Quantum3D, Inc. Terms & Conditions of Sale
Revised October 20, 2016
The quotation to which these Terms and Conditions of Sale are attached (the “Quote“) is an offer to sell the quoted hardware and/or software products (the “Products“) and/or services (the “Services“) to the named purchaser (the “Buyer“), conditional on the Buyer’s agreement to the terms and conditions set forth below and Quantum3D, Inc. (“Q3D”) agrees to sell the same only upon these terms and conditions. Except as specifically provided otherwise below, this document constitutes the entire agreement of the parties with respect to the purchase and sale of the Products and/or Services and supersedes all prior understandings or agreements, whether written or verbal. No term or condition of Buyer’s order inconsistent with the terms and conditions hereof shall be binding on Q3D. Any additional or different terms, including but not limited to those on Buyer’s purchase orders (the “Purchase Orders“), are hereby rejected by Q3D and disclaimed by Buyer. Any amendment to these terms and conditions must be in writing, must clearly state that they amend these terms and conditions, and must be signed by an executive officer of Q3D to be binding upon Q3D. Unless otherwise specified in the Quote, or unless withdrawn earlier by Q3D, the Quote will expire thirty (30) days from the date issued.
1. PRICES. (a) Prices in the Quote are in US dollars, include packaging for domestic or international commercial shipment, as appropriate, and are exclusive of any other amounts including without limitation fees for export, special packaging, transportation and insurance, and are payable as per the Quote. (b) Prices do not include any taxes, customs duties or tariffs. When Q3D has the legal obligation to pay or collect any such taxes, duties or tariffs, the appropriate amount shall be paid by Buyer unless Buyer provides Q3D with a valid exemption certificate. Buyer agrees to indemnify and hold Q3D harmless for any liability for any tax, duty or tariff in connection with the sale, as well as the collection or withholding thereof, including penalties and interest thereon.
2. ORDER ACCEPTANCE. Purchase Orders are subject to formal acceptance in writing (via email, by letter or fax) by Q3D’s Order Operations even if received elsewhere by a salesperson, selling agent or others representative. Q3D will use commercially reasonable efforts to confirm or reject any Buyer Purchase Order within five (5) business days of receipt by Q3D’s Order Operations.
3. PAYMENT TERMS. (a) Q3D will invoice Buyer for each shipment. The amount invoiced will include the price of the Products and/or Services plus all applicable taxes, fees, transportation, insurance, and other fees or charges. If all Products in Buyer’s Purchase Order are not shipped at the same time, Q3D will invoice Buyer at the time of shipment for the Products being shipped. Payments should be remitted to: Quantum3D, Inc., 5225 Hellyer Ave., Suite 220, San Jose, CA 95138. (b) For Buyers with approved credit applications on file with Q3D who are currently in good standing with Q3D with respect to payment history, payments are due thirty (30) days after the date of invoice. (c) For all other Buyers, cash in advance of the date of performance of Services or shipment of Products is required by wire transfer or letter of credit. (d) Any unpaid due amounts will be subject to interest at 1.5% per month, or, if less, the maximum rate allowed by law. (e) Unless otherwise agreed to by Q3D, for Products that are to be exported, payment must be by a confirmed, irrevocable letter of credit, sufficient to cover the full amount of the invoice, and shall be made against Buyer’s invoice upon presentation of Q3D’s shipping documents. (f) Q3D shall not be liable under any warranty stated herein if the purchase price has not been paid in full. (g) Q3D may offset amounts Q3D owes to Buyer against amounts Buyer owes to Q3D, whether under the same or a different Purchase Order.
4. SHIPMENT AND TITLE. All Product shipments will be made Ex Works (as defined in Incoterms 2000) Q3D’s facility in either San Jose, CA, or Orlando,FL. Title and risk of loss to Hardware Product(s) passes from Q3D to Buyer upon shipment from Q3D’s facility. Title to Software remains with Q3D or applicable third party licensor(s). Q3D retains a security interest in the Products (and replacements) delivered hereunder and in the proceeds from the sale or disposition thereof until Q3D has received payment in full. Buyer shall, upon request by Q3D, execute all documents (such as a UCC-1 Financing Statement) necessary to perfect such security interest. Notwithstanding the foregoing, Q3D has the right, upon demand, to repossess the Products delivered hereunder if Buyer fails to make timely payment.
5. HARDWARE WARRANTY. (a) Q3D warrants that for a period of twelve (12) months commencing on the date of shipment (the “Hardware Warranty Period”), hardware Products (the “Hardware“) when delivered and properly installed according to the applicable specifications, user’s guide, installation and operations manual, site preparation guide or similar documentation provided by Q3D, will substantially function in the operating environment specified in the applicable Product specification in effect on the date of shipment by Q3D to Buyer. (b) If any Hardware or part thereof contains a defect in materials or workmanship (non-conformance to be determined and established by Q3D exclusively via the applicable Q3D Performance Verification Test (“PVT“) and Q3D receives notice via the Q3D Support Website (www.quantum3d.com/support) or in writing within the Hardware Warranty Period, Q3D will, at its option and expense: (i) repair such defective Hardware or part; (ii) deliver to Buyer an equivalent replacement Hardware or part; or (iii) if repair or replacement are not feasible remedies, refund to Buyer the price paid for the defective Hardware or part. If Q3D elects to repair or replace the defective Hardware or part, such repaired or replaced item will be shipped to Buyer no later than thirty (30) days after Q3D receives the defective Hardware or part, except that batch returns of more than ten (10) units may be subject to a turnaround time greater than thirty (30) days. Upon request, expedited service [twenty-four (24) hour turnaround] will be provided to Buyer if available, at a charge specified by Q3D.
6. SOFTWARE WARRANTY. (a) Warranty for Software Sold in Stand Alone Form. Q3D warrants that for a period of twelve (12) months commencing on the date of shipment from Q3D to Buyer, software Products (“Software“) sold in stand-alone form and not in association with any particular Q3D Hardware Product when properly installed according to the applicable specifications, user’s guide, installation and operations manual, site preparation guide or similar documentation provided by Q3D, will perform in substantial conformance to the stated specifications for such Software. (b) Warranty for Software Sold in Bundled Form. Q3D warrants that for a period of one (1) year commencing on the date of shipment from Q3D to Buyer, Software Products sold in bundled form with Q3D Hardware Products when properly installed according to the applicable specifications, user’s guide, installation and operations manual, site preparation guide or similar documentation provided by Q3D, will perform in substantial conformance to the stated specifications for such Software (non-conformance to be determined and established by Q3D exclusively via the applicable Q3D PVT). (c) Warranty for Software Media. Q3D warrants the media containing Software against failure during the applicable Software warranty period.
7. REMEDY FOR DEFECTIVE SOFTWARE. If any Software contains a defect in materials or workmanship and Q3D receives notice via the Q3D Support Website or in writing within the applicable Software warranty period, Q3D will, at its option and expense: (i) refund the price paid by Buyer for the defective Software; (ii) replace any defective media with Software which substantially conforms to Q3D’s applicable published specifications; or (iii) provide Buyer with access to Q3D Software updates via the Q3D Support Website or other means.
8. SOFTWARE UPDATES. Software updates released by Q3D within ninety (90) days of the date of shipment of the underlying Software to Buyer may be available to Buyer free of charge via Q3D’s Support Website or via other means of conveyance at the sole discretion of Q3D. Software updates released more than ninety (90) days after the date of shipment of the underlying Software sold in standalone form or more than one (1) year after the date of the shipment of the underlying Software sold in bundled form may be purchased by Buyer as part of an extended warranty package or at the applicable list price.
9. INTEGRATED PRODUCTS WARRANTY. (a) Q3D warrants that for a period of twelve (12) months commencing on the date of completion of installation and integration, Products consisting of Hardware bundled together with Software integrated by Q3D (“Integrated Products“) will substantially function in the operating environment specified in the applicable Product specification in effect on the date of completion of integration by Q3D. (b) If any Integrated Product of part thereof contains a defect in materials or workmanship (non-conformance to be determined and established by Q3D exclusively via the applicable Quantum3D PVT) and Q3D receives notice via the Q3D Support Website or in writing within the Integrated Products warranty period, Q3D will promptly re- perform Product installation and integration, at its sole cost and expense; provided, however, that any such corrective action shall not extend the original one-year warranty; and provided further, however, that if Product re-installation and integration is not feasible remedy, in Q3D’s sole determination, Q3D shall refund to Buyer the price paid for the defective Integrated Product or part.
10. INSTALLATION. Where Q3D has undertaken to install Products, Buyer shall provide or arrange such installation space, environment, electrical supply, power points and other facilities as Q3D shall have specified, at no charge to Q3D. If installation is delayed beyond thirty (30) days for reasons not attributable to Q3D, any payment milestone contingent upon installation shall become due.
11. ACCEPTANCE OR REJECTION OF PRODUCTS/SERVICES. After delivery of the Products, or performance of the Services, Buyer shall inspect the Products/Services for conformity to the Purchase Order within a period of fifteen (15) calendar days (the “Acceptance Period“). Acceptance of Products/Services by Buyer shall automatically occur upon the earlier of (a) expiration of the Acceptance Period unless Q3D had received written notice via the Q3D Support Website or as otherwise directed by Q3D, or (b) upon Buyer’s commercial use of the applicable Products/Services.
12. DISCLAIMER. Q3D makes no warranty or representation that: (i) except as provided in the Third Party Products paragraph below, its Hardware or Software will work in combination with any hardware or software products provided by third parties, (ii) that the operation of the Hardware or Software will be uninterrupted or error free, (iii) that the Hardware or Software is specifically fit for any purposes,(iv) that the Software, when used on non-Q3D provided hardware, will deliver performance that is specifically fit for any purpose, or (v) that any or all defects in Hardware, Software or Services will be corrected.
13. THIRD PARTY PRODUCTS. For any third party products included within Q3D Hardware, Software or Integrated Products and/or listed in the Q3D documentation or specifications as being compatible (“Third Party Products“), Q3D will make commercially reasonable efforts to provide compatibility, except where the non-compatibility is caused by a “bug” or other defect in the Third Party Product. All warranties on Third Party Products are passed through to Buyer from the original manufacturer, are between Buyer and such third party only, and Q3D makes no warranties whatsoever as to any such Third Party Products. Q3D is not responsible for any or all incompatibilities, whether caused by “bugs” or other defects in Third Party Products or otherwise.
14. ACTIONS of Others. Q3D shall not be liable under the applicable warranty where the alleged defect was caused by Buyer’s or its end customer’s or any third person’s misuse, neglect, improper other cause beyond the range of the intended use, or by accident, fire, lightning or others hazard.
15. WARRANTIES EXCLUSIVE. To the full extent allowed by law, the foregoing warranties and remedies are exclusive and are in lieu of all other remedies, warranties, terms, or conditions, express or implied, either in fact or by operation of law, statutory or otherwise. Q3D’s warranties herein convey to Buyer and to the ultimate end user (the “End User“), but are not extended to any other third parties. Q3D neither assumes nor authorizes any other person to assume for it any other liability in connection with the sales, installation, maintenance or use of its Products or performance of Services. Replacement Products assume the warranty status of the Product being replaced and have no separate or independent warranty of any kind. OTHER THAN AS EXPRESSLY SET FORTH ABOVE, Q3D MAKES NO WARRANTIES, EXPRESS, STATUTORY, IMPLIED, OR OTHERWISE. Q3D SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES AND CONDITIONS OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY LAW.
16. LIMITATION OF LIABILITY. Q3D’S LIABILITY TO BUYER ARISING OUT OF OR RELATING TO ANY PRODUCTS OR SERVICES SHALL be limited to direct damages to tangible property up to but not to exceed THE AGGREGATE AMOUNTS ACTUALLY PAID BY BUYER TO Q3D FOR SUCH PRODUCTS OR SERVICES. IN NO EVENT SHALL Q3D BE LIABLE FOR COSTS OF SUBSTITUTE PRODUCTS OR SERVICES, LOST PROFITS OR REVENUE, BUSINESS INTERRUPTION, LOSS OF INFORMATION ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRODUCTS, OR ANY SPECIAL, INDIRECT, RELIANCE, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY REGARDLESS OF THE REASON. THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER Q3D HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. The disclaimers of warranty and limitations of liability set forth herein are an essential part of the contract formed by these terms and conditions and have been factored by Q3D into the prices offered in the Quote.
17. RETURNS. Products may not be returned to Q3D without prior authorization. At Q3D’s request and after issuance of a Return Material Authorization (“RMA”) number via Q3D’s Support Website or other methods indicated by Q3D, Buyer or the End User shall return defective Product or part to a receiving point designated by Q3D. Q3D reserves the right to reject shipping cartons that are not marked with appropriate RMA numbers. Buyer/End User will pay the transportation charges for all Products and parts returned to Q3D under warranty in accordance with these terms and conditions. Q3D will pay the transportation charges to return warranted Hardware Products and parts to Buyer/End User. Repaired or replacement Hardware Product exchanged under the limited warranties set forth above may be new or reconditioned. All replaced Hardware Products returned to Q3D become the property of Q3D.
18. BUYER CHANGE ORDER AND CANCELLATION. Any and all changes to Buyer’s Purchase Orders must be provided by written (paper-based or electronically transmitted) notice from Buyer. Any change order increasing the purchase quantity may be accepted by Q3D, if Q3D can satisfy the additional requirements from available capacity and if the additional purchases are within the Buyer’s authorized credit limit, if any. For Purchase Orders not designated as Non-Cancelable/Non-Reschedulable (“NCNR“), if Buyer cancels all or any portion of an order, Buyer agrees to pay a cancellation charge based on the number of days prior to scheduled date of shipment as follows: (i) cancellation 90 or more days prior to scheduled date of shipment, no charge; (ii) 61-89 days, 25% of the net purchase price; and (iii) 31-60 days, 50% of the net purchase price. Cancellation is not permitted 30 or fewer days prior to scheduled date of shipment. For Buyer Purchase Orders designated NCNR, no cancellations or rescheduling of shipment dates is permissible.
19. CHANGES TO SHIPMENT SCHEDULE. For Buyer’s Purchase Orders not designated NCNR, Q3D agrees to use commercially reasonable efforts to meet Buyer’s requested shipment schedule of Products. If Q3D is unable to meet the delivery schedule, Q3D shall provide notice as soon as it is reasonably aware of the situation. Q3D may ship before the scheduled shipment date, but not to arrive earlier than Buyer’s requested shipment date. If Q3D fails to ship on scheduled ship date, Buyer may reschedule delivery at no charge.
20. RESCHEDULING. For Buyer’s Purchase Orders not designated NCNR, if Buyer reschedules all or any portion of an order, Buyer agrees to pay a rescheduling charge equal to a percentage of the net purchase price of the rescheduled Products based on the number of days prior to scheduled date of shipment as follows: (i) rescheduling more than 60 days prior to scheduled date of shipment, no charge, unlimited rescheduling permitted; (ii) 31-60 days, no charge, one permitted reschedule up to 60 days out per Purchase Order; (iii) 0-30 days, 15% of net purchase price charge, one permitted reschedule up to 30 days out per Purchase Order.
21. CANCELLATION FOR DEFAULT. Q3D may, upon written notice to Buyer, cancel any or all Buyer Purchase Orders effective immediately if: (i) Buyer fails to perform any material obligations and such failure is not remedied within fifteen (15) calendar days after notice has been given; (ii) Buyer fails to pay for purchases in accordance with the terms stated herein; (iii) Buyer: ceases doing business as a going concern; makes an assignment for the benefit of creditors; is unable to pay its debts as they become due; files a voluntary petition in bankruptcy; is adjudicated to be a bankrupt or insolvent debtor; files a petition seeking for itself any reorganization; or consents or acquiesces in the appointment of a trustee, receiver or liquidator; or (iv) any proceeding seeking involuntary reorganization, or similar relief is filed against Buyer which is not dismissed within thirty (30) days after filing, or if any trustee, receiver or liquidator of Buyer or any substantial part of its business assets or properties is appointed without Q3D’s consent or acquiescence and such appointment is not vacated within thirty (30) days after such appointment. Any cancellation pursuant to this clause will be in addition to and not in lieu of any other remedies available to Q3D at law or in equity.
22. EXPORT COMPLIANCE. Buyer acknowledges that the Products are subject to U.S. export control laws and regulations, including but not limited to the U.S. Export Administration Regulations and the U.S. International Traffic in Arms Regulations. Buyer shall comply strictly with all U.S. export laws and regulations and assumes sole responsibility for obtaining required export or re-export licenses at Buyer’s sole risk, cost and expense. Buyer shall not directly or indirectly export, re-export or transmit any Products to any country or foreign national thereof to which such export, re-export, or transmission is restricted or prohibited. Buyer shall indemnify and hold Q3D harmless against any liabilities suffered by Q3D for any violation of this provision. Buyer agrees to furnish an End User Statement or End User Certificate for any Product if requested by Q3D prior to the date of shipment.
23. U.S. GOVERNMENT USE; RESTRICTED RIGHTS. Q3D Hardware, Software, and Integrated Products are Commercial, Off-the-Shelf (“COTS“) items and any accompanying documentation have been developed entirely at private expense. They are delivered and licensed as “commercial computer software” as defined in DFARS 252.227-7014 (May 2013), as a “commercial item” as defined in FAR 2.101(a), or as “restricted computer software” as defined in FAR 27.401 (“Definitions”)or any equivalent agency regulation or contract clause, whichever is applicable. Buyer or its End User has only those rights provided for such Software and any accompanying documentation by the applicable FAR or DFARS clause and the applicable Q3D standard software license.
24. GOVERNING LAW, VENUE, LANGUAGE AND EXPENSES. The transactions contemplated herein shall be governed in all respects by the laws of the State of California without regard to conflicts of law rules. In the event that a dispute arises, Buyer and Q3D hereby submit to the exclusive jurisdiction and venue of the state and federal courts located in Santa Clara County, State of California, United States of America. The United Nations Convention on the International Sale of Goods shall not apply. The parties hereby confirm that the English language shall be the governing language of these terms and conditions. The parties also hereby confirm that, in the case of any conflict or claim that results in litigation between the parties related to the sale of Q3D Products, that all costs associated with said litigation, including legal fees, incurred by the prevailing party, shall be paid by the opposing party.
25. FORCE MAJEURE. Q3D will be excused from any obligation to the extent performance thereof is prevented by acts of God, fire, flood, riots, material shortages, strikes, governmental acts, disasters, earthquakes, inability to obtain labor or materials through its regular sources, or any other cause beyond Q3D’s reasonable control.
26. LICENSE AGREEMENTS. Notwithstanding anything to the contrary herein, to the extent the Products are delivered with a Q3D or Third Party Product license agreement(s) (the “License Agreement(s)“), the terms and conditions of such License Agreement(s) shall apply in addition to the terms and conditions set forth herein. To the extent there is a conflict between the terms and conditions of such License Agreement(s) and those set forth herein, the term or condition set forth in the License Agreement(s) shall govern in all cases. Nothing herein shall be construed to grant any rights or license to use any Product or other intellectual property in any manner or for any purpose not expressly permitted by the License Agreement. Unless otherwise granted in a specific Q3D or Third Party Product License Agreement(s), Q3D grants to Buyer and the ultimate End User the right to use Software Products in binary form only, on a specific Q3D or Third-Party hardware platform. No other license is granted, except pursuant to the terms of an appropriate License Agreement(s).
27. CONFIDENTIAL INFORMATION. Buyer acknowledges that Products contain a combination of trade secret, know-how, patent, proprietary, and confidential information of a commercial or technical nature (“Confidential Information”), and are valuable property of Q3D. Buyer agrees to protect Confidential Information with the same confidentiality protections as are used, or should be used, for its own confidential information, and in any case, shall make the best commercial effort to protect such Confidential Information. Confidential Information is and remains the sole property of Q3D (or its licensors, if any). Buyer shall not reverse engineer any Products.
28. PUBLICITY AND USE OF Q3D MARKS. Buyer shall not release any publicity, advertisement, or news release regarding any contract, subcontract or purchase order with Q3D without Q3D’s express written consent. Buyer shall not use any Q3D trade/service marks or trade names (“collectively “marks”) for any purpose whatsoever without the express written consent of Q3D, except as expressly permitted by the rules of use set forth in Q3D’s website.
29. ASSIGNMENT. Q3D may freely assign or pledge the payments due (and the documentation supporting such payment obligation) from Buyer under the applicable Purchase Order, and may assign all of its other rights and obligations by giving Buyer written notice thereof but without being obligated to obtain Buyer’s consent prior thereto. In the event of an assignment, Q3D shall be discharged of any further liability pursuant to the affected Purchase Orders. Buyer may not assign its rights or delegate its obligations under any or all of its Purchase Orders unless Q3D’s written consent is obtained prior thereto and any such assignment without such consent shall be void.
30. SEVERABILITY. If any provision of these terms and conditions is held by a court, government agency or other legal authority of competent jurisdiction to be invalid, illegal or unenforceable, such invalidity, illegality or unenforceability shall not invalidate, void or render unenforceable any other portion of these terms and conditions.
31. SURVIVAL OF TERMS. The termination or cancellation of any Buyer Purchase Order shall not affect the parties’ obligations and rights hereunder which by their nature should be understood to survive such termination or cancellation.
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