The terms and conditions detailed herein (“Agreement”) apply to your (“Customer”) purchase from Uhnder of Uhnder products (“Products”) and any services (“Services”). THIS AGREEMENT SHALL APPLY UNLESS CUSTOMER AND UHNDER HAVE ENTERED INTO A SEPARATE SIGNED AGREEMENT APPLICABLE TO THE PURCHASE OF THE PRODUCTS OR SERVICES. By placing an order with Uhnder, Customer agrees to be bound by the terms of this Agreement. UHNDER EXPRESSLY OBJECTS TO AND REJECTS ANY ADDITIONAL TERMS AND CONDITIONS PROVIDED BY CUSTOMER INCLUDING ANY TERMS CUSTOMER’S PURCHASE ORDER OR OTHER SIMILAR DOCUMENT. NEITHER UHNDER’S COMMENCEMENT OF PERFORMANCE NOR DELIVERY OF ANY PRODUCTS SHALL BE DEEMED OR CONSTRUED AS ACCEPTANCE OF CUSTOMER’S ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS. IF CUSTOMER DOES NOT AGREE WITH THESE TERMS, PROMPTLY NOTIFY UHNDER AND RETURN THE PRODUCT UNUSED IN ITS ORIGINAL PACKAGING TO UHNDER.
1. PRICES & ORDERS. Prices are set forth in Uhnder’s quotation. All such quotations expire thirty (30) days from date of issuance, unless otherwise stated in the quotation. All orders are subject to acceptance at the sole discretion of Uhnder. Orders will be considered accepted once Uhnder books an order and sends Customer a sales order acknowledgement. Orders acknowledged and accepted by Uhnder are non-cancelable and non-returnable. Uhnder shall not be bound by changes to an order unless agreed by Uhnder in writing. Uhnder reserves the right to cancel any order if any information provided by Customer to Uhnder is inaccurate. Uhnder reserves the right to suspend or cancel any order if Customer has any outstanding payments due to Uhnder or is not in good standing.
2. PAYMENT AND INVOICING. Payment is due at the time the order is placed. If Customer is approved for credit, payment shall be due within thirty (30) days from the date of invoice. Payment shall be in the currency listed on the Uhnder invoice. All sums not paid when due shall accrue interest daily at a monthly rate of the lesser of one and a half percent (1.5%) or the highest rate permissible by applicable law. If there are multiple units in an order, each unit may be invoiced when shipped.
3. SHIPMENT, TITLE AND RISK OF LOSS.
3.1 SHIPMENT. Shipping terms are FCA (Incoterms 2010) Uhnder’s location. Customer is responsible for all freight, handling, insurance and other transportation charges. Products shall be deemed accepted upon delivery but shall be subject to the express warranty provided hereunder. Uhnder shall use commercially reasonable efforts to ship the Products in accordance with the shipment date provided in Uhnder’s acknowledgement, which is an estimate only unless expressly stated otherwise by Uhnder. Risk of loss or damage will pass to Customer upon Uhnder’s delivery to the Uhnder designated shipping point. With respect to international shipments that transit through international waters or airspace, title transfers to Customer immediately after Products leave the jurisdictional territory of Uhnder’s point of shipment. With respect to domestic shipments, title transfers upon delivery to Customer’s carrier or nominee at Uhnder’s point of shipment.
4. TAXES. Prices are exclusive of any tax, value-added tax, fee, duty or governmental charge, however designated (except for taxes on Uhnder’s net income). All such taxes or duties shall be paid by Customer and any such taxes or duties required to be paid or collected by Uhnder shall be paid by Customer to Uhnder unless Customer provides Uhnder with a valid certificate of exemption.
5. SOFTWARE LICENSE. The Products may include software or firmware incorporated into or provided in connection with such Products (“Software”). However, nothing herein shall be construed as the sale of any Software to Customer. The Software is only licensed, not sold. In the event Uhnder provides a written license agreement for the Software, such license agreement shall apply to the Software. Otherwise, Uhnder hereby grants Customer a limited, non-exclusive license (without the right to grant sub-licenses) to use such Software solely as part of the respective Products with which the Software is provided, solely in accordance with any instructions from Uhnder regarding the use of such Product and the Software. Customer may not sublicense or transfer such license; provided, however, the purchaser of Customer’s system into which the Product has been integrated may use, in accordance with such license, the Software accordance with the foregoing license, and Customer may authorize such purchaser to do so.
6.1 LIMITED PRODUCT WARRANTY. Other than for Prototypes and Samples, Uhnder warrants to Customer that the respective Products will materially conform to their respective Specifications for the warranty period specified in Uhnder’s quotation, and if not specified, for twelve (12) months (the “Warranty Period”).
6.2 PROTOTYPES AND SAMPLES. Prototypes, samples and pre-release Products are provided as-is without warranty.
6.3 NON-UHNDER BRANDED PRODUCTS. Third-party hardware, software, or service that Uhnder sells, but do not carry an Uhnder mark are provided as-is without.
6.4 SOFTWARE AND UPDATES. Software is provided without warranty unless otherwise expressly specified in Uhnder’s quotation. Customer agrees to promptly download and install any updates that Uhnder provides for the Software. Any assistance from Uhnder regarding the Software is contingent upon Customer implementing all such updates. Notwithstanding the foregoing, other than to address material failure of the Product to conform to the warranty, Uhnder is not obligated to provide updates.
6.5 SERVICES. Services are provided without warranty.
6.6 PRODUCT REMEDY. Customer’s sole and exclusive remedy, under the warrantyprovided by Uhnder hereunder shall be for Uhnder, at its option, to either repair or replace defective Products returned by Customer during the Warranty Period. A replacement or repaired Product will remain under warranty for the remainder of the original Warranty Period or thirty (30) days after delivery, whichever is longer. Prior to returning any Product, Customer must obtain a Return Materials Authorization (RMA) number from Uhnder. Customer shall return the Product to Uhnder with shipping charges prepaid. Uhnder will not accept collect shipments. In the event that any returned Product is determined by Uhnder not to be defective or subject to a Warranty Exclusion, Customer shall reimburse Uhnder for all costs and expenses related to the inspection, repair, if any, and return of such Product to Customer.
6.7 TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE FOREGOING REMEDIES PROVIDED BY UHNDER ARE THE SOLE AND EXCLUSIVE REMEDIES FOR ANY BREACH OF WARRANTY, AND THE EXPRESS WARRANTY PROVIDED HEREIN STANDS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
6.8 CUSTOMER WARRANTY. Customer represents, warrants and covenants that: Customer has the right and authority to enter into this Agreement and that this Agreement and Customer’s obligations and activities hereunder do not conflict with any other agreement or obligation to which Customer is a party or is subject; and Customer is in compliance with and shall comply with all applicable law and regulation regarding its sale of the Products and other activities under this Agreement including export law. Customer will not make any warranties to any third party on behalf of Uhnder. Customer is solely responsible for any warranties which Customer offers to its customers. Customer and Uhnder each acknowledge and agree that Uhnder’s warranties and remedies provided herein are solely to Customer and not to any customer of Customer or other third party.
7. SYSTEM AND APPLICATION RESPONSIBILITY AND INDEMNITY. CUSTOMER ACKNOWLEDGES THAT CUSTOMER IS SOLELY RESPONSIBLE FOR VERIFYING AND VALIDATING THE SUITABILITY AND RELIABILITY OF THE PRODUCTS OR SERVICES WHENEVER THE PRODUCTS OR SERVICES ARE INCORPORATED IN CUSTOMER’S SYSTEM OR APPLICATION, INCLUDING THE APPROPRIATE DESIGN, PROCESS, AND SAFETY LEVEL OF SUCH SYSTEM OR APPLICATION. FURTHER, CUSTOMER MUST TAKE PRUDENT STEPS TO PROTECT AGAINST PRODUCT AND SERVICE FAILURES WHEN PRODUCTS AND SERVICES ARE INCORPORATED IN A SYSTEM OR APPLICATION, INCLUDING PROVIDING BACK-UP AND SHUT-DOWN MECHANISMS. CUSTOMER SHALL DEFEND, INDEMNIFY, RELEASE AND HOLD UHNDER HARMLESS FROM ANY AND ALL CLAIMS, LOSSES, DAMAGES, ACTIONS, INCLUDING LAWSUITS, ARBITRATIONS, AND/OR ADMINISTRATIVE ACTIONS, AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES) ARISING OUT OF CUSTOMER’S INCORPORATION OF THE PRODUCTS OR SERVICES INTO CUSTOMER’S SYSTEM OR APPLICATION, REGARDLESS OF WHETHER SUCH CLAIMS ARE FOUNDED IN WHOLE OR IN PART UPON ALLEGED OR ACTUAL NEGLIGENCE OF UHNDER.
8. INTELLECTUAL PROPERTY RIGHTS.
8.1 OWNERSHIP BY UHNDER. Uhnder shall retain all patents, trade secrets, copyrights and other intellectual property rights covering or embodied in the Products and Software (“Uhnder Technology”) or improvements, corrections or modifications thereto. In the event that Customer provides any feedback to Uhnder regarding the Uhnder Technology including improvements, corrections or modifications thereto (collectively, “Feedback”), Customer hereby grants to Uhnder a world-wide, fully-paid-up and royalty-free, perpetual, irrevocable, non-terminable right to integrate and use and otherwise exploit all such Feedback and associated intellectual property rights in Uhnder’s products and services without restriction.
8.2 RESTRICTIONS. Customer shall not, nor authorize or assist any third party to: (i) reverse-engineer the Uhnder Technology; (ii) disassemble the Uhnder Technology, including by removing any software, components or parts of components from Products or their respective housings other than for maintenance in accordance with Uhnder’s instructions; (iii) decompile, disassemble or otherwise attempt to derive the source code or logic underlying any Uhnder Technology; (iv) copy or make any reproduction of the Uhnder Technology in whole or in part through mechanical or other means; (v) alter the Uhnder Technology; (v) access or use the Uhnder Technology in order to develop or build a product or service that is competitive with the Uhnder Technology; or (vi) inspect or analyze the Uhnder Technology other than strictly in compliance with this Agreement.
8.3 NO OTHER RIGHTS. All intellectual property rights of Uhnder not expressly granted to Customer in this Agreement are expressly reserved by Uhnder. Without limitation, Customer receives no right or license, by implication, estoppel or otherwise, to any software, technology or Intellectual Property Rights not embodied in the Products or Software.
8.4 PROPRIETARY NOTICES. Customer shall not remove any copyright, patent, trademark or other proprietary notices, markings or legends from the Uhnder Technology.
9. LIMITATION OF LIABILITY.
9.1 CUSTOMER UNDERSTANDS AND ACKNOWLEDGES THAT PRODUCTS AND SERVICES ARE NOT DESIGNED, MANUFACTURED OR TESTED FOR USE IN LIFE SAVING OR LIFE SUSTAINING SYSTEMS OR SUCH OTHER MEDICAL DEVICES. UHNDER EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS OF THE PRODUCTS OR SERVICES FOR HIGH RISK USES. CUSTOMER SHALL DEFEND, INDEMNIFY, RELEASE AND HOLD UHNDER HARMLESS FOR ANY AND ALL CLAIMS, LOSSES, DAMAGES, ACTIONS, INCLUDING, LAWSUITS, ARBITRATIONS, AND/OR ADMINISTRATION ACTIONS, AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES) ARISING OUT OF CUSTOMER’S USE OF THE PRODUCTS AND SERVICES FOR ANY HIGH RISK USES, INCLUDING ARISING FROM CLAIMS FOR PRODUCT LIABILITY, PERSONAL INJURY (INCLUDING DEATH) OR DAMAGE TO PROPERTY, REGARDLESS OF WHETHER SUCH CLAIMS ARE FOUNDED IN WHOLE OR IN PART UPON ALLEGED OR ACTUAL NEGLIGENCE OF UHNDER.
9.2 TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL UHNDER BE LIABLE TO THE CUSTOMER, ITS AFFILIATES OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING LOSS OF PROFITS AND LOSS OF USE, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.3 TO THE MAXIMUM EXTENT PERMITTED BY LAW, UHNDER’S MAXIMUM AGGREGATE LIABILITY FOR ANY LIABILITY OR CLAIM UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED $100. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE OR EXTEND THIS LIMIT.
9.4 ALLOCATION OF RISK. The warranty disclaimer and limitations of liability set forth in this Agreement shall apply irrespective of any failure of the essential purpose of any limited remedy. Customer and Uhnder each acknowledge and agree that the limitation of liability provisions of this Agreement reflect an informed, voluntary allocation between them of the risk associated with the exercise of Buyer’s rights regarding the Products, and, but for these provisions, Uhnder would not have made the Products available to Customer under the terms contemplated under this Agreement.
9.5 APPLICABLE LAW. The warranty disclaimer and limitations of liability set forth in this Agreement shall not apply to the extent prohibited by law, in which case the disclaimer or limitation shall be modified to disclaim and/or limit in accordance with applicable law. Without limiting the foregoing, to the extent required by law, the foregoing limitations shall not apply to claims due to fraud, willful misconduct, gross negligence, bodily injury or death.
10. FORCE MAJEURE. Uhnder shall not be responsible for any delay or failure to perform due to any cause beyond its reasonable control, including without limitation any governmental or military regulation or requirement, act of God, war, riot, terrorism, embargo, fire, flood, natural disaster, epidemic (including pandemic), strike or other labor dispute, foundry delays, unavailability or interruptions of telecommunications, power, supplies, materials or transportation facilities (“Force Majeure Event”). Without limiting the foregoing, in the event of a Force Majeure Event, Uhnder reserves the right to cancel the applicable order.
11. EXPORT LAWS AND GOVERNMENT APPROVAL. Customer agrees to comply fully with all laws and regulations of the United States and any other applicable country (“Export Laws”) and shall assure that the Products are not: (i) exported, directly or indirectly, in violation of Export Laws, either to any countries that are subject to U.S. export restrictions (or those of any other applicable country) or to any customer or other third party who has been prohibited from participating in U.S. or any other applicable country’s export transactions by any federal agency of the U.S. government or any relevant agency of any other applicable country’s governments; or (ii) intended to be used for any purpose prohibited by Export Laws, including, without limitation, nuclear, chemical, or biological weapons proliferation. Notwithstanding anything to the contrary contained herein, all obligations of Uhnder and Customer are subject to obtaining all necessary approvals required by the applicable agencies of the governments of the United States and any other relevant foreign jurisdictions. Uhnder and Customer shall cooperate with each other and shall provide assistance to the other as reasonably necessary to obtain any required approvals.
12. GOVERNING LAW AND FORUM. This Agreement shall be governed by the laws of the State of Texas, U.S.A., without regard to principles of conflicts of laws. The parties submit to the personal jurisdiction of the state and federal courts in Travis County, Texas. The parties expressly agree that the provisions of the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
13. LIMITATION PERIOD. UHNDER SHALL NOT BE LIABLE FOR ANY CLAIM ARISING FROM AND/OR CONCERNING THIS AGREEMENT AND/OR ITS SUBJECT MATTER BROUGHT MORE THAN TWELVE (12) MONTHS AFTER THE OCCURRENCE CAUSING THE LOSS AND/OR DAMAGE GIVING RISE TO SUCH CLAIM (REGARDLESS OF WHETHER SUCH OCCURRENCE WAS DISCOVERABLE AT THE TIME) CLAIMS WILL BE LIMITED TO A SPECIFIC PRODUCT AND OR SERVICE SPECIFIC TO A SPECIFIC PURCHASE ORDER.
14. UPDATES. Uhnder reserves the right to update this Agreement at any time, effective upon posting an updated version on Uhnder’s website (currently at www.uhnder.com/termsandconditions); however, the terms and conditions in effect at the time of purchase shall apply to that purchase of Products or Services.
15. GENERAL TERMS. This Agreement, and any terms incorporated herein by reference, constitutes the entire Agreement between the parties with respect to the subject matter hereof and supersedes all prior understandings or agreements, whether written or oral, with respect to that subject matter. Customer acknowledges reading this Agreement, understands these terms, and agrees to be bound by them. This Agreement may not be altered, supplemented, or amended by the use of any other document unless otherwise agreed in writing by Uhnder. No delay or failure by Uhnder to exercise any right it has under this Agreement shall impair or be construed as a waiver of such right. A waiver of any provision of this Agreement by Uhnder must be in writing and shall not be construed as a waiver or modification of any other term hereof, or as a continuing waiver of any provision. The term “including” as used in the Agreement should be construed as“including without limitation.” For the avoidance of doubt, whenever the term “purchase” is used herein with respect to Software, it shall mean the purchase of a license for Customer to use the applicable Software. If any part, term, or provision of this Agreement is held illegal, unenforceable, or in conflict with any applicable and enforceable law, the validity of the remaining portions or provisions of this Agreement shall not be affected, and the illegal, unenforceable, or conflicting part, term, or provision shall be reformed by a court of law with binding authority to the maximum extent possible to reflect the intent of this Agreement. The doctrine that any ambiguity contained in a contract shall be construed against the party whose counsel has drafted the contract is expressly waived by each of the parties with respect to this Agreement.