TERMS & CONDITIONS OF ACCESS
Please read the following terms and conditions carefully. By accessing, browsing or using the information in this Website, you agree to these terms and conditions. If you do not agree, you should not use this Website. The material provided on or accessed by way of this Website is protected by law, including without limitation, United States copyright laws and international treaties. This Website is controlled and operated by ProSoft Technology from its offices within the State of California, United States of America. A User who accesses this Website from locations outside of the United States does so on his/her own initiative and is separately responsible for compliance with any applicable local law on internet usage and Website access.
ProSoft Technology will use reasonable efforts to include accurate and up-to-date content in this Website. However, information on this Website including illustrations, specifications and dimensions may contain technical inaccuracies or typographical errors. ProSoft Technology makes no warranty or representation as to its accuracy and assumes no liability for and reserves the right to correct such inaccuracies or errors at any time without notice. ProSoft Technology may also make changes, updates and improvements to this Website or these access terms and conditions, at any time without notice. ProSoft Technology may also make improvements and/or changes to the products and/or to the programs described in the content at any time without notice.
The trademarks, service marks, and logos used or displayed on this Website (the "Trademarks") are registered and unregistered trademarks of ProSoft Technology, its affiliates, related companies, licensors, and/or joint venture partners. The use or misuse of these trademarks, or any other content of this Website, except as permitted herein, is expressly prohibited and may be in violation of intellectual property laws which shall be aggressively enforced. ProSoft Technology prohibits use of any ProSoft Technology trademark as a "hot" link to this Website without prior written permission granted.
This Website may contain links to third-party Websites. Such linked Websites are not under the control of ProSoft Technology, and ProSoft Technology assumes no responsibility for the contents of any such linked Website, any link contained in a linked Website, any changes or updates to such linked Websites, or any material transmitted or downloaded from any linked Website. ProSoft Technology is providing these links to third-party Websites solely as a convenience to you.
The entire content (images and text) of this Website is copyrighted and may not be distributed, downloaded, modified, reused, reposted or otherwise used, except as provided herein, without the express written permission of ProSoft Technology. You may download content only for your personal, non-commercial use.
This Website is structured so that you can visit without identifying yourself or revealing personal information. You can visit our site and find out about our products and services, read our corporate reports, check on career opportunities, or get news updates and other value-added services. In some circumstance, ProSoft Technology may request personal information such as your name, your company name and contact information. Your response to these inquiries is voluntary. If you choose to provide us with information via this Website or electronic mail, be assured that it will only be used to improve our services and support your relationship with ProSoft Technology. Outside vendors do not have access to our systems and information unless they comply with our rules and adhere strictly to our security standards. We conduct our business in compliance with applicable laws on data privacy and security and take precautions to protect personal identifiable information obtained from our Website visitors against unauthorized access and use. By sending ProSoft Technology any information or material, you grant ProSoft Technology an unrestricted, irrevocable license to use, reproduce, display, modify and/or transmit the information or material, and you also agree that ProSoft Technology is free to use any ideas, concepts, know how or techniques contained in the information or material for any purpose. However, ProSoft Technology will not release your name or otherwise publicize the fact that you submitted information or material to ProSoft Technology unless: a) we ask your permission to use your name; b) we first notify you that the information or material you submit to a particular part of this site will be published or otherwise used with your name on it; or c) we are required to do so by law.
As a convenience to our visitors, ProSoft Technology's web site may contain links to a number of sites not authored and/or owned by ProSoft Technology that we believe may offer useful information. The privacy policies and procedures described here do not apply to those sites. We suggest contacting these sites directly for information on their data collection and distribution policies.
WITHOUT LIMITING THE FOREGOING,THE MATERIALS MAINTAINED ON OR ACCESSED BY WAY OF THIS WEBSITE ARE PROVIDED "AS IS" WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR OTHER VIOLATION OF RIGHTS. PROSOFT TECHNOLOGY DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE, VALIDITY, ACCURACY, OR RELIABILITY OF, OR THE RESULTS OF ANY USE OF, OR OTHERWISE RESPECTING, THE MATERIALS MAINTAINED ON OR ACCESSED BY WAY OF THIS WEBSITE OR ANY WEB WEBSITE LINKED TO THIS WEBSITE. IT IS RECOMMENDED THAT YOU INDEPENDENTLY TEST AND EVALUATE PRODUCTS FOR THEIR INTENDED USE.
UNDER NO CIRCUMSTANCE (INCLUDING NEGLIGENCE AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW) WILL PROSOFT TECHNOLOGY, NOR ANY PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THIS WEBSITE, BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION, BUSINESS INTERRUPTION, DELAYS, LOSS OF DATA OR PROFIT) ARISING OUT OF THE USE OR THE INABILITY TO USE THE MATERIALS MAINTAINED ON OR ACCESSED BY WAY OF THIS WEBSITE OR ANY ERRORS OR OMISSIONS IN ITS CONTENT, EVEN IF PROSOFT TECHNOLOGY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF USE OF SUCH MATERIALS RESULTS IN THE NEED FOR SERVICING, REPAIR OR CORRECTION OF USER EQUIPMENT OR DATA, USER ASSUMES ANY COSTS ASSOCIATED THEREWITH. THEREFORE, YOU AGREE THAT ALL ACCESS AND USE OF THIS WEBSITE AND ITS CONTENT IS AT YOUR OWN RISK.
Any claim relating to this Website or the use of this Website and the materials contained or accessed by way thereof are governed exclusively by the laws of the State of California, United States of America, without regard to conflict of law principles. User agrees and hereby submits to the exclusive personal jurisdiction and venue of the state and federal courts located in Kern County, California, with respect to any such claim.
These general terms and conditions of sale only apply to purchases of ProSoft Technology products and related services made from ProSoft Technology Inc., a California corporation. ProSoft Technology S.A.S., ProSoft Technology (Asia Pacific) S.B., ProLinx Comunicacao Industrial LTDA and ProSoft Technology (Shanghai) Network System Company Limited are wholly-owned subsidiaries of ProSoft Technology Inc., all are herein referred to as “ProSoft”. Purchases made from appointed distributors or other independent resellers will be subject to terms and conditions of sale as may be separately established by each such distributor or reseller, which will in no event be binding upon ProSoft unless otherwise expressly agreed to. However, ProSoft extends its standard Manufacturer’s Warranty to customers purchasing ProSoft products and related services from their local authorized ProSoft Technology distributor or reseller. Such Manufacturer’s Warranty is in lieu of all other warranties, which are expressly disclaimed. Sales and services outside of the United States of America may be subject to separate or supplemental terms and conditions of sale. For further information, please consult your nearest ProSoft Technology sales office. Please visit http://www.prosoft-technology.com/About-Us/Contact-Us for a listing of the applicable office in your region.
These terms and conditions of sale (along with any associated written specification, quotation and/or supplemental terms and conditions provided by ProSoft) will exclusively govern the sale or licensing by ProSoft of all goods and services (including without limitation, hardware, firmware and software products, training, programming, maintenance, engineering, site services, parts, repair and remanufacturing services – hereinafter, "Products") furnished to Customer hereunder, whether such sale or licensing is affected by paper-based transactions or via facsimile or other forms of electronic data interchange (“EDI”) or electronic commerce, and represents the entire Contract between Customer and ProSoft with respect thereto. Customer's receipt or acceptance of delivery of any of the Products ordered or purchased hereunder will constitute its acceptance of these terms and conditions as amended hereto. No alteration or variation to these terms and conditions shall apply unless specifically agreed to in writing by both parties. However, ProSoft reserves the right to affect minor modifications and/or improvements to the Goods before delivery provided that the performance of the Goods is not adversely affected and that neither the Contract Price nor the delivery date is affected. ProSoft objects to and rejects other terms and conditions that may be proposed by Customer or that appear on or are referenced in Customer's purchase order or requisition that are in addition to or otherwise not consistent with the terms and conditions set forth or referenced herein. This Contract gives the Customer specific legal rights. The Customer may also have other rights which vary from jurisdiction to jurisdiction. If any provision of the Contract is invalid under any statute or rule of law, such provision, to that extent only, shall be deemed to be omitted without affecting the validity of the remainder of the Contract.
Prices are firm for delivery within the period stated in ProSoft's quotation and unless otherwise stated in the Contract, are exclusive of Value Added Tax, any similar and other taxes, duties, levies or other like charges arising in connection with the performance of the Contract. Unless otherwise agreed to in writing, payment shall be made in the currency of ProSoft’s quotation within thirty (30) days from date of invoice with ongoing approved credit as determined by ProSoft. ProSoft reserves the right to render invoices electronically and to receive payment by way of electronic funds transfer. Payment by credit card, when permitted, is subject to credit card validation and authorization both at time of Contract and immediately prior to shipment. ProSoft reserves the right to suspend any further performance hereunder or otherwise in the event payment is not made when due. Interest charges may be added to overdue invoices at the rate applicable by law. Without prejudice to ProSoft's other rights, ProSoft reserves the right to suspend performance of the Contract (including withholding shipment) in the event that Customer fails or in ProSoft’s reasonable opinion it appears that Customer is likely to fail to make payment when due under the Contract or any other Contract; and under the same conditions require reasonable security for payment.
Unless otherwise expressly stated in writing, the Goods will be delivered Carriage and Insurance Paid To (CIP) the destination named by the Customer. Freight, packing and handling will be charged at ProSoft’s standard rates. Risk of loss shall pass to Customer upon delivery to carrier. Title transfers at time of shipment, except all title to all intellectual property rights associated with the Products remains with ProSoft or its suppliers and licensors. "CIP", "FCA", “CPT” are the only Incoterms that may be used when placing an order and shall be defined in accordance with Incoterms® 2010. Acknowledged shipping dates are approximate only and based on prompt receipt of all necessary information from Customer. If Customer requires special production service for unusual shipments, an additional charge (expedite fee) shall be imposed by ProSoft as deemed necessary to cover any costs of such service. Where applicable, prepaid shipping will be billed as a separate invoice item. If delivery is delayed due to any act or omission of Customer, ProSoft shall be entitled to place the Goods into a suitable storage at Customer's expense. Upon placing the Goods into the storage, delivery shall be deemed to be complete, risk in the Goods shall pass to Customer and Customer shall pay ProSoft accordingly. If a delivery is not expected to be made on-time, ProSoft will notify Customer and will take all reasonable steps at ProSoft’s own cost to expedite delivery; provided, however, when not prohibited at the time the order is placed, Customer reserves the right, without liability, in addition to its other rights and remedies, to cancel the order if necessary by notice to ProSoft and arrange for completion and/or purchase of substitute items elsewhere and to charge ProSoft with any loss or additional costs incurred as a result of delivery deviation.
New Products: ProSoft warrants that new ProSoft branded hardware Products furnished hereunder will be free from defects in material, workmanship and design for a period of three (3) years from the date of shipment from ProSoft.
Software and Firmware: Unless otherwise provided in a ProSoft or third party license, ProSoft warrants that standard ProSoft branded software or firmware Products furnished hereunder, when used with ProSoft-specified hardware, will perform in accordance with published specifications prepared, approved, and issued by ProSoft for a period of three (3) years from the date of invoice from ProSoft. ProSoft makes no representation or warranty, expressed or implied, that the operation of the software or firmware Products will be uninterrupted or error free, or that the functions contained therein will meet or satisfy Customer's intended use or requirements. ProSoft warrants that (i) it owns or has the right to license the software and materials furnished hereunder; and (ii) it has the right to grant Customer the right and license to use the software and materials furnished hereunder, and to sublicense and resell the software and materials furnished hereunder free and clear of all liens, claims, encumbrances and other restrictions. ProSoft further warrants that upon delivery to Customer, the goods will not contain any virus, “time bomb” or any other contaminant, including but not limited to, codes, commands or instructions that may be used to access, alter, delete, damage or disable software, Customer information or other Customer property.
Partner Products: ProSoft and its appointed distributors sell partner products. All partner products are subject to the original manufacturer’s warranty.
Repair and Upgrade Services: Materials and labor performed by ProSoft to repair a verified malfunction or defect or upgrade previously purchased firmware, are warranted in the terms specified above for new Products, provided said warranty will be for the period remaining on the original new equipment warranty or, if the original warranty is no longer in effect, for a period of ninety (90) days from the date of shipment.
Site Services: ProSoft warrants that it and any Third Party Provider it engages will perform Site Services in a professional manner in accordance with generally accepted industry standards applicable to the Services. This Site Services warranty shall be effective for ninety (90) days following completion of the Services. Customer will reimburse ProSoft for its reasonable time and expense for any Services provided at Customer’s request to remedy problems that are outside the scope of this warranty.
Remanufactured and Discontinued Products: ProSoft warrants that hardware Products sold as Remanufactured (e.g., customer and distributor returns, factory repaired or reconditioned, etc.) or Discontinued Products will be free from defects in material and workmanship for a period of six (6) months from the date of shipment from ProSoft. Repaired or replaced Remanufactured Products provided as a result of this warranty subparagraph are similarly warranted for a period of ninety (90) days from the date of shipment to Customer or the remainder of the original warranty term for that particular Product, whichever is longer. ProSoft will attempt to repair or replace Discontinued Products and will be based on the availability of the components needed to repair the unit(s) or the availability of replacement products.
Cellular Data Service Plans: ProSoft sells 3rd party broadband data service plans to its United States customers for use with the ProSoft cellular radios and gateways. For data service plan purchases through ProSoft, a 2-year data plan purchase is required with renewal due every 2 years. Use of the data service for remote medical monitoring is prohibited. Data service plans are non-cancelable. If a 2-year service plan is not purchased through ProSoft, the customer will be responsible for obtaining a data service plan from their local service provider.
Customer Specifications/Compatibility: ProSoft does not warrant and will not be liable for any design, materials, construction criteria or goods furnished or specified by Customer (including that sourced from other manufacturers or vendors ). Any warranty applicable to such Customer-specified items will be limited solely to the warranty, if any, extended by the original manufacturer or vendor directly or indirectly to Customer. ProSoft does not warrant the compatibility of its Products with the goods of other manufacturers or Customer's application except to the extent expressly represented in ProSoft's published specifications or written quotation.
Recyclable Materials: In keeping with environmental policies and practices, ProSoft reserves the right to utilize in its product manufacturing, repair and remanufacturing processes certain recyclable materials (e.g., fasteners, plastics and the like) or remanufactured parts equivalent to new in performance or parts which may have been subject to incidental use. However, such utilization will not affect any provided Product warranty or published reliability statistics.
Remedies: Remedies under the above warranties will be limited, at ProSoft's option, to the replacement, repair, re-performance or modification of, or issuance of a credit for the purchase price, of the Products or Services involved, and only after the return of such Products pursuant to ProSoft's Return Material Authorization instructions or prompt notification of any claimed breach of warranty of Services. Replacement Products may be new, remanufactured or reconditioned at ProSoft's discretion. Costs in connection with or as a result of such defective or nonconforming Products, including, cost to transport the Products from Customer to ProSoft and return shipment to Customer, will be borne by ProSoft. The foregoing will be the exclusive remedies for any breach of warranty or breach of the Contract arising there from.
General: Warranty satisfaction is available only if (a) ProSoft is provided prompt notice of the warranty claim and (b) ProSoft's examination discloses that any alleged defect has not been caused by misuse; neglect; improper installation, operation, maintenance, repair, alteration or modification by another party other than ProSoft; accident; or unusual deterioration or degradation of the Products or parts thereof due to physical environment or electrical or electromagnetic noise environment. These warranties do not apply to products acquired by Customer for beta, evaluation, testing, demonstration purposes or other circumstances for which ProSoft does not receive a payment of a purchase price.
THE ABOVE WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESSED, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE, OR PERFORMANCE OR APPLICATION, NON-INFRINGEMENT, SATISFACTORY QUALITY, NON-INTERFERENCE, ACCURACY OF INFORMATIONAL CONTENT,TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW AND SHALL SURVIVE THE TERMINATION OF THE CONTRACT. TO THE EXTENT AN IMPLIED WARRANTY OR CONDITION CANNOT BE DISCLAIMED, SUCH WARRANTY OR CONDITION IS LIMITED IN DURATION TO THE APPLICABLE WARRANTY PERIOD. Rights under the above warranties (subject to noted limitations) extend to Customer's customers if Customer is a ProSoft-appointed distributor or reseller for the Products.
Limitation and Exclusion of Liability
NOTHING IN THESE TERMS OF SALE LIMITS OR EXCLUDES THE LIABILITY OF EITHER PARTY TO THE OTHER FOR: (i) WILLFUL INJURY TO PERSONS OR PROPERTY; (ii) FRAUD OR FRAUDULENT MISREPRESENTATION; (iii) WILLFUL OR NEGLIGENT VIOLATION OF LAW; OR (iv) ANY LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED UNDER APPLICABLE LAW. NOTHING IN THESE TERMS OF SALE LIMITS OR EXCLUDES THE LIABILITY OF THE CUSTOMER TO PROSOFT ARISING OUT OF (I) CUSTOMER’S BREACH OF SOFTWARE LICENSING; OR (ii) ANY AMOUNTS DUE TO PROSOFT UNDER THESE TERMS OF SALE. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, PROSOFT WILL NOT BE LIABLE FOR ANY BUSINESS INTERRUPTION OR LOSS OF PROFIT, REVENUE, MATERIALS, ANTICIPATED SAVINGS, DATA, CONTRACT, GOODWILL OR THE LIKE (WHETHER DIRECT OR INDIRECT IN NATURE) OR FOR ANY OTHER FORM OF INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND. FURTHER, EXCEPT FOR PROSOFT’S INTELLCTUAL PROPERTY INDEMNITY BELOW, IN NO EVENT SHALL PROSOFT’S MAXIMUM CUMULATIVE LIABILITY RELATIVE TO ALL OTHER CLAIMS AND LIABILITIES, INCLUDING OBLIGATIONS UNDER ANY INDEMNITY, WHETHER OR NOT INSURED, WILL NOT EXCEED THE PURCHASE PRICE OF THE PRODUCTS GIVING RISE TO SUCH CLAIMS OR DAMAGES. PROSOFT DISCLAIMS ALL LIABILITY RELATIVE TO GRATUITOUS INFORMATION OR ASSISTANCE PROVIDED BY, BUT NOT REQUIRED OF PROSOFT HEREUNDER. ANY ACTION AGAINST PROSOFT MUST BE BROUGHT WITHIN EIGHTEEN (18) MONTHS AFTER THE CAUSE OF ACTION ACCRUES. THESE EXCLUSIONS AND LIMITATIONS OF LIABILITY WILL APPLY REGARDLESS OF ANY OTHER CONTRARY PROVISION HEREOF AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE, EACH PROVISION HEREOF WHICH PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTY OR CONDITION OR EXCLUSION OF DAMAGES IS SEVERABLE AND INDEPENDENT OF ANY OTHER PROVISION AND IS TO BE ENFORCED AS SUCH.
Intellectual Property Indemnity
Except as excluded herein, ProSoft will defend any suit or proceeding brought against Customer arising out of a claim that the design or construction of ProSoft branded Products sold or licensed hereunder by ProSoft infringes any patent, copyright or trademark granted or registered in any country, provided (a) Customer promptly notifies ProSoft in writing of any such claim and any suit or proceeding, (b) at ProSoft's expense, Customer gives ProSoft the sole right to defend, settle and control the defense of the suit or proceeding, (c) Customer provides all necessary information and assistance for such defense or settlement, and (d) Customer takes no position adverse to ProSoft in connection with such claim. In the event ProSoft is obligated to defend such suit or proceeding, ProSoft will pay all costs and damages finally awarded or agreed upon by ProSoft that are directly related thereto. ProSoft's obligations under this paragraph will be fulfilled if ProSoft, at its option and expense: (i) procures for Customer the right to continue using such Products, (ii) replaces the same with non-infringing equipment/software having functionality similar to that of the Products, (iii) modifies the Products to make them non-infringing while retaining similar functionality, or (iv) if (i)-(iii) are not commercially practical, refunds to Customer the purchase price of the affected Products in exchange for their return. ProSoft will have no obligation to defend or for any other liability with respect to: [a] any suit or proceeding to the extent based on or arising out of a configuration or modification made, specified or requested by Customer and which is incorporated into or constitutes the Products, [b] the use of the Products in a process or application specified, requested or controlled by Customer or any third parties. As used in this paragraph, the term “Products” shall mean only ProSoft's standard hardware, firmware and software that are generally commercially available, and expressly excludes third-party-branded equipment/software. THIS PARAGRAPH IS IN LIEU OF ALL WARRANTIES OR REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, THAT THE PRODUCTS WILL BE FREE OF THE RIGHTFUL CLAIM OF ANY THIRD PARTY BY WAY OF INFRINGEMENT OR THE LIKE.
Resale of Third-Party Branded Products and Services
NOTWITHSTANDING ANY OTHER PROVISION HEREIN, PROSOFT MAKES NO REPRESENTATIONS, PROVIDES NO INDEMNITIES (INTELLECTUAL PROPERTY OR OTHERWISE), AND DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED RELATIVE TO ANY THIRD-PARTY BRANDED PRODUCT OR SERVICE (INCLUDING TRAINING) WHICH MAY BE RESOLD OR SUBLICENSED BY PROSOFT AS A DISCRETE ITEM HEREUNDER.
Licensed Software and Firmware
Use of Products comprised of software or firmware may be subject to Customer's acceptance of additional terms and conditions set forth in separate ProSoft or third-party license Contracts that will control to the extent necessary to resolve any conflict with the terms and conditions stated or otherwise referenced herein. In the absence of a separate ProSoft's license Contract, Customer is granted a non-exclusive, non-transferable license to use provided ProSoft's software or firmware only in object code form and solely in conjunction with ProSoft-provided Products, with no rights to sublicense, disclose, disassemble, decompile, reverse engineer, or otherwise modify the software or firmware.
Packing and Marking
Customer-specified packing or marking may be subject to additional charges not otherwise included in the price of the Products.
Weights and Dimensions
Published or advertised weights and dimensions are estimates or approximations only and are not warranted.
ProSoft may modify the Product Price List with written notice provided to the Customer thirty (30) days prior to implementation of such modifications. Products quoted will be acknowledged to be valid through date of ProSoft’s quotation. For product orders originating in North America, a $100.00 surcharge will be added to the invoice of any order totaling less than $250.00. Prices do not include sales, use, excise, customs, value-added or similar taxes. Customer will pay or reimburse ProSoft for all such taxes as may be applicable. Time and material services will be provided in accordance with ProSoft's published service rates (including applicable overtime and travel expenses) in effect as of the date such services are provided, unless otherwise confirmed by ProSoft's written quotation or order acknowledgment. Billable service time includes travel time to and from the job site and all time ProSoft's representatives are available for work and waiting (whether on or off the job site) to perform the services.
Changes and Substitutions
Customer-requested order changes, including those affecting the identity, scope and delivery of the Products, must be documented in writing and are subject to ProSoft's prior approval and adjustments in price, scheduling and other affected terms and conditions. In any event, ProSoft reserves the right to reject any change that it deems unsafe, technically unadvisable or inconsistent with established engineering or quality guidelines and standards, or incompatible with ProSoft's design or manufacturing capabilities. ProSoft further reserves the right to substitute using the latest superseding revision or series, or equivalent Product having comparable form, fit and function.
Changes in Products
ProSoft shall have the right at its discretion, without incurring any liability, to discontinue or limit its production or deliveries of any Product and alter the design, materials or construction of any Product.
All returns of Products will be pursuant to ProSoft's instructions. Warranty returns of unused and resalable Products for credit will be subject to ProSoft's return policies in affect at the time, including applicable restocking charges and other conditions of return. Products returned under warranty must be properly packed and include all accessory items included in the original shipment. ProSoft reserves the right to adjust the credit amount due to customer should these items not be returned. Returned products should be shipped to ProSoft-specified locations. Shipping containers must be clearly marked per ProSoft's instruction and shipped freight prepaid by Customer.
Cancellation by Customer prior to shipment is permitted only by written notice and is subject to ProSoft's prior approval and upon payment to ProSoft of reasonable cancellation and restocking charges, including reimbursement for direct costs. Due to contractual obligations, cancellation of cellular service plans provided by 3rd party providers are not eligible for early termination. Cancellation charges associated with orders for custom Products, large quantity orders or Products specifically manufactured to Customer's specification may equal the actual selling price of the Products. ProSoft has the right to cancel an order for cause at any time by written notice, and ProSoft will be entitled to cancellation and restocking charges as identified above. No cancellation by Customer for cause will be effective unless and until ProSoft has failed to correct such alleged cause within forty-five (45) days after receipt of Customer's written notice specifying such cause.
Non-cancelable/Non-returnable (NCNR) Products
Orders for Product considered NCNR may not be cancelled and may not be returned for credit. Customer agrees to purchase the quantities ordered. Customer also agrees that all purchases of items designated as NCNR are final, and ProSoft has no obligation to accept the return of any NCNR items for any reason unless the Product is found to be damaged or defective when received by the Customer, as long as the Customer notifies ProSoft within 10 days of receipt of any defective or damaged product.
The Contract (other than Customer's obligation to pay all sums due to ProSoft in accordance with the Contract) shall be suspended, without liability, in the event and to the extent that its performance is prevented or delayed due to any circumstance beyond the reasonable control of the party affected, including but not limited to: Act of God, war, armed conflict or terrorist attack, riot, fire, explosion, accident, flood, sabotage; governmental decisions or actions (including but not limited to prohibition of exports, re-exports or the failure to grant or the revocation of applicable export licenses), or labor trouble, strike, lockout or injunction. For purposes of this paragraph, a “cause beyond its reasonable control” will not include international currency fluctuations or revaluations. ProSoft shall have no obligation to supply hardware, software or technology or to provide services in the absence of government permits or fulfillment of statutory conditions of exemption from such permits within the framework of import and export control (in particular, according to the regulations applicable in the United States, the European Union and the jurisdiction in which ProSoft has its registered office or from which components of the Goods are supplied) and the underlying circumstances could not be foreseen by ProSoft and are outside of ProSoft’s sphere of influence. In the event of revocation of issued government permits or in the event of a change in the applicable statutory import and export control regulations such that ProSoft is prevented from fulfilling the Contract, ProSoft is discharged from the contractual obligation without any liability of ProSoft. If the delay is caused by the delay of a subcontractor of ProSoft and if the delay arises out of causes beyond the reasonable control of both ProSoft and the subcontractor, and without the fault or negligence of either of them, ProSoft will not be liable to the Customer for damages unless the articles or services to be furnished by the subcontractor were obtainable from other sources in sufficient time to permit ProSoft to meet the required delivery schedule. If either party is delayed or prevented from performance of its obligations by reason of this Clause for more than 180 consecutive calendar days, either party may terminate the then unperformed portion of the Contract by notice in writing given to the other party, without liability provided that Customer shall be obliged to pay the reasonable cost and expense of any work in progress and to pay for all Goods delivered and Services performed as accrued at the date of termination.
Compliance with Laws
Products and associated materials supplied or licensed hereunder may be subject to various export laws and regulations. Both ProSoft and Customer shall strictly comply with, and adhere to, all applicable U.S. and non-U.S. laws and regulations pertaining to environment, health and safety, economic sanction laws, trade, import and export control. Specifically, both Parties covenant that it shall not - directly or indirectly - sell, provide, export, re-export, transfer, divert, loan, lease, consign, or otherwise release or dispose of any equipment, product, commodities, services, software, source code, or technology received under this Contract to or via any individual, entity, or destination, or for any use prohibited by the laws or regulations of the United States or any other applicable jurisdiction without having obtained prior authorization from the competent governmental authorities as required by all such laws and regulations. In the event that any required export authorization is denied, ProSoft will be relieved of any further obligation relative to the sale and/or license and delivery of the Product(s) subject to such denial without liability of any kind relative to Customer or any other party.
In addition, these regulations prohibit any person, whether U.S. on non-U.S., from exporting or selling, directly or indirectly to or for any proliferation related end us (nuclear weapons, missile technology or chemical/biological weapons applications). ProSoft will not comply with boycott related requests except to the extent permitted by U.S. or international laws and then only at ProSoft's discretion. By placing an order with ProSoft, Customer represents, warrants and covenants that Customer has not paid, offered to pay, agreed to pay, or authorized or caused to be paid, directly or indirectly, any money or anything of value to any foreign official (as defined in the FCPA) to induce such official to use their influence to obtain an improper business advantage in connection with the purchase and resale of the Products, nor will Customer do so at any time in the future. The export obligations under this clause shall survive the expiration or termination of this Contract.
Customer shall defend, indemnify and hold harmless ProSoft and its affiliates from and against any and all claims and demands, and related liabilities, damages and expenses (including reasonable attorneys’ fees), for or in connection with any property damage or any injury to or illness or death of any person (including loss of income, profits, sales or “down time”) arising from or related to the Products, including such claims and demands brought by any employee, agent or subcontractor of Customer for Customer’s failure to comply with ProSoft’s published instructions and specifications concerning the operation, use and maintenance of the Products, except any claim, demand, liability, damage or expense proven to be the result of the negligence of ProSoft and not contributed to by the negligence of Customer, its agents, employees, officers or directors or other third parties.
The parties will attempt in good faith to promptly resolve any dispute arising hereunder by negotiations between representatives of the parties who have authority to settle the dispute. If unsuccessful, the parties further will attempt in good faith to settle the dispute by non-binding third-party mediation, with mediator fees and expenses apportioned equally to each side. Any dispute not so resolved by negotiation or mediation may then be submitted to a court of competent jurisdiction in accordance with the terms hereof. These procedures are the exclusive procedures for the resolution of all such disputes between the parties.
Governing Law and Forum
This Contract shall in all respects be governed and construed in accordance with the laws of the State of California, with the provisions of the 1980 United Nations Convention of Contracts for the International Sale of Goods being excluded, and to the fullest extent permitted by law, shall be without regard to any conflict of laws or rules which might apply the laws of any other jurisdiction. Any suit, action, or proceeding against ProSoft concerning this Contract shall be brought in the courts of the jurisdiction of the State of California and Customer hereby irrevocably submits to the exclusive jurisdiction of such state. Should any term or provision hereof be held wholly or partly invalid or unenforceable under applicable law, the remainder of the Contract evidenced hereby will not be affected thereby.
The Contract evidenced hereby may not be assigned by either party without the written consent of the other, which consent will not be unreasonably withheld. However, consent will not be required for internal transfers and assignments as between ProSoft and its parent company, subsidiaries or affiliates as part of a consolidation, merger or any other form of corporate reorganization.
The parties acknowledge that they have required that the Contract evidenced hereby be drawn up in English. In the event of a conflict between the English and other language versions, the English version will prevail.
The Customer shall not disclose to ProSoft any confidential information which Customer possesses unless ProSoft has, prior to such disclosure, agreed in writing to accept such information as confidential under clearly defined obligations of confidence. Customer represents and agrees that all information disclosed to ProSoft by Customer (except such information as is specifically subject to a confidentiality Contract signed by ProSoft prior to disclosure) is non-confidential, and that ProSoft is free to use and disclose any or all such information without accounting to Customer therefore, notices on Customer’s drawings, proposals, specification and other documents to the contrary notwithstanding.
This Contract contains the entire Contract between the parties with respect to its subject matter and supersedes any terms and conditions contained in any pre-printed forms of Customer and ProSoft, including acknowledgments, invoices, purchase orders, schedule agreements, and all prior and contemporaneous Contracts, understandings, negotiations, and discussions of the parties, whether oral or in writing. It will be binding upon and inure to the benefit of the parties and their respective successors and assigns. No supplement, modification, waiver or extension of this Contract will be binding unless executed in writing with a specific reference to this Contract by the party to be bound.