Equipment Terms and Conditions
Effective June 23, 2016
These Standard Terms and Conditions apply to any proposal and agreement and/or purchase order relating to equipment (“Equipment”) or materials (“Materials”) sold by Hawk Ridge Systems, LLC. (“HRS”) to a customer (“Customer”). These terms and conditions, together with the related proposal and agreement and/or purchase order shall constitute the entire agreement (“Agreement”) between the parties.
- GENERAL PROVISIONS – The Agreement governs the sale by HRS of Equipment, Materials and the license by HRS of the associated proprietary computer programs and related information (collectively, Software) included with the Equipment at the time of sale and listed on the face of the Agreement to Customer. Customer has selected the Equipment, Materials and Software based only on their specifications. CUSTOMER ACKNOWLEDGES THAT THE EQUIPMENT MAY CONTAIN RECYCLED CONTENT INCLUDING COMPONENTS OR MATERIALS THAT ARE USED OR RECONDITIONED TO LIKE NEW PERFORMANCE AND FUNCTIONALITY. THE EXISTENCE OF RECYCLED CONTENT MAY BE DISCLOSED AS SUCH ON THE FACE HEREOF AS WELL AS ON AN EQUPMENT-SPECIFIC LABEL. If either party believes that other matters beyond those covered in this document are part of the Agreement, the parties will (a) describe and acknowledge them on the front of the Agreement or (b) staple a copy or description of them to the Agreement and initial them before signing; otherwise, they are not included as part of the Agreement for the purchase of this Equipment and license of Software. After Customer signs the Agreement (or any Amendment to it), the Agreement will become a binding contract when and if it is executed by an officer or other authorized designee of HRS.
- SOFTWARE LICENSE – Customer acknowledges and agrees that the Software shall be licensed to Customer pursuant to terms and conditions contained in a license appearing on a computer screen during installation of the Software (commonly referred to as a “click through” license). Customer and HRS agree that the terms and conditions of any click-through license contained in the Software are hereby incorporated by reference into the Agreement as if fully set forth herein. Customer agrees to be bound by the terms and conditions in any click-through license contained in the Software, regardless of whether the Software generating such click-through license is installed by Customer’s employee or by HRS or an independent contractor installing the Software for Customer’s use. HRS will provide a copy of such click through license to Customer upon request.
- MATERIALS USAGE – Customer acknowledges and agrees that Materials sold by HRS shall not be (i) mixed, blended or repackaged by Customer with any other materials for use or resale by Customer, or (ii) used with any alterations by Customer. Customer further agrees that if they use the Materials to create parts, absent written consent from HRS, Customer will not promote, advertise, or otherwise represent that such parts are made from any brand of materials other than the Materials sold by HRS. Failure to comply with these provisions shall nullify the related warranties described below.
- WARRANTY – Equipment – HRS or an HRS-designated Authorized Service Provider will promptly repair or replace the Equipment, if required, to make it free of defects at the time of delivery and during the warranty period. The Equipment is free from defects if it meets, upon the passing of risk, the specifications provided in the Agreement or in manuals, marketing or other informational materials provided by HRS or on either HRS’ website at www.hawkridgesys.com, or on the Equipment and/or Material manufacture’s website. Normal consumable or expendable parts (such as fuses, lamps or lasers), repairs required during the warranty period because of abnormal use or conditions (such as riots, floods, misuse, neglect or improper service by anyone except HRS or its HRS-designated Authorized Service Provider) and repairs required during the warranty period because of the use of non-integrated, unapproved or non-licensed Materials in the Equipment, are excluded from this warranty. The warranty period for the Equipment is one (1) year, unless otherwise stated on the face hereof, and shall start thirty (30) days after delivery to the carrier (F.O.B. HRS’ origination location) or upon installation, whichever is sooner. Warranty terms regarding the Software are contained in the click-through license contained in the Software. Materials – All Materials sold by HRS are warranted to conform to such specifications as mutually agreed upon by the parties. In the event that, within thirty (30) days of Customer’s receipt of the Materials, Customer shall determine that any Materials are not in conformity with such specifications, Customer shall deliver a sample of such Materials to HRS for testing by the Material manufacturer. HRS shall have five (7) business days to complete testing of such Materials. If the Materials do not meet the agreed upon specifications, HRS shall, at its sole option, either (i) replace such Materials with corresponding Materials that meet such specifications, or (ii) accept for return such Materials for credit or refund. THE FOREGOING WARRANTIES ARE IN LIEU OF ANY OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR INTENDED OR PARTICULAR PURPOSES, EACH OF WHICH IS HEREBY DISCLAIMED.
- LIMITATION OF LIABILITY – HRS will not be responsible to Customer for consequential, exemplary or incidental damages (such as loss of profit or employee’s time) regardless of the reason. In no event shall the liability and/or obligations of HRS under the Agreement or arising out of the purchase, lease, license and/or use of the Equipment by Customer or others exceed the purchase price of the Equipment. Limitations of liability regarding the Software are contained in the click-through license contained in the Software.
- INSTALLATION AND SERVICE – HRS will install the Equipment and provide any remedial and preventive maintenance which is required to keep the Equipment in good operating condition during the warranty period, unless otherwise stated in the Agreement. HRS may provide basic Installation Site information. Customer will be responsible for having the installation site properly prepared before the Equipment is installed. HRS will consult with Customer on a time and materials basis on any additional questions or issues regarding installation site preparation. HRS shall have no liability for such consultations. In addition to the installation charge(s), if any, as specified on the face of the Agreement, Customer will arrange and pay for any special handling charges (including without limitation all costs of preparing the installation site and all storage, drayage, cranes, forklifts, building modifications or other similar charges). Installation and any remedial and preventive maintenance will be performed by HRS or its authorized designee during normal business hours. HRS and Customer will cooperate to satisfy any Customer security requirements and still allow full and free access to the Equipment. Customer will provide computer time for any remedial and preventive maintenance or installation at no cost to HRS. HRS will accept responsibility in the event that damages are caused by the negligence of its employees or designees while they are on Customer’s premises in the course of performing installation or servicing purposes.
- TITLE, RISK OF LOSS AND DELIVERY – If conditions arise which prevent compliance with delivery schedules, HRS will not be liable for any damage or penalty for delay in delivery, or for failure to give notice of delay. However, HRS will use all reasonable efforts to give notice of delays. Delays will not be grounds for cancellation. Delivery occurs Ex Works on the actual shipping date, and title and the risk of loss transfer to Customer upon shipment. Freight and insurance will be prepaid and invoiced unless otherwise specified on the face hereof.
- PAYMENT – Unless otherwise stated in the Agreement, payment terms shall be: fifty percent (50%) initial deposit, with the remaining fifty percent (50%) upon delivery. On overdue accounts, Customer shall pay interest at the rate of 1 1/2% per month (or the highest legal interest rate, if lower). Payments made by credit card shall be subject to a 3% processing fee. The Customer shall provide HRS with a copy of tax exemption certificate, direct pay certificate or resale certificate for the “Ship to” location if exemption from sales or use taxes is claimed.
- CANCELLATION – All sales are final upon order and are not subject to cancellation, changes or reductions in amount, or suspension of deliveries except upon the Company’s prior written consent.
- SECURITY INTEREST IN EQUIPMENT AND SOFTWARE – Customer grants HRS a first priority security interest in all Equipment and Software delivered until payment in full for such Equipment and Software has been received by HRS. Customer hereby grants HRS the right to file such protective financing or similar statements to confirm and record HRS’ security interest in all Equipment and Software.
- EXPORT COMPLIANCE – Customer shall not export, re-export, or otherwise transmit, directly or indirectly, any Equipment or Software except in full compliance with all U.S. export control laws and regulations. These obligations shall survive the termination of the Agreement.
- FORCE MAJEURE – Neither party will be liable to the other for delays in performing any obligations under the Agreement due to circumstances beyond its reasonable control, including but not limited to revolts, insurrections, riots, wars, acts of enemies, national emergency, strikes, floods, earthquake, embargo, inability to secure materials or transportation, and acts of God, and other events beyond the reasonable control of the parties caused by nature or governmental authorities.
- SEVERABILITY – If any provision of the Agreement is found to be invalid, illegal or unenforceable, then, notwithstanding such invalidity, illegality or unenforceability, the Agreement and the remaining provisions shall continue in full force and effect. In this event the parties will agree upon a valid, binding and enforceable substitute provision which shall be as close as possible to the commercial interests of the invalid or unenforceable provision.
- DISPUTE RESOLUTION – Customer and HRS shall endeavor to resolve any controversy, claim or dispute arising out of or relating to the Agreement, or the performance or breach thereof, by negotiation. Any claim that is not resolved by negotiation within thirty (30) days of notification shall be settled by arbitration administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The hearing locale will be held in the AAA office closest to HRS headquarters.
- OTHER –
- The Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to conflicts of law provisions thereof.
- Both HRS and Customer will comply with all laws applicable to the Agreement.
- All notices given under the Agreement will be effective when received in writing. Notices to the Customer and HRS will be sent to the address provided in the Agreement.
- Changes to the Agreement must be in writing and must be signed by both parties.
- COMPLETE AGREEMENT – Customer acknowledges that it has read the Agreement, understands it, and agrees to be bound by its terms and conditions. Further, Customer represents and agrees that the Agreement and the click-through licenses contained in the Software set forth the complete and exclusive statement of the agreement including the governing terms and conditions between the parties, which shall prevail over and supersede all proposals, printed provisions on subordinate Customer documents including purchase orders, oral or written agreements, the Customer’s general terms and conditions and all other communications between the parties relating to the subject matter of the Agreement.