NOTICE: CAREFULLY READ THESE TERMS AND CONDITIONS BEFORE ACCEPTING THE PRODUCT SHIPPED TO THE PURCHASER OR OPENING THE SHIPPING CONTAINER. ENETICS, INC. (“Enetics”) PROVIDES ITS PRODUCT TO THE PURCHASER ONLY IF THE PURCHASER ACCEPTS ALL OF THE TERMS OF THIS AGREEMENT. THE PURCHASER INDICATES ACCEPTANCE OF THESE TERMS BY BREAKING THE SEAL OR BY INITIAL USE OF THE PRODUCT. IF THE PURCHASER DOES NOT AGREE TO THESE TERMS, THE PURCHASER SHOULD PROMPTLY CALL ENETICS AT 585-924-5010 TO CANCEL SHIPMENT OF THE ORDER OR TO RECEIVE A RETURN MATERIAL AUTHORIZATION (RMA) NUMBER AND RETURN THE PRODUCT, UNOPENED, IN THE ORIGINAL SHIPPING CONTAINER.
If the product does not perform as specified, the purchaser may return it to Enetics and obtain a full credit less 20% for shipping, restocking, and handling charges. To qualify for this guarantee, the purchaser must call Enetics at 585-924-5010 within 21 days after the date Enetics ships the product(s) to the purchaser to obtain a return material authorization (RMA) number. The purchaser must return the product freight prepaid, including media and documentation, intact and in its original packaging, with the RMA number clearly visible on the outside of the shipping package, to an Enetics-designated location by the date specified under the return material authorization. A copy of the purchaser’s invoice and the shipping label must accompany the return.
All prices published by Enetics or quoted by an Enetics representative may be changed at any time without notice. Unless otherwise stated, written quotations expire automatically thirty (30) days from the date issued. All prices are subject to adjustment on account of specifications, quantities, shipment arrangements or other terms and conditions which are not part of the original price quotation. Prices are exclusive of all excise, sales, use, and other taxes (including without limitation custom and duty fees, if applicable) imposed by any federal, state, municipal, or other governmental authority (including governments of countries other than the USA), all of which shall be paid by the purchaser. The purchaser is responsible for obtaining and providing to Enetics any certificate of exemption or similar document required to exempt any sale from sales, use, or similar tax liability. All prices shall be as specified by Enetics, or, if no price has been specified, shall be Enetics' standard list price in effect at the time of delivery.
TERMS OF PAYMENT
Payment terms are net cash thirty (30) days from the date of invoice for credit approved Customers, unless otherwise expressly stated in writing by Enetics. Enetics reserves the right at any time to require full or partial payment in advance, or to revoke any credit previously extended, if, Enetics in its reasonable judgment, believes there is a risk that the purchaser will fail to make full payment when due based on the purchaser’s financial condition or payment history. All amounts are stated in, and payment shall be made in, U.S. dollars unless otherwise agreed to in writing or expressly stated in the order. To the extent permitted by law, overdue payments shall be subject to finance charges computed at a periodic rate of 1.5% per month (18% per year). The purchaser shall indemnify Enetics against all expenses and legal costs incurred by Enetics in recovering overdue amounts and/or incurred as a result of cancellation or suspension of deliveries or performance. Amounts owed by the purchaser with respect to which there is no dispute shall be paid without set-off for any amounts that the purchaser may claim are owed by Enetics and regardless of any other controversies that may exist.
Unless otherwise specified, all sales are EXW (Incoterms 2010) Enetics shipping point, at the place of manufacture, or warehouse location, exclusive of insurance cost, freight and packaging costs. Enetics shall not be liable for any loss or damage resulting from any delay in delivery or failure to deliver which is due to any cause outside of Enetics' control. The purchaser shall be liable for all costs and expenses incurred by Enetics in holding or storing products for the purchaser if delivery is delayed by purchaser or at the purchaser's request. Shipping dates are approximate and are based upon Enetics' prompt receipt of all necessary order and shipping information from the purchaser.
Unless otherwise specified in Enetics' pricing policies and published price schedules in effect at the time of shipment, transportation expenses shall be paid by the purchaser. Further, unless specific instructions to the contrary are supplied by the purchaser, methods and routes of shipment will be selected by Enetics but Enetics shall not assume any liability in connection with shipment (except to the extent liability is caused by Enetics' gross negligence or willful misconduct), nor constitute any carrier as Enetics' agent. All shipments will be insured at the purchaser’s expense and made at the purchaser’s risk, and the purchaser shall be responsible for making all claims with carriers, insurers, warehousemen and others for misdelivery, non-delivery, loss, damage, or delay.
TITLE AND RISK OF LOSS
Enetics transfers title of hardware products to the purchaser when it ships the product. Software products are licensed to the purchaser by the terms of our software license and not owned by the purchaser. However, Enetics reserves a purchase money security interest in the product until Enetics receives the amounts due. Enetics bears the risk of loss for the product only until shipment.
CANCELLATION CHARGES AND RETURNED GOODS POLICY
Unless otherwise agreed in writing, should the purchaser cancel any Contract or any Order thereunder due to any reason other than to the extent of a material breach of contract by Enetics, purchaser shall be liable for the costs of all work done and materials purchased or provided up to the time of cancellation plus a charge for overhead and loss of profit. The purchaser may not return any customized product. Pre-approval is required for all other returns, and any such return is subject to inspection after receipt by Enetics.
Enetics warrants each product it manufactures to be free from defects in material and workmanship under normal use in-service for a period of eighteen (18) months from the date of initial shipment. This warranty is exclusive to the original buyer and shall not apply to computer media batteries or damage caused by defective batteries. Software is warranted to operate in accordance with its instructions.
Enetics' obligation under this warranty is limited to repairing or replacing, at Enetics option, a product returned within the warranty period and is determined by Enetics to be defective. If Enetics determines that the defect or malfunction has been caused by misuse, alterations, or abnormal conditions of operation or handling, Enetics will inform the purchaser and provide an estimate of repair costs. With approval from the purchaser, Enetics shall repair the product and invoice the purchaser for the reasonable cost of repair and shipping. If the warranty has expired, Enetics will submit an estimate of the repair costs before work is started, if requested by purchaser. The warranties may be voided by misuse, accident, modification, unsuitable physical or operating environment, improper installation or operation by the purchaser. Products repaired under warranty will be protected for the remaining period of the existing warranty or 180 days, whichever period is longer. Products repaired out of warranty will be protected for a period of 90 days.
To obtain repair service under this warranty, the purchaser must first obtain a Return Material Authorization (RMA) number by contacting the Enetics Customer Service department at 585-924-5010. The product is then shipped, freight prepaid by the purchaser, with a written description of the malfunction to the factory. Please ensure the RMA number is clearly visible on the outside of the shipping package. The product will then be repaired by Enetics and returned to the buyer, freight prepaid by Enetics. Shipping costs for out of warranty repair work is the responsibility of the purchaser.
This warranty does not cover damages due to:
- Failure to install, operate or maintain equipment or parts as directed in any instruction manual provided or under applicable law or regulation
- Misuse, abuse, neglect or modification of any equipment or parts in any way
- Improper service and/or repair, use of replacement parts or accessories, including, but not limited to, cables, current transformers, or power supplies that are not specified by Enetics
- Improper installation of equipment or parts
- Incorrect supply, accident, fire, flood, acts of God or other casualty
- Use of equipment or parts other than for its intended purpose
- Use of equipment or parts in a corrosive atmosphere or any atmosphere containing contaminants
- Any defect in equipment or parts arising from a drawing, design, or specification supplied by or on behalf of the purchaser
- Failure of equipment or parts not manufactured by Enetics
- Enetics is not permitted to inspect the damaged deliverable.
Enetics will not provide the following under this warranty:
- Insurance, taxes, or duties incurred during transportation
- On-site service and repair, except where Enetics deems necessary
- Travel and living expenses incurred for on-site repair deemed necessary by Enetics
- Cost associated with removal or re-installation of the product
- Expedited service; standard warranty work is performed on a first-come, first serve basis
- Modifications that customize the product; required due to the application or Customer environment
- Repair and redesign of product
The foregoing warranty is purchaser’s sole and exclusive remedy and is in lieu of all other warranties, expressed or implied, including but not limited to any implied warranty of merchantability or fitness for particular use or purpose. Enetics shall not be liable for any special, indirect, incidental or consequential damages or loss whether in contract, tort, or otherwise. These warranties give the purchaser specific legal rights, and the purchaser may have other rights that vary from jurisdiction to jurisdiction. Some jurisdictions do not allow the exclusion or limitation of express or implied warranties, so the above exclusion or limitation may not apply to the purchaser. In that event, such warranties are limited in duration to the warranty period. No warranties apply after that period.
Enetics provides non-Enetics products and non-Enetics software programs on an “AS IS” basis, without warranties of any kind including the implied warranties stated above. However, non-Enetics manufacturers or suppliers may provide their own warranties to the purchaser. Enetics can provide assistance in helping the purchaser locate these manufacturers.
Any technical or other support provided for a product under warranty, such as assistance via telephone with “how-to” questions and those regarding product set up, operation, and installation, will be provided on an “AS IS” basis without warranties of any kind including the implied warranties stated above. Neither Enetics nor its representatives will be responsible for any kind of confidential, proprietary or personal data or information contained in a product which the purchaser returns to Enetics or its representatives for any reason. The purchaser should remove all such data or information from the product prior to its return.
Unless otherwise expressly agreed to in writing by the parties, Enetics reserves the right to make substitutions and modifications in the specifications of any products provided that such substitutions or modifications do not materially affect the performance of the products. At Enetics' discretion, reconditioned components can be used in the manufacture of products, provided that any such reconditioned components used shall in all respects be functionally equivalent to new components.
INTELLECTUAL PROPERTY AND CONFIDENTIAL INFORMATION
(A) The purchaser may not modify, enhance, supplement, create derivative work from, adapt, translate, reverse engineer, de-compile, disassemble, decrypt or otherwise reduce the Software or any products. The foregoing restriction on reverse engineering shall not apply only to the extent reverse engineering is explicitly permitted by mandatory interoperability provisions of applicable law. The purchaser shall not acquire any right, title or interest in or to the Software or any other intellectual property of Enetics either supplied to purchaser hereunder or resulting from this Contract. If the purchaser shall in any way acquire any such rights, then the purchaser shall immediately inform Enetics and shall forthwith take such steps as may be required to assign such rights to Enetics or to vest such rights in Enetics.
(B) The purchaser shall treat all technical and commercial information, including without limitation, technical data, documents and pricing, as confidential. All such information shall remain the property of Enetics. The purchaser shall only use such information for the sole purpose of using the product and/or services in accordance with this agreement. The purchaser shall take all reasonable precautions to prevent any such information from being divulged to any third persons.
LIMITATION OF LIABILITY
Circumstances may arise where, because of a default on Enetics’ part or other liability, the purchaser is entitled to recover damages from Enetics. In each such instance, regardless of the basis on which the purchaser are entitled to claim damages (including fundamental breach, negligence, misrepresentations, or other contract or tort claim), Enetics is liable only for actual direct damages or loss, up to the greater of $5,000 or the charge for the product that is the subject of the claim.
Under no circumstances is Enetics liable for any of the following: 1) Third party claims against the purchaser for losses or damages; 2) Loss of, or damage to, the purchaser’s records or data; 3) special, incidental, indirect, punitive damages or for any economic consequential damages (including loss of profits or savings), even if Enetics is informed of their possibility. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above exclusion or limitation may not apply to the purchaser.
This Enetics Purchase Agreement (called the “Agreement”), and its applicable invoices and supplements are the complete agreement regarding the purchaser’s purchase of products from Enetics, Inc. and replace any prior oral or written communications between the purchaser and Enetics. Any additional or different terms in any order or written communications from the purchaser are void.
A “product” is any hardware or software designed, manufactured, and provided (by either sale or free demonstration) to the purchaser by Enetics, Inc. Non-Enetics products provided to the purchaser by Enetics are not warranted by Enetics in any way.
The purchaser agrees to pay amounts due, including any late payment fees, as Enetics specifies in the invoice. If any authority imposes a duty, tax, levy or fee on a product purchased under this Agreement, the purchaser agrees to pay that amount as specified in the invoice or supply exemption documentation.
When called for, it is the purchaser’s responsibility to establish clear proof and date of purchase. Please retain shipping documents for that purpose.
Neither the purchaser nor Enetics will bring a legal action, under this Agreement, more than 12 months after the cause of action arose.
The purchaser may not assign, or otherwise transfer, this Agreement or the purchaser’s rights under it, or delegate the purchaser’s obligations, without prior written consent. Any attempt to do so is void.
All Enetics Terms and Conditions of Sale apply.
No modifications to these Terms and Conditions of Sale shall be valid unless mutually agreed to in a separate agreement, signed by both the purchaser and Enetics.
The laws of the State of New York govern this Agreement. The purchaser consents to the exclusive jurisdiction of the courts of the Commonwealth of New York.