Utiliware Terms and Conditions for Products
THIS AGREEMENT IS A BINDING CONTRACT AND APPLIES TO CUSTOMER’S PURCHASE OF PRODUCTS FROM Utiliware. NO ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS IN ANY FORM DELIVERED BY CUSTOMER TO UTILIWARE APPLY; SUCH ADDITIONAL OR DIFFERENT TERMS ARE HEREBY DEEMED TO BE MATERIAL ALTERATIONS AND NOTICE OF OBJECTION TO AND REJECTION OF SUCH TERMS IS HEREBY GIVEN BY Utiliware.
BY MAKING A PURCHASE FROM OR PLACING AN ORDER WITH UTILIWARE, CUSTOMER AGREES TO BE BOUND BY AND ACCEPTS THESE TERMS AND CONDITIONS UNLESS CUSTOMER AND UTILIWARE HAVE AGREED TO A SEPARATE CONTRACT FOR THE RESALE OF PRODUCTS BY UTILIWARE TO CUSTOMER, IN WHICH CASE SUCH SEPARATE, FULLY-EXECUTED WRITTEN CONTRACT BETWEEN THE PARTIES OR CLICKTHROUGH CONTRACT PROVIDED BY UTILIWARE AND ACCEPTED BY CUSTOMER WILL GOVERN.
Orders placed by Customer are not binding until accepted by Utiliware. This Agreement is subject to change without prior notice; however, the version of this Agreement posted on the Website at the time that Customer placed an order will govern such order unless otherwise agreed in writing by Utiliware and Customer.
- Agreement means these terms and conditions;
- Customer means the entity ordering and/or purchasing Products from Utiliware; Products means products and services that Utiliware resells from Third Party Providers including but not limited to hardware, software, subscription services, updates, bug fixes, maintenance services, support services, warranty services and professional services;
- Utiliware means Utiliware Corporation, as the case may be, and any of Utiliware’s affiliates, subsidiaries or parent companies as the case may be;
- Third Party Provider means the manufacturer, distributor, licensor or provider of the Product which is resold by Utiliware, as the case may be; and Website means this website or any other website operated by Utiliware.
2. Resellers Only
3. Warranty Disclaimers
- If applicable and permitted by the Third Party Provider, Utiliware will pass through to Customer any warranties provided to Utiliware by the Third Party Provider for a Product. This limited obligation to pass through warranties provided by the Third Party Provider to Customer is Customer’s sole remedy and Utiliware’ sole obligation in connection with representations, warranties and conditions related to Products. UTILIWARE MAKES NO WARRANTIES, REPRESENTATIONS OR CONDITIONS IN CONNECTION WITH THE PRODUCTS WHETHER EXPRESS OR IMPLIED, IN FACT OR IN LAW, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABLE QUALITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. Customer acknowledges that no employee of Utiliware is authorized to make any representation or warranty on behalf of Utiliware that is not in this Agreement.
4. No Indemnification from Utiliware
- To the extent that a Third Party Provider provides indemnities to Utiliware, including but not limited to, indemnification against liability for infringement of a third party’s proprietary rights, and to the extent that such Third Party Provider permits the transfer of such indemnities to Customer, Utiliware will pass such indemnities through to Customer. Utiliware does not directly provide any indemnities in connection with the Products. Further, Customer expressly waives any claim that it may have or allege to have against Utiliware based on any product liability or infringement or alleged infringement of any patent, copyright, trade secret or other intellectual property right with respect to any Product and also waives any right to indemnification from Utiliware against any such claim made against Customer by a third party.
5. Limitation of Liability
- UTILIWARE’S TOTAL AND AGGREGATE LIABILITY FOR ANY LOSS, DAMAGE, COST OR EXPENSE SUFFERED OR INCURRED BY CUSTOMER ARISING OUT OF OR IN CONNECTION WITH THE CUSTOMER’S ORDER OR PURCHASE OF PRODUCTS, UTILIWARE’S SUPPLY OF PRODUCTS OR THIS AGREEMENT IS HEREBY LIMITED TO THE LESSER OF: (A) THE DOLLAR AMOUNT PAID BY CUSTOMER FOR THE PRODUCT GIVING RISE TO THE CLAIM IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING SUCH CLAIM; OR (B) TEN-THOUSAND ($10,000.00) UNITED STATES DOLLARS.
- IN NO EVENT SHALL UTILIWARE BE LIABLE TO THE CUSTOMER FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES. Utiliware SHALL HAVE NO LIABILITY FOR THE FOLLOWING: (I) LOSSES OF REVENUE, INCOME, PROFIT OR SAVINGS; (II) LOST OR CORRUPTED DATA OR SOFTWARE, LOSS OF USE OF SYSTEMS(S) OR NETWORK(S), OR THE RECOVERY OF SUCH; (III) LOSS OF BUSINESS OPPORTUNITY; (IV) BUSINESS INTERRUPTION OR DOWNTIME; (V) LOSS OF GOODWILL OR REPUTATION; OR (VI) PRODUCTS NOT BEING AVAILABLE FOR USE OR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR OTHER GOODS.
- The foregoing limitations, exclusions and disclaimers shall apply to any and all claims, regardless of whether the alleged or actual damages were foreseeable or a claim for such damages is based in contract, warranty, strict liability, negligence, tort or otherwise. Insofar as applicable law prohibits any limitation on liability herein, the parties agree that such limitation will be automatically modified, but only to the extent so as to make the limitation compliant with applicable law. The parties agree that the limitations on liabilities set forth herein are agreed and bargained-for allocations of risk and Utiliware’ compensation for the Products reflects such allocations. Such limitations will apply notwithstanding the failure of the essential purpose of this Agreement or any remedy contained herein and even if a party has been advised of the possibility of any such failure or liability.
6. Title and Acceptance
7. Payment Terms
- Terms of payment are within Utiliware’s sole discretion. Customer is responsible for any applicable sales, use, or other taxes, or federal, provincial, state or local fees or assessments associated with its purchase of Products. Customer agrees to pay the total purchase price for the Products plus all shipping costs (if applicable). All payments shall be made in the lawful currency of the United States. Overdue invoices shall be subject to an interest rate of 1.5% per month (18% annually) calculated monthly from the date payment was due until the date payment is made, without prejudice to any other rights, remedies or recourses which Utiliware may have under this Agreement, at law or in equity. Further, in the event payments are not received in accordance with the Utiliware approved terms of payment, Utiliware may suspend the provision of Products (including subscriptions and related services) until payment is received. Utiliware reserves the right to make adjustments to pricing and Product offerings for reasons including, but not limited to, changing market conditions, Product discontinuation, Product unavailability, manufacturer price changes, supplier price changes, foreign exchange changes and fluctuations, and errors in advertisements. All orders are subject to Product availability. Therefore, Utiliware cannot guarantee that it will be able to fulfill Customer’s orders.
9. Shipping and Delivery
- Utiliware cannot and does not guarantee that it can fulfill Customer’s requests for Products. Delivery times are estimates only and Utiliware shall not be liable for delays. Utiliware will arrange for shipping with the applicable carrier and include shipping costs separately on its invoice to Client. Utiliware will not be liable for handling, duties or customs charges for shipments. Utiliware is not responsible for any damage or loss that may occur to the Products during shipping.
- All returns are subject to Utiliware’s returns policy available on the Website, as amended from time to time. Utiliware will not be responsible for any Third Party Provider’s refusal to accept the return of any Product for any reason.
11. Export Sales
- Customer agrees that it will not divert, use, export or re-export such items contrary to any federal, state or provincial laws in the United States. Customer expressly acknowledges and agrees that it will not export, re-export, or provide such items to any entity or person within any country that is subject to United States economic sanctions imposing comprehensive embargoes without obtaining prior authorization from the applicable authority. Customer also expressly acknowledges and agrees that it will not export, reexport, or provide such items to entities and persons that are ineligible under United States law to receive such items.
12. Entire Agreement
- Subject to a separate, written, fully-executed agreement between Utiliware and Customer for the sale of Products or a click-through contract provided by Utiliware and accepted by Customer for the sale of Products, this Agreement contains the complete agreement between Utiliware and Customer relating to the purchase and provision of the Products and supersedes all prior negotiations, representations and understandings. For greater certainty, purchase orders issued by Customer are issued for administrative purposes only; terms and conditions contained in any such purchase order shall be null and void.
13. Governing Law and Jurisdiction
- The (i) laws that govern the interpretation, construction, and enforcement of this Agreement and all matters, claims or disputes related to it, including tort claims, and (ii) the courts or arbitration bodies that have exclusive jurisdiction over any of the matters, claims or disputes contemplated in sub-section (i) above, will each depend on where Reseller is domiciled, as set forth in San Diego California. In instances where the International Chamber of Commerce is designated below as the court or arbitration body with exclusive jurisdiction of such matters, claims or disputes, then the parties hereby agree that (x) all matters, claims or disputes arising out of or in connection with this Agreement shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce (“Rules”) by one or more arbitrators appointed in accordance with the Rules, (y) judgment on the award rendered by such arbitration may be entered in any court having jurisdiction, and (z) this arbitration clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
14. No Waiver
- No provision of this Agreement may be waived, by any act or omission of either Utiliware or the Customer, and this Agreement may not be amended except by the express written consent of both parties. For greater certainty, forbearance or indulgence by either Utiliware or the Customer in any regard shall not constitute a waiver of any provision of this Agreement.
- Customer may not assign this Agreement or any rights or obligations under this Agreement to a third party without the prior written consent of Utiliware.
- The Parties agree that this Agreement be drafted in the English language.
- In case any one or more of the provisions contained in this Agreement should be invalid, illegal, or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not be in any way affected or impaired thereby.
18. Force Majeure
- Except for a party’s obligation to pay the other party any amount owed in accordance with this Agreement, neither party will be deemed to be in default hereunder or liable for a failure or delay in performance that is caused, in whole or in part, by circumstances including, acts of God, acts, omissions or delays of carriers, embargo, explosion, fire, flood, order of civil or military authority, disease, strike, lockout, war, Product unavailability, or any other causes beyond its control where such event renders impossible or delays a party’s performance. In such an event that impacted party will promptly notify the other in writing and will use commercially reasonable efforts to minimize any resulting delay in or interference with the performance of its obligations under this Agreement. Delivery and performance dates will be equitably extended to the extent of any such delays.
Last Updated: 2023-06-19