Terms and Conditions of Sale
These terms and conditions govern Axcient’s sale of products.
1. Purchase Order Acceptance
THE TERMS OF AXCIENT’S SALE CONTAINED HEREIN APPLY TO ALL QUOTATIONS MADE AND PURCHASE ORDERS ENTERED INTO BY AXCIENT UNLESS THERE IS ANOTHER WRITTEN, SIGNED AGREEMENT COVERING SALES BETWEEN AXCIENT AND THE BUYER. ACCEPTANCE OF PRODUCTS CONSTITUTES ASSENT TO THESE EXCLUSIVE TERMS AND CONDITIONS OF SALE. AXCIENT’S FAILURE TO OBJECT TO PROVISIONS CONTAINED IN ANY COMMUNICATION FROM BUYER SHALL NOT BE DEEMED A WAIVER OF THE PROVISIONS CONTAINED HEREIN. FOR ANY CHANGES AN OFFICER OF AXCIENT MUST SPECIFICALLY AGREE TO THE TERMS CONTAINED HEREIN IN WRITING BEFORE BECOMING BINDING ON EITHER AXCIENT OR THE BUYER. All orders or contracts must be approved and accepted by Axcient at its home office. Purchase orders may not be cancelled or changed except by five (5) weekday’s prior written notice before the order has been shipped.
Except as otherwise specified by Axcient, all invoices for products and services will be at the price indicated by Axcient. The prices for standard products will be reviewed from time to time. Non-standard items are sold on a built to order, non-cancelable, non-returnable basis. All prices will be quoted and billed exclusive of shipping charges, federal, state and local excise sales and similar taxes.
3a. Terms of Payment
Unless otherwise agreed in writing, all orders are payable at the time the order is placed and payment must be completed prior to shipment. Buyer agrees that Axcient retains a purchase money security interest in all Products sold by Axcient to Buyer and to all Products now or hereafter acquired by Buyer and to any proceeds thereof until the purchase price and any other charges due to Axcient, shall have been paid in full. Upon any default by Buyer hereunder, Axcient shall have all rights and remedies of a secured party under the Uniform Commercial Code, which rights and remedies shall be cumulative and not exclusive.
3b. Automated Payment Collection
By enrolling in this recurring payment program, you authorize Axcient: (a) to initiate recurring automated clearing house (ACH) debit entries or debit card payments from the checking or savings account you specify, or (b) to initiate recurring charges from your specified credit card. The amount debited from your checking or savings account or charged to your credit card every month will be the then current balance on your account. Your current balance is the amount on your Axcient statement, plus additional charges billed to your account after your statement was issued, less credits or payments posted to your account after your statement was issued. Once your enrollment is processed, all payments will be automatically withdrawn from your specified checking or savings account or charged to the designated credit or debit card on the Axcient statement due date, unless you terminate your authorization in the manner described herein.
You agree to be bound by any rules your financial institution requires for preauthorized electronic funds transfers and/or that your debit or credit card issuer requires for preauthorized debit or credit card transactions. You are responsible for all fees charged by your financial institution associated with the preauthorized payment option.
YOU HAVE THE RIGHT TO TERMINATE YOUR AUTHORIZATION AT ANY TIME ONLINE BY CALLING AXCIENT AT 1-800-352-0248 AND TERMINATING YOUR AUTHORIZATION WITH AN AXCIENT CUSTOMER ACCOUNT EXECUTIVE.
You must update all changes to your checking/savings account or credit/debit card information by logging into your account at https://system.na1.netsuite.com/app/login/secure/privatelogin.nl?c=4046266. If you do not update your checking/savings account or credit/debit card information and Axcient is unable to charge your credit card or withdraw funds from your debit card, checking or savings account for the amount due, you may be subject to applicable late fees, returned item charges and any fees or charges assessed by your financial institution.
Axcient will make your monthly statement available to you online. You can access your monthly statement by logging into your account at https://system.na1.netsuite.com/app/login/secure/privatelogin.nl?c=4046266 and choosing the See All Transactions link on the dashboard.
AXCIENT SHALL BEAR NO LIABILITY OR RESPONSIBILITY FOR ANY LOSSES OF ANY KIND THAT YOU MAY INCUR AS A RESULT OF A PAYMENT MADE ON ITEMS INCORRECTLY BILLED OR FOR ANY DELAY IN THE ACTUAL DATE ON WHICH YOUR ACCOUNT IS DEBITED OR YOUR CREDIT CARD IS CHARGED.
Axcient reserves the right to change these terms or terminate this Program at any time. Notice may be given on or with your statement or by other methods.
These terms do not in any way terminate, amend or modify other terms, agreements or policies that apply to your Axcient account or any Axcient services you receive or other agreements you may have with Axcient.
4. Title and Delivery and Acceptance of Products
Unless otherwise instructed in writing, Axcient shall ship F.O.B. destination by shipment method specified. Transportation costs are not included in pricing. Title shall pass to Buyer when delivered to Buyer and when payment has been made in full. All shipping dates and quantities are approximate. Axcient will use reasonable efforts to fill all orders according to the agreed schedule and quantity. Axcient shall not be responsible for any failure to perform resulting from unforeseen circumstances or causes beyond Axcient’s reasonable control. All products are deemed accepted thirty (30) days after delivery. Revocation of acceptance of substantial nonconformity must be made in writing and must be submitted within thirty (30) days of delivery.
5. Limited Warranty and Sole Remedy
AXCIENT MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESSED OR IMPLIED INCLUDING WARRANTIES OF MERCHANTABILITY, INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, COURSE OF PERFORMANCE, USAGE OF TRADE OR COURSE OF CONDUCT AND DISCLAIMS THE SAME EXCEPT AS FOLLOWS:
HARDWARE WARRANTY FOR ALL HARDWARE PRODUCTS OTHER THAN THOSE DESIGNATED AS “END OF LIFE” (EOL), Axcient warrants to the original purchaser that its hardware Products are free of defect in design, materials and workmanship for a period of three years from the date of delivery of a new Product. Axcient (or its authorized repair center), at its option, will ship replacement parts or replace Product which is proven to the satisfaction of Axcient to have been defective in design, material or workmanship. This warranty shall not apply to any part of the Product, which, in the judgment of Axcient, has been subjected to misuse, negligence, alteration, accident, improper maintenance, or damage by excessive physical or electrical stress. Adjustment of the Product where warning labels, and operation manuals warn against such adjustments will void this warranty. This warranty is void if the unit has been tampered with or the serial number of the Product has been defaced, altered, or removed. This warranty does not apply to expendable components such as fuses or bulbs. Repair and replacement parts will be furnished on an exchange basis and may be either reconditioned or new. All returned replaced parts or products become the property of Axcient. THE SOLE REMEDY FOR BREACH OF LIMITED WARRANTY SHALL BE REPAIR OR REPLACEMENT OF THE DEFECTIVE PRODUCT AT THE OPTION OF AXCIENT.
GENERAL — To quality for the warranty above, the original purchaser must follow this procedure:
- Axcient must be notified in writing within thirty (30) days of the date that the defect is discovered.
- The status of all defective products must have been reviewed by the Axcient Technical support team prior to the issue of an RMA Number. If deemed defective and under warranty, Axcient will then issue a Return Material Authorization (RMA) Number which the purchaser must include with all correspondence and display on the outside of the shipping container when returning the product.
- All Products must be shipped freight and insurance prepaid, in the original shipping container, or in a container providing equal or better protection, with the Return Material Authorization Number displayed on the outside of the container in a prominent manner.
Axcient will return a Product, which qualifies under this warranty freight and insurance, prepaid. Axcient will repair or replace Products which do not qualify under the terms of this warranty at the option of the purchaser, in which case the purchaser will pay the cost of repair, and return freight and insurance. THIS LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS EXPRESSED, IMPLIED OR STATUTORY AND ALL OTHER LIABILITIES OF AXCIENT ALL OF WHICH ARE HEREBY DISCLAIMED. IN NO EVENT WILL AXCIENT BE LIABLE FOR DAMAGES, INCLUDING LOST PROFITS, LOST SAVINGS OR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRODUCT, EVEN IF AXCIENT OR AN AUTHORIZED DEALER HAS BEEN ADVISED OR THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE (U.S.) OR IN YOUR HOME COUNTRY.
Buyer shall indemnify, defend and hold Axcient harmless against all expense, damages, costs or losses, including attorney’s fees, resulting from any suit or proceeding brought for infringement of copyright, patent, trademarks or other intellectual property rights or for unfair competition arising from compliance with Buyer’s design, specifications or instructions. With respect to products manufactured solely to Axcient’s design and specifications, Axcient may, at Axcient’s sole option, obtain a right to use the product, defend or settle on terms acceptable to Axcient, any suit or proceeding brought against Buyer so far as based on a claim that such products or any parts thereof furnished hereunder constitute an infringement of any United States copyright, United States patent or United States mask work rights, if notified promptly of such claim in writing and given authority, information and assistance in the defense of same, and pay all damages and costs awarded therein against Buyer, or refund Buyer’s purchase price for the infringing products. Axcient assumes no liability, consequential or otherwise, for and Buyer agrees to hold Axcient harmless against infringement of patent claims covering completed equipment or any assembly, circuit, combination, method or provisions of this paragraph which exceed the aggregate sum paid to Axcient by Buyer for the purchase of the allegedly infringing products or parts. THE FOREGOING STATES THE ENTIRE WARRANTY BY AXCIENT AND THE EXCLUSIVE REMEDY OF BUYER WITH RESPECT TO ANY ALLEGED COPYRIGHT, PATENT OR OTHER INTELLECTUAL PROPERTY RIGHT INFRINGEMENT BY SUCH PRODUCTS OR PARTS. NO COSTS OR EXPENSES UNDER THIS PARAGRAPH SHALL IN ANY EVENT BE INCURRED FOR THE ACCOUNT OF AXCIENT WITHOUT ITS PRIOR WRITTEN CONSENT. Sale of Products or any part thereof does not convey to Buyer any license, express or by implication, estoppels or otherwise, under any patent or patent claim or other intellectual property right with respect to which Axcient can grant licenses covering completed equipment, or any assembly, circuit combination, method or process in which any such products are used as components (notwithstanding the fact that such products may have been designed for use in or may only be useful in such patented equipment, assembly, circuit, combination, method or process, and that such products may have been purchased and sold for such use). Axcient expressly reserves all rights under such patent or patent claim or other intellectual property right.
7. Property Rights
The design, development or manufacture by Axcient of a product for Buyer shall not be deemed to produce a work made for hire and shall not give to Buyer any copyright interest in the product or any interest in all or any portion of the patent, trademark, mask works, copyright, or other intellectual property rights relating to the product. All such rights shall remain the property of Axcient or its affiliated companies or its suppliers. No license, express or implied with regard to any trademark, trade secret, patent or copyright of Axcient or its affiliated companies or its suppliers is granted to Buyer under this agreement. Software is licensed for use only. All rights not explicitly granted by the terms of the purchased software licenses are reserved.
SPECIAL, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES, INDEPENDENT OF ANY OTHER LIMITATION HEREOF AND REGARDLESS OF WHETHER THE PURPOSE OF SUCH LIMITATION IS SERVED, IT IS AGREED THAT IN NO EVENT SHALL AXCIENT BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL OF INDIRECT DAMAGES OR ATTORNEY’S FEES FOR ANY REASON AND UPON ANY CAUSE OF ACTION WHATSOEVER. AXCIENT’S LIABILITY SHALL BE LIMITED TO THE AMOUNT OF THE ACTUAL PURCHASE PRICE FOR THE PRODUCTS UNDER THIS AGREEMENT.
8. Governing Law; Severability; Miscellaneous
These terms and conditions of sale shall be governed by the laws of the State of Georgia and constitute the entire agreement of Axcient and Buyer. Any provisions hereof which are prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or jurisdiction and forum of any state or federal court within the State of Georgia and waives any right to contest the same or to assert the same as an inconvenient forum. No action against either party for breach hereof shall be commenced more than two (2) years after the accrual of the cause of action. The Buyer shall not assign this order or any interest therein or any rights thereunder without the prior written consent of Axcient. The products purchased or to be purchased hereunder are licensable under U.S. law. Diversion contrary to U.S. law is prohibited. In the event of a default of Buyer under this Agreement, including default for non-payment for Products, Buyer shall be responsible for all reasonable costs of enforcement and collection, including reasonable attorney’s fees, whether or not suit is brought to enforce this Agreement. Buyer must obtain export licenses at Buyer’s cost and Buyer is responsible for all export/import fees, duties or taxes of any kind.
No addition to or deletion from, nor any modifications of these terms and conditions of sale shall be binding upon Axcient unless acknowledged and accepted in writing by an officer of Axcient. Any change made by Axcient will be deemed accepted by Buyer unless within ten (10) days from notice of such change Buyer notifies Axcient of Buyer’s exception of such change. A waiver by Axcient of any default of any of the terms and conditions of sale shall not be deemed to be a continuing waiver of any other default or of any other of these terms and condition of sale, but shall apply solely to the instance to which the waiver is directed.