General Terms & Conditions
These terms and conditions ("Terms”), together with any terms in the relevant quotation, are the sole and exclusive terms and conditions which shall apply to the sale of the goods or services (collectively “Goods”) referenced in any quotation, proposal, order acknowledgement or purchase order from the Seller ("Esoteric Systems" and/or its affiliates) to Recipient ("Buyer") unless a written contract signed by both parties concerning the Goods exists, in which case the terms of such contract shall govern in the event of any conflict. In the event of any conflict between terms in a quotation by Seller and these Terms, the conflicting terms in the quotation shall prevail. The relevant quotation and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations, warranties, communications and any of Buyer’s general terms and conditions of purchase, both written and oral. The sale of Goods by Seller is expressly conditioned on assent by Buyer to this Agreement and any additional or different terms or conditions in documents provided by Buyer relating to such sale shall not apply to such sale, are hereby objected to by Seller and shall be of no force or effect. Your placement of a purchase order or acceptance of Goods by the Seller shall constitute your acceptance of this Agreement.
1. DESCRIPTION OF SERVICES. Seller will provide to Buyer the following services: industrial automation, software engineering, control systems integration and programming, control panel construction, schematic generation, remote support, electrical and general engineering and any additional related Goods as referenced in any quotation, proposal, order acknowledgement or purchase order.
2. PAYMENT. Payment shall be made to Esoteric Systems, LLC, according to the payment terms in applicable quotation. If any invoice is not paid when due, interest will be added to and payable on all overdue amounts at 10 percent per year, or the maximum percentage allowed under applicable laws. Buyer shall pay all costs of collection, including without limitation, reasonable attorney fees. In addition to any other right or remedy provided by law, if Buyer fails to pay for the Goods when due, Seller has the option to treat such failure to pay as a material breach of this Agreement and may cancel the Agreement and/or seek legal remedies. All Prices are exclusive of all taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs, fees and taxes. All credit card fees are the responsibility of the Buyer and will be charged to buyer on top of the total sale price of Goods. Seller reserves the right to invoice for a percentage of or total sum of Goods at completion of assembly and testing prior to final delivery of Goods.
3. DELIVERY OF GOODS. Any dates or schedules which may be specified for the delivery of the Goods are only estimates. The Goods will be delivered within a reasonable time after the receipt of Buyer’s purchase order and any information requested by Seller, subject to availability of finished Goods. Seller shall not be liable for any delays, loss or damage in transit. Seller shall deliver the Goods using Seller’s standard methods for packaging and shipping such Goods. Buyer shall take delivery of the Goods within 30 days of notice that the Goods have been delivered to the address provided to Seller ("Delivery Point"). Buyer shall be responsible for all loading and shipping costs and provide equipment and labor reasonably suited for receipt of the Goods at the Delivery Point. Title and risk of loss passes to Buyer upon delivery of the Goods at the Delivery Point.
4. INSPECTION AND REJECTION OF GOODS, RETURNS AND EXCHANGES. Buyer shall inspect the Goods and notify Seller in writing of any Nonconforming Goods within 30 days of receipt at the Delivery Point (the “Inspection Period”). “Nonconforming Goods” means ONLY the following: specified product shipped is different than identified in Buyer’s purchase order due to incorrect picking or packing and not because of product substitution at Seller’s discretion. If Buyer notifies Seller of any Nonconforming Goods within 30 days, Seller shall, in its sole discretion: (i) replace such Nonconforming Goods, or (ii) credit or refund the Price, together with any reasonable shipping expenses incurred by Buyer. Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to Seller’s facility designated by Seller. Buyer agrees that the remedies in this Section are Buyer’s exclusive remedies for Nonconforming Goods. With the exception of Nonconforming Goods, Buyer has no right to return any Goods to Seller for exchange or credit. At its sole discretion, the Seller may choose to accept a return or exchange of something OTHER than Nonconforming Goods. In this instance, the Buyer will incur a 25% restocking fee on top of the purchase price of the item, due immediately.
5. WARRANTIES, CHANGES AND SUBSTITUTIONS. Seller shall provide Goods and meet its obligations under this Agreement in a timely and workmanlike manner, using knowledge and recommendations for performing the services which meet generally acceptable standards in Seller's industry, community and region, and will provide a standard of care equal to, or superior to, care used by service providers similar to Seller on similar projects. Seller and/or its suppliers, in their sole discretion, shall be entitled to make any changes in the design and fabrication of the Goods. Goods manufactured, and/or designed to Buyer’s own specifications or made with parts supplied by Buyer (collectively, “Buyer Goods”), Seller makes NO WARRANTY WHATSOEVER, and Buyer shall, at its own expense, defend and save Seller harmless from and against any claim, suit, expense or otherwise, including, without limitation, claims for infringement, which shall be asserted or brought against Seller by reason of its manufacture or sale of such Goods. With respect to Goods manufactured by Seller which are not: (i) Buyer Goods or (ii) Third Party Products (defined below), Seller warrants that such Goods will materially: (a) conform to the relevant drawings and specifications accepted by Seller, provided however, that product dimensions and quantities are excepted; and (b) be free from significant defects in Seller’s workmanship. Seller’s liability hereunder, for breach of warranty, negligence or otherwise is limited, at the sole discretion of Seller, to come to a resolution with the Buyer. SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING, WITHOUT LIMITATION, ANY: (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. Products manufactured by a third party (“Third Party Products”) may constitute, contain, be contained in, be attached to, be incorporated into or sold with the Goods and Seller makes no representations or warranties with regard to any Third Party Products. SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER WITH RESPECT TO ANY THIRD PARTY PRODUCTS. For Third Party Products Seller will: (a) use commercially reasonable efforts to obtain assignable warranties for such parts from such third party suppliers, which it will pass-through or assign to Buyer; and (b) Seller will cooperate with Buyer in the enforcement of such warranties.
6. WORK PRODUCT OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS. Any copyrightable works, ideas, discoveries, inventions, patents, products, or other information (collectively the "Work Product") developed in whole or in part by Seller in connection with the Services will be the exclusive property of Seller unless otherwise agreed upon in writing. Upon request, Buyer will execute all documents necessary to confirm or perfect the exclusive ownership of Seller to the Work Product. Should confidential or intellectual property be developed, a separate non-disclosure agreement or confidentiality agreement with specific Work Product ownership terms may required to be executed separately between Buyer and Seller. Buyer acknowledges and agrees that: (a) any and all of Seller’s Intellectual Property Rights are the sole and exclusive property of Seller or its licensors; (b) Buyer shall not acquire any ownership interest in any of Seller’s Intellectual Property Rights under this Agreement; (c) Buyer shall use Seller’s Intellectual Property Rights solely for purposes of using the Goods under this Agreement and only in accordance with this Agreement and the instructions of Seller. “Intellectual Property Rights” means all industrial and other intellectual property rights comprising or relating to: (i) patents; (ii) trademarks; (iii) internet domain names; (iv) works of authorship, expressions, designs and design registrations, including copyrights and copyrightable works, software and firmware, application programming interfaces, architecture, files, records, schematics, data, data files, and databases and other specifications and documentation; (v) trade secrets; (vi) semiconductor chips, mask works and the like; and (vi) all industrial and other intellectual property rights, and all rights, interests and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, however arising anywhere in the world. Further, Buyer shall not: (a) take any action that might interfere with any of Seller’s rights in or to Seller’s Intellectual Property Rights, including Seller’s ownership or exercise thereof; (b) challenge any right, title or interest of Seller in or to Seller’s Intellectual Property Rights; (c) misappropriate any of Seller’s trademarks for use as a domain name without prior written consent from Seller. Buyer shall also comply with any restrictions concerning any third party software provided by Seller to Buyer as part of the Goods or services.
7. LIABILITY LIMITATION. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THESE TERMS OR SALES OF GOODS HEREUNDER, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY BUYER OR COULD HAVE BEEN REASONABLY FORESEEN BY BUYER, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS SOLD HEREUNDER. FURTHERMORE, IN NO EVENT SHALL SELLER’S LIABILITY ARISING OUT OF OR RELATED TO THE SALE OF A GOOD HEREUNDER EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER IN RESPECT OF SUCH GOOD.
8. DEFAULT. The occurrence of any of the following shall constitute a material default under this Agreement:
a. The failure to make a required payment when due.
b. The insolvency or bankruptcy of either party.
c. The subjection of any of either party's property to any levy, seizure, general assignment for the benefit of creditors, application or sale for or by any creditor or government agency.
d. The failure to make available or deliver the Services in the time and manner provided for in this Agreement.
9. REMEDIES ON DEFAULT. In addition to all other rights a party may have available according to law, if a party defaults by failing to substantially perform any provision, term or condition of this Agreement (including without limitation the failure to make a monetary payment when due), the other party may terminate the Agreement by providing written notice to the defaulting party. This notice shall describe with sufficient detail the nature of the default. The party receiving such notice shall have 30 days from the effective date of such notice to cure the default(s). Unless waived by a party providing notice, the failure to cure the default(s) within such time period shall result in the automatic termination of this Agreement.
10. INDEMNIFICATION. Buyer shall indemnify, defend and hold harmless Seller and its officers, directors, employees, agents, affiliates, shareholders, successors and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, fees and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers, incurred by an Indemnified Party, relating to any claim of a third party or Seller arising out of or occurring in connection with the products or services purchased from Seller or Buyer’s negligence, willful misconduct or breach of this Agreement. Buyer shall not enter into any settlement without Seller’s or Indemnified Party’s prior written consent.
11. COMPLIANCE WITH LAW. Buyer shall comply with all applicable laws, regulations and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement.
12. FORCE MAJEURE. If performance of this Agreement or any obligation under this Agreement is prevented, restricted, or interfered with by causes beyond either party's reasonable control ("Force Majeure"), and if the party unable to carry out its obligations gives the other party prompt written notice of such event, then the obligations of the party invoking this provision shall be suspended to the extent necessary by such event. The term Force Majeure shall include, without limitation, acts of God, fire, explosion, vandalism, storm or other similar occurrence, orders or acts of military or civil authority, or by national emergencies, insurrections, riots, or wars, or strikes, lock-outs, work stoppages, or other labor disputes, or supplier failures. The excused party shall use reasonable efforts under the circumstances to avoid or remove such causes of non- performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased. An act or omission shall be deemed within the reasonable control of a party if committed, omitted, or caused by such party, or its employees, officers, agents, or affiliates.
13. DISPUTE RESOLUTION. The parties will attempt to resolve any dispute arising out of or relating to this Agreement through friendly negotiations amongst the parties. If the matter is not resolved by negotiation, the parties will resolve the dispute using the below Alternative Dispute Resolution (ADR) procedure. Any controversies or disputes arising out of or relating to this Agreement will be submitted to mediation in accordance with any statutory rules of mediation. If mediation is not successful in resolving the entire dispute or is unavailable, any outstanding issues will be submitted to final and binding arbitration under the rules of the American Arbitration Association. The arbitrator's award will be final, and judgment may be entered upon it by any court having proper jurisdiction.
14. CONFIDENTIALITY. Seller, and its employees, agents, or representatives will not at any time or in any manner, either directly or indirectly, use for the personal benefit of Seller, or divulge, disclose, or communicate in any manner, any information that is proprietary to Buyer including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized by Seller in writing. Upon Seller's request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is: (a) in the public domain; (b) known to the Buyer at the time of disclosure; or (c) rightfully obtained by the Buyer on a non-confidential basis from a third party. This provision will continue to be effective after the termination of this Agreement.
15. ASSIGNMENT. Neither party may assign or transfer this Agreement without prior written consent of the other party, which consent shall not be unreasonably withheld.
16. ENTIRE AGREEMENT. This Agreement contains the entire agreement of the parties regarding the subject matter of this Agreement, and there are no other promises or conditions in any other agreement whether oral or written. This Agreement supersedes any prior written or oral agreements between the parties. This Agreement outlines the terms of doing business between Seller and Buyer.
17. AMENDMENT. This Agreement may be modified or amended by Seller as needed throughout the course of conducting business. A copy of this Agreement will be furnished to Buyer upon request and is available on our website, www.esoteric.io/terms.
18. SEVERABILITY. If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.
19. WAIVER OF CONTRACTUAL RIGHT. The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that party's right to subsequently enforce and compel strict compliance with every provision of this Agreement.
20. APPLICABLE LAW. This Agreement shall be governed by the laws of the State of Arizona.
1. DESCRIPTION OF SERVICES. Seller will provide to Buyer the following services: industrial automation, software engineering, control systems integration and programming, control panel construction, schematic generation, remote support, electrical and general engineering and any additional related Goods as referenced in any quotation, proposal, order acknowledgement or purchase order.
2. PAYMENT. Payment shall be made to Esoteric Systems, LLC, according to the payment terms in applicable quotation. If any invoice is not paid when due, interest will be added to and payable on all overdue amounts at 10 percent per year, or the maximum percentage allowed under applicable laws. Buyer shall pay all costs of collection, including without limitation, reasonable attorney fees. In addition to any other right or remedy provided by law, if Buyer fails to pay for the Goods when due, Seller has the option to treat such failure to pay as a material breach of this Agreement and may cancel the Agreement and/or seek legal remedies. All Prices are exclusive of all taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs, fees and taxes. All credit card fees are the responsibility of the Buyer and will be charged to buyer on top of the total sale price of Goods. Seller reserves the right to invoice for a percentage of or total sum of Goods at completion of assembly and testing prior to final delivery of Goods.
3. DELIVERY OF GOODS. Any dates or schedules which may be specified for the delivery of the Goods are only estimates. The Goods will be delivered within a reasonable time after the receipt of Buyer’s purchase order and any information requested by Seller, subject to availability of finished Goods. Seller shall not be liable for any delays, loss or damage in transit. Seller shall deliver the Goods using Seller’s standard methods for packaging and shipping such Goods. Buyer shall take delivery of the Goods within 30 days of notice that the Goods have been delivered to the address provided to Seller ("Delivery Point"). Buyer shall be responsible for all loading and shipping costs and provide equipment and labor reasonably suited for receipt of the Goods at the Delivery Point. Title and risk of loss passes to Buyer upon delivery of the Goods at the Delivery Point.
4. INSPECTION AND REJECTION OF GOODS, RETURNS AND EXCHANGES. Buyer shall inspect the Goods and notify Seller in writing of any Nonconforming Goods within 30 days of receipt at the Delivery Point (the “Inspection Period”). “Nonconforming Goods” means ONLY the following: specified product shipped is different than identified in Buyer’s purchase order due to incorrect picking or packing and not because of product substitution at Seller’s discretion. If Buyer notifies Seller of any Nonconforming Goods within 30 days, Seller shall, in its sole discretion: (i) replace such Nonconforming Goods, or (ii) credit or refund the Price, together with any reasonable shipping expenses incurred by Buyer. Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to Seller’s facility designated by Seller. Buyer agrees that the remedies in this Section are Buyer’s exclusive remedies for Nonconforming Goods. With the exception of Nonconforming Goods, Buyer has no right to return any Goods to Seller for exchange or credit. At its sole discretion, the Seller may choose to accept a return or exchange of something OTHER than Nonconforming Goods. In this instance, the Buyer will incur a 25% restocking fee on top of the purchase price of the item, due immediately.
5. WARRANTIES, CHANGES AND SUBSTITUTIONS. Seller shall provide Goods and meet its obligations under this Agreement in a timely and workmanlike manner, using knowledge and recommendations for performing the services which meet generally acceptable standards in Seller's industry, community and region, and will provide a standard of care equal to, or superior to, care used by service providers similar to Seller on similar projects. Seller and/or its suppliers, in their sole discretion, shall be entitled to make any changes in the design and fabrication of the Goods. Goods manufactured, and/or designed to Buyer’s own specifications or made with parts supplied by Buyer (collectively, “Buyer Goods”), Seller makes NO WARRANTY WHATSOEVER, and Buyer shall, at its own expense, defend and save Seller harmless from and against any claim, suit, expense or otherwise, including, without limitation, claims for infringement, which shall be asserted or brought against Seller by reason of its manufacture or sale of such Goods. With respect to Goods manufactured by Seller which are not: (i) Buyer Goods or (ii) Third Party Products (defined below), Seller warrants that such Goods will materially: (a) conform to the relevant drawings and specifications accepted by Seller, provided however, that product dimensions and quantities are excepted; and (b) be free from significant defects in Seller’s workmanship. Seller’s liability hereunder, for breach of warranty, negligence or otherwise is limited, at the sole discretion of Seller, to come to a resolution with the Buyer. SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING, WITHOUT LIMITATION, ANY: (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. Products manufactured by a third party (“Third Party Products”) may constitute, contain, be contained in, be attached to, be incorporated into or sold with the Goods and Seller makes no representations or warranties with regard to any Third Party Products. SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER WITH RESPECT TO ANY THIRD PARTY PRODUCTS. For Third Party Products Seller will: (a) use commercially reasonable efforts to obtain assignable warranties for such parts from such third party suppliers, which it will pass-through or assign to Buyer; and (b) Seller will cooperate with Buyer in the enforcement of such warranties.
6. WORK PRODUCT OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS. Any copyrightable works, ideas, discoveries, inventions, patents, products, or other information (collectively the "Work Product") developed in whole or in part by Seller in connection with the Services will be the exclusive property of Seller unless otherwise agreed upon in writing. Upon request, Buyer will execute all documents necessary to confirm or perfect the exclusive ownership of Seller to the Work Product. Should confidential or intellectual property be developed, a separate non-disclosure agreement or confidentiality agreement with specific Work Product ownership terms may required to be executed separately between Buyer and Seller. Buyer acknowledges and agrees that: (a) any and all of Seller’s Intellectual Property Rights are the sole and exclusive property of Seller or its licensors; (b) Buyer shall not acquire any ownership interest in any of Seller’s Intellectual Property Rights under this Agreement; (c) Buyer shall use Seller’s Intellectual Property Rights solely for purposes of using the Goods under this Agreement and only in accordance with this Agreement and the instructions of Seller. “Intellectual Property Rights” means all industrial and other intellectual property rights comprising or relating to: (i) patents; (ii) trademarks; (iii) internet domain names; (iv) works of authorship, expressions, designs and design registrations, including copyrights and copyrightable works, software and firmware, application programming interfaces, architecture, files, records, schematics, data, data files, and databases and other specifications and documentation; (v) trade secrets; (vi) semiconductor chips, mask works and the like; and (vi) all industrial and other intellectual property rights, and all rights, interests and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, however arising anywhere in the world. Further, Buyer shall not: (a) take any action that might interfere with any of Seller’s rights in or to Seller’s Intellectual Property Rights, including Seller’s ownership or exercise thereof; (b) challenge any right, title or interest of Seller in or to Seller’s Intellectual Property Rights; (c) misappropriate any of Seller’s trademarks for use as a domain name without prior written consent from Seller. Buyer shall also comply with any restrictions concerning any third party software provided by Seller to Buyer as part of the Goods or services.
7. LIABILITY LIMITATION. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THESE TERMS OR SALES OF GOODS HEREUNDER, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY BUYER OR COULD HAVE BEEN REASONABLY FORESEEN BY BUYER, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS SOLD HEREUNDER. FURTHERMORE, IN NO EVENT SHALL SELLER’S LIABILITY ARISING OUT OF OR RELATED TO THE SALE OF A GOOD HEREUNDER EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER IN RESPECT OF SUCH GOOD.
8. DEFAULT. The occurrence of any of the following shall constitute a material default under this Agreement:
a. The failure to make a required payment when due.
b. The insolvency or bankruptcy of either party.
c. The subjection of any of either party's property to any levy, seizure, general assignment for the benefit of creditors, application or sale for or by any creditor or government agency.
d. The failure to make available or deliver the Services in the time and manner provided for in this Agreement.
9. REMEDIES ON DEFAULT. In addition to all other rights a party may have available according to law, if a party defaults by failing to substantially perform any provision, term or condition of this Agreement (including without limitation the failure to make a monetary payment when due), the other party may terminate the Agreement by providing written notice to the defaulting party. This notice shall describe with sufficient detail the nature of the default. The party receiving such notice shall have 30 days from the effective date of such notice to cure the default(s). Unless waived by a party providing notice, the failure to cure the default(s) within such time period shall result in the automatic termination of this Agreement.
10. INDEMNIFICATION. Buyer shall indemnify, defend and hold harmless Seller and its officers, directors, employees, agents, affiliates, shareholders, successors and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, fees and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers, incurred by an Indemnified Party, relating to any claim of a third party or Seller arising out of or occurring in connection with the products or services purchased from Seller or Buyer’s negligence, willful misconduct or breach of this Agreement. Buyer shall not enter into any settlement without Seller’s or Indemnified Party’s prior written consent.
11. COMPLIANCE WITH LAW. Buyer shall comply with all applicable laws, regulations and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement.
12. FORCE MAJEURE. If performance of this Agreement or any obligation under this Agreement is prevented, restricted, or interfered with by causes beyond either party's reasonable control ("Force Majeure"), and if the party unable to carry out its obligations gives the other party prompt written notice of such event, then the obligations of the party invoking this provision shall be suspended to the extent necessary by such event. The term Force Majeure shall include, without limitation, acts of God, fire, explosion, vandalism, storm or other similar occurrence, orders or acts of military or civil authority, or by national emergencies, insurrections, riots, or wars, or strikes, lock-outs, work stoppages, or other labor disputes, or supplier failures. The excused party shall use reasonable efforts under the circumstances to avoid or remove such causes of non- performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased. An act or omission shall be deemed within the reasonable control of a party if committed, omitted, or caused by such party, or its employees, officers, agents, or affiliates.
13. DISPUTE RESOLUTION. The parties will attempt to resolve any dispute arising out of or relating to this Agreement through friendly negotiations amongst the parties. If the matter is not resolved by negotiation, the parties will resolve the dispute using the below Alternative Dispute Resolution (ADR) procedure. Any controversies or disputes arising out of or relating to this Agreement will be submitted to mediation in accordance with any statutory rules of mediation. If mediation is not successful in resolving the entire dispute or is unavailable, any outstanding issues will be submitted to final and binding arbitration under the rules of the American Arbitration Association. The arbitrator's award will be final, and judgment may be entered upon it by any court having proper jurisdiction.
14. CONFIDENTIALITY. Seller, and its employees, agents, or representatives will not at any time or in any manner, either directly or indirectly, use for the personal benefit of Seller, or divulge, disclose, or communicate in any manner, any information that is proprietary to Buyer including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized by Seller in writing. Upon Seller's request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is: (a) in the public domain; (b) known to the Buyer at the time of disclosure; or (c) rightfully obtained by the Buyer on a non-confidential basis from a third party. This provision will continue to be effective after the termination of this Agreement.
15. ASSIGNMENT. Neither party may assign or transfer this Agreement without prior written consent of the other party, which consent shall not be unreasonably withheld.
16. ENTIRE AGREEMENT. This Agreement contains the entire agreement of the parties regarding the subject matter of this Agreement, and there are no other promises or conditions in any other agreement whether oral or written. This Agreement supersedes any prior written or oral agreements between the parties. This Agreement outlines the terms of doing business between Seller and Buyer.
17. AMENDMENT. This Agreement may be modified or amended by Seller as needed throughout the course of conducting business. A copy of this Agreement will be furnished to Buyer upon request and is available on our website, www.esoteric.io/terms.
18. SEVERABILITY. If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.
19. WAIVER OF CONTRACTUAL RIGHT. The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that party's right to subsequently enforce and compel strict compliance with every provision of this Agreement.
20. APPLICABLE LAW. This Agreement shall be governed by the laws of the State of Arizona.
