1. GENERAL The following terms and conditions apply to all sales of equipment, goods, and services (collectively, “Products” ) by Critical Link, LLC (“Critical Link”, we” or “us”), to you (the “Customer”), and constitutes the final, complete and exclusive agreement (“Agreement”) between Customer and Critical Link relating to the subject matter hereof and supersedes all prior or contemporaneous proposals, understandings, representations, warranties, promises and other communications, whether oral or written relating to such subject matter (including, without limitation, any “Terms and Conditions of Sale” published by Customer), unless otherwise specifically agreed to in a writing signed by Critical Link’s authorized representative. Any term or condition in any order, confirmation, or other document furnished by Customer at any time, which is in any way inconsistent with or in addition to the terms and conditions set forth herein is hereby expressly rejected, and Critical Link’s acceptance of any offer or order of Customer is expressly made in reliance of Customer’s assent to all terms and conditions hereof. Customer’s acceptance of delivery of any Products constitutes Customer’s acceptance of these terms and conditions.
2. PRICE The prices applicable to the Products shall be as quoted by Critical Link to Customer and are subject to change. Stenographic and clerical errors are subject to correction. A quotation is not a contractual offer and any order resulting from a quotation is subject to approval and acceptance by Critical Link.
3. TAXES Applicable taxes, if any, shall be paid by the Customer either directly to the taxing authority, or if collected by Critical Link, to Critical Link upon receipt of Critical Link’s invoice for the amount of the tax.
4. OUT OF POCKET EXPENSES Unless otherwise specified, prices listed or quoted do not include any ordinary and necessary out-of-pocket expenses to be incurred by Critical Link (including, without limitation, all reasonable expenses incurred by Critical Link personnel on travel and project related material) in connection with the delivery of Products hereunder, all of which, if applicable, shall be invoiced to and paid by the Customer and shall include a 15% handling fee. No such expenses shall be incurred by Critical Link without the prior written consent of the Customer.
5. PAYMENT TERMS Unless otherwise agreed to by Critical Link in writing, payment terms shall be net thirty (30) days from the date of invoice. If shipments are delayed by Customer, invoices may be rendered on the date(s) Critical Link is prepared to make shipment(s). Products held as a result of Customer’s inability or refusal to accept delivery is at the risk and expense of Customer. Interest at the rate of one and one-half percent (1 1/2%) per month (not to exceed the maximum interest allowable by law) shall be paid on the unpaid balance of any invoice not paid by Customer within thirty (30) days of the due date thereof. Such interest shall be in addition to the purchase price hereunder. In the event Critical Link commences a legal action or suit to collect the purchase price or any part thereof, Customer shall, in addition to the full purchase price, be liable for all costs and expenses of such legal action or suit (including reasonable attorney’s fees). In addition Critical Link reserves the right to require COD payment terms from any customer whose account is overdue for a period of more than 45 days or who has an unsatisfactory credit or payment record. Critical Link may also refuse to sell to any person until overdue accounts are paid in full.
6. SHIPPING POINT AND TRANSPORTATION All Products will be shipped F.O.B. point of shipment. Title and risk of loss shall pass to Customer upon delivery of Product(s) by Critical Link to the carrier for shipment to the Customer, notwithstanding any prepayment of shipping charges by Critical Link, if so required by the carrier. All shipment costs (plus a 15% handling fee) shall be paid by Customer, and if prepaid by Critical Link, the amount thereof shall be reimbursed to Critical Link.
7. DELIVERY Critical Link will make every effort to deliver the Products hereunder in accordance with the requested delivery date, provided that Critical Link shall not be liable for any delay in delivery due to causes beyond our reasonably control, such as acts of God, acts of the government, strikes, war, delays of carriers, or inability to obtain necessary material or manufacturing facilities. Critical Link shall not be liable for any damages or penalties whatsoever whether direct or indirect, special, incidental or consequential, resulting from our failure or the failure of our suppliers to perform or delay in performing unless otherwise agreed in writing by an authorized officer. Customer agrees that any delay in delivery shall not affect the validity of any orders or these terms and conditions.
8. CHANGES TO ORDERS Critical Link reserves the right to make, at any time, such changes in Product design, selection or components, construction, arrangement or equivalent as shall in its judgment constitute an improvement over former practice. Changes in materials, supplies, labor and/or changes made at the request of Customer shall be at the expense of Customer. Changes or alterations made by Customer or made by Critical Link (over its recommendation against the same) shall be at Customer’s sole risk and responsibility.
9. CANCELLATION OF ORDERS Due to the specialized nature of the Products, orders may be cancelled only with our written consent and upon payment of reasonable cancellation charges, including Critical Link’s actual out of pocket costs, overhead and anticipated profit (as determined by us). Partial cancellation of an order may result in adjustment of prices for the balance of the order.
10. REJECTION Customer’s right to reject any Products supplied hereunder is conditioned upon Customer giving Critical Link a written notice of rejection setting forth the basis thereof within thirty (30) days after delivery of the Products to Customer. Failure to give such notice within such time constitutes acceptance of such Products. Products may only be returned only when authorized by us in writing, and then only on such terms as Critical Link may specify.
11. LIMITED WARRANTIES; DISCLAIMERS
(a) Critical Link represents and warrants that the Products delivered by Critical Link to Customer shall: (i) conform to agreed-upon specifications for the Product(s), to the extent any specifications were made part of an order; and (ii) be free from faulty workmanship and defective materials. The foregoing warranties shall be limited to a one (1) year period commencing on the date of shipment of the applicable Product(s) (the “Warranty Period”) provided (i) the Products have been properly cared for (i.e. the Products have not been subject to misuse, neglect, misapplication etc.) and used in accordance with Critical Link’s instructions, if any, (ii) the Products have not been tampered with or modified without Critical Link’s prior written approval, and (iii) Customer promptly notifies Critical Link in writing of any warranty claim during the Warranty Period. The warranties provided by Critical Link herein are the only warranties provided by Critical Link with respect to the Product(s) sold hereunder, and may be modified or amended only by a written instrument signed by Critical Link. Customer’s remedies and Critical Link’s aggregate liability with respect to the warranties provided by Critical Link in this Section 11(a) are set forth in and limited by this Section 11 and Section 14 below.
(b) In the event any Product fails to meet the warranties in Section 11(a) above during the Warranty Period, Critical Link’s sole obligation, in Critical Link’s sole discretion, shall be to either (i) repair or replace the non-conforming Product or (ii) credit the Customer’s account.
(c) Critical Link shall not be liable for any repairs or other claim if alterations have been made to the Products by the Customer or others without Critical Link’s written consent. Any components and accessories furnished by third parties are warranted only to the extent of the original manufacturer’s warranty to Critical Link and then only if such original manufacturer’s warranty is assignable to Customer.
(d) THE EXPRESS WARRANTIES OF CRITICAL LINK STATED IN SECTION 11(a) ABOVE ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CRITICAL LINK’S WARRANTY OBLIGATIONS AND CUSTOMER’S REMEDIES ARE SOLELY AND EXCLUSIVELY AS STATED IN THIS SECTION 11.
12. INTELLECTUAL PROPERTY; OWNERSHIP & LICENSE; NO WARRANTY
(a) Our products may contain: (i) software that we have developed specifically for you (“Designed Software”); (ii) hardware developed specifically for you (“Designed Hardware”); (iii) software and/or hardware that we may have developed for you using none of your confidential information but which have general application and may be used by us with other customers (referred to herein as “General Software” and “General Hardware,” respectively) or (iv) software that is owned by a third party and sublicensed by us to you (“Third Party Software”) (Designed Software, General Software and Third Party Software, collectively “Software”). All Designed Software and Designed Hardware, including any invention, discovery, improvement, idea or other intellectual property right developed, conceived, made or suggested by us in the performance of services for you (collectively “Work Product”) are provided on a “work made for hire” basis and shall be the sole and exclusive property of Customer. Notwithstanding anything contained herein to the contrary, Customer shall not acquire any ownership rights in the MitySOM, MityDSP and MityCCD family of products. Any General Software, General Hardware and Third Party Software, including items such as designs for power supplies, microprocessor circuitry, memory subsystems, filters and interfaces, linked lists, sorting routines, or device drivers which are provided as part of the Product and have general applicability shall be licensed and not sold to you. Critical Link hereby grants you and you hereby accept a non-exclusive, nontransferable limited license to use the General Software, General Hardware and Third Party Software solely with respect to the Products. You agree that all Third Party Software belongs to our suppliers and the General Software and General Hardware belongs to Critical Link and you agree to use your best efforts to prevent and protect the contents of any Third Party Software, General Software and General Hardware from unauthorized use and disclosure and to abide by the terms of any applicable licensing agreement.
(b) ALL SOFTWARE (DESIGNED SOFTWARE, GENERAL SOFTWARE AND THIRD PARTY SOFTWARE) AND ALL HARDWARE (DESIGNED HARDWARE AND GENERAL HARDWARE) ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH THE CUSTOMER. CRITICAL LINK MAKES NO WARRANTIES, EXPRESS OR IMPLIED, REGARDING ANY OF ITS SOFTWARE, DESIGNED HARDWARE, DESIGNED AND GENERAL HARDWARE OR COMPONENTS THEREOF OR ANY OF ITS ACCOMPANYING DOCUMENTATION.
13. CUSTOMER INDEMNIFICATION; INTELLECTUAL PROPERTY INDEMNITY
(a) Customer shall indemnify and hold Critical Link harmless from all claims, liabilities, damages, costs and expenses incurred in connection with any action or proceeding commenced against Critical Link or to which Critical Link is made a party, relating in any manner to Customer’s purchase, possession or use of the Products, (including but not limited to any claims, damages and expenses asserted or brought against Critical Link based on the alleged infringement of any intellectual property contributed by Customer to Critical Link or improper use of a third party’s intellectual property rights by Customer), except only to the extent it is determined that Critical Link’s gross negligence has directly caused any damages to the party or parties seeking recovery for the same.
(b) Subject to the provisions of this Section 13 and Section 14 below, Critical Link shall indemnify and hold Customer harmless from all claims, liabilities, damages, costs and expenses incurred in connection with any action or proceeding commenced against Customer or to which Customer is made a party based on a claim that the Product infringes a United States patent, copyright or trademark (except to the extent any such action is based on any Software or Software component provided by Critical Link at any time). If any Product (excluding any Software or Software component provided by Critical Link) becomes the subject of a claim of infringement, then Customer, shall permit Critical Link, at its option and expense, either to (1) procure the right to continue using such Product; (2) replace or modify such Product so that it becomes non-infringing; or (3) accept return of such Product and give Customer a credit therefor. THE FOREGOING STATES THE ENTIRE LIABILITY OF CRITICAL LINK FOR INFRINGEMENT CLAIMS.
14. LIMITATION OF LIABILITY Notwithstanding anything to the contrary contained in this Agreement, Critical Link’s aggregate liability in connection with the sale of Product(s) hereunder, regardless of the form of action giving rise to such liability (whether in contract, tort or otherwise), shall not exceed the aggregate purchase price for Products paid by Customer to Critical Link pursuant to an applicable order. Critical Link shall not be liable for any extraordinary, exemplary, special, indirect, consequential or incidental damages of any kind, including without limitation, lost profits, even if Critical Link has been advised of the possibility of such damages. Except as provided in Section 11(a) and Section 13(b) above, and subject to the limitations set forth herein, Critical Link shall not be liable for any claims of third parties relating to any Products, and Customer will defend Critical Link and hold Critical Link harmless against all losses, liabilities, damages, claims and expenses, including, reasonable attorneys’ fees, arising out of or in connection with the use or sale of Products by Customer or Customer’s employees, agents, customers, or contractors. THE FOREGOING STATES THE ENTIRE LIABILITY OF CRITICAL LINK WITH REGARD TO THIS AGREEMENT AND CRITICAL LINK’S SALE OF PRODUCT(S) HEREUNDER. THE LIMITATIONS CONTAINED IN SECTIONS 11, 12, 13 AND 14 ARE A FUNDAMENTAL PART OF THE BASIS OF CRITICAL LINK’S BARGAIN HEREUNDER, AND CRITICAL LINK WOULD NOT ENTER INTO THIS AGREEMENT ABSENT SUCH LIMITATIONS.
15. CONFIDENTIAL INFORMATION Critical Link and Customer shall maintain as confidential any technical information contained in plans, drawings, specifications, photographs as well as pricing, labor rates and project estimates and other documents disclosed or furnished by the disclosing party in connection with the sale of Products hereunder which is identified by the disclosing party as confidential and proprietary information of the disclosing party. In the absence of express prior written consent of the disclosing party, the receiving party shall hold all such confidential and proprietary information in confidence and may not sell or dispose of any portion thereof.
16. DEFAULT If Customer shall fail to pay all or any part of the sums due or to become due to Critical Link, keep and perform any of Customer’s obligations herein, become insolvent or become a party to any federal or state insolvency proceeding or receivership, or become a judgment debtor, any sum due or to become due may, at the option of Critical Link, become immediately due and payable in full, and concurrently, or in the alternative, Critical Link may at its option terminate this Agreement and exercise any other remedies available under applicable law. Waiver of any default shall not be a waiver of any other subsequent default.
17. RETAINED SECURITY INTEREST Until such time as the entire purchase price of the Products have been paid, Customer hereby grants to Critical Link a first priority purchase money security interest in the Products supplied pursuant to the terms hereof. The rights and remedies of Critical Link, as a secured party with respect to the Products shall be governed by the Uniform Commercial Code, or equivalent statute(s) of the State in which the Products are located. Customer authorizes Critical Link to execute and record on behalf of Customer such financing statements and other instruments as Critical Link may deem necessary to perfect or protect its security interest in the Products.
18. COOPERATION To enable Critical Link to perform its obligations under this Agreement, Customer shall at all times cooperate with Critical Link and provide Critical Link, its agents and employees with access to such facilities and/or information necessary to complete any services.
19. NOTICES Notices may be delivered by overnight courier or fax, with proof of delivery, or by United States mail, registered or certified mail, with postage prepaid, in each case addressed to the party being notified at such party’s address referred to on the face of this contract, or at such other address as such party shall have notified the other party in writing.
20. NOT TRANSFERABLE This Agreement is not transferable or assignable by Customer either directly or by operation of law without the prior written consent of Critical Link.
21. HEADINGS Paragraph headings are for convenience only and shall not be construed to define or limit the operative provisions of this Agreement.
22. AMENDMENTS No amendment, change to or modification of this Agreement, or any schedules or attachments hereto, shall be valid unless the same shall be in writing and signed by the party or parties to be charged therewith.
23. WAIVERS The failure of either party to insist upon strict performance of any provision of this Agreement, or to exercise any right provided for herein, shall not be deemed a waiver for the future of such provision or right, and no waiver of any provision or right shall affect the right of the waiving party to enforce any other provision or right herein.
24. APPLICABLE LAW The rights and duties of the parties shall be governed by the laws of the State of New York. The federal and state courts located within Onondaga County, New York shall have exclusive jurisdiction to determine any and all actions and proceedings relating to or arising from this Agreement and the sale of Product(s) hereunder and each party hereby irrevocably consents to the personal and subject matter jurisdiction of such courts with respect thereto.