Terms and Conditions
Server Technology, Inc., Terms and Conditions of Sale and Service
1. Scope. The following terms and conditions apply to the sale of all Products distributed by or for Server Technology, Inc. ("Server") to the Buyer, and Server's sale and provision of services to the Buyer (the "Services"). For purposes of these terms and conditions, except as otherwise expressly provided, all references to "Products" shall include any work product and deliverables that Buyer provides in connection with the Services.
Any other or inconsistent terms in any document, including without limitation a Purchase Order, from or for the Buyer are hereby rejected and do not apply to the sale of Products and Services by Server.
2. Purchase Orders and Payment. Buyer shall issue to Server binding Purchase Orders for each purchase required. All Purchase Orders are subject to credit approval prior to acceptance by Server. Specific delivery commitments must be made and agreed upon at the time the order is placed with Server. All orders received from Buyer are subject to acceptance by Server at its principal office. All orders not accepted by Server in writing are deemed rejected. In case of acceptance of the order, Server will send a written confirmation to Buyer, in which Server will advise of the shipment date. Accepted orders may not be rescheduled or cancelled without Server's prior written consent, which may be withheld or given in Server's sole discretion. The prices for Products and Services are set forth in Server's quotation which can be changed at any time upon prior written notice to Buyer. The quoted prices are exclusive of all taxes, freight, duties, and other third-party charges. Unless otherwise agreed to in writing, all payments shall be made in United States Dollars and are due and payable thirty days from the date of invoice. In the event that payment is not received in such thirty days, any unpaid balance will bear interest at the rate of one and one-half percent (1 ½%) per month. Buyer is responsible for all costs and expenses incurred by Server in collecting any sums owing by Buyer (which may include, but are not limited to, collection agency and reasonable attorneys' fees).
3. Delivery. All sales and deliveries of Products shall be F.O.B. Server's factory or warehouse. Server shall provide Services pursuant to either a written and signed statement(s) of work between Buyer and Server or Server's quote for such Services (each a "Statement of Work"). Buyer is responsible for all transportation, insurance, duties, and other third-party charges. These charges shall be added to Server's invoice to Buyer if prepaid by Server.
4. Title and Risk of Loss. Title to, and risk of loss for, the Products shall pass to Buyer upon delivery of the Products to a common carrier. Buyer hereby grants Server a security interest in the Products until the invoice covering the Products has been paid in full. Buyer also irrevocably appoints Server as its lawful attorney-in-fact with full authority to execute any necessary documents to perfect and enforce its security interest. The foregoing notwithstanding, any firmware embedded into and made a part of the Products is licensed, not sold. Buyer will not, nor will Buyer directly or indirectly aid, support, or induce any others to, reverse engineer, recompile, modify, translate, or disassemble the firmware, except to the extent expressly authorized by applicable law notwithstanding this limitation or as expressly approved by us in writing in advance. The Products are also delivered installed with other software that is licensed pursuant to the terms of an end user license agreement provided with the Products.
5. Warranty. Server will provide the Services in a professional and workmanlike manner and shall be deemed accepted by Buyer upon delivery unless Buyer and Server agree otherwise in writing. Server agrees to repair or replace Products that fail due to a defect within twenty-four (24) months after the shipment date of each Product unit to Buyer ("Warranty Period"). For purposes of this Agreement the term "defect" shall mean the Product fails to operate or fails to conform to its applicable specifications. Any claim made pursuant to this Agreement shall be asserted or made in writing only by Buyer. Buyer shall comply with Server's Standard Return Merchandise Authorization ("RMA") procedure for all warranty claims as set forth in Server's operation manual and website (www.servertech.com). Buyer must return Products in original packaging and in good condition. This limited warranty does not include labor, transportation, or other expenses to repair or reinstall warranted Products on site or at Buyer's premises.
Server reserves the right to investigate any warranty claims to promptly resolve the problem or to determine whether such claims are proper. In the event that after repeated efforts Server is unable to repair or replace a defective Product, then Buyer's exclusive remedy and Server's entire liability in contract, tort, or otherwise shall be the payment by Server of Buyer's actual damages after mitigation, but shall not exceed the purchase price actually paid by Buyer for the defective Product.
Server shall have no responsibility or liability for any Product, or part thereof, that (a) has had the Serial Number, Model Number, or other identification markings altered, removed or rendered illegible; (b) has been damaged by or subject to improper installation or operation, misuse, accident, neglect and/or has been used in any way other than in strict compliance with Server's operation and installation manual; (c) has become defective or inoperative due to its integration or assembly with any equipment or products not supplied by Server; (d) has been repaired, modified or otherwise altered by anyone other than Server and/or has been subject to the opening of any sealed cabinet boxes without Server's prior written consent. If any warranty claim by Buyer falls within any of the foregoing exceptions, Buyer shall pay Server its then current rates and charges for such services.
THE ABOVE WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.
6. Limitation of Liability. SERVER SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES OF ANY KIND OR FOR ANY DOWNTIME COSTS, LOST BUSINESS, REVENUES OR PROFITS, FAILURE TO REALIZE EXPECTED SAVINGS, LOSS OR UNAVAILABILITY OF OR DAMAGE TO DATA OR SOFTWARE RESTORATION, REGARDLESS OF THE BASIS OF LIABILITY, INCLUDING BUT NOT LIMITED TO NEGLIGENCE, MISREPRESENTATION, BREACH OF ANY KIND OR ANY OTHER CLAIMS IN CONTRACT, TORT OR OTHERWISE, EVEN OF SERVER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SERVER'S AGGREGATE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT ARE LIMITED TO THE AMOUNTS THAT THE BUYER PAID FOR THE PRODUCT THAT IS THE SUBJECT OF THE CLAIM, OR IF SERVICES ARE THE SUBJECT OF THE CLAIM, THE AMOUNT PAID FOR THE SERVICES UP TO A MAXIMUM OF TWELVE (12) MONTHS PRIOR TO THE DATE THE CLAIM ARISES.
7. Property Rights. Buyer shall not modify, reverse engineer, improve, copy, or otherwise change any Product or parts thereof. Buyer shall not remove Server trademark notices, copyright notices, patent markings, or mask work notices on or in the Products or on any other materials supplied by Server. Paragraph 6 shall survive any termination of this Agreement, and shall be specifically enforceable by injunctive and other relief against Buyer in the event of Buyer's breach since both parties agree that Server will be irreparably harmed and money damages would be inadequate compensation to Server for Buyer's breach. The Products are protected by one or more of the following Patents and by equivalent patents in other jurisdictions: US 5,506,573; US 5,949,974; US 6,176,710; US 6,442,017; US 6,711,613; US 6,741,435; US 7,010,589; US 7,043,543; US 7,099,934; US 7,116,550; US 7,137,850; US 7,162,521; US 7,171,461; US 7,196,900; US 7,259,945; US 7,268,998; US 7,312,980; US 7,368,830; US 7,400,793; US 7,414,329; US 7,457,106; US 7,535,696; and other patents pending.
8. Waiver. Server shall not be deemed to waive any default of this Agreement unless Server signs a written waiver.
9. Indemnity. Buyer shall indemnify, defend, and hold Server harmless from all claims, damages, expenses, liabilities, and losses, including without limitation attorney's fees and costs, that arise out of or relate to (a) the manner in which Buyer or any of its customers or end users use or operate the Products; (b) any personal injuries, property damages, or other losses resulting or occurring from the willful or negligent acts or omissions of Buyer, its customers, or end users; (c) defects or other problems with other component parts, equipment, or materials produced or supplied by anyone other than Server and that may be used with the Products; (d) Buyer's transactions with its customers, end users, or other parties regarding the Products; or (e) Server's provision of Services in accordance with Buyer's specifications and/or requirements.
10. Attorney's Fees. In a dispute under this Agreement, the prevailing party shall be entitled to attorney's fees and costs incurred.
11. Force Majeure. Server shall not be liable for any failure to perform or other loss due to unforeseen circumstances or causes beyond its control, including without limitation acts of God, strikes, material or transportation shortages, natural casualties, governmental regulations, war, fire, flood, disasters and civil unrest.
12. Customer Responsibilities. In addition to any obligations of Buyer set forth in a Statement of Work, Buyer must comply with each of the following obligations as a condition for Server's performance of any Services: (i) Buyer must maintain a separate backup system or procedure that is not dependent on the Products or Services; (ii) Buyer will implement temporary procedures or workarounds provided by Server while Server works on permanent solutions to identified issues; (iii) Buyer will notify Server if Buyer uses any Products in an environment that poses a potential health or safety hazard to Server employees or subcontractors (Server may postpone Services until Buyer remedies such hazards); (iv) Buyer will have a representative present when Server provides Services at Buyer's site; and (v) if Buyer purchases Services that includes documentation updates, Buyer may copy such updates only for systems under such coverage and all copies must include the appropriate Server copyright and trademark notices.
13. Entire Agreement and Severability. This Agreement is the sole and entire agreement between the parties (except for the price or the shipment schedule for the Products contained in either Server's quotation or Buyer's purchase order accepted by Server) and shall not be amended except by a subsequent written document executed by Server. All other provisions of the quotation and Buyer's purchase order void and not binding on either Server or Buyer. If any provision of this Agreement is held by a court of competent jurisdiction to be void, invalid, or unenforceable, the remaining provisions shall remain in full force and effect. In the event of any inconsistency between these terms and conditions and a Statement of Work, these terms and conditions shall control.
14. Governing Law and Venue. This Agreement shall be construed and enforced according to the laws of the State of Nevada, USA, regarding contracts made and wholly performed in Nevada. The United Nations Convention on Contracts for the International Sales of Goods is hereby expressly excluded from application to this Agreement.
15. Export. Buyer warrants that it shall not directly or indirectly export, transfer, or in any way distribute any of the Products, or parts thereof, or any technical data to any country or territory that is prohibited from receiving such materials under any applicable law or regulation of the United States.
16. Assignment. Buyer shall not assign, transfer, or otherwise encumber this Agreement or any part thereof without Server's prior written consent, which shall not be unreasonably withheld. Server may assign its rights and delegate its obligations under these terms and conditions or any associated Statement of Work without Buyer's consent or notice to Buyer.