The following Terms and Conditions apply to purchases by PURCHASER of the items listed on executed Sales Order(s) and Invoice(s):
1. ACCEPTANCE – Notwithstanding any terms contained in any purchase order issued by PURCHASER, the PURCHASER, by accepting delivery of the equipment and/or the software (as defined in Section 10 herein) agrees to these terms and conditions of sale, and any additional terms set forth by PURCHASER in any purchase order, or otherwise, are hereby deemed to be reasonably objected to by ITVOCAL.
2. PACKAGING AND SHIPPING – Unless otherwise indicated, all prices listed are F.O.B. the point of shipment. Unless otherwise specified, ITVOCAL shall determine the method of shipment, taking into account its cost, safety and time of delivery. Shipping charges may be added to the Sales Order and/or Invoice, or invoiced separately, and such charges will have the same payment terms as the Invoice.
3. PAYMENT – Prepaid 100% of Equipment in addition to 50% of Service and Labor pertaining to Project Estimate(s), Sales Order(s) and/or Invoice(s). Remaining actual balance is due on or before installation date. Payment for all invoices is due upon receipt.
4. TAXES – Prices set forth may not include applicable taxes, export duties and/or license fees related to ITVOCAL performance hereunder, which unless prohibited by law, PURCHASER shall pay to ITVOCAL. If PURCHASER claims exemption from any such tax, PURCHASER must provide a tax exemption certificate to ITVOCAL to justify such exemption.
5. PAYMENT PROCESSING – Payments sent to ITVOCAL are authorized to be processed electronically according to NACHA guidelines. Checks will clear faster; banks will no longer return checks to PURCHASER. Bank statements are valid as proof of payment.
6. RISK OF LOSS/TITLE/DELAY – Risk of Loss/Damage shall pass to PURCHASER when ITVOCAL or its supplier makes delivery of the Equipment and/or Software to a carrier at their location, and PURCHASER shall be responsible for insuring the Equipment and/or Software from that point. Title to the Equipment shall pass to PURCHASER upon PURCHASER making final payment of the total purchase price and any additional monies due. Indicated ship dates are approximate only.
7. REMEDIES – In the event of any material breach of these terms by either party which continues for thirty (30) days after detailed written notice of such breach has been given to the breaching party, the aggrieved party shall be entitled to pursue any remedies available at law or equity; except that, other than bodily injury or death caused by the actions of ITVOCAL, ITVOCAL shall not be liable for incidental or consequential damage for any breach of these terms or otherwise and ITVOCAL liability under Section 7 shall not be greater than that described Therein.
8. WARRANTY AND RETURNS – ITVOCAL shall provide to PURCHASER the original manufacturer's warranty for the Equipment and Software license being procured hereunder. Such warranty is available upon request from ITVOCAL and/or Supplier. ITVOCAL shall only exchange faulty equipment upon or prior to installation. ITVOCAL does not accept equipment returns subsequent to installation; in such case PURCHASER shall rely on the manufacturer's warranty.
9. EXCLUSION OF WARRANTIES AND LIMITATION OF REMEDIES AND LIABILITY – The warranty and remedies set forth above constitute the only warranty of ITVOCAL and the PURCHASER's only remedy in the event such warranty is breached. Such warranty is in lieu of all other warranties pertaining to the equipment and software, written or oral, statutory, express or implied, including, without limitation, any warranty of merchantability or fitness for a particular purpose. ITVOCAL shall NOT be liable for any incidental, special or consequential damages of any nature whatsoever.
10. FORCE MAJEURE – ITVOCAL shall not be liable, nor shall any credit or other remedy be extended, for any loss or damage resulting from any cause beyond its reasonable control, such as, but not limited to, acts of God, fire, flood, wind, storms, extreme weather or other natural calamity, explosion, accident, riot, war, sabotage, terrorism, any law, order, regulation, request or action of any governmental entity or civil or military authority, power or utility failures, cable cuts, unavailability of rights-of-way, national emergencies, strikes, lock-outs, work stoppages, or other labor difficulties. Upon the occurrence of any such event and to the extent such occurrence interferes with ITVOCAL performance of its obligations, ITVOCAL shall be excused from performance during the period of such interference, but no such delay shall result in the imposition of any increased obligation on the part of ITVOCAL.
11. SOFTWARE LICENSE – Certain Equipment delivered by ITVOCAL hereunder may contain or require the use of separable Software which is defined herein to include (1) computer programs (consisting of hard-wired logic instructions and/or instruction sequences in machine-readable code) contained on a magnetic tape, disk, semiconductor device or other memory device or system memory which provides basic logic, operating instructions and user-related application instructions and (2) documentation used to describe, maintain and use the programs. Notwithstanding any other provisions of these terms and/or reference to sale of Equipment, the title to, and ownership of, the Software shall remain with ITVOCAL's Supplier, and ITVOCAL grants to PURCHASER a non-exclusive paid-up sublicense to use the Software furnished by ITVOCAL integral to the Equipment only in accordance with such Supplier's license therefore. A copy of said Software License is available upon request from ITVOCAL and/or Supplier. Additionally, PURCHASER agrees that the Software provided to it shall, as between the parties hereto, be treated as the exclusive property of Supplier and proprietary and a TRADE SECRET of Supplier. PURCHASER shall: (a) hold the Software in confidence for the benefit of Supplier; (b) utilize the Software solely in conjunction with the Equipment; (c) not modify the Software or, except for archival or back-up purposes, not reproduce the Software; (d) not make the Software available to any person except to its employees on a need-to-know basis; and (e) forthwith return to ITVOCAL any Software which has been replaced, modified or updated by ITVOCAL. PURCHASER agrees to indemnify ITVOCAL and Supplier for any loss or damage resulting from a breach of this Section 10.
12. GENERAL – PURCHASER shall not assign any rights under any contract entered into pursuant to these terms. These terms constitute the final, complete and exclusive terms between the parties hereto and may be modified only in writing signed by an authorized representative or each party. No affirmation, representation, or warranty concerning the Equipment made by an agent, contractor, employee, partner, or representative of ITVOCAL shall be enforceable by PURCHASER unless it is specifically included within a contract entered into pursuant to these terms. The rights and obligations of the parties and all interpretations and performance of any contract entered into pursuant to these terms shall be governed in all respects by the laws of the State of Nevada, U.S.A. The parties expressly agree that the Uniform Computer Information Transactions Act (as adopted or amended from time to time) shall not apply to this transaction or to the goods or services to be delivered hereunder.