General Terms & Conditions of Sale
Parasitics LLC shall sell and license to the customer ("Customer") identified in the Quotation or Sales Order Acknowledgement, as applicable, and Customer shall purchase and license from Parasitics LLC, the Products only in accordance with these Terms and Conditions. These Terms and Conditions constitute a material part of the agreement between Parasitics LLC and Customer. Parasitics LLC hereby objects to and rejects any additional or different terms proposed by Customer, including those contained in Customer’s purchase order, unless Parasitics LLC expressly agrees to such terms in writing. "Products" includes, without limitation: hardware (including firmware), Software and User Materials. "Software" means the software elements of the Products and includes, if provided by Parasitics LLC, software updates, but specifically excludes the application framework software. "User Materials" are the materials (including dashboard, reports, drawings, diagrams, specifications, datasheets, documentation, training manuals, technical bulletins and user manuals) for the use, and (where permitted) servicing, of the hardware and Software. "Parasitics LLC" means the Parasitics LLC entity described in the header of the Quotation or the Sales Order Acknowledgement, as applicable. "Parasitics LLC" includes all Affiliates of Parasitics LLC. An "Affiliate" is any legal entity or entities directly or indirectly controlling, controlled by, or under common control with Parasitics LLC. "Control" means the right to exercise, directly or indirectly, more than 50% of the voting rights attributable to the shares, partnership interests, membership shares or similar ownership interest of such controlled entity.
2. PURCHASE ORDERS.
Customer shall issue purchase orders ("Purchase Orders") to Parasitics LLC by e-mail. The form of each Purchase Order shall comply with the laws of Customer's domicile. Each Purchase Order shall include: the Parasitics LLC quotation number, as applicable; the quantities, Parasitics LLC SKUs (part numbers), unit prices and total price (exclusive of tax) of the Products ordered; the requested shipping date; the agreed conditions of delivery; the terms of payment; and the contact information for the Customer; and, if different from the account registration, the "Bill To" address. Only Purchase Orders which Parasitics LLC accepts by issuing a written acknowledgement (a "Sales Order Acknowledgement") to Customer within five (5) business days of receipt of the Purchase Order are binding on Parasitics LLC. If Parasitics LLC agrees to any non-standard provisions in the Purchase Order, acceptance of those provisions will be in this acknowledgement. Customer may not modify or revoke an accepted Purchase Order (as evidenced by a Sales Order Acknowledgement), or modify or cancel a Sales Order Acknowledgement, without the prior written agreement of Parasitics LLC.
3. TITLE AND DELIVERY.
Title. Subject to Article 12 below (Intellectual Property), title to the Products shall pass to Customer when Parasitics LLC ships the Products to Customer. Delivery. Parasitics LLC shall deliver the Products at the delivery point and delivery term indicated on the Quotation or Sales Order Acknowledgment, as applicable.
4. EXPORT CONTROL.
Customer shall not, whether directly or indirectly (including facilitating a third party), export or re-export the Products from the country in which Customer has indicated to Parasitics LLC the Products will be sold and licensed to end-users without first obtaining a written release from Parasitics LLC and obtaining all applicable governmental licenses as applicable. Customer shall comply with all applicable export laws of the United States, including, without limitation, the U.S. Export Administration Regulations and the prohibitions and restrictions mandated by agencies of the United States government.
Effective the date of delivery of the Products to Customer, Parasitics LLC grants Customer a non-exclusive, non-transferable, worldwide, license ("License") to: (a) use the inventions protected by issued patents or pending applications owned or licensed by Parasitics LLC that are embodied in the Products; (b) use, copy and distribute the User Materials and the Software, in object code form only, solely in connection with the distribution, sale and provision of first tier support of Products to end-user customers. Restrictions on Use. Customer shall not, directly or indirectly: (a) modify, decompile or translate the Software; or (b) reverse engineer, disassemble, or create a derivative of, the Software or Products.
Parasitics LLC may have an agreed periodic license fee in place as agreed with customer. For further information related to Software & Data Please refer to our Software, Data & API Usage terms documents available from firstname.lastname@example.org.
Third Party Services. Certain Services may be provided by third parties ("Third Party Services"). In the case of Third Party Services, the third party shall be considered the contracting party, not Parasitics LLC, and the third party shall be the party responsible for providing the services to you. You will look solely to the third party for any loss, claims or damages arising from, or related to, the provision of such Third Party Services. You specifically release Parasitics LLC from any and all claims arising from or relating to the purchase or provision of any such Third Parties Services.
6. CHANGES TO THE PRODUCTS.
Parasitics LLC shall give Customer at least thirty (30) days written notice of all changes to the Products that materially affect the quality, performance, fit or function of the hardware elements of the Products, and which negatively affect the features or performance of the Software.
7. PRICES AND TERMS OF PAYMENT.
Prices. The prices in the Quotation and Sales Order Acknowledgement include all applicable fees for the Licenses, all necessary packaging, and are based on delivering the Products per Article 3 (Delivery Terms), but do not include applicable federal, state, provincial, local or other government taxes. Invoicing. Parasitics LLC shall invoice Customer upon shipment of the Products or upon agreed milestone points as mutually agreed. Payment. Customer shall pay all invoices in the currency stated in the invoice, in accordance with the payment terms set out in the Sales Order Acknowledgement and any payment instructions provided by Parasitics LLC. Periodic Payments. If you sign up for a monthly, quarterly, bi-annual or other scheduled maintenance contract you agree to recurring billing. We may change our fees at any time by posting a new pricing structure to our Website and/or sending you a notification by email. Credit Cards. Anyone using a credit card represents and warrants that they are authorized to use that credit card, and that any and all charges may be billed to that credit card and won’t be rejected. If we’re unable to process your credit card order, we’ll try to contact you by email and suspend your account until your payment can be processed. Refunds. We may, at our sole discretion, offer a refund if a Member requests one for a prepaid service that goes unused. Late Payment. If Customer fails to pay any amount not in dispute when due, Parasitics LLC may, without prejudice to any other remedy, stop or suspend its performance, alter payment terms, terminate the agreement and any other agreements with Customer, and charge interest on all overdue amounts at the rate of one percent (1.0%) per month compounded monthly (12.68% per year), or if less, the maximum rate allowed by law. Upon demand, Customer shall pay all such interest charges and all reasonable collection fees, including reasonable legal expenses. Despite the forgoing, where the laws of the Customer's jurisdiction of incorporation provide an alternative method for calculating interest on late payments, such method shall prevail.
8. LIMITED WARRANTY.
Parasitics LLC warrants to the Customer that, from the date of invoicing of the Products through the Warranty Period (as defined below): (a) the Products will substantially comply with, and perform per, the datasheet specifications available on request; (b) the hardware, and the media on which any Software is provided, shall contain only new materials and shall be free from material defects in design, materials and workmanship under normal use; and (c) title to the Products shall be free of liens, security interests and other claims. Unless otherwise stipulated by Parasitics LLC in a Quotation, the "Warranty Period" for the hardware elements of the Products is twelve (12) months, and for the Software is ninety (90) days, from the date of shipment. Not Covered. Parasitics LLC does not warrant that: (i) the Products will provide uninterrupted or error-free operation; (ii) except as set out in the Specifications, the Products will operate satisfactorily in conjunction with other manufacturer’s hardware, media or software; or (iii) Parasitics LLC will correct minor program defects in the Software which do not materially affect the ability of the Software to perform in accordance with the Specifications. The warranty does not apply to Products that: (i) have been installed, used or operated other than per the User Materials; (ii) have been maintained, altered or modified, opened or repaired, other than by Parasitics LLC or its authorized service provider; (iii) have been physically damaged, other than by Parasitics LLC or its authorized service provider; (iv) have experienced signal reception problems, unless caused by a defect in material(s) or workmanship in the Product; (v) have been used outside of published maximum ratings or with hardware that is electrically or mechanically incompatible as assessed by Parasitics LLC; or (vi) have had their serial numbers altered, removed or rendered illegible. The warranty does not cover or include: (i) the cost of installation, removal, reinstallation, or rework of other equipment; (ii) damage due to accidents, failure of Customer to follow instructions, misuse, abuse, neglect, fire, flood, war, or acts of God; (iii) technical assistance to install, configure, or operate the Product; and (iv) third party products not manufactured by Parasitics LLC, which are provided “as is”, without warranty of any kind, unless otherwise expressly specified by Parasitics LLC. Return Procedure. To return a defective Product, Customer must contact Parasitics LLC via email@example.com to request a Return Material Authorization ("RMA"), and follow the instructions set out in the RMA. If Parasitics LLC finds that the returned Product meets the warranty conditions set out in this section, it shall, at its expense and option: (1) repair the defective Product, apply the current Product firmware release, or replace the defective Product with a new or rebuilt unit (which may use refurbished parts of similar quality and functionality) or a substitute unit of equal or superior functionality; (2) ship the repaired or replaced Product back to Customer; and (3) warrant the repaired or replaced Product for a period of ninety (90) days or the remainder of the original Warranty Period, whichever is longer; or if Parasitics LLC is not able to repair or replace the defective Product, it will credit the Customer’s account in the amount of the net purchase price paid by Customer for such defective Product. No Fault Found. If Parasitics LLC is, despite reasonable commercial efforts, unable to find a fault with a Product returned by Customer under the warranty: (a) the returned unit shall be deemed to be No Fault Found ("NFF"), and Parasitics LLC shall ship the NFF unit back to Customer at Customer's expense, and (b) Customer may be required to pay the NFF fee specified on the Quotation for each NFF unit if the specified NFF Threshold is exceeded. Safety Critical Systems. Customer acknowledges that the Products are not designed, authorized or warranted to be suitable for use, and warrants that it will not use them, in life or safety critical systems, hazardous environments, or any other environments requiring fail-safe performance, including without limitation in the operation of nuclear facilities, aircraft navigation, air traffic control systems, life-saving or life-sustaining systems; or in any other application, where a failure or malfunction of the Product may result in personal injury, death or severe damage to property or the environment (“Safety Critical Systems”). Customer acknowledges that any use of the Products in Safety Critical Systems automatically voids all warranties of Parasitics LLC.
THE WARRANTIES SET OUT IN SECTION 8 ARE PARASITICS LLC'S EXCLUSIVE WARRANTIES FOR THE PRODUCTS. PARASITICS LLC SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTY OF NON-INFRINGEMENT, OR ANY WARRANTY THAT: THE PRODUCTS WILL PROVIDE UNINTERRUPTED OR ERROR-FREE OPERATION; THE PRODUCTS WILL OPERATE SATISFACTORILY IN CONJUNCTION WITH OTHER MANUFACTURER'S HARDWARE, MEDIA, OR SOFTWARE (UNLESS SET OUT IN THE SPECIFICATIONS); THAT PARASITICS LLC WILL CORRECT MINOR PROGRAM DEFECTS IN THE SOFTWARE WHICH DO NOT MATERIALLY AFFECT THE PERFORMANCE OF THE SOFTWARE; OR THAT THE PRODUCTS ARE SUITABLE FOR USE IN SAFETY CRITICAL SYSTEMS.
10. INDEMNIFICATION BY CUSTOMER.
Customer shall indemnify and hold Parasitics LLC harmless from all loss, expense and damages (including reasonable attorneys' fees) which may be incurred by Parasitics LLC as a result of any claims or actions resulting from: (i) damage to property, personal injury or death caused by the use of the Products in Safety Critical Systems by the Customer or any party to whom Customer has, directly or indirectly, supplied the Products; or (ii)Customer’s breach of any of its obligations hereunder.
11. INDEMNIFICATION BY PARASITICS LLC.
Parasitics LLC will maintain commercial liability coverage as appropriate under US Law.
12. LIMITED LIABILITY.
IN NO EVENT SHALL PARASITICS LLC BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THESE TERMS AND CONDITIONS OR THE USE OF THE PRODUCTS PROVIDED HEREUNDER, INCLUDING WITHOUT LIMITATION LOSS OF PROFITS OR REVENUES, LOST DATA, FAILURE TO REALIZE EXPECTED SAVINGS, OR ANY OTHER COMMERCIAL OR ECONOMIC LOSSES OF ANY KIND, WHETHER BASED ON CONTRACT, TORT (INCLUDING THEORIES OF NEGLIGENCE, RECKLESSNESS, STRICT LIABILITY, OR DEFECTIVE PRODUCT LIABILITY), OR ANY OTHER LEGAL THEORY, EVEN IF PARASITICS LLC WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. PARASITICS LLC'S TOTAL LIABILITY IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), MISREPRESENTATION OR OTHERWISE ARISING IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENT SHALL BE LIMITED TO THE LESSER OF: (A) TWENTY FIVE THOUSAND ($25,000) UNITED STATES DOLLARS; AND (B) THE TOTAL PRICE PAID BY CUSTOMER FOR THE PRODUCTS IN THE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE LIABILITY AROSE. PARASITICS LLC AGREES TO SELL AND LICENSE THE PRODUCTS TO CUSTOMER, AND CUSTOMER AGREES TO PURCHASEAND LICENSE THE PRODUCTS FROM PARASITICS LLC, ONLY IN CONSIDERATION OF, AND IN RELIANCE UPON, THE PROVISIONS SET OUT IN THIS ARTICLE 13. THESE PROVISIONS CONSTITUTE AN ESSENTIAL PART OF THE BARGAIN BETWEEN THE PARTIES AND HAVE BEEN REFLECTED IN THE PRICE AND OTHER CONSIDERATION FLOWING BETWEEN THE PARTIES. These limitations and disclaimers are not made where prohibited by law.
13. INTELLECTUAL PROPERTY.
Except for the License granted under Section 5, Customer acknowledges that it acquires no right, title or interest in or to the intellectual property in: (a) the Products; (b) any other product or invention of Parasitics LLC; (c) any combination of the Products with any other product of Parasitics LLC; or (d) any third party elements incorporated in the Products.
14. NON DISCLOSURE.
This Agreement shall be governed by the Non-Disclosure Agreement referenced in the Quotation or if none is referenced, by the following: all information, including but not limited to technical, financial or commercial information, disclosed by Parasitics LLC to Customer, whether in tangible or intangible form, and whether marked as being confidential or by virtue of its nature could reasonably be expected to be confidential, shall be considered to be "Confidential Information" and shall be subject to the strictest confidentiality obligation. Customer shall not disclose any Confidential Information to third parties, and shall only disclose Confidential Information to those of its employees who have a need to know the Confidential Information to perform their work and who have signed a written agreement of confidentiality at least as stringent as set out herein. Customer may disclose Confidential Information to the extent it is required by law, regulation, court order or any governmental or regulatory body or authority to so disclose, but then only to the extent so ordered or required and exercising all reasonable efforts to obtain reliable assurances that confidential treatment will be accorded to the Confidential Information. In such circumstances, Customer shall use its best efforts to advise Parasitics LLC at the earliest possible time of the form and content of any Confidential Information that will be disclosed in order to give Parasitics LLC sufficient time to seek a protective order or other appropriate remedy. Customer acknowledges that any use or disclosure of Confidential Information in a manner not authorized by this Agreement will cause Parasitics LLC irreparable harm that could not be fully remedied by monetary damages. Customer agrees that, in addition to any other remedies it may have at law or in equity, Parasitics LLC shall have the right to apply for such injunctive or other equitable relief from a court or arbitrator of competent jurisdiction as may be necessary to prevent the unauthorized or unlawful action.
15. FORCE MAJEURE.
Parasitics LLC shall not be liable if its performance becomes commercially impracticable due to any contingency beyond its reasonable control including, but without limitation, acts of God, fires, floods, wars, sabotage, civil unrest, accidents, labor disputes (other than those with Parasitics LLC employees), labor shortages, government laws, rules and regulations, whether valid or invalid, inability to obtain material, equipment or transportation, incorrect, delayed or incomplete specifications, drawings, or data supplied by a third party, except that lack of funds or credit shall not constitute a Force Majeure.
16. GOVERNING LAW & DISPUTES.
All claims or disputes arising hereunder or in connection with these Terms & Conditions shall be governed by the laws of the State of California, U.S.A.
17. GENERAL TERMS.
Assignment. Customer shall not assign its order, or any interest therein, or any rights hereunder without the prior written consent of Parasitics LLC. Waivers. A party’s waiver of any breach by the other party or failure to enforce a remedy will not be considered a waiver of subsequent breaches of the same or a different kind. Entire Agreement. These Terms and Conditions represent the entire agreement between the parties relating to the sale of Products. No prior representations or statements relating to the sale of the Products made by any Parasitics LLC representative, which are not stated herein or in the Sales Order Acknowledgement or Quotation, shall be binding on Parasitics LLC. No addition to or modification of any provision in this contract shall be binding upon Parasitics LLC unless made in writing and signed by a duly authorized Parasitics LLC representative.
End of Document.
January 17, 2019.