THE SALE OF PRODUCTS AND SERVICES (“PRODUCTS”) BY Technivision FZE CORPORATION AND ITS DIVISIONS AND SUBSIDIARIES (“Technivision FZE”) ARE SUBJECT TO THESE TERMS AND CONDITIONS (“AGREEMENT”) REGARDLESS OF OTHER OR ADDITIONAL TERMS OR CONDITIONS THAT CONFLICT OR CONTRADICT THIS AGREEMENT IN ANY PURCHASE ORDER, DOCUMENT, OR OTHER COMMUNICATION (“ORDER”). PREPRINTED TERMS AND CONDITIONS ON ANY CUSTOMER (“CUSTOMER”) DOCUMENT (FOR EXAMPLE PURCHASE ORDERS OR CONFIRMATIONS) AND/OR Technivision FZE’S FAILURE TO OBJECT TO CONFLICTING OR ADDITIONAL TERMS WILL NOT CHANGE OR ADD TO THE TERMS OF THIS AGREEMENT.
All orders are subject to acceptance by Technivision FZE. Technivision FZE reserves the right to allocate the sale of Products among its customers. Orders for special, custom, value-added and Products specifically identified by Technivision FZE as non-standard are non-cancelable and non-returnable (“NCNR”). The Customer may not cancel or reschedule Orders for standard Products without Technivision FZE’s consent, which shall not be unreasonably withheld.
Technivision FZE’s quoted prices apply for 30 days or as otherwise stated in its quote. Technivision FZE may increase prices if Technivision FZE’s costs increase or other circumstances beyond Technivision FZE’s reasonable control. Prices are subject to change at any time. Prices are for Products only and do not include taxes, impositions and any other charges, fees, shipping charges and duties imposed by any government authority. The customer is responsible for any additional fees and taxes.
3. TERMS OF PAYMENT.
Payment of the total invoice amount, without offset or deduction, is due 30 days from the invoice date. On any past due invoice, Technivision FZE may charge interest from the payment due date to the date of payment (at 1 1/2% per month), plus reasonable attorney fees and collection costs. Technivision FZE may change the terms of the Customer’s credit at any time. Technivision FZE may apply payments to any of the Customer’s accounts.
4. DELIVERY AND TITLE.
The customer is responsible for all shipping costs and any applicable surcharges. Title and risk of loss pass to Customer upon delivery of the Products to the carrier. Technivision FZE’s delivery dates are estimates only and Technivision FZE is not liable for delays in delivery. Technivision FZE reserves the right to make partial shipments and the Customer will accept delivery and pay for the Products delivered. A delayed delivery of any part of an Order does not entitle Customer to cancel other deliveries.
5. PRODUCT RETURNS.
Customers cannot return Products without a return material authorization (“RMA”) number. RMAs will be issued only for damage, shortage, or other discrepancies to Products created solely by Technivision FZE or the original manufacturer, and only if the Customer notifies Technivision FZE in writing of any damage, shortage, or other discrepancies to Products within 10 days after delivery. RMAs will not be granted for damage, shortage, or other discrepancy created by the Customer, the carrier or freight provider, or any other third party. Returned Products must be in the original manufacturer’s shipping cartons or equivalent. Customer must return all Products, freight prepaid, as specified in the RMA and pay any restocking charges. At Technivision FZE’s discretion, Technivision FZE will return all Products not eligible for return to Customer, freight collects, or hold Product for Customer’s account at Customer’s expense.
6. Technivision FZE’S LIMITED WARRANTY.
Technivision FZE will transfer to the Customer any Product warranties and indemnities authorized by the manufacturer, including any transferable warranties and indemnities for intellectual property infringement. Technivision FZE warrants the Products will conform to the manufacturer’s specifications. Value-added work performed by Technivision FZE on Products will conform to the Customer’s specifications. Technivision FZE MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED. Technivision FZE MAKES NO WARRANTY OF MERCHANTABILITY, FITNESS FOR PURPOSE OR NON-INFRINGEMENT. If Products do not meet manufacturer’s specifications or if value-added work by Technivision FZE does not meet Customer’s specifications the Products will be, at Technivision FZE’s choice: (1) repaired, (2) replaced at no cost to Customer; or (3) refund Customer’s purchase price. Customer must return Products to Technivision FZE, along with acceptable proof of purchase, within the warranty period specified by the manufacturer freight charges prepaid.
7. LIMITATION OF LIABILITY.
Technivision FZE IS NOT LIABLE FOR AND CUSTOMER IS NOT ENTITLED TO ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES; FOR EXAMPLE, LOSS OF PROFITS OR REVENUE, LOSS OF DATA, LOSS OF USE, REWORK, MANUFACTURING EXPENSE, INJURY TO REPUTATION, OR LOSS OF CUSTOMERS. CUSTOMER’S RECOVERY FROM Technivision FZE FOR ANY DIRECT DAMAGES WILL NOT EXCEED THE PRICE OF THE PRODUCT AT ISSUE. CUSTOMER WILL INDEMNIFY, DEFEND AND HOLD Technivision FZE HARMLESS FROM ANY CLAIMS BASED ON; (i) Technivision FZE’S COMPLIANCE WITH CUSTOMER’S DESIGNS, SPECIFICATIONS, OR INSTRUCTIONS, (ii) MODIFICATION OF ANY PRODUCTS BY ANYONE OTHER THAN Technivision FZE, OR (iii) USE IN COMBINATION WITH OTHER PRODUCTS.
8. FORCES BEYOND Technivision FZE’S CONTROL.
Technivision FZE is not liable for failure to fulfil its obligations for any accepted Order or for delays in delivery due to causes beyond its reasonable control, (for example: acts of God, acts or omissions of the Customer, man-made or natural disasters, epidemic medical crises, materials shortages, strikes, acts of terrorism, delays in transportation, or inability to obtain labor or materials through its regular sources).
9. USE OF PRODUCTS.
Products are not authorized for use in critical safety or other applications where a failure may reasonably be expected to result in personal injury, loss of life, or catastrophic property damage. If Customer uses or sells the Products for use in any such applications, Customer acknowledges that such use or sale is at Customer’s sole risk. Customer will indemnify, defend and hold Technivision FZE and the Product manufacturer harmless from and against any and all liabilities and costs arising out of or in connection with such use or sale.
Certain Products sold by Technivision FZE and other related technology and documentation are subject to export control laws, regulations and orders of the United States and the export or import control laws and regulations of other countries. Customer will not directly or indirectly export or divert any Products and other related technology and documentation to any third party or country where such export or transmission is restricted or prohibited. Customer agrees it is responsible to obtain any license to export, re-export, or import as may be required.
11. PRODUCT INFORMATION.
Product information, including information related to a Product’s specifications, export/import control classifications, uses or conformance with legal or other requirements, is obtained by Technivision FZE from its suppliers or other sources. Such information is provided by Technivision FZE on an “AS IS” basis. Technivision FZE makes no representation as to the accuracy or completeness of the Product information, and DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND LIABILITIES UNDER ANY THEORY WITH RESPECT TO THE PRODUCT INFORMATION, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. Technivision FZE recommends Customer validate any Product Information before using or acting on such information. All Product information is subject to change without notice. Technivision FZE is not responsible for typographical or other errors or omissions in Product information.
12. GOVERNMENT CONTRACTS.
Technivision FZE is a reseller of “Commercial Items” as defined in FAR 2.101.
|a.||Technivision FZE hereby advises that it will only operate under FAR 52.244-6 when fulfilling a subcontract for a government prime contractor. Therefore, the following FAR clauses are incorporated by reference and made a part of any such subcontractor order to the extent that these clauses are applicable.
|b.||If the subcontract is issued in support of a DOD prime contract the following additional clauses are incorporated by reference and made a part of any such subcontract or order to the extent that these clauses are applicable:
|c.||In accordance with FAR 12.211 the Customer will receive only those rights in technical data customarily provided by Technivision FZE’s supplier. By no means will this be interpreted as providing to the Customer unlimited rights in data, software, or intellectual property rights provided by Technivision FZE’s supplier or any other third party.|
|d.||Technivision FZE hereby rejects the flow down of the requirements of the: (i) Trade Agreements Act, FAR 52.225-5 or DFARS 252.225-7021; and (ii) the Buy American Act, FAR 52.225-1 or DFARS 252.225-7001. There is an exception to the Buy American Act for “information technology” that applies to many of the products sold by Technivision FZE’s Technology Solutions business. However, the Customer is solely responsible for determining if an exception exists.|
|e.||Technivision FZE cannot comply with Preference for Domestic Specialty Metals, DFARS 252.225-7014, Alt. 1, unless one of the following conditions is met: 1) its product manufacturers indicate they can comply; 2) an existing Domestic Non-Availability Determination (DNAD) applies; or 3) there is an applicable exception. However, Customer is solely responsible for determining if a DNAD or an exception exists.|
13. ELECTRONIC ORDERS.
In the event that any part of the purchase and sale of Products utilizes electronic data interchange, internal or third party portal, or any other electronic means (“Electronic Purchase Order”), this Agreement, or any other validly executed agreement between Technivision FZE and Customer, will continue to apply to the purchase and sale of Products between Customer and Technivision FZE.
|a.||The laws of the United Arab Emirates will exclusively govern any dispute between Technivision FZE and Customer. The United Nations Convention for the International Sale of Goods shall not apply.|
|b.||Customer may not assign this Agreement without the prior written consent of Technivision FZE. Technivision FZE or its affiliates may perform the obligations under this Agreement. This Agreement is binding on successors and assigns.|
|c.||This Agreement can only be modified in writing signed by authorized representatives of both Technivision FZE and Customer.|
|d.||Technivision FZE and Customer are independent contractors and agree that this Agreement does not establish a joint venture or partnership.|
|e.||Statements or advice (technical or otherwise) if given without charge, are an accommodation to Customer and Technivision FZE has no responsibility or liability for the content or use of such statements or advice.|
|f.||Technivision FZE’s failure to object to any document, communication, or act of Customer will not be deemed a waiver of any of these terms and conditions.|
|g.||The unenforceability of any of these terms or conditions will not affect the remainder of the terms or conditions.|
|h.||Products, including software or other intellectual property, are subject to any applicable rights of third parties, such as patents, copyrights and/or user licenses.|
|i.||Customer and Technivision FZE will comply with applicable laws and regulations.|