Terms & Conditions
TERMS AND CONDITIONS OF SALE
Unless otherwise indicated in a formal agreement, the following Terms and Conditions of Sale (“Terms and Conditions”) shall apply to all sales made by Fathoms Technology Inc., its subsidiaries and affiliates (“Supplier”) to a buyer of Supplier’s goods (“Purchaser”), and every agreement or other undertaking by Supplier is expressly conditioned on Purchaser’s assent to these Terms and Conditions.
ACCEPTANCE OF ORDERS
A quotation or tender addressed to Purchaser from Supplier does not constitute an offer to sell, and in no circumstances shall any contract arise unless and until the Purchaser submits an order to Supplier, and Supplier issues a written acknowledgment of the order to the Purchaser.
PRICE/DELIVERY TERMS
Unless otherwise stated in writing, price and delivery terms are F.O.B. site of shipment, as defined in Incoterms 2000, and such prices do not include sales, use or other taxes or any export package cost, transportation, freight handling charges, export/import license fee, customs duties and the like, all of which shall be paid by Purchaser, who shall indemnify Supplier against all claims and liabilities therefor. Unless otherwise specified in writing, delivery dates are estimates only, and Supplier shall not be liable for any damages, consequential or otherwise, resulting from the failure to deliver the goods by a particular date.
PAYMENT/SECURITY
Unless otherwise stated in writing, payment terms are thirty (30) days from the date of the invoice for customers with satisfactory credit. In the event payment is not received by the due date, interest shall accrue at the rate of one and one-half percent (1.5%) on the unpaid portion of the invoice for each period of thirty (30) days from the due date. Purchaser shall be liable for Supplier’s costs associated with the collection of any amounts past due, including but not limited to attorneys’ fees and court costs. Supplier retains title/security interest in the goods until full payment.
Whenever Purchaser becomes insolvent or Supplier in good faith requires security, Supplier may cancel any outstanding contract with Purchaser; revoke any extension of credit to Purchaser; reduce any unpaid debt by enforcing its security interest in all goods (and proceeds therefrom) furnished by Supplier to Purchaser; and take any other steps necessary or desirable to secure Supplier fully with respect to Purchaser’s payment for goods furnished or to be furnished by Supplier.
INSPECTION/ACCEPTANCE/RETURN/CANCELLATION
You may return or exchange any stock item in original condition within 30 days. A restocking fee of 15% may be applicable for stock purchases returned in opened packaging. We are unable to accept returns on customized products and special orders since they are created to your specific needs.
LIMITED WARRANTY
Supplier warrants that all goods will be free from defects in materials and workmanship for a period of twelve (12) months for assembled goods at the time of delivery by Supplier (“Limited Warranty”).
The Limited Warranty does not apply if (1) the defect is the result of use or handling of the goods in a manner, circumstances or purposes other than those approved or instructed by Supplier; or (2) the goods are misused or abused or there is evidence of tampering, mishandling, neglect, accidental damages, modification or repair without the approval of Supplier.
THE LIMITED WARRANTY PROVIDED ABOVE IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE LIMITED WARRANTY IS IN LIEU OF ANY OTHER LIABILITY OR OBLIGATION OF SUPPLIER FOR LOSSES, EXPENSES, INCONVENIENCES OR DAMAGES (WHETHER SPECIAL, INDIRECT, SECONDARY, OR CONSEQUENTIAL) ARISING FROM OWNERSHIP OR USE OF THE GOODS. REPAIR, REPLACEMENT, OR CREDIT (AT SUPPLIER’S OPTION) UPON RETURN OF THE GOODS IS PURCHASER’S SOLE REMEDY FOR ANY SUCH LOSSES, EXPENSES, INCONVENIENCES OR DAMAGES. PURCHASER HEREBY WAIVES ANY RIGHTS THAT IT MIGHT OTHERWISE BE ENTITLED TO IN CONNECTION WITH THE MATTERS COVERED IN THIS PARAGRAPH.
NO CONSEQUENTIAL DAMAGES
Under no circumstances whatsoever shall Supplier and Purchaser be liable to each other for any indirect, special, or consequential damages, whether foreseeable or unforeseeable and whether based upon lost goodwill, lost resale profits, loss of use of money, work stoppage, impairment of other assets, or otherwise and whether arising out of breach of warranty, breach of contract, strict liability in tort, negligence, misrepresentation, or otherwise, except only in the case of personal injury where applicable law requires such liability.
PATENT, COPYRIGHT AND TRADEMARK INDEMNITY
THE FOREGOING STATES THE ENTIRE LIABILITY OF SUPPLIER FOR INFRINGEMENT CLAIMS AND ACTIONS, AND PURCHASER HEREBY WAIVES ANY RIGHTS THAT IT MIGHT OTHERWISE BE ENTITLED TO IN CONNECTION WITH THE FOREGOING.
Supplier shall have no liability to Purchaser for any action or claim alleging infringement based upon any conduct involving: (1) the use of any good in a manner other than as specified by Supplier; (2) the use of any good in combination with other products, equipment, or devices not supplied by Supplier; or (3) the alteration, modification or customization of any good by any person other than Supplier, or by Supplier based on Purchaser’s specifications or otherwise at Purchaser’s direction (regardless of whether such alteration, modification or customization occurs before or after the good is originally shipped by Supplier to Purchaser). In the event of an infringement action or claim against Supplier which is based on any conduct described in the preceding sentence, Purchaser shall indemnify and hold Supplier harmless against all damages, costs or expenses, including reasonable attorneys’ fees paid or incurred by Supplier in connection with such action or claim.
GENERAL
The invalidity or unenforceable nature (in whole or in part) of any provision, term or condition hereof, will not affect in any way the validity and enforceable nature of the remainder of such provision, term or condition, or any other provision, term or condition.
These Terms and Conditions may not be modified, terminated or repudiated, in whole or in part, except in a writing executed by the authorized representatives of Supplier and Purchaser. Supplier may, at its sole option, treat any attempted modification, termination, or repudiation to which it does not assent in writing, as a breach of these Terms and Conditions.
Upon any breach by Purchaser, or failure by Purchaser to comply with any of these Terms and Conditions, or if Purchaser becomes unable to conduct its normal business operations (including inability to meet its obligations as they mature), or if Purchaser becomes the subject of any proceeding under any state or federal bankruptcy law or other law, or makes any assignment for the benefit of creditors, Supplier will have the right to immediately cancel or terminate any and all agreements with or obligations to Purchaser relating to sales of the goods, in whole or in such part, which may result in the non-shipment or cancellation of Purchaser’s pending or future order(s) and/or termination of Purchaser’s relationship with Supplier, and to recover from Purchaser damages for breach (excluding consequential damages) and any unpaid installments due shall become immediately due and payable. All remedies in these Terms and Conditions will be cumulative, and not alternative or exclusive, and will be in addition to all other rights and remedies provided by applicable law. The exercise or failure to exercise any remedy by Supplier will not preclude the exercise of the same or other remedies under these Terms and Conditions.
Supplier will not be deemed to have waived any provision of these Terms and Conditions or any breach by Purchaser of any provision hereof, unless specifically set forth in writing and executed by an authorized representative of Supplier. No such waiver by Supplier will constitute a waiver of such provision or breach on any other occasion.
Supplier shall not be responsible for any failure to fulfill its obligations hereunder due to causes beyond its reasonable control, including without limitation, acts or omissions of government or military authority, terrorist actions, acts of God, shortages of materials, transportation delays, fires, floods, labor disturbances, riots or wars.
These Terms and Conditions, and the transactions contemplated hereby, will be governed by, construed and interpreted in accordance with the substantive laws of Texas (excluding the Convention on Contracts for the International Sale of Goods) without regard to its conflict of laws rules. Any legal action with respect to any such transaction must be commenced within one year and one day after the cause of action has accrued.
These Terms and Conditions, together with any quotation, order acceptance, or invoice subject to these Terms and Conditions, constitute the entire agreement and understanding of Supplier and Purchaser. Supplier assumes no liability except as expressly provided in these Terms and Conditions.
ARBITRATION
Any and all disputes arising under or relating to these Terms and Conditions and the transactions contemplated hereby shall be determined by binding arbitration in Austin, Texas in accordance with the International Arbitration Rules of the American Arbitration Association, and be conducted in the English language.