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1.
Other Documents. This Agreement may NOT be altered, supplemented or
amended by the use of any other document(s) unless otherwise agreed to in a
separate written agreement signed by both you and PeripheralBrain. If you do
not receive an invoice or acknowledgement in the mail or with your Product,
information about your purchase may be obtained by contacting your sales
representative.
2.
Reselling. You may resell Products to end-users approved by
PeripheralBrain, in PeripheralBrain's sole discretion, only after you have
added value to the Products through the addition of hardware, software, or
services. Approval by PeripheralBrain shall not be deemed from the sale of
Product to you. You may not resell to Consumer, Education, Healthcare,
Federal, State or Local sector customers nor to distributors, third party
sales agents, remarket or sell through retail storefronts or auction-type Web
sites. This Agreement is not exclusive. PeripheralBrain may market Products
to any third party directly or indirectly without any obligation or liability
to you. This Agreement does not guarantee that you will make any sales of the
Products. You determine or set your resale Product pricing. PeripheralBrain
reserves the right to restrict or prohibit your participation in certain
promotions, add, modify, or discontinue pricing, Products and/or parts.
PeripheralBrain may require you to meet additional obligations not outlined
herein, which will be disclosed to you prior to your purchase of Products.
You will provide PeripheralBrain such information and reports as may
reasonably be requested by PeripheralBrain.
3.
Trademarks; Copyrights. You may use the
"PeripheralBrain" name and PeripheralBrain's product names solely
for the purpose of accurately identifying the PeripheralBrain-branded
Products you market and/or sell under this Agreement. You agree to change or
correct, at your own expense, any material or activity that PeripheralBrain
decides is inaccurate, objectionable or misleading or a misuse of PeripheralBrain's
name, trademarks, service marks, or PeripheralBrain's logos or copyrighted
works. You may not use the PeripheralBrain name and PeripheralBrain's product
names for any other purpose. You may not use other PeripheralBrain trademarks
or service marks, or PeripheralBrain's logos or copyrighted works, at any
time. You are prohibited from referring to yourself as an authorized reseller
of PeripheralBrain, implying that you and PeripheralBrain are partners,
creating the impression that PeripheralBrain is affiliated with you or has
sponsored, authorized, approved or endorsed your business, or any offer or
any marketing, advertising or promotion thereof. You may not register or use
any domain name or business name containing or confusingly similar to any
name or mark of PeripheralBrain's or cortex system. You will clearly and prominently identify
yourself in all offers and advertising, marketing and promotional materials
relating to this Agreement.
4.
Quotes; Orders; Payment Terms; Interest. Payment terms are within PeripheralBrain's
sole discretion. You agree not to violate the terms of any offer or
concession made available by PeripheralBrain. PeripheralBrain may invoice
and/or ship parts of an order separately. PeripheralBrain reserves the right
to cancel an order or transaction, in whole or in part. If you breach the
provisions of this Agreement or the terms of any offer, PeripheralBrain may
charge or re-debit your account or credit card the full list price for your
purchase (in lieu of a discounted or special price included in the offer).
You agree to pay interest on all past-due sums at the highest rate allowed by
law. You hereby grant PeripheralBrain, and PeripheralBrain hereby retains, a
purchase money security interest and lien on any and all of your rights, title
and interest in Products, wherever located, and all replacements or proceeds
of the Products, until the invoice for the applicable Products is paid in
full, including any late charges and costs of collection. You consent to
PeripheralBrain's use of this Agreement, as well as Product invoices, as
financing statements for protecting this security interest and appoint
PeripheralBrain as your agent for service of process. Unless you and
PeripheralBrain have agreed to a different discount, PeripheralBrain's standard
pricing policy for PeripheralBrain-branded systems, which include both
hardware and services in one discounted price, allocates the discount off
list price applicable to the service portion of the system to be equal to the
overall calculated percentage discount off list price on the entire system.
5.
Shipping Charges; Taxes. Shipping dates provided by
PeripheralBrain are estimates only. Shipping and handling are additional and
will be shown on the invoice(s) or other documentation. Loss or damage that
occurs during shipping by a carrier selected by PeripheralBrain is
PeripheralBrain's responsibility. Loss or damage that occurs during shipping
by a carrier selected by you is your responsibility. Unless you provide
PeripheralBrain with a valid and correct tax exemption certificate applicable
to the Product ship-to location at the time of purchase, you will be
responsible for sales and all other taxes associated with the order, however
designated, except for PeripheralBrain's franchise taxes and taxes on PeripheralBrain's
net income.
6.
Title; Risk of Loss; Insurance. Title to products passes
from PeripheralBrain to you on shipment from PeripheralBrain's facility or
third party manufacturers facility. Title to software will remain with the
applicable licensor(s). You will maintain comprehensive general liability,
including products liability, insurance in an amount appropriate for your
business, but in no event less than $1,000,000.00 (US) with an insurance
company having a Best rating of A. Upon PeripheralBrain's request, you will
provide to PeripheralBrain a certificate of such insurance (including any new
or amended certificates of insurance) and/or name PeripheralBrain as an
additional insured.
7.
Warranties. PERIPHERALBRAIN MAKES NO EXPRESS WARRANTIES EXCEPT
THOSE STATED IN THIS SECTION AND IN PERIPHERALBRAIN'S APPLICABLE LIMITED
WARRANTY STATEMENT IN EFFECT ON THE DATE OF THE INVOICE, PACKING SLIP OR
ACKNOWLEDGEMENT OR THE DOCUMENTATION PROVIDED WITH THE PRODUCT(S).
PERIPHERALBRAIN DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING
WITHOUT LIMITATION IMPLIED WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE. THERE ARE NO WARRANTIES BY PERIPHERALBRAIN
FOR NON-PERIPHERALBRAIN BRANDED PRODUCTS, SERVICE OR SOFTWARE PRODUCTS. ALL
SUCH PRODUCTS ARE PROVIDED BY PERIPHERALBRAIN "AS IS". NO REVISION
IN LIMITED WARRANTIES WILL AFFECT PRODUCTS ALREADY ORDERED BY YOU.
8.
Additional Remedies & Responsibilities.
PERIPHERALBRAIN RESERVES THE RIGHT TO DISCONTINUE OR OTHERWISE VOID ANY
WARRANTY, SERVICE OR TECHNICAL SUPPORT IT OFFERS IN WHOLE OR IN PART IF YOU
BREACH ANY OF YOUR OBLIGATIONS UNDER THIS AGREEMENT OR IF YOU FAIL TO PAY
AMOUNTS DUE FOR PRODUCTS YOU PURCHASE FROM PERIPHERALBRAIN. YOU SHALL BE
SOLELY RESPONSIBLE FOR ALL REPRESENTATIONS OR OMISSIONS YOU MAKE TO YOUR
CUSTOMERS INCLUDING BUT NOT LIMITED TO ANY REPRESENTATION OR OMISSION YOU
MAKE ABOUT PRODUCT WARRANTIES, FEATURES, PERFORMANCE, SUPPORT AND SERVICE.
YOU WILL INFORM YOUR CUSTOMERS OF PERIPHERALBRAIN'S RIGHTS AND YOUR
OBLIGATIONS UNDER THIS AGREEMENT.
9.
Software. All software is provided subject to the license
agreement that is provided with the Product. You agree that you and your
customers will be bound by such license agreement.
10.
No Returns. PeripheralBrain's return policies including but not
limited to PeripheralBrain's Return Policies do not apply to your purchase of
Product or to your customers.
11.
Products. PeripheralBrain's policy is one of on-going Product
update and revision. PeripheralBrain may revise and discontinue Products at
any time without notice to you. PeripheralBrain will ship Products that have
the functionality and performance of the Products ordered, but changes
between what is shipped and what is described in a specification sheet or
catalog are possible. The parts and assemblies used in building Products and
spare parts are selected from new, equivalent-to-new or reconditioned parts
and assemblies.
12.
Limitation of Liability. PERIPHERALBRAIN DOES NOT
ACCEPT LIABILITY BEYOND THE REMEDIES SET FORTH HEREIN, INCLUDING BUT NOT
LIMITED TO ANY LIABILITY FOR PRODUCTS NOT BEING AVAILABLE FOR USE OR FOR LOST
OR CORRUPTED DATA OR SOFTWARE, LOST PROFITS, LOSS OF BUSINESS, YOUR BREACH OF
THIS AGREEMENT OR THE PROVISION OF SERVICES AND SUPPORT. PERIPHERALBRAIN WILL
NOT BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT OR PUNITIVE DAMAGES,
EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY
THIRD PARTY EXCEPT AS EXPRESSLY PROVIDED HEREIN. NOTWITHSTANDING ANYTHING IN
THIS AGREEMENT OR ON OUR WEB SITE TO THE CONTRARY, PERIPHERALBRAIN IS NOT
RESPONSIBLE FOR INFORMATION YOU PROVIDE TO US UNLESS YOU HAVE A SEPARATE
WRITTEN AGREEMENT OTHERWISE. YOU AGREE THAT FOR ANY LIABILITY ARISING FROM OR
RELATED TO THE PURCHASE OF ANY PRODUCTS, PERIPHERALBRAIN IS NOT LIABLE OR
RESPONSIBLE FOR ANY AMOUNT OF DAMAGES ABOVE THE AGGREGATE DOLLAR AMOUNT
INVOICED BY PERIPHERALBRAIN FOR THE RESPECTIVE PRODUCTS. NOTWITHSTANDING
ANYTHING IN THIS AGREEMENT TO THE CONTRARY, THE REMEDIES SET FORTH IN THIS
AGREEMENT SHALL APPLY EVEN IF SUCH REMEDIES FAIL THEIR ESSENTIAL PURPOSE.
13.
Service and Support. Service offerings may vary from product to
product. If you purchase optional services and support, PeripheralBrain or a
third party service provider will provide the optional service and support to
you or your customer in the United States in accordance with the terms and
conditions in effect at the time of your purchase by telephone at (918)682-7482 or as may be mailed to you. PeripheralBrain may, at its
discretion, revise its general and optional service and support programs and
the terms and conditions that govern them without prior notice to you or your
customer. PERIPHERALBRAIN HAS NO OBLIGATION TO PROVIDE WARRANTY OR SUPPORT
SERVICES TO YOU OR YOUR CUSTOMERS UNTIL PERIPHERALBRAIN HAS RECEIVED FULL
PAYMENT FOR THE PRODUCT THAT YOU PURCHASE. To transfer service, contact
PeripheralBrain's customer service or go to:
http:// www.cortexsystem.com
14.
YOUR INDEMNITY TO PERIPHERALBRAIN. To the fullest extend
permitted by law, you will indemnify, defend and hold PeripheralBrain,
including PeripheralBrain's partners, officers, directors, agents, employees,
subsidiaries, affiliates, parents, successors and assigns, harmless from any
claim, demand, cause of action, debt or liability (including reasonable
attorneys fees, expenses and court costs) arising from: (a) your
modification(s) of and/or addition(s) to Product(s); (b) your breach of this
Agreement, (c) your omissions, misrepresentations, or negligence, and (d) the
Products sold by you damage a third party to the extent such claim is based
on (i) your modification of and/or addition to the Products, misuse or abuse
of the Products, negligence or breach of any provision in this Agreement;
(ii) your failure to abide by all applicable laws, rules, regulations and
orders that affect the Products; (iii) your omission, misrepresentation, or
negligence, or (iv) you or your end-users cause intentional harm to any
person or property. Indemnified claims, debts and liabilities include the
amount of any discount in price or concession that is made available by
PeripheralBrain to you.
15.
Dispute Resolution. The parties will attempt to resolve any
claim, or dispute or controversy (whether in contract, tort or otherwise)
against PeripheralBrain, its agents, employees, successors, assigns or
affiliates (collectively for purposes of this paragraph,
"PeripheralBrain") arising out of or relating to this Agreement,
PeripheralBrain's advertising, or any related purchase (a "Dispute")
through face to face negotiation with persons fully authorized to resolve the
Dispute or through mediation utilizing a mutually agreeable mediator, rather
than through litigation. If the parties are unable to resolve the Dispute
through negotiation or mediation within a reasonable time after written
notice from one party to the other that a Dispute exists, the Dispute will be
settled by binding arbitration in accordance with the then current CPR Rules
for Non-Administered Arbitration. The Arbitration will be conducted before
three (3) independent and impartial arbitrators. PeripheralBrain will appoint
one (1) arbitrator and the other party or parties will appoint one (1)
arbitrator. The two (2) appointed arbitrators will then select a third
arbitrator, who shall be the presiding arbitrator. The arbitration hearing
shall take place in Oklahoma and will be governed by the United States
Federal Arbitration Act to the exclusion of any inconsistent state laws. The
arbitrators shall base their award on the terms of this Agreement, and will
follow the law and judicial precedents that a United States District Judge
sitting in the Eastern District of Oklahoma would apply to the Dispute. The
arbitrators shall render their award in writing and will include the findings
of fact and conclusion of law upon which their award is based. Any court of competent jurisdiction may
enter judgment upon the arbitration award. The existence or results of any
negotiation, mediation or arbitration will be treated as confidential.
Notwithstanding the foregoing, either party will have the right to obtain
from a court of competent jurisdiction a temporary restraining order,
preliminary injunction or other equitable relief to preserve the status quo
or prevent irreparable harm, although the merits of the underlying Dispute
will be resolved in accordance with this paragraph.
16.
Independent Contractors. No provision of this
Agreement will or shall be deemed to create a partnership, joint venture or
other combination between PeripheralBrain and you. You and PeripheralBrain
are independent contractors. Neither party will make any warranties or
representations or assume any obligations on the other party's behalf.
Neither party is nor will claim to be a legal representative, partner,
franchisee, agent or employee of the other party. Each party is responsible
for the amounts it incurs arising from this Agreement and for the direction
and compensation, and is liable for the actions of, its employees and
subcontractors.
17.
Governing Law. THE LAWS OF THE STATE OF OKLAHOMA GOVERN
THIS AGREEMENT, EXCLUDING ITS CONFLICTS OF LAWS RULES AND EXCLUDING THE
UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS.
18.
Export. You acknowledge that the purchased goods licensed
or sold under this Agreement, and the transaction contemplated by this
Agreement, which may include technology and software, are subject to the
customs and export control laws and regulations of the United States
("U.S.") and may also be subject to the customs and export laws and
regulations of the country in which the products are manufactured and/or
received. You acknowledge that it is your sole responsibility to comply with
and abide by those laws and regulations. Further, under U.S. law, the goods
shipped pursuant to this Agreement may not be sold, leased or otherwise
transferred to restricted countries or utilized by restricted end-users or an
end-user engaged in activities related to weapons of mass destruction,
including without limitation, activities related to the design, development,
production or use of nuclear weapons, materials, or facilities, missiles or
the support of missile projects, and chemical or biological weapons. You
agree not to provide any written regulatory certifications or notifications
on behalf of PeripheralBrain. PeripheralBrain has not tested Products for use
in high-risk activities including but not limited to any life sustaining,
chemical, or mission critical use. PERIPHERALBRAIN WILL NOT HAVE ANY
LIABILITY FOR ANY DAMAGES ARISING FROM THE USE OF THE PRODUCTS IN ANY HIGH RISK
ACTIVITY, INCLUDING, BUT NOT LIMITED TO, THE OPERATION OF NUCLEAR FACILITIES,
AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, MEDICAL
SYSTEMS, LIFE SUPPORT, OR WEAPONS SYSTEMS.
19.
Headings. The section headings used herein are for convenience
of reference only and do not form a part of these terms and conditions, and
no construction or inference shall be derived there from. If any provision of
this Agreement is void or unenforceable, the remainder of this Agreement will
remain in full force and will not be terminated. Neither party will be liable
for any delays resulting from circumstances or causes beyond the party's
reasonable control.
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