Cal Flame CU-250B User Manual download pdf (Page 54)

48 FIREYE

System Components

THE FOLLOWING TERMS AND CONDITIONS SHALL GOVERN THE ENTIRE

RELATIONSHIP BETWEEN FIREYE (FIREYE) AND THE PURCHASER INCLUD-

ING, BUT NOT LIMITED TO, ALL NEGOTIATIONS, ORDERS, ACCEPTANCES,

SALES AND DELIVERIES. NO TERM OR CONDITION OR OTHER UNDER-

STANDING, ORAL OR WRITTEN, IN ANY WAY PROPOSING TO VARY OR

EXPAND UPON THESE TERMS AND CONDITIONS, WHETHER CONTAINED IN

THE PURCHASER’S FORMS OR ELSEWHERE, SHALL BE BINDING ON FIREYE,

ITS SUCCESSORS OR ASSIGNS, UNLESS IN WRITING AND SIGNED BY AN

OFFICER OF FIREYE.

1. WARRANTIES, EXCLUSIVE REMEDIES, AND LIMITATION OF DAMAGES:

Fireye guarantees for one year from the date of installation or 18 months from

the date of manufacture to replace, or at its option, to repair any product or part

thereof which Fireye, in its sole discretion, deems to be defective in material or

workmanship or which otherwise fails to conform to the description of the

product on the face of its sales order. Fireye’s obligations pursuant to this

warranty do not extend to any products or parts thereof which Fireye deter-

mines to have been installed, operated, maintained, repaired, or altered improp-

erly or otherwise than in conformity to Fireye’s applicable instructions, or which

have been subject to misuse, accident or neglect.

THE FOREGOING IS IN LIEU OF ALL OTHER WARRANTIES, BOTH EXPRESS

AND IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND

FITNESS FOR A PARTICULAR PURPOSE.

EXCEPT AS SPECIFICALLY STATED IN THESE TERMS AND CONDITIONS OF

SALE, REMEDIES WITH RESPECT TO ANY PRODUCT OR PART MANUFAC-

TURED OR SOLD BY FIREYE, OR WITH RESPECT TO ANY BREACH OF OR

DEFAULT UNDER THIS CONTRACT (INCLUDING ANY BREACH OF

WARRANTY), SHALL BE LIMITED EXCLUSIVELY TO THE RIGHT TO REPLACE-

MENT OR REPAIR F.O.B. FIREYE MAIN WAREHOUSE LOCATION, AS ABOVE

PROVIDED. IN NO EVENT SHALL FIREYE BE LIABLE FOR CONSEQUENTIAL OR

SPECIAL DAMAGES OF ANY NATURE WHICH MAY ARISE IN CONNECTION

WITH SUCH PRODUCT OR PART OR ANY BREACH OF OR DEFAULT UNDER

THIS CONTRACT.

TO THE EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF SELLER

HEREUNDER WHETHER IN CONTRACT, TORT (INCLUDING NEGLEGENCE) OR

OTHERWISE, WILL BE LIMITED TO ONE TIMES THE CONTRACT VALUE,

PROVIDED HOWEVER THE FOREGOING LIMITATION DOES NOT LIMIT THE

LIABILITY OF SELLER FOR ANY INJURY TO, OR DEATH OF A PERSON,

CAUSED BY THE GROSS NEGLEGENCE OF SELLER.

2. ACCEPTANCE OF ORDERS: Fireye shall have no obligation, nor shall Fireye

be bound, with respect to any order, unless the order has been accepted by an

authorized employee of Fireye. At its discretion, Fireye may elect to reject any

orders submitted by Purchaser.

3. SHIPMENT: All prices are F.O.B. Fireye main warehouse location. Method

and route of shipment are at Fireye’s discretion, unless the Purchaser supplies

explicit instructions on the face of the sales order in which case the Purchaser

shall pay any additional transportation costs occasioned by such instructions.

Purchaser assumes all risk of loss or damage to the products during shipment

and is responsible for insuring such products for their purchase price.

4. DELIVERY AND FORCE MAJEURE: Under no circumstances shall Fireye be

liable for any loss, damage or delay due to any cause beyond its reasonable

control, including but not limited to acts of government, strikes, lockouts, other

labor disputes, fire, explosion, theft, weather damage, flood, earthquake, riot,

civil commotion, war, malicious mischief or act of God.

5. TAXES: The amount of any present or future sales, revenue, excise or other

taxes applicable to the products listed herein shall be added to the purchase

price and shall be paid by the Purchaser, or in lieu thereof the Purchaser shall

provide Fireye with a tax exemption certificate acceptable to relevant taxing

authorities.

6. QUOTATIONS AND PRICES: Prices are subject to change without notice and

orders calling for future delivery will be billed according to the price in effect at

the time of delivery. A $100.00 net minimum billing applies to all orders.

Written quotations are effective only if made on Fireye’s standard quotation

form and, in any event, such quotations shall automatically expire sixty (60)

calendar days from the date issued and are subject to earlier termination by

notice at any time during that 60-day period. Payment terms are as stated on

the invoice or net thirty days when not specified.

7. CANCELLATIONS, MODIFICATIONS AND RETURNS: Once placed, orders

may be cancelled or modified by the Purchaser only with the written consent of

Fireye in its sole discretion. If such consent is given and an order is cancelled or

modified, the Purchaser shall reimburse Fireye for all expenses (as determined

by Fireye in its sole discretion) incurred prior to such cancellation or as a result

of such modification and pay such cancellation fee as Fireye may determine in

its sole discretion.

Goods may be returned only with the prior written authorization of Fireye and

shall be subject to such fees and restocking charge as may be determined by

Fireye, in its sole discretion. All goods returned pursuant to Fireye’s authoriza-

tion shall be shipped with shipping charges prepaid and securely packed so as to

reach Fireye without damage.

8. PATENT INFRINGEMENT: If suit is brought against Purchaser alleging

that the manufacture or sale of products sold hereunder infringes any

United States patent (except infringement occurring as a result of incorpo-

rating a design or modification of the goods at Purchaser’s request, or

occurring as a result of Purchaser’s failure to use the goods in the manner

directed and exclusively for the purposes for which they are sold), then

Fireye will defend, indemnify and hold harmless Purchaser and pay any

awards against Purchaser arising from such infringement; provided,

however, that Purchaser has given Fireye (a) prompt written notice of any

charge of such infringement, (b) the right at its expense to settle such

charge or to defend or control the defense of any suit based upon such

charge, and (c) all necessary information and assistance in connection

therewith. In case any product sold hereunder is held to infringe an existing

patent and the use of said product is enjoined. Fireye shall have the option

of either procuring for the Purchaser the right to continue using said

product, or replacing the same with a non-infringing product, or modifying

the same so as to avoid infringement, or removing the same and refunding

the purchase price. THIS PARAGRAPH SETS FORTH FIREYE’S SOLE AND

EXCLUSIVE LIABILITY WITH RESPECT TO PATENT INFRINGEMENT.

9. TRADEMARKS AND TRADE NAMES: Purchaser acknowledges that all brand

names, trade names and trademarks incorporated onto or associated with the

products (collectively, the Marks) purchased hereunder are the exclusive

property of Fireye and that the Purchaser will not acquire any rights in any of the

Marks by purchasing the products hereunder. Purchaser shall not make any use

of the Marks at any time except as otherwise authorized in writing by Fireye.

10. PROPRIETARY INFORMATION/NONDISCLOSURE: Purchaser acknowledges

that any knowledge or information, including drawings and data, which Fireye

may have disclosed or may hereafter disclose to the Purchaser incident to the

placing and filling of this order, shall, at all times, remain the exclusive property

of Fireye, and Purchaser shall acquire no interest in, or right with respect to,

such proprietary information unless otherwise stated in writing by Fireye.

Purchaser further acknowledges that such proprietary information constitutes

valuable, special and unique business assets of Fireye and Purchaser will not

now or at any time in the future use any such information in any manner or

disclose any such information to any person or entity, except as expressly

permitted in writing by Fireye.

11. DEFAULT/REMEDIES AND TERMINATION: In the event that Purchaser fails

to make payment when due for goods shipped to it or otherwise breaches any

provision of this Contract, Purchaser shall be liable for any loss suffered by

Fireye by reason of such action including by not limited to, costs of collection,

attorneys’ fees, loss of Fireye’s profits, and additional freight, storage and

handling costs. In such event, Fireye, at its sole discretion, may also terminate

this Contract, require that any shipment be made C.O.D., demand cash in

advance prior to filling any orders from the Purchaser and place the Purchaser

on credit hold. The above-listed remedies are cumulative and in addition to any

other remedies available to Fireye at law or in equity.

12. INDEMNIFICATION: Purchaser shall indemnify, defend and hold harmless

Fireye from and against any and all claims, losses, liabilities and expenses

(including without limitation, attorneys’ fees) on account of any injuries or

deaths of any persons or damage to any property arising from the sale and use

of goods sold by the Purchaser in which the products sold hereunder are incor-

porated.

13. DISPUTE RESOLUTION: Any disputes arising under this Contract shall be

referred to binding arbitration in Boston, Massachusetts under the commercial

arbitration rules of the American Arbitration Association.

14. GOVERNING LAW: This Contract shall be governed and interpreted in accor-

dance with the laws of the State of New Hampshire. The state courts of New

Hampshire and the U.S. District Court for the District of New Hampshire shall

have exclusive jurisdiction with respect to claims made hereunder.

15. NON-WAIVER: Failure by either party to exercise any of its rights under this

Contract upon one occasion shall not constitute a waiver of its right to exercise

the same or other rights on another occasion.

16. ASSIGNMENTS: Purchaser may not assign or transfer any of its rights or

duties under this Contract without the written consent of Fireye. Fireye may, in

its sole discretion, assign or transfer any or all of its rights or duties under this

Contract to any person or entity, including without limitation any affiliate of

successor.

17. SEVERABILITY: In the event any provision herein should be held unenforce-

able by a court of competent jurisdiction, such court is hereby authorized to

amend such provision so that it will be enforceable to the fullest extent permitted

by law, and all remaining provisions shall continue in full force without being

affected, impaired or invalidated thereby in any way.

Fireye General Terms and Conditions of Sale

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Cal Flame CU-250B User Manual Page 54

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