TERMS AND CONDITIONS OF SALE/PROPOSAL
General: Trackforce and Customer agree that the terms and conditions in this document shall govern exclusively the sale or licensing by TRACKFORCE of all hardware, firmware, software and services (collectively referred to as “Goods”) listed on this proposal. No addition or modification to the terms and conditions as they appear in this document shall be binding upon TRACKFORCE unless in writing and signed by an authorized representative of TRACKFORCE.
Title and Responsibility: Title to hardware if purchased from TRACKFORCE shall remain with TRACKFORCE as security only and until paid in full. Title to hardware if leased, and title for software or firmware, remains with TRACKFORCE and is licensed for use by Customer pursuant to TRACKFORCE’s license agreement. Risk of loss or damage shall pass to Customer upon shipment from F.O.B. point.
Taxes: The Customer shall pay or reimburse TRACKFORCE for all sales, use, excise or similar taxes as they apply.
Services: Services (including installation, repair, start-up, application engineering assistance and technical training) are not included in the price unless specifically agreed to in writing by TRACKFORCE.
Licensed Software and Firmware: Software or firmware which is subject to any TRACKFORCE license agreement is also subject to Terms and Conditions herein unless inconsistent with the TRACKFORCE license agreement, in which case the license agreement shall govern. By using the product, Customer agrees to the terms and conditions of the TRACKFORCE license agreement.
Warranty: The TRACKFORCE warranty for Goods shall be as specified in the documentation which accompanies the Goods. Satisfaction of this warranty, consistent with other provisions herein, will be limited to the replacement, or repair or modification of, or issuance of a credit for the Goods involved, at TRACKFORCE’s option, only after the return of such Goods with TRACKFORCE’s consent in accordance with RETURN OF EQUIPMENT. Such warranty satisfaction is available only if (a) TRACKFORCE is promptly notified in writing upon discovery of an alleged defect and (b) TRACKFORCE’s examination of the subject Goods discloses, to its satisfaction, that any alleged defect has not been caused by misuse, neglect, improper installation, improper operation, improper maintenance, repair, alteration or modification, accident, or unusual deterioration or degradation of the Goods or parts thereof due to physical environment or due to electrical or electromagnetic noise environment. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES WHETHER EXPRESSED, IMPLIED OR STATUTORY INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS and thereby excludes certifications or the like for product performance, use or design with respect to any standard, regulation or the like (unless and to the extent independently approved in writing by TRACKFORCE) AND EXTENDS ONLY TO CUSTOMER PURCHASING FROM TRACKFORCE OR AUTHORIZED TRACKFORCE BUSINESS PARTNERS.
TRACKFORCE Responsibilities: TRACKFORCE shall: (i) not use, edit or disclose to any party other than Customer the Customer Data; (ii) maintain the security and integrity of the Service and the Customer Data in a manner in which the parties mutually agree; (iii) provide telephone and online standard support to designated Customer’s users, at no additional charge; and (iv) use commercially reasonable efforts to make the Service generally available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which TRACKFORCE shall give at least 8 hours’ notice via the Service and which TRACKFORCE shall schedule to the extent reasonably practicable during the weekend hours from 6:00 p.m. ET Friday to 3:00 a.m. ET Monday); or (b) any unavailability caused by acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving TRACKFORCE employees), computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within TRACKFORCE’s possession or reasonable control, network intrusions or denial of service attacks and any cause beyond the reasonable control of TRACKFORCE (any of the preceding being referred to as a “Force Majeure Event”).
Customer Responsibilities: Customer is responsible for all activities that occur under Customer’s user accounts. Customer shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and notify TRACKFORCE promptly of any such unauthorized use; and (iii) comply with all applicable local, state and federal laws in using the Service and, if using the Service outside of the United States, not use the Service in a manner that would violate any federal or state laws of the United States if conducted therein.
Limit of Liability: IN NO EVENT, REGARDLESS OF CAUSE, SHALL TRACKFORCE ASSUME RESPONSIBILITY OR LIABILITY FOR (a) PENALTIES OR PENALTY CLAUSES OF ANY DESCRIPTION, OR (b) INDEMNIFICATION OF CUSTOMER OR OTHERS FOR COSTS, DAMAGES, OR EXPENSES EACH ARISING OUT OF OR RELATED TO THE GOODS OR SERVICES OF THIS ORDER, OR FOR CERTIFICATION, UNLESS OTHERWISE SPECIFICALLY PROVIDED HEREIN, OR (c) INDIRECT OR CONSEQUENTIAL DAMAGES UNDER ANY CIRCUMSTANCE, INCLUDING ANY LOSS, INJURY, OR OTHER DAMAGES. TRACKFORCE’S MAXIMUM LIABILITY, INCLUDING DIRECT DAMAGES, SHALL NOT EXCEED THE AMOUNT OF THE PURCHASE ORDER. THIS LIMITATION OF TRACKFORCE’S LIABILITY WILL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE. ANY ACTION AGAINST TRACKFORCE MUST BE BROUGHT WITHIN SIX MONTHS AFTER THE CAUSE OF ACTION ACCRUES.
Cancellation and Termination: Customer may terminate any order or contract after contract minimum has been met and only by written notice and upon payment to TRACKFORCE of reasonable and proper cancellation charges, including but not limited to all labor, facility, and equipment costs identified in the order or contract and which have been incurred prior to the date of notice of cancellation. TRACKFORCE shall have the right to cancel any order or contract at any time by written notice for any breach of the order or contract by the Customer, including lack of payment, and TRACKFORCE shall be entitled to collect reasonable cancellation charges. TRACKFORCE also shall have the right to suspend services to Customer for any unpaid invoices that are more than ten (10) days past their due date. No termination by Customer for default shall be effective unless and until TRACKFORCE shall have failed to correct such alleged default within forty-five (45) days after receipt by TRACKFORCE of the written notice specifying such default.
Force Majeure: TRACKFORCE shall not be liable for any loss, damage or delay in delivery due to acts of God or causes beyond its reasonable control including acts of the Customer, acts of civil or military authority, fires, strikes, floods, epidemics, quarantine restrictions, war, riots, delays in transportation, transportation embargoes, or inability due to causes beyond its reasonable control to obtain necessary engineering talent, labor, materials or manufacturing facilities. In the event of such delay, the delivery date shall be extended for that length of time as may be reasonably necessary to compensate for the delay.
Assignment: Neither party may assign this agreement without the written consent of the other party.
Governing Law: This Agreement shall be made in and performed in the State of California and shall be governed by and interpreted in accordance with the laws of the State of California.
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