These Terms of Sale (“Terms”) govern the sale of Products and Service and the license of Software by Bridge12 Technologies, Inc. (“Bridge12”). “Product” means any standard hardware or consumables sold or standard Software licensed under these Terms. “Software” means one or more computer programs and related documentation. “Service” means any standard support service to support Products, Software updates and maintenance, or training. “Specifications” means technical information about Products published by Bridge12 and in effect on the date Bridge12 ships the order.
Sale and Delivery
Bridge12’s prices, quotations and contracts for Products and Services are subject to the following, unless otherwise stated in Bridge12’s quotation or other writing signed by an authorized representative of Bridge12. In case of a conflict between the terms and conditions stated herein and those appearing on the face hereof, the latter shall control:
- All purchase orders shall be subject to written acceptance by Bridge12 only at its principal office in Framingham, Massachusetts.
- Prices exclude any applicable sales, value added or similar tax payable by Customer.
- Unless otherwise specified in writing, all quotations are firm for, and expire, thirty (30) days after its date and constitutes offers, provided that, budgetary quotations and estimates, and quotations to non-U.S. customers, are solicitations for offers to purchase, are for preliminary information only and shall neither constitute offers, firm pricing, nor impose any responsibility or liability upon Bridge12.
- All prices quoted are for Products and Services only. Bridge12’s prices exclude and Buyer shall be responsible for all ordinary and necessary charges incidental to the sale incurred by Bridge12 and billed by Bridge12 to Buyer, including but not limited to charges for taxes (including, without limitation, any sales tax, use tax or similar tax), license fees, customs fees, duties and other related charges. The total price to Buyer shall be adjusted to include costs of transportation, special packing and insurance incurred by Bridge12 in accordance with agreed shipping and risk terms as referred to below.
- Cancellation charges may apply in the event Customer cancels order. Product returns are subject to Bridge12’s approval and applicable charges.
- For Products without installation included in the purchase price, acceptance occurs upon delivery. For Products with installation included in the purchase price, acceptance occurs when the Product passes Bridge12’s installation and test procedures. If Customer schedules or delays installation by Bridge12 more than thirty (30) days after delivery, acceptance of the Product will occur on the thirty-first (31st) day after delivery.
- Prices quoted are for Products only and do not include technical data, proprietary rights of any kind, patent rights, qualification, environmental or other than Bridge12’s standard tests, and other than Bridge12’s normal domestic commercial packaging, unless expressly agreed to in writing by Bridge12. All published prices are subject to change without notice.
- Published weights and dimensions are approximate only. Manuals, programs, listings, drawings, or other documentation required hereunder must be referenced specifically and will be the latest applicable version.
Except as otherwise provided herein, or in accordance with expressly agreed Incoterms 2000, all shipments are EXW Bridge12’s plant with all transportation and insurance at the expense of Buyer, and risk of loss or damage to Products shall pass upon delivery to the transportation company. For Products shipped FCA destination within the United States, risk of loss or damage shall pass to Buyer upon arrival of the transportation company at Buyer’s dock. For Products shipped outside the United States and its possessions, title and risk of loss or damage shall pass from Bridge12 to Buyer when Products arrive at the country of destination, notwithstanding any shipment terms to the contrary. Unless otherwise expressly agreed in writing, Bridge12 may insure to full value of Products shipped at Buyer’s expense or declare full value to the transportation company at time of shipment. Buyer shall inspect all Products upon receipt and file all claims with the transportation company when there is evidence of damage, concealed or external.
Bridge12 shall not be liable for any delay in delivery or other performance hereunder which is due to unforeseen circumstances, or to causes beyond its control, including, without limitation, strike, lockout, riot, war, fire, act of God, accident, failure or breakdown of components necessary to order completion; supplier, subcontractor or Buyer caused delays; inability to obtain or substantial rises in the prices of labor, materials or manufacturing facilities; curtailment of or failure to obtain sufficient electrical or other energy supplies; technical difficulties; or compliance with any governmental law, regulation, or order, including but not limited to U.S. Export Administration Regulations. Provided any such delay is neither material nor indefinite, performance shall be deemed suspended during and extended for such time as it is so delayed, and thereafter the other party shall accept performance hereunder. Delay in performance shall not be considered material or indefinite unless it exceeds or is reasonably estimated to exceed six (6) months. In the interest of conservation of scarce materials, and efficient use of high value parts and components, Bridge12 may substitute remanufactured parts and components, which meet the same quality standards as other materials and are covered by the same warranty.
Intellectual Property Claims
- Bridge12 will defend or settle any claim against Customer that a Product infringes an intellectual property right, provided Customer promptly notifies Bridge12 in writing and provides control of the defense or settlement, and assistance, to Bridge12.
- In defending or settling an infringement claim under Section 4(a), Bridge12 will pay infringement claim defense costs, settlement amounts and court awarded damages. If such a claim appears likely, Bridge12 may, at its option, modify or replace the Product or procure any necessary license. If Bridge12 determines that none of these alternatives is reasonably available, Bridge12 will refund Customer’s purchase price upon return of the Product.
- Bridge12 has no obligation for any claim of infringement arising from: Bridge12’s compliance with, or use of, Customer’s designs, specifications, instructions or technical information; Product modifications by Customer or a third party; Product use prohibited by or outside the scope of Specifications or related application notes; or use of the Product with products not supplied by Bridge12.
- Products, parts and accessories manufactured and sold by Bridge12 and Services provided by Bridge12 in connection with Products are warranted to the original purchaser from Bridge12 to be free from defects in material and workmanship and to be in substantial compliance with operational features of Bridge12’s published specifications at the time of sale.
- Bridge12 warrants that Software will not fail to execute its programming instructions due to defects in materials and workmanship when properly installed and used on the hardware designated by Bridge12. Bridge12 does not warrant that Software will operate in hardware and software combinations selected by Customer, or meet requirements specified by Customer.
- If no period of time is stated, the warranty is limited to thirty (30) days. Bridge12’s standard applicable Product warranties are incorporated herein by this reference. Repair, or at Bridge12’s option, replacement of defective Products, parts or accessories shall be the sole and exclusive remedy under warranty. If in Bridge12’s opinion such repair or replacement is not feasible, or if such remedy fails of its essential purpose, Bridge12 may refund or credit an equitable portion of any sums paid by Buyer for the Product or Service. In-warranty repair or replacement parts are warranted only for the unexpired portion of the original warranty period.
- The warranty period begins after installation at the customer’s site is completed.
- The product must have been used under normal operating conditions within the respective Bridge12-specified ratings and according to operating instructions provided by Bridge12.
- Bridge12 does not warrant that the operation of Products will be uninterrupted or error free.
- If Bridge12 receives notice of defects or non-conformance during the warranty period, Bridge12 will, at its option, repair or replace the affected Product. Customer will pay shipping expenses for return of such Product to Bridge12. Bridge12 will pay expenses for shipment of repaired or replacement Product. If Bridge12 is unable, within a reasonable time, to repair or replace the affected Product(s), Customer will be entitled to a refund of the purchase price upon prompt return of the Product(s) to Bridge12.
- In all cases Bridge12 has sole responsibility for determining the cause and nature of failure, and Bridge12’s determination with regard thereto shall be final. If it is found that Bridge12’s Product has been returned without cause and is still serviceable, Buyer will be notified and the Product returned at its expense; in addition, a charge for testing and examination may, in Bridge12’s sole discretion, be made on Products so returned.
- All claims under warranty must be made promptly after occurrence of circumstances giving rise thereto and must be received within the applicable warranty period by Bridge12 or its authorized representative. Such claims should include the Product type and serial numbers, and a full description of the circumstances giving rise to the claim. Before any Products are returned for repair and/or adjustment, written authorization from Bridge12 or its authorized representative for the return and instructions as to how and where these Products should be shipped must be obtained.
- Bridge12 reserves the right to reject any warranty claim not promptly reported and any warranty claim on any item that has been altered or has been shipped by unacceptable means of transportation.
- When any Product is returned for examination and inspection, or for any other reason, Buyer shall be responsible for all damage resulting from improper packing or handling, and for loss in transit, notwithstanding any defect or nonconformity in the Product.
- Some newly manufactured Bridge12 Products may contain remanufactured parts, which are equivalent to new in performance.
- The above warranties do not cover defects resulting from improper or inadequate maintenance, installation, repair or calibration performed by Customer or a third party not authorized by Bridge12; Customer or third party supplied hardware or software, interfacing or supplies; unauthorized modification; improper use or operation outside of the Specification for the Product; abuse, negligence, accident, loss or damage in transit; or improper site preparation.
Other Supplier Warranties
Warranties given by other suppliers of equipment accessories, components, or computer software not owned by Bridge12 but incorporated by Bridge12 on or into Products are passed on to the Buyer and shall apply only to the equipment, accessories, components or computer software of which they are a part. Bridge12 shall have no liability under warranties provided by other suppliers, nor shall Bridge12 have any liabilities for failure of other suppliers to perform under their warranty. Bridge12’s liability under warranty shall be determined solely by Bridge12’s warranty, including all its exclusions and limitations.
Limitation of Liability and Remedies
In no event will Bridge12, its subcontractors or suppliers be liable for special, incidental, indirect or consequential damages (including downtime costs, loss of data, restoration costs, or lost profits) regardless of whether such claims are based on contract, tort, warranty or any other legal theory, even if advised of the possibility of such damages. This exclusion is independent of any remedy set forth in these Terms.
- The parties agree to comply with applicable laws and regulations. Bridge12 may suspend business if Customer is in violation of applicable laws or regulations.
- Disputes arising in connection with these Terms will be governed by the laws of the Commonwealth of Massachusetts, United States.
- To the extent that any provision or a portion of any provision of these Terms is determined to be illegal or unenforceable, the remainder of these Terms will remain.
- These Terms and any supplemental terms applicable to the order constitute the entire agreement between Bridge12 and the Customer, and supersede any previous communications, representations or agreements between the parties, whether oral or written, regarding transactions hereunder. Customer’s additional or different terms and conditions will not apply.