VILLI USA, Terms and Conditions of Sale
These Terms and Conditions of Sale (this “Agreement”) are the only terms and conditions that apply to orders received by Villi USA (“VILLI”) from Buyer for VILLI products (“Products”) and VILLI services (“Services”). VILLI’s acceptance of Buyer’s order is expressly conditioned on Buyer’s assent to this Agreement. VILLI rejects any terms and conditions in Buyer’s purchase order that are different from or additional to this Agreement. VILLI rejects any changes to Buyer’s purchase order unless VILLI’s authorized representative approves in writing and signs such changes. VILLI’s commencement of performance and VILLI’s delivery shall not be deemed or construed as acceptance of Buyer’s different or additional terms and conditions.
1. Price. All prices quoted are in U.S. Dollars. Prices do not include transportation, insurance, duties, import or similar taxes, sales tax, use tax, ad valorem tax, or any value added tax. Where appropriate, such taxes will be added to the invoice and paid by Buyer, unless Buyer provides VILLI with evidence of payment or certificate of exemption.
2. Payment Terms. All invoices are payable thirty (30) days from receipt of invoice. No discounts are authorized. Interest on late payments shall accrue at the rate of one and one half percent (1.5%) per month or the highest legal rate, whichever is lower. VILLI may require that shipments be made on a C.O.D. or cash-with-order basis or an irrevocable letter of credit. Up to the Product invoice amount, VILLI reserves and Buyer grants to VILLI a security interest in the Products and all proceeds from the sale thereof. Buyer agrees to promptly execute any documents requested by VILLI in order to perfect and protect such security interest.
3. Title and Delivery. For Products shipped to any Buyer located within the United States, title and risk of loss pass to Buyer when Products are made available to Buyer at VILLI’s designated facility. For Products shipped to any Buyer located outside the United States, risk of loss passes to Buyer when Products are made available to Buyer at VILLI’s designated facility, and title passes to Buyer when Products are made available to Buyer on board the carrier at the port of destination. VILLI can arrange for in-transit insurance on Buyer’s written instructions and at Buyer’s expense. All Products shall be packed, if appropriate, for shipment and storage in accordance with standard commercial practices and will conform to requirements of the shipping carrier’s tariffs. The delivery schedule quoted to Buyer runs from the date of VILLI’s receipt of Buyer’s signed and acknowledged purchase order.
4. Acceptance. Non-conforming Products and Services must be rejected within ten (10) calendar days after receipt or performance or they will be deemed Accepted. Acceptance testing, if any, shall be accomplished using test procedures established by VILLI. If installation by VILLI is not included in the purchase order, Product Acceptance tests shall be performed at VILLI’s facility. If installation by VILLI is included in the purchase price, Product Acceptance shall occur at the installation site when VILLI demonstrates that the applicable diagnostic or verification programs work properly or the Product is otherwise demonstrated to be in normal operating condition. If installation is scheduled or delayed by Buyer more than thirty (30) days after delivery, Buyer shall be deemed to have accepted the Product on the thirty-first (31st) day after the date of delivery.
5. Intellectual Property Warranty and Indemnity
5.1 VILLI will defend, indemnify and hold harmless Buyer from any claim, allegation, action, suit, demand or proceeding brought by a third party against Buyer (a “Claim”) and any and all damages, liability, and costs (including without limitation, attorneys’ fees) resulting therefrom arising out of any claim that any Product, or any components thereof, infringes upon the intellectual property rights, including without limitation the patent, copyright, trademark, mask work or trade secret rights, of any third party; provided, that, as a condition to VILLI’s obligation, Buyer shall promptly notify VILLI in writing of any Claim and shall give VILLI reasonable cooperation, information and assistance with respect to the Claim, including, without limitation, making available any relevant information in its possession or control. Buyer shall give VILLI sole control of the defense of any Claim and all related settlement negotiations, provided however, that VILLI shall not settle any Claim that adversely affects the rights of Buyer, including without limitation, Buyer’s rights arising out of this Agreement, without Buyer’s prior written approval.
5.2 VILLI shall have no liability for infringement arising from or occurring as a result of the use of the Products in combination with other items, incorporation of a specific design or modification at the request of Buyer, or the failure by Buyer to implement changes, replacements, or new releases recommended by VILLI if the infringement would have been avoided by such changes, replacements or new releases.
5.3 Buyer agrees that, in addition to but not in lieu of VILLI’s obligation to indemnify Buyer hereunder, in the event of any Claim based on infringement or alleged infringement of any intellectual property (an “Infringement Claim”), or should VILLI not prevail in any Infringement Claim, VILLI may at its option and expense, modify or replace all or any portion of the Products so that they become non-infringing and still conform in all material respects with Product Specifications, or obtain for Buyer the right to continue using the Products. In the event that Buyer’s use of the Products or any portion thereof is enjoined by a court of competent jurisdiction as a result of an Infringement Claim, Buyer shall cease using the Products and VILLI shall either (i) modify the subject Products so that the use by Buyer as permitted under this Agreement ceases to be infringing or wrongful, (ii) procure for Buyer the right to continue using the subject Products as permitted under this Agreement, (iii) replace the subject Products with a suitable substitute providing the material features, functionality and performance of the Products at no cost to Buyer, or (iv), if VILLI is in good faith unable to reasonably accomplish (i), (ii), or (iii) above, refund all amounts paid to VILLI by Buyer hereunder.
5.4 THE FOREGOING PROVISIONS OF THIS SECTION 5 STATE THE ENTIRE LIABILITY AND OBLIGATION OF VILLI AND THE EXCLUSIVE REMEDY OF BUYER AND ITS CUSTOMERS WITH RESPECT TO ANY ALLEGED INFRINGEMENT OF COPYRIGHTS, TRADEMARKS, MASK WORKS, PATENTS OR OTHER INTELLECTUAL PROPERTY RIGHTS BY THE PRODUCTS OR SERVICES. VILLI MAKES NO WARRANTY OF NON-INFRINGEMENT, EXPRESS OR IMPLED.
6. Intellectual Property Rights
6.1 Grant of License. VILLI shall retain all right, title and ownership of any and all user’s manuals, training materials, guides, commentary, and other materials for use in conjunction with the Products (“Documentation”) provided to Buyer or its end users.
6.2 Copyright. The Documentation is owned by VILLI or its suppliers or licensors and is protected by United States copyright laws and international treaty provisions.
6.3 The Products are offered for sale and are sold by VILLI subject in every case to the condition that such sale does not convey any license, expressly or by implication, to manufacture, reverse engineer, disassemble, duplicate or otherwise copy or reproduce any of the Products or any part thereof.
7. Termination by VILLI
7.1 In the event of any proceedings, voluntary or involuntary, in bankruptcy by or against a party, or in the event of the appointment, with or without such party’s consent, of an assignee for the benefit of creditors, or of a receiver, the other party may elect to immediately cancel any unfulfilled purchase order previously accepted by VILLI.
7.2 In the event a party has materially breached this Agreement, including but not limited to failure to comply with credit terms, and has not cured such breach within thirty (30) days after receiving notice thereof by the non-breaching party, the non-breaching party may immediately cancel any unfulfilled purchase order previously accepted by VILLI.
8. Limited Warranty
8.1 VILLI warrants to Buyer for a period of ninety (90) days from the date of Acceptance of the Products that the Products will have no material defects in material and workmanship and will conform in all material respects to VILLI’s published specifications for such Products. VILLI warrants to Buyer that the Services will be performed in a good and workmanlike manner. This limited warranty does not cover the results of accident, abuse, neglect, improper testing, vandalism, acts of war or terrorism, acts of God, use contrary to specifications or instructions, or repair or modification by anyone other than VILLI or VILLI’s authorized agents. VILLI SHALL HAVE NO OBLIGATION UNDER THIS WARRANTY, AND MAKES NO REPRESENTATION AS TO PRODUCTS THAT HAVE BEEN MODIFIED BY BUYER OR ITS CUSTOMERS.
8.2 If a Product does not conform to the foregoing warranties during the warranty period, Buyer may, at its own risk and expense, return the allegedly defective Product directly to VILLI after first notifying VILLI in writing of the alleged defect and requesting a return material authorization (“RMA”) number. Within five (5) days of its receipt of the RMA number, Buyer shall ship the allegedly defective Product to VILLI with a notation of the RMA number. Products returned to VILLI without an authorized RMA number may be returned to Buyer. Upon receipt of the Product, VILLI will, at its option, either (i) repair or replace the Product and ship the repaired or replaced Product to Buyer at VILLI’s expense and risk, or (ii) refund the purchase price to Buyer. If VILLI determines that any returned Product conformed to the warranties, VILLI will return the Product to Buyer at Buyer’s expense and risk, along with a written statement setting forth the basis for VILLI’s conclusion that the returned Product was not defective, and Buyer agrees to pay VILLI’s reasonable costs of handling and testing.
8.3 THE REMEDIES PROVIDED HEREIN ARE BUYER’S SOLE AND EXCLUSIVE REMEDIES FOR BREACH OF WARRANTY BY VILLI. VILLI SPECIFICALLY DISCLAIMS ALL OTHER EXPRESS, IMPLIED OR STATUTORY WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY OR NONINFRINGEMENT.
9. Limitation of Liability
IN NO EVENT SHALL VILLI OR BUYER BE LIABLE FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS OR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR INDIRECT DAMAGES, COSTS OR CLAIMS OF ANY NATURE WHATSOEVER (INCLUDING LOST PROFITS) ARISING OUT OF OR RELATING TO THE SUBJECT MATTER HEREOF REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITIES OF SUCH DAMAGES. IN ADDITION, THE AMOUNT OF VILLI’S OR BUYER’S LIABILITY TO ANY PARTY HERETO UNDER ANY CLAIM FOR LOSS OR LIABILITY BASED UPON, ARISING OUT OF, RESULTING FROM, OR IN ANY WAY CONNECTED WITH THE PERFORMANCE OR BREACH OF THIS AGREEMENT SHALL IN NO CASE EXCEED AMOUNTS ACTUALLY RECEIVED BY VILLI FROM BUYER FOR ANY PRODUCTS OR SERVICES PURCHASED UNDER THIS AGREEMENT.
10. Import/Export. Buyer agrees that it will not in any form export, re-export, resell, ship or divert directly or indirectly any Product or technical data hereunder to any country for which the United States Government or any government agency requires an export license or other governmental approval without first obtaining such license or approval.
11. Term. This Agreement will govern in perpetuity all of Buyer’s rights and obligations regarding the Products and Services purchased hereunder.
12.1 Any notice required to be given hereunder shall be given in writing at the address of each party set forth in an attached quotation or purchase agreement, or to such other address as either party may substitute by written notice to the other.
12.2 Except as provided otherwise, any attempt by Buyer to assign or transfer any of the rights, duties, or obligations herein shall render such attempted assignment or transfer null and void.
12.3 Either Party’s failure to exercise any of its rights hereunder shall not constitute or be deemed a waiver or forfeiture of such rights. If any provision of this Agreement is held to be illegal or unenforceable by a court or other authority of competent jurisdiction, such provision shall be deemed to be severable from the remaining provisions of this Agreement and shall not affect or impair the validity or enforceability of the remaining provisions of this Agreement.
12.4 This Agreement will be governed by and construed in accordance with the laws of the State of Georgia without reference to conflict of law principles.
12.5 For sales to a Buyer incorporated in the United States, Buyer and VILLI agree that the appropriate courts sitting in the Northern District of Georgia shall have sole and exclusive authority and jurisdiction to hear and adjudicate any dispute arising out of or related to this Agreement and each party hereby irrevocably consents to the jurisdiction of such courts.
12.6 For sales to a Buyer incorporated in the United States, Buyer and VILLI agree that all disputes arising under this Agreement or the performance thereof shall be finally settled and resolved as set forth in this Section 12.6. Within thirty (30) days of receiving written notice of a dispute under this Agreement (including but not limited to a breach or default of a material term), the parties agree that one officer from each party shall confer with the other to attempt to settle the dispute in good faith. If the parties cannot agree to terms within thirty (30) days, the parties shall submit the matter to binding arbitration, to be conducted pursuant to the rules of the American Arbitration Association, to be held in Atlanta, Georgia, pursuant to the laws of the State of Georgia. There shall be one arbitrator, chosen on mutual agreement of the parties. The parties shall pay their own costs and fees of arbitration, and shall split the costs of the arbitrator. Nothing herein shall prohibit either party from seeking or obtaining injunctive relief.
12.7 Any action pursuant to Section 12.5 or arbitration pursuant to Section 12.6 arising out of this transaction must be commenced within one year after the cause of action has accrued.
12.8 This Agreement constitutes the full and complete understanding between VILLI and Buyer with respect to the subject matter of this Agreement, and the provisions hereof replace and supersede any prior oral representations, agreements, understandings or other representations inconsistent with the provisions hereof. Exhibits and Attachments to this Agreement are made a part hereof and are incorporated herein by reference, and in the event of a conflict between this Agreement and the Exhibits or Attachments hereto, this Agreement shall control.