Carelli International Corporation

IMPORTANT: THE FOLLOWING TERMS AND CONDITIONS APPLY EXCLUSIVELY TO PRODUCTS PROVIDED BY CARELLI DESIGN OR CARELLI INTERNATIONAL CORPORATION. THEY ARE NOT APPLICABLE TO DESIGN AND DEVELOPMENT SERVICES PROVIDED BY CARELLI DESIGN OR CARELLI INTERNATIONAL, NOR PRODUCTS AND SERVICES PROVIDED BY EUROSYSTEM SYSTEMS AND TECHNOLOGY, WHICH NECESSITATE SPECIFIC TERMS AND CONDITIONS.

If you are NOT a Reseller (B2B Member), refer to Standard Terms and Conditions

General information

The purchase or license of Products and Support will constitute acceptance of the CI Terms and Conditions (“Terms and Conditions”) set forth below. Some products may be shipped with specific warranties and/or Terms and Conditions, and therefore take precedence over the Terms and Conditions set forth herein. Refer to the specific warranties and/or Terms and Conditions enclosed with the product(s). For information concerning a specific product warranty and/or Terms and Conditions in effect for a particular product(s), contact our Customer Service Department by writing directly to: Customer Relations, Carelli International Corporation, One Park Plaza Ste 600 Irvine California 92614-5987.

TERMS AND CONDITIONS

Unless Purchaser (“Customer”) has another legally binding agreement with Carelli International Corporation (“CI”), the following Terms and Conditions (“Terms and Conditions”) will apply. CI's sale of Products and Support, and CI's license of Software are governed by the CI Terms and Conditions set forth herein.

Definitions

(a) "Delivery" means standard CI shipping to and arrival at the receiving area at the "Ship To" address specified in Customer's order.

(b) "Exhibits" means attachments that describe or otherwise apply to the sale or license of products or support.

(c) "License Fee" means the fee or fees designated by CI for Use of software or digital content.

(d) "Products" means manufactured goods, accessories, software, replacement parts and/or devices. “Custom Products" means products modified, designed or manufactured to meet Customer requirements.

(e) "Software" means one or more programs capable of operating on a controller, processor or other hardware Product ("Device"). Software may be either a separate Product or fixed in a Device and not removable in normal operation ("Firmware").

(f) "Software License" means the Software license grant and general license terms set forth herein.

(g) "Specifications" means specific technical information about CI Products published in CI Product manuals and technical data sheets in effect on the date CI ships Customer's order.

(h) "Support" means Software revisions, modifications and/or maintenance, OEM liaison; training; and other services provided by CI. "Custom Support" means any agreed non-standard Support, including consulting and custom project services.

(i) "Use" means the Use of manufactured goods, or storing, loading, installing, executing or displaying Software on a Device or Product using Firmware.

(j) “Digital Content” means computer Software code, software programming and/or digital content capable of storing, loading, installing, executing or displaying on a web browser, or the worldwide web.

Prices

(a) Prices are valid for the period quoted by CI or for the applicable purchase agreement ordering period, whichever expires first. Product prices for an order remain valid for ninety (90) days from the original order date unless otherwise quoted by CI. Change orders that extend Delivery beyond those validity periods become new orders at prices in effect when CI receives the change orders. Support prices, except for Custom Support, may be changed by CI upon sixty (60) days written notice.

(b) Prices are exclusive of, and Customer will pay, applicable sales, use, consumption, goods and service, value added or like taxes, unless Customer has provided CI with an appropriate exemption certificate for the Delivery jurisdiction. Prices are exclusive of, and Customer will pay, all applicable import duties, if any.

Orders

(a) All orders are subject to acceptance by CI. Product orders must specify Delivery within ninety (90) days from order date, unless otherwise agreed or quoted by CI.

(b) Customer will specify “Ship To” addresses within the country where the order is placed, unless otherwise agreed.

Delivery

CI will make reasonable efforts to meet Customer's Delivery requirements. If CI is unable to meet Customer's Delivery requirements, alternative arrangements may be agreed. In the absence of such agreement, Customer's sole remedy is to cancel the order.

Shipment, risk of loss or damage, and title

CI will ship according to CI's standard commercial practice, and risk of loss or damage will pass to Customer on delivery to shipper, Customer's carrier or designate. Shipping and handling charges will be listed separately on CI's invoice when not included in the Product's purchase price. If Customer requested special packing or shipping instructions that are agreed to by CI, charges will be billed separately to Customer. Products purchased shall remain the property of CI until all payment amounts have been received in full.

Installation and acceptance

(a) Product installation and/or assembly information is available with Products or upon request. Installation and/or assembly by CI, when included in the purchase price, is deemed complete when the Product passes CI's standard installation and/or assembly, including any test procedures where applicable.

(b) For Products without installation included in the purchase price, acceptance by Customer occurs upon Delivery. For Products with installation or assembly included in the purchase price, acceptance by Customer occurs upon completion of installation and/or assembly by CI. If Customer schedules or delays installation by CI more than thirty (30) days after Delivery, Customer acceptance of the Product(s) will occur on the 31st day after Delivery.

Payment

(a) Payments are due in full upon delivery unless indicated otherwise in writing by CI. Payment terms are subject to CI credit approval. Payments with approved credit are due thirty (30) days from CI's invoice date unless indicated otherwise in writing by CI. Invoices for support services and maintenance will be issued in advance of the Support period. CI may change credit or payment terms at any time when, in CI's opinion, Customer's financial condition, previous payment record, or the nature of Customer's relationship with CI so warrants.

(b) CI may discontinue performance if Customer fails to pay any sum due, or fails to perform under this or any other CI agreement if, after ten(10) days written notice, the failure has not been remedied.

Warranty

(a) CI Products are shipped with a Product-specific warranty, and therefore take precedence over the standard warranty set forth herein. Refer to the specific warranty enclosed with the Product. As a standard warranty, CI warrants CI Products against defects in materials and workmanship for the period of one (1) year, unless indicated otherwise in writing by CI. The standard warranty is in force only when no other associated warranties exist. Product warranty periods and relevant information on specific products are available upon request.

(b) Products purchased from CI will receive the standard warranty unless indicated otherwise in writing by CI. If Customer moves such Products to another country where CI has Support presence, then Customer will receive the destination country standard warranty.

(c) CI reserves the right to change its warranty terms and conditions, at any time, and without advance notice to Customer. Such changes will only affect new subsequent orders.

(d) The warranty period begins on the date of Delivery, or the date of installation if installed by CI. If Customer schedules or delays installation by CI more than thirty (30) days after Delivery, the warranty period begins on the 31st day after Delivery.

(e) If Customer transfers ownership of a Product, warranty service is transferred over to the new owner for the remainder of the warranty period.

(f) CI warrants that CI Products conform to CI published Specifications.

(g) CI warrants that Software will not fail to execute its programming instructions when properly installed and used on the Device originally intended, and designated by CI. CI does not warrant that Software will operate in hardware and software combinations selected by Customer, or outside of the guidelines established by CI.

(h) CI does not warrant that the operation of Products will be uninterrupted or error free.

(i) If CI receives notice of defects or non-conformance to Product Specifications, or substantial non-conformance to CI owned Software Specifications during the warranty period, CI will, at its option, repair or replace the affected Products. If CI is unable, within a reasonable time, to repair, replace or correct a defect or non-conformance in a Product to a condition as warranted, Customer will be entitled to a refund of the purchase price upon prompt return of the Product to CI. Customer will pay expenses for return of such Products to CI. CI will pay expenses for shipment of repaired or replacement Products.

(j) CI warrants that CI Product Support will be provided in a professional manner.

(k) The warranties provided herein will apply only to those Products and Support which are branded by CI with a CI trademark ("CI Branded"). CI does not warrant any third party Products or Support even if included with other CI Branded Products or Support. Furthermore, CI provides all such third party Products and Support “AS IS.” However, the original manufacturers or suppliers may provide their own warranties as specified in the documentation accompanying such third party Products and Support.

(l) The above warranties do not apply to defects resulting from:

(1) improper or inadequate maintenance by Customer;
(2) use of parts other than original manufacturer's replacement parts;
(3) unauthorized modification;
(4) improper use or operation outside of the Specifications for the Product;
(5) damage caused by accident, unreasonable use or neglect;
(6) unauthorized maintenance or repair;
(7) damage resulting from ordinary wear and tear.

(m) THE ABOVE WARRANTIES ARE EXCLUSIVE AND NO OTHER WARRANTY, WHETHER WRITTEN OR ORAL, IS EXPRESSED OR IMPLIED. TO THE EXTENT PERMITTED BY LAW, CI SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.

Support

(a) Customer may contract Support from CI. However, CI’s Support services may not be available in all countries.

(b) Contracts for Support are subject to the terms and conditions of the Support Exhibit or an agreement between Customer and CI.

(c) CI may, at no additional charge to Customer, modify Products to improve operation, supportability and reliability, or to meet legal requirements.

(d) For Support agreements intended for Support at Customer’s site, relocation of Products is Customer's responsibility. Relocation may result in additional Support charges. Support of Products moved to another country is subject to availability.

(e) CI will provide Support when Customer allows CI to perform modifications if requested by CI.

(f) Support does not cover any damage or failure caused by:

(1) use of non-CI approved media, software or other products; or
(2) software platforms that do not conform to CI's specifications; or
(3) neglect, improper use, work or modification by people other than CI employees or subcontractors,

(g) Customer is responsible for maintaining a procedure external to the Products to reconstruct lost or altered Customer files, data or programs. For Support agreements intended for Support at Customer’s site, Customer will have a representative present when CI provides Support services at Customer's site.

(h) Customer may remove Products under Support or cancel Support services upon thirty (30) days written notice unless otherwise indicated in a Support agreement. CI may also cancel Support upon thirty (30) days written notice unless otherwise indicated in a Support agreement.

Licenses

(a) In return for the License Fee, CI grants Customer a license to Use specific Software or Digital Content listed in Customer's contract agreement, and in conformance with:

(1) the terms set forth herein; and
(2) Use restrictions and authorizations for the Software or Digital Content specified by CI in its quotation, invoice or terms that accompany the Software or Digital Content ; and
(3) CI's third party suppliers' terms that accompany the Software or Digital Content, if any.

In the event of a conflict, the third party suppliers' terms that accompany the Software or Digital Content will take precedence over the Use restrictions and authorizations specified by CI and the terms set forth herein, and the Use restrictions and authorizations specified by CI will take precedence over the terms set forth herein.

(b) Unless otherwise specified, in return for the applicable License Fee, CI grants Customer a license to Use one copy of the Software or Digital Content on one Device at any one time.

(c) Unless otherwise specified, all Software or Digital Content Licenses will be perpetual unless terminated or transferred.

(d) If Customer is a CI authorized reseller, Customer may sublicense the Software or Digital Content to an end-user for its Use, if applicable. These sublicenses must incorporate the terms of this Software or Digital Content License in a written sublicense agreement, which will be made available to CI upon request. If Customer is not a CI authorized reseller, Customer may not sublicense the Software or Digital Content unless otherwise agreed to by CI in writing.

(e) Software and Digital Content is owned and copyrighted by CI or by third party suppliers. Customer's Software or Digital Content License confers no title or ownership and is not a sale of any rights to the Software or Digital Content. Third party suppliers may protect their rights in the event of any infringement.

(f) Unless otherwise permitted by CI, Customer may only make copies or adaptations of the Software or Digital Content for archival purposes or when copying or adaptation is an essential step in the authorized Use of the Software or Digital Content on a backup Device, provided that copies and adaptations are used in no other manner and provided further that the Use on the backup Device is discontinued when the original or replacement Device becomes operable.

(g) Customer must reproduce all copyright notices in or on the original Software or Digital Content on all permitted copies or adaptations.

(h) Customer will not decrypt the Software or Digital Content unless necessary for legitimate use.

(i) Updates, upgrades or other enhancements are available under CI Support agreements. CI reserves the right to require additional licenses and fees for Use of the Software or Digital Content on upgraded Devices.

(j) Customer will not modify, disassemble or decompile the Software or Digital Content without CI's prior written consent. Where Customer has other rights under statute, Customer will provide CI with reasonably detailed information regarding any intended disassembly. Customer will not decrypt the Software or Digital Content unless necessary for legitimate use of the Software or Digital Content.

(k) Customer's Software or Digital Content License is transferable subject to CI's prior written authorization and payment to CI of any applicable fee(s). Upon transfer of the Software or Digital Content License, Customer will immediately deliver all copies of the Software or Digital Content to the transferee. The transferee must agree in writing to the terms of Customer's Software or Digital Content License. All Software and Digital Content License terms will be binding on involuntary transferees, notice of which is hereby given. Customer's Software or Digital Content License will automatically terminate upon transfer.

(l) CI may terminate Customer's or any transferee's or sublicensee's Software or Digital Content License upon notice for failure to comply with any applicable Software or Digital Content License terms. Immediately upon termination, the Software or Digital Content, and all copies of the Software or Digital Content will be destroyed or returned to CI. Copies of the Software or Digital Content that is merged into adaptations, except for individual pieces of data in Customer's or transferee's or sublicensee's database, will be removed and destroyed or returned to CI.

Intellectual property rights

(a) All Proprietary Information is and shall remain the property of CI. By disclosing any Proprietary Information to Customer, CI does not grant any express or implied right to Customer to or under any patents, copyrights, trademarks, or trade secret information except as otherwise provided herein. CI reserves without prejudice the ability to protect its rights under any such patents, copyrights, trademarks, or trade secrets except as otherwise provided herein.

(b) Customer must retain all copyright and other Proprietary notices contained in the original materials on all copies of the materials. The Proprietary Information is copyrighted and the unauthorized use of any Proprietary Information may violate copyright, trademark, and other laws. If Customer violates any of these terms, Customer’s License automatically terminates and Customer must immediately return all Proprietary Informational materials to CI.

(c) Customer acknowledges that all trade names, trademarks and copyrights, as part of the Content provided by CI, are and will remain the exclusive property of CI. Customer agrees to not use in any manner CI's trademarks, trade names, or any other intellectual property rights of CI, including any imitation or variant thereof as part of a trademark, trade name, domain or name of a company.

(d) Customer may not assign, or otherwise provide Customer’s rights under this agreement, to anyone else.

Limitation of liability and remedies

(a) To the extent CI is held legally liable to Customer, CI's total liability is limited to: payments described in Sections 8 (i) and 11 (b) above; damages for bodily injury; direct damages to tangible property up to a limit of U.S.$100,000; other direct damages for any claim based on a material breach of any other term of these CI Terms and Conditions, up to a limit of U.S.$100,000 or the amount paid to CI for the associated Product, whichever is less.

(b) In no event will CI or its affiliates, subcontractors or suppliers be liable for any of the following: incidental, special or consequential damages (including downtime costs or lost profits, but excluding payments described in Section 11 above and damages for bodily injury); damages relating to Customer's procurement of substitute products or services (i.e., "cost of cover"); or damages for loss of data, or software restoration.

(c) THE REMEDIES IN THESE CI TERMS AND CONDITIONS ARE CUSTOMER'S SOLE AND EXCLUSIVE REMEDIES.

General

(a) The Parties hereby agree that they may do business electronically, including contract formation, order placement and acceptance. Any orders placed by Customer and accepted by CI on any CI Website or CI/Customer extranet site will create fully enforceable obligations that will be subject to the terms hereof. Such orders and acceptances will be deemed for all purposes to be:

(1) business records originated and maintained in documentary form,
(2) a “writing” or “in writing,”
(3) “signed” and
(4) an “original” when printed from electronic files or records established and maintained in the normal course of business.

The Parties further agree not to contest the validity or enforceability of such transactions under the provisions of any applicable law relating to whether certain agreements are to be in writing or signed by the Party to be bound thereby and will be admissible if introduced as evidence on paper in any judicial, arbitration, mediation, or administrative proceeding to the same extent and under the same conditions as other business records originated and maintained in documentary form. In addition, the Parties agree that transactions may be conducted through Electronic Data Interchange or other electronic methods, as agreed by the Parties. Customer and CI will adopt commercially reasonable security measures to limit access to passwords and to limit access to the sites to authorized persons. Each party will be responsible for any unauthorized use of the sites or issuance of messages caused by the failure of its security measures.

(b) CI will not be liable for performance delays or for non-performance, due to causes beyond its reasonable control.

(c) If either party becomes insolvent, is unable to pay its debts when due, files for bankruptcy, is the subject of involuntary bankruptcy, has a receiver appointed, or has its assets assigned, the other party may cancel any unfulfilled obligations.

(d) Customer may not assign any rights or obligations hereunder without prior written consent from CI.

(e) Customer who exports, re-exports or imports Products, technology or technical data purchased hereunder, assumes responsibility for complying with applicable laws and regulations, and for obtaining required export and import authorizations. CI may suspend performance if Customer is in violation of applicable regulations.

(f) Disputes arising in connection with these CI Terms and Conditions shall be construed and controlled by the laws of the State of California, and the parties further consent to exclusive jurisdiction and venue in the federal courts sitting in Los Angeles County, California, unless no federal subject matter jurisdiction exists, in which case the parties consent to the exclusive jurisdiction and venue in the Superior Court of Los Angeles County, California.

(g) Provisions herein which by their nature extend beyond the termination of any sale or license of Products or Support will remain in effect until fulfilled.

(h) If any term or provision herein is determined to be illegal or unenforceable, the validity or enforceability of the remainder of the terms or provisions herein will remain in full force and effect.

(i) CI does not grant any express or implied right to Customer to or under any patents, copyrights, trademarks, or trade secret information. Customer will not register or maintain any internet domain name which contains CI’s trademarks in whole or in part, or any other name which is confusingly similar thereto.

(j) These CI Terms and Conditions and any Exhibits constitute the entire agreement between CI and Customer, and supersede any previous communications, representations or agreements between the parties, whether oral or written, regarding transactions hereunder. Customer's additional or different terms and conditions will not apply. Customer's purchase or license of Products and Support will constitute Customer's acceptance of these CI Terms and Conditions, which may not be changed except by an amendment signed by an authorized representative of each party.

Revised January, 2004

Publication Ref. 9892.9381 EN form B2BTAC 9381.2/V206

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