Terms and Conditions of Use
Welcome to the Terms and Conditions operated by SRSINTL Direct, Inc. (“SRSINTL Direct,” “we,” “us,” or “our”). This Website (the “SRSINTL Direct Website” or the “Website”) provides general information about SRSINTL Direct, and its products, free of charge to our users. All uses of the SRSINTL Direct Website are subject to the following terms and conditions of use (these “Terms of Use”).
Please read these Terms and Conditions of Use carefully before accessing or using any part of this Website. By accessing or using this Website, you agree that you have read, understand, and agree to be bound by these Terms of Use, as amended from time to time, as well as the SRSINTL Direct Privacy Policy, which is hereby incorporated into these Terms of Use. If you do not wish to agree to these Terms of Use, do not access or use any part of this Website.
SRSINTL Direct may revise and update these Terms of Use at any time by posting the amended terms to this Website. Your continued use of the SRSINTL Direct Website means that you accept and agree to the revised Terms of Use. If you disagree with the Terms of Use (as amended from time to time) or are dissatisfied with this Website, your sole and exclusive remedy is to discontinue using this Website. The most current version of these Terms and Conditions of Use, which supersedes all previous versions, can be reviewed by clicking on the “Terms of Use” hyperlink.
Use of the Website for Terms and Conditions
You agree to use the SRSINTL Direct Website only for lawful purposes:
Specifically you agree not to do any of the following: (1) upload to or transmit on the SRSINTL Direct Website any defamatory, indecent, obscene, harassing, violent or otherwise objectionable material, or any material that is, or may be, protected by copyright, without permission from the copyright owner; (2) use the SRSINTL Direct Website to violate the legal rights (including the rights of publicity and privacy) of others or to violate the laws of any jurisdiction; (3) intercept or attempt to intercept electronic mail not intended for you; (4) misrepresent an affiliation with any person or organization; (5) upload to or transmit on the SRSINTL Direct Website any advertisements or solicitations of business; (6) restrict or inhibit use of the SRSINTL Direct Website by others; (7) upload or otherwise transmit files that contain a virus or corrupted data;
(8) collect information about others (including e-mail addresses) without their consent; (9) download a file or software or include in a message any software, files or links that you know, or have reason to believe, cannot be distributed legally over the SRSINTL Direct Website or that you have a contractual obligation to keep confidential (notwithstanding its availability on the SRSINTL Direct Website); (10) post “spam,” transmit chain letters or engage in other similar activities; or (11) engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the SRSINTL Direct Website, or which, as determined by SRSINTL Direct, may harm SRSINTL Direct or users of the SRSINTL Direct Website or expose them to liability.
Content Terms and Conditions
Any content and/or opinions uploaded, expressed, or submitted to a message board, chatroom, or any other publicly available section of the SRSINTL Direct Website (including password-protected areas), and all articles and responses to questions, other than the content provided by SRSINTL Direct, are solely the opinions and responsibility of the person or entity submitting them and do not necessarily reflect the opinions of SRSINTL Direct. You understand and acknowledge that you are responsible for whatever content you submit, and you, not SRSINTL Direct, have full responsibility for such content, including its legality, reliability, and appropriateness.
By uploading or otherwise transmitting material to any area of the SRSINTL Direct Website, you warrant that the material is your own or is in the public domain or otherwise free of proprietary or other restrictions and that you have the right to post it to the SRSINTL Direct Website. You grant to SRSINTL Direct the right to use all content you upload or otherwise transmit to the SRSINTL Direct Website in any manner SRSINTL Direct chooses, including, but not limited, to copying, displaying, performing or publishing it in any format whatsoever, modifying it, incorporating it into other material or making a derivative work based on it.
Discretion of Terms and Conditions
SRSINTL Direct reserves the right, but does not assume any responsibility, to (1) remove any material posted on the SRSINTL Direct Website that SRSINTL Direct, in its sole discretion, deems inconsistent with the foregoing commitments, including any material SRSINTL Direct has notified, or has reason to believe, constitutes a copyright infringement; and (2) terminate any user’s access to all or part of the SRSINTL Direct Website. However, SRSINTL Direct can neither review all material before it is posted on the SRSINTL Direct Website nor ensure prompt removal of objectionable material after it has been posted.
Accordingly, SRSINTL Direct assumes no liability for any action or inaction regarding transmissions, communications, or content provided by third parties. SRSINTL Direct reserves the right to take any action it deems necessary to protect the personal safety of users of this Website and the public; however, SRSINTL Direct has no liability or responsibility to anyone for the performance or nonperformance of the activities described in this paragraph.
Your failure to comply with the provisions of (A) or (B) above may result in the termination of your access to the SRSINTL Direct Website and may expose you to civil and/or criminal liability.
Copyright Restrictions/Use of Content
The entire contents of this Website (including all information, software, text, displays, images, and audio) and the design, selection, and arrangement thereof, are proprietary to SRSINTL Direct or its licensors and are protected by United States and international laws regarding copyrights, trademarks, trade secrets, and other proprietary rights. You are authorized only to use the content on the SRSINTL Direct Website for personal use or legitimate business purposes related to your role as a current or prospective customer, supplier, or distributor of SRSINTL Direct.
You may not copy, modify, create derivative works of, publicly display or perform, republish, store, transmit, or distribute any of the material on this Website without the prior written consent of SRSINTL Direct, except to (a) store copies of such materials temporarily in RAM, (b) store files that are automatically cached by your web browser for display enhancement purposes, and (c) print a reasonable number of pages of the SRSINTL Direct Website; provided in each case that you do not alter or remove any copyright or other proprietary notices included in such materials and Terms and Conditions.
Neither the title nor any intellectual property rights to any information or material in this Website are transferred to you but remain with SRSINTL Direct or the applicable owner of such content. Except as expressly authorized by SRSINTL Direct in writing, you may not reproduce, sell, or exploit for any commercial purposes (i) any part of this Website, (ii) access to this Website, or (iii) use of this Website or any services or materials available through this Website.
Trademarks of Terms and Conditions
The term “SRSINTL Direct” is a trademark and the SRSINTL Direct Beyond Measure logo and all related product and service names, designs and slogans are SRSINTL Direct trademarks. You may not use such marks without SRSINTL Direct’s prior written permission. All other names, brands, and marks are used for identification purposes only and may be trademarks or registered trademarks of their respective owners.
Dealings with Third-Party Merchants
If you choose to correspond, participate in a promotion, or engage in transactions with any merchant found on or through this Website, you acknowledge and agree that SRSINTL Direct is not a party to, and will not be responsible for, your interaction with such merchant, including its treatment of your information and the terms and conditions applicable to any transaction between you and the merchant.
The terms of your interaction with any merchant are solely between you and such merchant. You agree that SRSINTL Direct will have no responsibility or liability for any loss or damage of any kind that you may suffer as the result of any such interaction or the presence of such merchants on this Website.
Liability of SRSINTL Direct and Its Licensors
SRSINTL Direct Terms and Conditions does not assume any liability for the materials, information, and opinions provided on, or available through, the SRSINTL Direct Website (the “Site Content”). Reliance on the Site Content is solely at your own risk. SRSINTL Direct disclaims any liability for injury or damages resulting from the use of any Site Content.
THE SRSINTL Direct Terms and Conditions WEBSITE, THE SITE CONTENT, AND THE PRODUCTS AND SERVICES PROVIDED ON OR AVAILABLE THROUGH THIS WEBSITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. NEITHER SRSINTL Direct NOR ANY PERSON ASSOCIATED WITH SRSINTL Direct MAKES ANY WARRANTY OR REPRESENTATION concerning THE QUALITY, ACCURACY, OR AVAILABILITY OF THE SRSINTL Direct WEBSITE. SPECIFICALLY, BUT WITHOUT LIMITING THE FOREGOING,
NEITHER SRSINTL Direct NOR ANYONE ASSOCIATED WITH SRSINTL Direct WARRANTS OR REPRESENTS THAT THE SRSINTL Direct WEBSITE, THE SITE CONTENT OR THE SERVICES PROVIDED ON OR THROUGH THIS WEBSITE WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED; THAT DEFECTS WILL BE CORRECTED; THAT THE SRSINTL Direct WEBSITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR THAT THE SRSINTL Direct WEBSITE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
Disclaims
SRSINTL Direct DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. IN NO EVENT WILL SRSINTL Direct OR ITS LICENSORS OR CONTRACTORS BE LIABLE FOR ANY DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF, OR INABILITY TO USE, THE SRSINTL Direct WEBSITE, THE SITE CONTENT, ANY SERVICES PROVIDED ON OR THROUGH THIS WEBSITE OR ANY LINKED SITE, INCLUDING ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO,
PERSONAL INJURY, LOST PROFITS OR DAMAGES RESULTING FROM DELAY, INTERRUPTION IN SERVICE, VIRUSES, DELETION OF FILES OR ELECTRONIC COMMUNICATIONS, OR ERRORS, OMISSIONS OR OTHER INACCURACIES IN THE SRSINTL Direct WEBSITE OR THE SITE CONTENT, WHETHER OR NOT THERE IS NEGLIGENCE BY SRSINTL Direct AND WHETHER OR NOT SRSINTL Direct HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES
Indemnification of Terms and Conditions
You agree to indemnify and hold harmless SRSINTL Direct and its officers, directors, employees, agents, affiliates, third-party information providers, licensors, and others involved in the SRSINTL Direct Website or the delivery of products, services, or information over the SRSINTL Direct Website (collectively, the “Indemnified Parties”), from and against any liabilities, expenses, damages and costs, including reasonable attorney’s fees, arising from any violation by you of these Terms of Use or your use of the SRSINTL Direct Website or any products, services or information obtained from this Website. You will also indemnify and hold the Indemnified Parties harmless from and against any claims brought by third parties arising out of your use of the information accessed from this Website. Submission of Personally Identifiable Information to SRSINTL Direct/Protection of Personal Information of Terms and Conditions.
SRSINTL Direct’s use of your personal information and your responsibilities in connection with protecting your privacy are described in our Privacy Policy which is located at SRSINTL Direct’s Privacy Policy Web Page and is incorporated by reference into these Terms of Use. You are prohibited from using any services or facilities provided in connection with this Website to compromise security or tamper with system resources and/or accounts. The use or distribution of tools designed for compromising security (e.g., password-guessing programs, cracking tools, or network probing tools) is strictly prohibited. If you become involved in any violation of system security, SRSINTL Direct reserves the right to release your details to system administrators at other websites to assist them in resolving security incidents. SRSINTL Direct reserves the right to investigate suspected violations of these Terms of Use.
Reserves the Right
SRSINTL Direct reserves the right to fully cooperate with any law enforcement authorities or court order requesting or directing SRSINTL Direct to disclose the identity of anyone posting any e-mail messages, or publishing or otherwise making available any materials that are believed to violate these Terms of Use. BY ACCEPTING THIS AGREEMENT, YOU WAIVE AND HOLD HARMLESS SRSINTL Direct AND THE INDEMNIFIED PARTIES FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY SRSINTL Direct DURING OR AS A RESULT OF ITS INVESTIGATIONS AND/OR FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER SRSINTL Direct OR LAW ENFORCEMENT AUTHORITIES.
Comments and Submissions Terms and Conditions
SRSINTL Direct welcomes your comments. All comments, suggestions, or other information sent by you to this Website will become SRSINTL Direct’s property, and you agree that all intellectual property rights therein are transferred to SRSINTL Direct. You understand that any postings to publicly available portions of the SRSINTL Direct Website are non-confidential for all purposes.
Links to Other Sites
The SRSINTL Direct Website may contain links to other websites on the Internet. SRSINTL Direct is not responsible for and does not endorse the content, products, or services of any third-party Websites, including, without limitation, sites framed within the SRSINTL Direct Website or third-party advertisements, and SRSINTL Direct does not make any representations regarding their quality, content or accuracy. Your use of third-party websites is at your own risk and subject to the terms and conditions of use for such websites.
U.S. Government Users
Use, duplication, or disclosure by the United States Government is subject to the restrictions outlined in DFARS 252.227-7013(c)(1)(ii) and FAR 52.227-19 and any other successor regulations that may be applicable.
Compliance
The owner of this Website Terms and Conditions are based in the Commonwealth of California, USA. SRSINTL Direct makes no representation that materials on this Website are appropriate or available for use in other locations. If you access this Website from other locations, you are responsible for complying with local laws.
Contact/Digital Millennium Copyright Act
If you are a copyright owner or an agent thereof and believe that any content infringes upon your copyrights, you may submit a notification under the Digital Millennium Copyright Act (“DMCA”) by providing us with the following information in writing (see 17 U.S.C §512(c)(3) for further detail):
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit SRSINTL Direct to locate the material.
- Information reasonably sufficient to permit SRSINTL Direct to contact you, such as an address, telephone number, and, if available, electronic mail.
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; an
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Notifications
You may direct copyright infringement notifications to us at:
SRSINTL Direct, Inc.
Attn: Accounting
41593 Winchester Rd, Ste. 200-249
Temecula, CA. 92590 USA
[email protected]
You acknowledge that if you fail to comply with all the requirements of this section, your DMCA notice may not be valid.
Miscellaneous
These Terms and Conditions of Use shall be governed in all respects by and construed by the laws of California USA, without regard to its conflicts of law principles. These Terms of Use, as they may be amended from time to time, completely and exclusively state the agreement between you and SRSINTL Direct concerning the SRSINTL Direct Website, and no other terms that may have been communicated to you orally or in any other manner shall have any force or effect. Any cause of action you may have concerned the SRSINTL Direct Website must be commenced within one (1) year after the claim or cause of action arises or such claim or cause of action is barred.
Exclusive jurisdiction over any cause of action arising out of these Terms of Use or your use of the SRSINTL Direct Website shall be in the state or federal courts located in Temecula, California. You agree to submit to the jurisdiction of such courts. If any part of these Terms of Use is unenforceable, the unenforceable part shall be construed to reflect, as nearly as possible, the original intentions of the parties. The other provisions of these Terms of Use shall remain in full force and effect.
No Relationships Exist
You agree that no joint venture, partnership, or agency relationship exists between you and SRSINTL Direct as a result of these Terms of Use or your use of this Website. A printed version of these Terms of Use and any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms of Use to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
SRSINTL Direct’s failure to insist upon or enforce strict performance of any provision of these Terms of Use shall not constitute a waiver of the provision. Neither the course of dealing or conduct between you and SRSINTL Direct nor any trade practices shall be deemed to modify these Terms of Use. SRSINTL Direct may revise these Terms of Use at any time by updating this posting.
Terms and Conditions of Sale and Supply
Interpretation
For the purposes of these Terms and Conditions of Sale and Supply (“Conditions”):
“Buyer” means the person, firm or company which places an order for purchase of Products and/or Services as identified in any such order or Proposal as the case may be.
“Conditions” means these terms and conditions of sale and supply as from time to time varied by the Supplier.
“Contract” means the agreement between the Supplier and the Buyer arising as a result of the Buyer’s submission of an order for the Supplier’s Products and Supplier’s written acceptance and/or, in the case of Services, an agreement between such parties for the provision of Services by Supplier, as constituted by a Proposal. Such Contract shall be deemed to incorporate and be governed by these Conditions.
“Products” means goods supplied as agreed to be supplied by the Supplier to the Buyer under any Contract including, where applicable, any Software.
“Proposal” means a proposal document signed by the Supplier and the Buyer describing Services to be provided to or for the Buyer, subject to these Conditions.
“Services” means any services which the Supplier has agreed to provide to or for the Buyer under any Contract, as more fully described in the relevant Proposal.
“Supplier” means Omega Engineering, Inc. or any of its affiliates as named in any quotation or Proposal.
Basis of Sale
THESE CONDITIONS SHALL TAKE PRECEDENCE OVER ANY TERMS AND CONDITIONS WHICH APPEAR IN THE BUYER’S ORDER OR IN ANY DOCUMENTS INCORPORATED BY REFERENCE IN THE BUYER’S ORDER. No term or condition of the Buyer’s order additional to or different from these Conditions shall become part of any Contract unless explicitly agreed to in writing by the Supplier. Retention by the Buyer of any Products delivered by the Supplier, receipt by the Buyer of any Services performed by the Supplier or payment by the Buyer of any invoice rendered hereunder, shall be conclusively deemed acceptance of these Conditions. The Supplier’s failure to object to any provision contained in any communication from the Buyer shall not be construed as a waiver of these Conditions nor as an acceptance of any such provision.
Quotations
Prices, specifications and delivery date referenced in the Supplier’s quotations are for information only and shall not be binding on the Supplier until all technical requirements have been agreed and the Supplier has accepted the Buyer’s order. Quotations terminate if the Buyer does not place an order with the Supplier within 30 days.
Orders
By submitting an order to the Supplier, the Buyer agrees to be subject to these Conditions in their entirety. All orders must be bona fide commitments showing definite prices and quantities and mutually agreed shipping dates. No order, whether or not submitted in response to a quotation by the Supplier, shall be binding upon the Supplier until accepted in writing by the Supplier.
Prices and Taxes
The prices for Products shall be the price quoted by the Supplier to the Buyer, and the fee for Services shall be the fee agreed in the Proposal or, in either case, as otherwise agreed between the parties in writing. Prices and fees do not include taxes, transport charges, insurance and export and/or import charges or duties including without limitation sales, value added tax, use or excise taxes, applicable to the Products sold and or Services supplied under any Contract, which taxes and other charges may, in the Supplier’s discretion, be added by the Supplier to the sale price
Also, and or fees or billed separately and which taxes and other charges shall be paid by the Buyer unless the Buyer provides the Supplier with any necessary tax exemption certificate. Unless otherwise agreed in writing, the Buyer shall be liable to pay the Supplier’s charges for transport, packaging, insurance and export and/or import clearance.
Shipment and Delivery
The Supplier shall deliver or arrange for delivery of Products Free Carrier (FCA Incoterms 2010), delivered to the carrier of Buyer’s choice or other as agreed between the parties. Any dates quoted by the Supplier for delivery of Products are approximate only and the Supplier shall not be liable for any delay in delivery of Products howsoever caused and time for delivery is not of the essence.
The Supplier reserves the right to make delivery of Products by installments and to tender a separate invoice in respect of each installment. When delivery is to be by installments, or the Supplier exercises its right to deliver by installments or if there is delay in the delivery of any one or more installments for whatever reason the Buyer shall not be entitled to treat the Contract as a whole as repudiated.
Risk and Passing of Title
Subject to Security Interest section, title to, and risk of loss and damage to, the Products shall pass to the Buyer on delivery in accordance with Shipment and Delivery section. Any claims for loss, damage or mis-delivery shall be filed with the carrier and notified to Supplier within 5 days of the date of delivery. Products shall be deemed finally inspected and accepted within ten days after delivery unless notice of rejection is given to the Supplier within such period. Acceptance shall constitute acknowledgement of full performance by the Supplier of all obligations under the Contract except as stated in Warranties section.
Security Interest
Buyer hereby grants to Supplier a security interest in all Products sold to Buyer as security for the due and punctual performance by Buyer of its payment obligations hereunder. Buyer authorizes Supplier to take any and all action necessary to evidence and perfect said security interest including, without limitation, the filing of any financing statements, and Buyer agrees to provide Supplier with all information required to make any such filing.
Services
The Supplier shall provide Services in accordance with these Conditions and the terms of the relevant Proposal.
The Buyer shall, upon the Supplier’s reasonable request and otherwise as required, provide the Supplier with all necessary information and materials to enable the Supplier to provide Services in accordance with the terms of any relevant contract. The Buyer will be responsible for the completeness and accuracy of all such information and materials provided and will ensure that it is and remains entitled to provide the same to the Supplier for use in connection with provision of the Services.
Terms of Payment
Each shipment of Products shall be a separate transaction and the Buyer will be invoiced on delivery. The Supplier shall be entitled to invoice the Buyer, in respect of Services, monthly in advance. Terms of payment shall be net thirty (30) days from date of invoice.
All amounts due under a Contract shall be paid in full by the Buyer without deduction, withholding, set-off or counterclaim for any reason whatsoever, whether arising in contract, tort (including negligence), breach of statutory duty or otherwise, save as may be required by law.
The Supplier may, in its sole discretion, determine at any time that the Buyer’s financial condition requires full or partial payment in advance or the provision of security for payment by the Buyer in a form satisfactory to the Supplier.
If the Buyer fails to make any payment when due then, without prejudice to any other rights and remedies available to the Supplier, the Supplier shall (at its option) be entitled: (i) to treat the Contract as repudiated by the Buyer, to suspend or cancel further delivery of Products and/or the provision of Services or any part thereof under that Contract or any other Contract between them and claim damages and/or receive reasonable cancellation fees; (ii) to affirm the Contract and claim damages from the Buyer; and (iii) to recover, in addition to the payment, interest on the unpaid amount (both before and after judgement) at the rate of 5% per annum above the “prime rate” as set forth from time to time in the Wall Street Journal (East Coast Edition), until payment in full is made. Such interest shall be calculated daily.
Products
The Supplier may modify specifications provided the modifications do not adversely affect the performance of the Products. In addition, the Supplier may furnish suitable substitutes for materials unobtainable because of priorities or regulations established by government authority, or non-availability of materials from its suppliers.
All descriptions, illustrations and any other information relating to the Products contained in the Supplier’s catalogues, brochures, price lists, advertising material and any sales or other particulars or literature are made by way of general description, are approximate only and for the general guidance and information of the Buyer. They shall not constitute warranties or representations by the Supplier, nor shall they form part of any Contract.
Warranties
The Supplier warrants that all Products shall be free from defects in material and workmanship under normal use for a period of one year from delivery to the Buyer, or such other period, if any, as specified in the Product specific warranty typically supplied with the Product, provided, however, that the Supplier does not warrant that operation of the Software (defined in Clause 14) will be uninterrupted or error free or that all program errors will be corrected. The Buyer shall be responsible for determining that the Product is suitable for the Buyer’s use and that such use complies with any applicable law.
The Supplier warrants that it shall perform the Services substantially in accordance with the Proposal and with reasonable skill and care. Provided that the Buyer notifies the Supplier in writing of any claimed defect in the Product immediately upon discovery and any such Product is returned at the Buyer’s risk to the Supplier, transportation charges prepaid, within one year from date of delivery and upon examination the Supplier determines to its satisfaction, after a reasonable period to inspect such Products, that such Product is defective in material or workmanship, the Supplier shall, at its option, repair or replace the Products, shipment to the Buyer prepaid.
Reasonable Time
The Supplier shall have a reasonable time to make such repairs or to replace such Product. Any repair or replacement of Products shall not extend the period of warranty. This warranty is limited to a period of one year, or such other period, if any, as specified in the Product specific warranty typically supplied with the Product, without regard to whether any claimed defects were discoverable or latent on delivery.
Services which do not conform with the warranty under this section and which are notified to the Supplier within 10 days of the Buyer becoming aware of the same, and in any event no later than 2 months after the date on which the Services were performed, shall, if the Supplier agrees they were non-conforming, be re-performed as soon as reasonably practicable after the Supplier’s receipt of notice of the non-conforming Services. If the Supplier fails to rectify any deficient performance of the Services, the Buyer’s sole remedy shall be reimbursement of that portion of the fees attributable to the Services concerned.
The Supplier shall not be liable for the breach of the warranty in respect of Products supplied if: (i) the Buyer makes further use of such Products after giving the notice required in this section; (ii) the defect or failure arises from the Buyer’s own fault; (iii) the defect arises from any drawing, design or specification supplied by the Buyer or from other materials or other property supplied by the Buyer or from any parts or items that have not been completely manufactured by the Supplier; (iv) the defect arises other than out of manufacture including without limitation, circumstances of accident, misuse, unforeseeable use, neglect, alteration, improper installation, improper adjustment, improper repair, or improper testing;
Defects
(v) the defect arises out of the use of the Products in conjunction with products or materials not reasonably contemplated by the Supplier; (vi) the failure or defect results from the Buyer’s unauthorized addition to or modification of, or failure to comply with the Supplier’s written instructions relating to, the Products or Services; and (vii) the failure or defect arises out of any breach by the Buyer of its obligations to provide information to the Supplier under this Agreement. If the Buyer fails to pay when due any portion of any payment due from the Buyer to the Supplier under a Contract or otherwise, all warranties and remedies granted under this section may, at the Supplier’s option, be terminated.
THE FOREGOING WARRANTIES APPLY ONLY TO THE BUYER, AS THE ORIGINAL PURCHASER, AND ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, TERMS AND CONDITIONS, EXPRESS OR IMPLIED BY STATUTE, COMMON LAW OR OTHERWISE, TO THE EXTENT PERMITTED BY LAW, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, QUALITY OR FITNESS FOR A PARTICULAR PURPOSE. THE SUPPLIER’S SOLE AND EXCLUSIVE LIABILITY, AND THE BUYER’S SOLE AND EXCLUSIVE REMEDY, FOR BREACH OF THE WARRANTIES IN THIS SECTION SHALL BE AS SET FORTH HEREOF.
Liability
Nothing in these Conditions shall exclude or limit the Supplier’s liability to the extent that the same may not be excluded or limited as a matter of law.
This section, in relation to Products, the Supplier’s maximum aggregate liability under or in connection with the supply, non-supply or purported supply of Products under any Contract, whether arising in contract, tort (including negligence) or otherwise, shall in no event exceed 100 % of the total amount payable by the Buyer in respect of Products under that Contract.
Subject to this section, in relation to Services, the Supplier’s maximum aggregate liability under or in connection with the supply, non-supply or purported supply of Services under any Contract, whether arising in contract, tort (including negligence) or otherwise, shall in no event exceed 100% of the total amount payable by the Buyer in respect of Services under that Contract and, in respect of Services continuing beyond one year, shall in no event exceed in any year 100% of the total amount payable by the Buyer in respect of Services in that year.
No Liability
Also, subject to this section, the Supplier shall be under no liability to the Buyer for any loss of profit, loss of income, loss of use, loss of business, loss of revenue, loss of goodwill, or for any indirect or consequential loss or damage of any kind, in each case howsoever arising, whether such loss or damage was foreseeable or in the contemplation of the parties and whether arising in tort (including negligence), contract or otherwise.
Any claim arising out of or in connection with a Contract must be commenced against the Supplier within one year of (i) delivery of the Products, or (ii) provision of the Services (as applicable), giving rise to the claim, and Supplier shall have no liability to the Buyer under or in connection with any claim commenced after such time.
Conditions
Unless a signed, written agreement pertaining to the Buyer’s use of SRSINTL Direct, Inc. products in any of the applications outlined below has been executed between SRSINTL Direct, Inc. and the Buyer, products sold by SRSINTL Direct, Inc. are not intended to be used, nor shall they be used: 1) as a “Basic Component” under 10 CFR Part 21 (NRC), used in or with any nuclear installation or activity; or 2) in medical applications or used on humans; or 3) in any onboard aviation or aerospace activity, application or use.
Should products be used in any of the above applications or activities, Buyer will indemnify SRSINTL Direct, Inc. and hold SRSINTL Direct, Inc. harmless from any loss, damage, liability, claim, demand, cost, or suit of any nature whatsoever for property damage, personal injury or death, product liability, regulatory claim or otherwise arising out of, in connection with or incidental to such application, activity or use. This indemnity shall include, without limitation, costs, expenses and attorneys’ fees occasioned by said loss, damage, liability, claims, demands or suits, as well as the full amount of any judgment rendered or compromise settlement made, plus interest, if applicable. The obligations under this section of Terms and Conditions shall survive the expiration or termination of this agreement.
Software
The Supplier shall at all times have and retain title and full ownership of all software, firmware, programming routines, and documentation relating to such software supplied by the Supplier for use with the Products, and of all copies made by the Buyer (collectively “Software”) and grants the Buyer a non-exclusive and non-transferable license to use such Software solely for use with the Products.
Intellectual Property Rights
Notwithstanding delivery of and the passing of title in any Products and subject to Software section and this section, nothing in these Conditions or any Contract shall have the effect of granting or transferring to, or vesting in, the Buyer any intellectual property rights in or to any Products and/or Services.
Buyer acknowledges and agrees that all patent, copyright and other intellectual property rights in any work or tangible deliverable item arising from or created, produced or developed by the Supplier under or in the course of provision of any Services (the “Works”), wherever in the world enforceable, including without limitations all right title and interest in and to the Services and all documents, data, drawings, specifications, articles, sketches, drawings, reports, inventions, improvements, modifications, discoveries, tools, scripts and other items relating thereto shall immediately upon creation or performance vest in and shall be and remain the sole and exclusive property of the Supplier and the Buyer shall acquire no right, title or interest in or to the same except as expressly stated in these Conditions.
Revocable
The Supplier grants to the Buyer a revocable, non-exclusive, non-transferable license to use such of the Works as are necessary, and to the extent necessary, for the Buyer to obtain and utilize the intended benefit of the Services.
If any claim is made against the Buyer that the Products or Services infringe the patent, copyright or other intellectual property rights subsisting in the United States of America of any third party, the Supplier shall indemnify the Buyer against all losses, damages, costs and expenses awarded against, or incurred by, the Buyer in connection with the claim or paid, or agreed to be paid, by the Buyer in settlement of the claim provided that: (I) the Supplier is given full control of any proceedings or negotiations in connection with any such claim; (ii) the Buyer shall give the Supplier all reasonable assistance for the purposes of any such proceedings or negotiations; (iii) except pursuant to a final award, the Buyer shall not pay or accept any such claim, or compromise any such proceedings without the consent of the Supplier;
Do Nothing
(iv) the Buyer shall do nothing which would or might vitiate any insurance policy or cover which the Buyer may have in relation to such infringement and shall use its best endeavors to recover any sums due thereunder and this indemnity shall not apply to the extent that the Buyer recovers any sums under any such policy or cover; (v) the Supplier shall be entitled to the benefit of, and the Buyer shall accordingly account to the Supplier for, all damages and costs (if any) awarded in favor of the Buyer which are payable by, or agreed with the consent of the Buyer (which consent shall not be unreasonably withheld) to be paid by, any other party in respect of any such claim; and
(vi) without prejudice to any duty of the Buyer at common law, the Supplier shall be entitled to require the Buyer to take such steps as the Supplier may reasonably require to mitigate or reduce any such loss, damages, costs or expenses for which the Supplier is liable to indemnify the Buyer under this section, which steps may include (at the Supplier’s option) accepting from the Supplier non-infringing, modified or replacement Products or Services.
No obligation or liability
The Supplier shall have no obligation or liability under this section insofar as the infringement arises from: (i) any additions or modifications made to the Products and/or Services in question, otherwise than by the Supplier or with its prior written consent; (ii) any information provided by the Buyer to the Supplier including without limitation any specification; (iii) performance by the Supplier of any work required to any Products, or performance of any Services, in compliance with the Buyer’s requirements or specification; (iv) a combination with or an addition to equipment not manufactured or developed by the Supplier; or (v) the use of Products beyond that scope established by the Supplier or approved in writing by the Supplier.
Without prejudice to Liability section, this section states the entire liability of the Supplier and the exclusive remedy of the Buyer with respect to any alleged infringement of intellectual property rights belonging to a third party arising out of or in connection with the performance of any Contract. This section shall be subject to the limits of liability in Liability section.
Force Majeure
Notwithstanding anything to the contrary in these Conditions of Terms and Conditions, the Supplier shall not be liable to the Buyer for any loss or damage which may be suffered by the Buyer as a direct or indirect result of the supply of Products or Services being prevented, delayed or rendered uneconomic by reason of circumstances or events beyond the Supplier’s reasonable control. If due to such circumstances or events the Supplier has insufficient stocks to meet all its commitments the Supplier may apportion available stocks between its customers at its sole discretion.
Confidential Information
Each party undertakes to keep confidential, not use for its own purposes and not without the prior written consent of the other party disclose to any third party, any information of a confidential nature belonging or relating to the other party which may become known to it unless such information is or becomes public knowledge (other than by breach of this section of Terms and Conditions) or is required to be disclosed by order of a competent authority.
Cancellation, Rescheduling and Termination
Orders for Products accepted by the Supplier may be cancelled or rescheduled by the Buyer only with the written consent of the Supplier (which consent the Supplier may withhold for any reason) and the Buyer shall indemnify the Supplier against the cost of all labor and materials used in connection with the order so cancelled or varied and against all loss, damage cost, charges and expenses suffered or incurred by the Supplier as a result of that cancellation or variation.
Contracts for Services shall commence on the commencement date identified in the relevant Proposal and, subject to earlier termination in accordance with this section, shall continue in force for the initial term as prescribed in such Proposal and thereafter for any renewal period (if any) set out in the Proposal and thereafter without limit of period unless or until terminated by either party in accordance with this section of Terms and Conditions.
Termination
Without prejudice to this section, either party may terminate a Contract for Services by giving ninety days (90) written notice to the other party.
Either party may terminate a Contract for Services immediately at any time by written notice to the other party if the other party commits a material breach of the Contract for Services which is incapable of remedy or which it fails to remedy within thirty days (30) of receiving written notice requiring it to be remedied.
Upon termination or expiry of any Contract for Services, each party shall, except to the extent permitted or required to exercise of perform its continuing rights, or obligations hereunder, return to the other party all property of the other party then in its possession, custody or control and shall not retain any copies of the same.
Termination of any Contract in accordance with these Terms and Conditions shall not affect the accrued rights or liabilities of the parties at the date of termination.
Insolvency of the Buyer
If: (i) the Buyer becomes insolvent, has a receiver, administrative receiver, administrator or manager appointed of the whole or any part of its assets or business, makes any composition or arrangement with its creditors, takes or suffers any similar action in consequence of debt or an order or resolution is made for its dissolution or liquidation (other than for the purpose of solvent amalgamation or reconstruction) or carries out or undergoes any analogous act or proceedings under an applicable foreign law; or
(ii) the Buyer ceases, or threatens to cease to carry on business then, without prejudice to any other right or remedy available to the Supplier, the Supplier may treat any Contract as repudiated and/or withhold any further supply of Products and/or Services without any liability to the Buyer and, if any Products and/or Services have been supplied but not paid for, the price or fees shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
Export
Regardless of any disclosure made by Buyer to Supplier of the ultimate destination of Products, Buyer shall not export either directly or indirectly any Product, or any system incorporating said product either in contravention of any law, statute or regulation or without first obtaining all required licenses and permits from all relevant agencies or departments of the United States government, including the United States Department of Commerce.
These items are controlled by the U.S. government and authorized for export only to the country of ultimate destination for use by the ultimate consignee or end- user(s) herein identified. They may not be resold, transferred, or otherwise disposed of, to any other country or to any person other than the authorized ultimate consignee or end user(s), either in their original form or after being incorporated into other items, without first obtaining approval from the U.S. government or as otherwise authorized by U.S. law and regulations.
General
These Conditions and any Contract shall be governed by the laws of the State of Connecticut, without regard to its conflict of laws principles. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to these Conditions. Where any claim or dispute arising out of or in connection with these Conditions or any Contract is not settled by negotiation, the parties will consider using mediation, in accordance with the American Arbitration Association mediation rules and procedures then in force, before resorting to arbitration. If any party does not wish to use, or continue to use mediation, or mediation does not resolve the dispute, any party may refer the claim or dispute to arbitration, in accordance with the then applicable Commercial Arbitration Rules of the American Arbitration Association.
Arbitration
The arbitration process will be commenced by service by one party on the other(s) of a written notice that the dispute is to be referred to arbitration. The parties will then participate in good faith in the arbitration. Unless otherwise agreed between the parties, the arbitrator will be nominated by the American Arbitration Association. Arbitration proceedings shall be held in California. Under no circumstances are the arbitrators authorized to render an award inconsistent with the provisions of the Warranties section and Liability section of these Terms and Conditions.
The expenses and fees of any such arbitration proceedings shall be borne equally by the Supplier and the Buyer. The award of the arbitrator or arbitrators shall be final and binding upon the parties, and judgment upon any such award may be entered in any court having jurisdiction. Nothing in this section point #1 shall prevent any party from having recourse to a court of competent jurisdiction for the sole purpose of seeking a preliminary injunction or such other provisional judicial relief as it considers necessary.
Failure by the Supplier to exercise or enforce any rights hereunder shall not be deemed to be a waiver of any such right nor operate so as to bear the exercise or enforcement thereof any time or times thereafter.
If any provision or part of a provision of these Terms and Conditions is or is held by any court of competent jurisdiction to be unenforceable or invalid, such unenforceability or invalidity shall not affect the enforceability of any other provision.
No Assign or Transferring
The Buyer may not assign, transfer, novate or otherwise dispose of all or any of its rights or delegate any of its obligations thereunder, in whole or in part, without the prior written consent of the Supplier.
These Conditions and the relevant Contract constitutes the entire agreement and Terms and Conditions and understanding between the parties with respect to its subject matter and supersedes any prior agreement, understanding or arrangement between the parties, whether oral or in writing. No representation, undertaking or promise shall be taken to have been given or implied from anything said or written in negotiations between the parties prior to the date of any Contract except as expressly stated in that Contract.
The Buyer shall not have any remedy in respect of any untrue statement made by the Supplier upon which the Buyer relied in entering into a Contract (unless such untrue statement was made fraudulently or was as to a fundamental matter including a matter fundamental to the Supplier’s ability to perform its obligations under the Contract and Terms and Conditions) and the Buyer’s only remedies shall be for breach of contract as provided for in these Terms and Conditions. Misrepresentations as to fundamental matters shall be subject to the terms of Liability section.
Modification or Amendment
Any modification or amendment to any Contract must be in writing and signed by the authorized representatives of the parties.
All notices given under these Conditions shall be sent to the address of the other party set forth in the quotation or to such other address as such party may designate from time to time by such notice. Notice shall be regarded as properly given if sent in writing and shall be deemed to have been served on delivery if sent by hand, 2 days after dispatched if sent by mail, and on confirmation of transmission, if sent by facsimile.