Terms and Conditions of Sale
Vortex systems Terms and Conditions of Sale
VORTEX EXPRESSLY OBJECTS TO AND REJECTS ANY TERMS AND CONDITIONS IN CUSTOMER’S PURCHASE ORDER OR OTHER SIMILAR DOCUMENT. IF YOU DO NOT AGREE WITH THESE TERMS, PROMPTLY NOTIFY VORTEX AND RETURN THE PRODUCT UNUSED IN ITS ORIGINAL PACKAGING TO VORTEX.
The terms and conditions detailed herein (“Agreement”) apply to your (“Customer”) purchase from Vortex Systems LLC and Vortex hardware (“Hardware”), licenses to use Vortex Systems software (“Software”), and Non-Vortex Branded Products (collectively the “Product(s)”), as well as Vortex hardware and software services and support (“Services”). Vortex means the Vortex Systems LLC identified on the Quote, order acknowledgement, or invoice. By placing an order with Vortex, Customer agrees to be bound by the terms of this Agreement.
THIS AGREEMENT SHALL APPLY UNLESS CUSTOMER AND VORTEX HAVE ENTERED INTO A SEPARATE SIGNED AGREEMENT APPLICABLE TO THE PURCHASE OF THE PRODUCTS OR SERVICES.
PRICES AND ORDERS.
Prices are set forth in the quotation issued to Customer ("Quote"). All Quotes expire thirty (30) days from date of issuance, unless otherwise stated in the Quote. All orders are subject to acceptance at the sole discretion of Vortex. Orders will be considered accepted once Vortex acknowledges via customer website or sends Customer a sales order acknowledgement. Vortex shall not be bound by changes to an order unless agreed by Vortex in writing. Vortex reserves the right to cancel any order if any information provided by Customer to Vortex is inaccurate.
Unless modified by separate agreement. Partial payment may be 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 ("Invoice Date"). Payment shall be in the currency listed on the Vortex invoice. All sums not paid when due shall accrue interest daily at a monthly rate of the lesser of 1.5% or the highest rate permissible by law. If there are multiple units in an order, each unit will be invoiced when shipped.
Unless modified by separate agreement. Title and risk of loss to Products (for Software, the media) shall pass to Customer upon shipment from Vortex, its warehouses, or its affiliated companies; provided however, Vortex retains a security interest and right of possession in the Products until Customer makes payment in full. For orders to be delivered within the same country as the Vortex entity accepting the order, Vortex will arrange the shipping; however, Customer is responsible for all shipping and handling fees set forth in the invoice. Customer is responsible for all shipping and handling, including fees, customs, formalities and clearance. Shipment dates provided by Vortex are estimates only, and Vortex shall have no liability for losses or claims resulting from late delivery of Products. Claims for shipment shortage shall be deemed waived unless presented to Vortex in writing within forty-five (45) days of Invoice Date.
Prices exclude, and Customer is responsible for, any sales, use, service, value added, and like taxes ("Taxes") arising from the purchase of the Products and Services. If Customer is exempt from any Taxes, it must provide Vortex with the appropriate tax exemption documentation at the time the order is placed. This may be modified by separate agreement.
Software is licensed pursuant to the software license agreements provided with the 3erd party software or, in the absence of such license agreements, the Vortex Software License Agreement available at xxxat the time of purchase. All software is licensed, not sold, and title to the software remains with the applicable licensor(s). All software created by Vortex remains the intellectual property of Vortex. Customer may be granted the right to edit said software for one site use only. Customer may not copy, install on another system or location site. Customer may not sell, resell or permit viewing of software by any 3rd party.
NON-Vortex BRANDED PRODUCTS.
Non- Vortex Branded Products that Vortex resells may not be testable or repairable by Vortex, and it may be necessary for Customer to contact the manufacturer or the publisher for service. Vortex does not warrant, has no obligation to support, and shall have no liability for Non- Vortex Branded Products. The Limited Warranty and Vortex Intellectual Property Liability sections of this Agreement do not apply to the sale and purchase of Non- Vortex Branded Products. "Non- Vortex Branded Product(s)" means any third-party hardware, software, or service that Vortex sells, but does not carry a Vortex Logo. This may be modified by separate agreement.
Services provided by Vortex are also subject to any service agreements or statements of work agreed upon in writing by the parties or, as applicable, to the Vortex service terms and conditions.
Customer may return standard Products within thirty (30) days of the Invoice Date. Vortex reserves the right to charge Customer a fifteen percent (15%) restocking fee for any Products returned to Vortex. No returns will be accepted after the thirty (30) day period has expired. A Return Material Authorization (RMA) number is required for Customer to return any Products. Acceptance of returns of customized Products and Non- Vortex Branded Products is in the sole discretion of Vortex.
For a period of one (1) year from the Invoice Date, Vortex warrants that its Hardware will be free of defects in materials and workmanship that cause the Hardware to fail to substantially conform to the applicable Vortex published specifications. For a period of Vortex ninety (90) days from the Invoice Date, Vortex warrants that the Software (i) will perform substantially in accordance with the applicable documentation provided with the Software and (ii) the Software media will be free from defects in materials and workmanship. Vortex warrants that the Services will be performed in a good and workmanlike manner. If Vortex receives notice of a defect or non-conformance during the applicable warranty period, Vortex will, in its discretion: (i) repair or replace the affected Hardware or Software, (ii) re-perform the affected Services, or (iii) refund the fees paid for the affected Hardware, Software or Services. Repaired or replaced Hardware or Software will be warranted for the remainder of the original warranty period or ninety (90) days, whichever is longer. If Vortex elects to repair or replace Hardware, Vortex may use new or refurbished parts or products that are equivalent to new in performance and reliability and are at least functionally equivalent to the original part or Hardware. Customer must obtain an RMA number from Vortex before returning any Hardware under warranty to Vortex. Customer will pay shipping expenses to send the affected Hardware to Vortex, and Vortex will pay shipping expenses to return the Hardware to the Customer. If Vortex concludes, after examining and testing returned Hardware, that it is not covered by the Limited Warranty, Vortex will notify Customer and return the Hardware at Customer's expense. Vortex reserves the right to charge a fee for examining and testing Hardware not covered by the Limited Warranty. This Limited Warranty does not apply if the defect of the Hardware or Software resulted from improper or inadequate maintenance, installation, repair, or calibration (performed by a party other than Vortex); unauthorized modification; improper environment; use of an improper hardware or software key; improper use or operation outside of the specification for the Hardware or Software; improper voltages; accident, abuse, or neglect; or a hazard such as lightning, flood, or other act of nature. The remedies set forth above are exclusive and the customer’s sole remedies, and shall apply even if such remedies fail of their essential purpose.
No other warranties. Except as expressly set forth in this agreement, products and services are provided “as is” without warranty of any kind and vortex disclaims all warranties, expressed or implied, with respect to the products or services, including any implied warranties of merchantability, fitness for a particular purpose, title or non-infringement, and any warranties that may arise from usage of trade or course of dealing. Vortex does not warrant, guarantee, or make any representations regarding the use of or the results of the use of the products or services in terms of correctness, accuracy, reliability, or otherwise. Vortex does not warrant that the operation of the products will be uninterrupted or error free.
Warning and customer indemnity. Customer understands and acknowledges that products and services are not designed, manufactured, or tested for use in life or safety critical systems, hazardous environments or any other environments requiring fail-safe performance, including in the operation of nuclear facilities; aircraft navigation; air traffic control systems; life saving or life sustaining systems or such other medical devices; or any other application in which the failure of the product or service could lead to death, personal injury, severe property damage or environmental harm (collectively, “high-risk uses”). Further, customer must take prudent steps to protect against product and service failures, including providing back-up and shut-down mechanisms. Vortex expressly disclaims any express or implied warranty of fitness of the products or services for high-risk uses. Customer shall defend, indemnify, and hold vortex 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 use of the products and services for any high-risk uses, including 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 vortex.
System and application responsibility and additional indemnity. Customer acknowledges that it is ultimately responsible for verifying and validating the suitability and reliability of the products or services whenever the products or services are incorporated in its 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, and hold vortex 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 its system or application, regardless of whether such claims are founded in whole or in part upon alleged or actual negligence of vortex.
INTELLECTUAL PROPERTY LIABILITY.
Vortex shall not be liable for a settlement made without its prior written consent. Notwithstanding the foregoing, Vortex shall have no obligation under this Section for any claim relating to or arising from (a) Customer's modifications of Hardware, Software or Services; (b) failure to use Hardware, Software or Services in accordance with the applicable documentation provided by Vortex; (c) the combination, operation, or use of Hardware, Software or Services with any hardware, software or service not provided by Vortex; (d) the compliance of Vortex with Customer's specifications or directions, including the incorporation of any software or other materials provided by or requested by Customer; or (e) Non- Vortex Branded Products. The foregoing states the Customer's sole remedy for, and the entire liability and responsibility of Vortex for, infringement of any patent, trademark, or copyright or other intellectual property rights. This limited indemnity is in lieu of any other statutory or implied warranty against infringement. In any event, if Vortex believes in its reasonable opinion the Hardware, Software, or Services may be alleged to be infringing, for the purposes of mitigating any potential damages, Vortex may, at its option, (i) procure for the Customer the right to continue to use the Hardware, Software, or Services; (ii) replace them with comparable Hardware, Software or Services that are free of such infringement; or (iii) refund the fees paid by Customer, in which case Customer shall promptly return the Hardware to Vortex and/or terminate the use of the Software or Services.
Vortex reserves all right, title, and interest in any intellectual property rights contained or embodied in Products, or resulting from the Services, including any custom developments created or provided by Vortex under this Agreement. Nothing in this Agreement will be deemed to grant to Customer any ownership rights in such intellectual property. Customer may with a separate agreement be permitted to edit/modify Vortex’s products but will not be given permission to resell to another customer, create a duplicate system for internal use at any location, permit viewing of our system by any of our competitors.
LIMITATION OF LIABILITY.
Vortex Shall not be liable for (i) special, indirect, incidental, punitive, exemplary, or consequential damages arising out of or in connection with this agreement or the products or services; or (ii) any damages arising out of or in connection with: (a) products or services not being available for use, including any costs of obtaining substitute products or services; (b) loss of, corruption of, or loss of use of any products, hardware, software or data; (c) loss of revenue, profit, or business opportunity; (d) business interruption or downtime; or (e) inability to achieve a particular result, even if it is at suggestion made by vortex. To the extent permitted by applicable law, the total liability of vortex arising out of, or in connection with this agreement or the products or services, shall not exceed the amount of the fees paid by customer for the specific product or service giving rise to such claim. This section: (1) applies to vortex and its licensors, distributors, and suppliers (including its and their directors, officers, employees, and agents), (2) reflects an allocation of risk between vortex and customer in view of the purchase price of the products and services, (3) applies even if vortex has been advised of the possibility of the damages and regardless of whether such claims are founded in whole or in part upon alleged or actual negligence of vortex, and (4) regardless of whether such damages are based in contract, warranty, strict liability, negligence, tort, or otherwise. To the extent the foregoing limitation of liability is unenforceable or fails of its essential purpose, the sole liability of vortex to customer shall be limited to $10,000 (USD).
Vortex shall not be responsible for any delay or failure to perform due to any cause beyond its reasonable control, including but not limited to acts of nature or governments; interruptions of telecommunications, power or transportation; failure of contractors or suppliers; or inability to obtain necessary labor or materials ("Force Majeure Event"). In the event of a Force Majeure Event, Vortex reserves the right to cancel the applicable order without any liability to Customer.
EXPORT AND SANCTIONS LAWS AND COMPLIANCE.
Products (which, for purposes of this Section, shall include the software and technology incorporated in or supplied with a Product and Service) purchased from Vortex are subject to control under the U.S. Export Administration Regulations (15 CFR Part 730 et. seq.) administered by the U.S. Department of Commerce's Bureau of Industry and Security ("BIS") (www.bis.doc.gov) and other applicable U.S. export control laws and sanctions regulations, including those administered by the U.S. Treasury Department's Office of Foreign Assets Control ("OFAC") (www.treas.gov/ofac). At this time Vortex has no products distributed from Europe and unless otherwise arranged with a separate contract, said product(s) will not be subject to control under the European Union ("EU") Council Regulation No. 428/2009. Products may not be exported or re-exported to any country where sanctions are imposed by the U.S. government (which currently includes Cuba, Iran, North Korea, Republic of Sudan and Syria but which may be modified by the U.S. government from time to time). Customer agrees it will comply with the export laws and trade sanctions of all applicable countries and will not export, re-export or transfer Products purchased from Vortex without the required license(s), including an export or re-export license issued by the U.S. authorities, or to any prohibited destination or for a prohibited end-use. Products may also require export license(s) issued by the applicable authorities before being returned to Vortex. The issuance of a Quote, a sales order acknowledgment, or an RMA by Vortex is not an export license. Customer represents and warrants it is not ineligible or otherwise restricted by U.S. or applicable law to receive Products and it will not export, re-export, or provide Products to any person or entity on OFAC's List of Specially Designated Nationals or on BIS's Denied Persons List, Entity List or Unverified List or any other applicable restricted party list. Vortex reserves the right to refuse and/or cancel any order if, at any time, Vortex believes that any export controls or trade sanctions laws may be violated.
Unless otherwise agreed upon, this Agreement shall be governed by the laws of the State of Connecticut, 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 Hartford County, Connecticut. The parties expressly agree that the provisions of the United Nations Convention on Contracts for the International Sale of Products will not apply to this Agreement.
Vortex shall not be liable for any claim arising under this agreement brought more than two years after the cause of action for such claim first arose.
Vortex reserves the right to update this Agreement at any time, effective upon posting an updated version at vortexsystemsct.com; however, the terms and conditions in effect at the time of purchase shall apply to that purchase of Products or Services.
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 Vortex. No delay or failure by Vortex 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 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'. 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. 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.
January 8, 2015
Please provide end-user information with your purchase order.
Payment terms: Net 30
Freight Terms: Vortex weight based shipping or by agreement
Country of origin is provided on the commercial invoice, pack slip and product label.
Unless expressly indicated by Vortex, all sales are subject to the enclosed Vortex Systems LLC terms and conditions of quotation and sale. Vortex Systems LLC shall not be bound by any conflicting or additional Terms and Conditions. Standard shipping dates are based on availability of finished product to ship at the time of the quotation and are subject to change without notice.