use and service for a period of ninety (90) days from date of shipment. DPS limits the duration of any implied warranties to the same ninety (90) day period.
Software programs and interfaces created by DPS are the sole property of DPS and may not be copied, resold, relicensed or otherwise altered without the expressed written consent of DPS
- Shipment of Warranty Items
In the event of failure of product converted by this warranty, products must be returned to a service facility designated by DPS. Purchaser must contact DPS and obtain a Return Authorization Number before the equipment may be returned. On receipt of authorization to return the product, Purchaser shall return warranty items to the manufacturer or to DPS designated service facility freight prepaid. DPS shall return warranty products to the Purchaser freight prepaid.
- Warranty Exclusions Applicable to Hardware and Input Devices
- Purchaser must retain all shipping materials necessary to affect a return to a manufacturer
The above limited warranties shall not apply to defects resulting from:
- Improper or inadequate maintenance or installation by Purchaser or its customers including failure to follow published maintenance and cleaning schedules.
- Modifications unauthorized by DPS to the product or misuse of the product by Purchaser or its customers.
- Operation of the product outside environmental/electrical specifications for the product.
- Improper site preparation and maintenance.
- Accident or disaster.
7) DELAY, PERFORMANCE AND REMEDIES
Delay to DPS’s shipment of products and equipment arising from Government order or other requirements, war, civil insurrection, riot, labor or transportation strikes, flood, fire, earthquake, volcanic eruption or Act of God, shortages of materials or energy or any other causes out of reasonable control of DPS, shall not be deemed a breach of the contract of sale, and shipment dates shall be extended for the length of such delay.
8) OWNERSHIP AND PROPRIETARY RIGHTS
Notwithstanding anything to the contrary stated herein, no transfer is made to Customer of any ownership to or proprietary rights in the Licensed Products, software programs, software interfaces and Documentation, and all copies of the Licensed Products, software programs, software interfaces and Documentation, including modifications by DataPro contained in customized versions and related software. Customer shall NOT have any right to copy any Licensed Products, software programs, software interfaces and Documentation for use, sale, sublicensing, distribution or any other purpose.
Unauthorized Reproduction Prohibited
Customer shall NOT have any right to copy any Licensed Products, software programs, software interfaces and Documentation for use, sale, sublicensing, distribution or any other purpose.
9) THIRD PARTY LIABILITY AND CONSEQUENTIAL DAMAGES
DPS shall not be liable for and Purchaser shall hold DPS harmless from any liability sustained in favor of third parties arising from or during Purchaser’s possession, use or sale of DPS equipment, consumable supplies or preprinted labels. DPS shall not be liable for and Purchaser shall hold DPS harmless from any liability for consequential or incidental damages sustained by Purchaser including those arising from or measured by lost profits under its contract with third parties.
10) COST AND ATTORNEY’S FEES
In the event of default by either party to this Agreement, the prevailing party shall be entitled to reimbursement for all costs and expenses, including reasonable attorney’s fees incurred by the prevailing party in exercising any of its rights or remedies thereunder or enforcing any of the terms, conditions or provisions hereof.
To the extent attributable to the equipment or services furnished, there shall be added to the charges provided for herein, amounts equal to any taxes, however designated, which are paid or payable by DPS and based on the charges made or value of equipment or services furnished or gross revenues generated, exclusive, however, of taxes based on net income.
DPS shall have the right to suspend or cancel this agreement at any time upon Purchaser making an assignment for the benefit of creditors or becoming bankrupt or insolvent, or upon a petition being filed in court of competent jurisdiction proposing the appointment of a receiver or that Purchaser be adjudicated bankrupt or insolvent or reorganized under the provisions of any applicable bankruptcy or insolvency act.
13) SELLER’S REMEDIES
In addition to the rights and remedies reserved herein, DPS shall have all rights and remedies conferred by law and shall not be required to proceed with performance of the Agreement arising here from if Purchaser is in default to DPS under this or any other contract.
14) GOVERNING LAW
This agreement and any question concerning its validity, construction or performance shall be governed by the laws of the State of Washington.