1. Payment. Fornetix will invoice Customer:
a. For physical products: Upon the date shipped FCA, including shipping & handling costs determined to fulfill shipping instructions provided by Customer.
b. For software products: Upon the date that such software products are made available for Customer to download such products.
c. For Initial Support Term: Upon the date that physical products have been delivered to customer address on customer Purchase Order (P.O.) or date that software products are made available to Customer for download (whichever date occurs last) considered the Initial Support Date (“Initial Support Date”).
d. For Extended Support Term: Upon the first day of each new anniversary of the Initial Support Date.
e. For Solutions: Per payment terms in a relevant Statement of Work, otherwise upon acceptance of any such solution by Customer.
2. Timing of Payments. All payments due shall be due within 30 days (NET30) after the Invoice Date. Late payments shall be subject to late fees of 1.5% per month without pro-rating for number of days late.
3. Taxes and Fees. Customer shall be responsible for any taxes (including, without limitation, income, stamp and turnover or value added taxes), duties, fees, charges or assessments of any nature appropriately levied by any governmental authority against the products or solutions (collectively, “Products”), or in connection with the sale or import of the Products, whether or not title thereto has passed to Customer. If Fornetix is required to pay any such levies and/or fines, penalties or assessments as a result of Customer’s failure to comply with any applicable laws or regulations governing payment of such levies or otherwise due to Customer’s action or inaction, Customer shall promptly reimburse Fornetix for the amount of any payments so made, plus the expense of currency conversion, upon Fornetix’s submission of its invoice to Customer therefore.
4. ALL SALES FINAL. ALL SALES ARE FINAL. Fornetix does not issue refunds or exchanges except in the case of defective Products.
5. Purchase Orders. Customer may place orders for Fornetix Products by submitting one or more written purchase orders to Fornetix. Each such purchase order shall state the description (including Fornetix’s part numbers) and quantities of the Products being ordered, and the proposed shipment date for such Products. Subject to these Standard Terms and Conditions, a purchase order may also include instructions for shipment and insurance. In no event shall any other terms or conditions set forth on a purchase order submitted by Customer be binding on Fornetix. No purchase order shall be binding on Fornetix unless and until Fornetix has accepted the purchase order by either a written acknowledgement or by shipment of the Products described in the purchase order.
6. Standard Products. All Products shall be Fornetix’s standard products. Unless specifically stated in a separate Statement of Work or in a separate agreement between Fornetix and Customer, Fornetix shall have no obligation to create special or customized versions of any Product, or to ensure that the Products operate with Customer’s equipment, software, or systems. Fornetix reserves the right, without prior approval from or notice to Customer, to make changes to any Product. Fornetix also reserves the right to make changes to any Product without any obligation to make the same changes to Products previously ordered by or sold to Customer.
7. Title or License to Products. Title to the Products, and risk of damage or loss, shall pass to Customer upon delivery of the Products at Fornetix’s facility to the carrier FCA for shipment to Customer. Notwithstanding any provision herein to the contrary, Customer shall take no title to software Products. All software Products are licensed, not sold, and title to all Fornetix software Products are and shall remain vested in Fornetix.
8. Ownership of Intellectual Property. Customer acknowledges that the Products accompanying documentation provided by Fornetix contain proprietary technology and that the ownership of such proprietary technology and all patents, copyrights, derivative works, mask work rights, trademarks, trade names, trade secrets and all other intellectual property rights embodied therein and to the Products shall remain with Fornetix. Customer understands and agrees that a sale of the Products does not constitute a sale of any of Fornetix’s or its suppliers’ intellectual property rights; except that Customer and its customers are hereby granted a limited, revocable, non-transferrable, non-exclusive right to such intellectual property solely for the purpose of, and only to the extent necessary for, use of the Products in Customer’s or its Customer’s business in accordance with Fornetix’s published specifications and user documentation, and the terms of any separate license document (such as an End User License Agreement, for example) provided with the Products.
9. Restrictions. Customer shall not reverse engineer, decompile, disassemble, translate, copy, modify, alter or otherwise change any Product, or part thereof (including without limitation any software provided by Fornetix). Customer shall have no right to obtain source code for any software provided by Fornetix.
10. Trademarks. Customer shall not alter or remove from the Products (or their packaging or documentation), or alter, any of Fornetix’s or its suppliers’ trademarks, trade names, logos, patent or copyright notices, or other notices or markings, or add any other notices or markings to the Products (or their packaging or documentation).
11. Export Control. It is expressly understood that the Products and all obligations arising hereunder, are subject to export control laws and regulations, including those of the U.S. Government, including without limitation, the requirement to obtain necessary approvals and licenses prior to the acceptance of any orders, or the export of Products, hereunder. Such shall also apply, by way of example only, to spare parts, warranty items delivered by Fornetix in connection with the Products, and the transfer or re export of any such Products by Customer. Any Products purchased by or provided to Customer, including any technical data or documentation pertaining thereto, shall not be sold, leased, released, assigned, transferred, conveyed or in any manner disposed of, either directly or indirectly, without the prior written approval of applicable governments, including the United States Government, in accordance with applicable law, including U.S. law. Fornetix shall be excused from performance, and not be liable for damages, including the assessment of late delivery penalties, for failure to deliver Products hereunder resulting from any government’s denial or withdrawal of approval to export Products to Customer.
12. Shipping Schedule. Fornetix shall use its reasonable efforts to ship Products to Customer in accordance with the shipment schedule provided by Fornetix to Customer. Delivery dates proposed by Customer in its purchase order or other documentation shall not be binding on Fornetix. Notwithstanding the foregoing and without limiting the generality of Section 13, Fornetix shall not be liable for damages of any kind as a result of a delay in delivery, regardless of the reason. The delivery schedule shall be extended automatically by a period of time equal to the time lost because of any such delay.
13. Tamper Seals. Some Fornetix hardware Products, such as a Fornetix “Appliance,” for example, are provided with tamper-evident seals. Removal of, or damage to seals by unauthorized parties voids the Warranty and all Service and Support of such hardware Products. For FIPS enabled systems, if a tamper-evident seal is removed or damaged, the system will be considered breached and proper notifications of breach of the system must be made immediately by the Customer. Fornetix is not responsible for any data accessed from any system where the tamper-evident seals have been removed or damaged.
14. Limited Warranty, Warranty Exclusions, Limitations of Liability
a. Express Warranty. Subject to the provisions of this Section 14, Fornetix expressly warrants that, for a period of twelve (12) months (unless a longer period is specified in written documentation accompanying Product) (the “Warranty Period”), all hardware components of the Product shall be free from faulty workmanship and defective materials under normal use and service. The Warranty Period shall commence on the Effective Date. The warranty stated by Fornetix in this Section 14(a) is the sole express warranty provided by Fornetix.
b. Warranty Remedy. If a hardware Product or component fails under normal use and service during the Warranty Period due to a defect in materials or faulty workmanship, Fornetix’s sole obligation shall be to repair or replace the Product or component, at Fornetix’s option. Following a repair or replacement, the Warranty Period shall expire at the end of the original period. All Products and components that are replaced by Fornetix shall become Fornetix’s property.
c. Warranty Conditions. Fornetix’s express warranty is contingent upon Customer’s payment of the purchase invoice and proper use of the Product, in accordance with any instructions or manuals provided by or available from Fornetix. Fornetix shall have no obligation under this express warranty unless Customer promptly reports the claim. Fornetix’s obligations under this warranty are subject to Fornetix’s examination of the Product and Fornetix’s determination to its reasonable satisfaction that the claimed defect or fault actually exists and is not excluded from Fornetix’s warranty under this Section 14. If Fornetix determines that the Product is not defective or faulty within the terms of the express warranty, Customer shall pay for all costs of handling, transportation and repairs at Fornetix’s then prevailing repair rates.
d. Warranty Exclusions. Fornetix’s express warranty shall not apply if the defect or fault is caused by any of the following after delivery by Fornetix: accident, unusual physical, electrical or electromagnetic stress, neglect, misuse, failure of electric power or environmental controls, rough handling during transportation, fire or other act of God, Customer’s failure to maintain the Product in accordance with Fornetix’s specifications, abuses to the Product other than ordinary use, modifications by Customer, alterations or repairs by a party other than Fornetix (unless specifically authorized by Fornetix in writing). This express warranty will be rendered void if Fornetix’s serial numbers, warranty data, tamper-proof seals or quality assurance decals on the Product are removed or altered.
e. Warranty Limitations. Fornetix’s express warranty is strictly for the benefit of Customer and does not extend to any third party. Fornetix’s express warranty does not apply to any software Product, or software component of a Product, which is licensed subject to a separate license agreement (including without limitation a “shrink wrap” license agreement), which provides a different warranty than that stated in these Standard Terms and Conditions. Fornetix makes no warranties that the software components of any Product will operate in combination with any other software or with any equipment other than the Products.
f. Third Party Products and Warranties. Fornetix’s warranty does not apply to (i) products manufactured by third parties and resold by Fornetix without re-marking under Fornetix’s trademarks, (ii) software products that are not developed by Fornetix, and (iii) consumable items (e.g., batteries). To the extent permitted by the supplier, the original manufacturer’s warranty shall be assigned by Fornetix to Customer and is in lieu of any warranty by Fornetix, express or implied.
g. Disclaimer. THE EXPRESS FORNETIX WARRANTIES STATED IN SECTION THIS SECTION 14 ARE IN PLACE OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. THE EXPRESS OBLIGATION OF FORNETIX STATED IN SECTION 13(B) REPLACES ANY OTHER LIABILITY OR OBLIGATION OF FORNETIX ARISING OUT OF OR IN CONNECTION WITH THE DELIVERY, USE OR PERFORMANCE OF THE PRODUCTS. FORNETIX DOES NOT ENSURE THE SECURITY PROVIDED BY THE PRODUCTS, NOR DOES IT WARRANT AGAINST IMPROVEMENTS IN THE TECHNICAL ARTS THAT MAY RENDER THE PRODUCTS INEFFECTIVE OR OBSOLETE.
h. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, FORNETIX SHALL NOT BE LIABLE TO CUSTOMER, OR TO ANY THIRD PARTY CLAIMING THROUGH CUSTOMER, FOR THE FAILURE OF PERFORMANCE OF ANY OBLIGATION OF FORNETIX EXCEPT AS SPECIFICALLY SET FORTH HEREIN. ADDITIONALLY, FORNETIX’S AGGREGATE LIABILITY ARISING OUT OF THE SALE OF PRODUCTS TO CUSTOMER, REGARDLESS OF THE FORM OF ACTION GIVING RISE TO SUCH LIABILITY (WHETHER IN CONTRACT, TORT OR OTHERWISE, INCLUDING NEGLIGENCE), SHALL NOT EXCEED THE AGGREGATE PURCHASE PRICE FOR PRODUCTS PAID BY CUSTOMER TO FORNETIX. FORNETIX SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES RESULTING FROM ITS FAILURE OF PERFORMANCE OR THE FAILURE OF ANY PRODUCTS. ANY FAILURES TO PERFORM ANY OBLIGATION UNDER THESE TERMS OR ANY APPLICABLE PURCHASE ORDER EXCEPT PAYMENT OF MONIES DUE SHALL BE EXCUSED IF SUCH FAILURE IS CAUSED BY ACTS OF GOD, ACTS OF PUBLIC AUTHORITIES, WARS OR WAR MEASURES, FIRES, CASUALTIES, LABOR DIFFICULTIES OR STRIKES, SHORTAGES OF MATERIAL OR FUEL, FAILURE OR DELAYS OF SUPPLIERS OR CARRIERS, SHORTAGES OF TRANSPORTATION, PROBLEM WITH ANY NETWORK (INCLUDING TELECOMMUNICATIONS) OTHER THAN THAT UNDER FORNETIX’S CONTROL, DENIAL OF SERVICE ATTACK, OR ANY CAUSES BEYOND THE FAILING PARTY’S CONTROL. FORNETIX SHALL NOT BE LIABLE FOR ANY CLAIMS OF THIRD PARTIES RELATING TO THE PRODUCTS. THE LIMITATIONS OF LIABILITY CONTAINED HEREIN ARE A FUNDAMENTAL PART OF THE BARGAIN, AND CUSTOMER ACKNOWLEDGES THAT FORNETIX WOULD NOT SELL THE PRODUCTS ABSENT THESE LIMITATIONS.
15. Governing Law, Jurisdiction. These Standard Terms and Conditions shall be governed in accordance with the laws of the State of Maryland, U.S.A. Customer submits to the exclusive jurisdiction of the state and federal courts of the State of Maryland. Notwithstanding the fact that these Standard Terms and Conditions may be translated into a language other than English for the convenience of the parties or otherwise, any dispute or controversy hereunder shall be determined solely from the English language version.
16. Severability. Should any clause, condition or term, or any part thereof, contained in these Standard Terms and Conditions be unenforceable or prohibited by law or by any present or future local municipal, provincial/state or national/federal legislation, then such clause, condition, term or part thereof, shall be amended, and is hereby amended, so as to be in compliance with the said legislation or law but, if such clause, condition or term, or part thereof cannot be amended so as to be in compliance with any such legislation or law then such clause, condition, term or part thereof shall be deemed severed from these Standard Terms and Conditions, and all the rest of the clauses, terms and conditions parts thereof shall remain unimpaired.
17. Assignments. No right or obligation of Customer under these Standard Terms and Conditions shall be assigned, delegated or otherwise transferred, whether by agreement, operation of law or otherwise, without Fornetix’s prior express written consent, and any attempt to assign, delegate or otherwise transfer any of Customer’s rights or obligations without Fornetix’s consent shall be void. Notwithstanding anything to the contrary herein, Fornetix may engage Subcontractors to perform any of its obligations under these Standard Terms and Conditions.
18. Waivers. All waivers must be in writing. The failure of either party to insist upon strict performance of any provision hereunder, or to exercise any right, shall not be deemed to be a waiver of such provision or right, and no waiver of any provision or right shall affect the right of the waiving party to enforce any other provision or right.
19. Rights and Remedies. All rights and remedies hereunder shall be cumulative, may be exercised singularly or concurrently, and shall not be deemed exclusive except as provided in Section 14. If any legal action is brought to enforce any obligations hereunder, the prevailing party shall be entitled to receive its attorneys’ fees, court costs and other collection expenses, in addition to any other relief it may receive.