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TERMS: Buyer agrees to pay for the products, including all component parts, specified on this invoice (the “Product”) in accordance with the payment terms specified on this invoice. In the event Buyer fails to make any payment to Meritech when due, Buyer’s entire account(s) with Meritech shall become immediately due and payable without notice or demand. All past due amounts shall bear interest from the due date until paid at a rate of 18% per annum. The foregoing remedies are in addition to, and not a substitute for, any other remedies provided for herein or that may otherwise be available to Meritech.
SHIPMENTS: All products are shipped F.O.B., point of shipment unless otherwise agreed to in writing by Meritech. Risk of loss shall transfer to the Buyer upon tender of goods to Buyer, Buyer’s representative, or common carrier. The cost of any special packing or special handling caused by Buyer’s requirements or requests shall be added to the amount of the order. If Buyer causes or requests a shipment delay, or if Meritech ships or delivers the products erroneously as a result of inaccurate, incomplete or misleading information supplied by Buyer or its agents or employees, storage and all other additional costs and risks shall be borne solely by Buyer. Claims for products damaged or lost in transit should be made by Buyer to the carrier, as Meritech’s responsibility ceases upon tender of goods to Buyer, Buyer’s representative or common carrier.
INSPECTION AND ACCEPTANCE: Claims for damage, shortage or errors in shipping must be reported within three days following delivery to Buyer. Buyer shall have 7 days from the date Buyer receives the Product to inspect the Product for defects and nonconformance that are not due to damage, shortage or errors in shipping and notify Meritech, in writing, of any defects, nonconformance or rejection of the Product. After such 7 day period, Buyer shall be deemed to have irrevocably accepted the Product and these Terms and Conditions. After such acceptance, Buyer shall have no right to reject the Product for any reason or to revoke acceptance, or to dispute any of these Terms and Conditions. Buyer hereby agrees that such 7 day period is a reasonable amount of time for such inspection and revocation of the Product. Buyer shall have no right to order any change or modification to the Product or service previously ordered by Buyer or its representatives. Specially fabricated or ordered items may not be returned, and no refund will be made. The sole and exclusive remedy for any alleged defect in workmanship or material will be the replacement of the Product subject to Meritech’s inspection and limited warranty.
TAXES: Buyer shall be liable for the payment of all transaction based taxes including without limitation sales, use, gross receipts, compensating, occupation, privilege, excise or other similar taxes assessed in connection with the purchase and sale of the Product by payment of such taxes to Meritech, or by executing and delivering to Meritech a tax exemption certificate or in those jurisdictions where Meritech is not required to administer the laws and regulations of such jurisdiction, a tax indemnification agreement. Any such tax exemption certificate or tax indemnification agreement shall be in form and substance acceptable to Meritech, in Meritech’s sole discretion. Meritech shall have no obligation to pay any taxes, which are Buyer’s sole responsibility.
SECURITY INTEREST: Buyer hereby grants Meritech, to secure the payment and performance in full of the purchase price for the Product, plus any fees owed hereunder, a continuing security interest in, and pledges to Meritech, the Product (the “Collateral”), wherever located, whether now owned or hereafter acquired or arising, and all proceeds thereof. Buyer represents, warrants, and covenants that the security interest granted herein is, and shall continue to be, a first priority perfected security interest in the Collateral so long as any portion of the purchase price and fees remains unpaid. Meritech’s security interest in the Collateral shall continue until the purchase price and fees have been paid in full. Upon such payment in full, Meritech shall release its security interest in the Collateral and all rights therein shall revert to Buyer. Buyer hereby authorizes Meritech to file financing statements, without notice to Buyer, in all appropriate jurisdictions that, in Meritech’s sole judgment, are reasonably necessary to perfect or protect Meritech’s interest or rights hereunder.
TITLE: Title to the Product shall remain with Meritech until Buyer has paid the entire purchase price and any fees owed hereunder.
LIMITED WARRANTY: Meritech makes no warranties with respect to the Product other than those expressly provided in Meritech’s Limited Warranty available on its website atwww.Meritech.com/warranties.
ASSUMPTION OF RISK & INDEMNIFICATION: (A) Buyer is solely responsible for determining that the Goods and Services are appropriate for Buyer’s intended use or application. Buyer acknowledges that it is familiar with and assumes all risks and liability associated with the Goods and Services and their use. Unless otherwise agreed to by Buyer and Meritech in writing, Buyer is solely responsible for determining whether any verbal or written technical advice, assistance, recommendations, opinions, statements, or other information of Meritech is appropriate for Buyer’s intended use or application. Any such information is provided by Meritech to Buyer on an “AS IS” basis, and Meritech makes no claims, promises, warranties, representations, or guarantees, either express or implied, concerning such information, including without limitation as to the accuracy, completeness, adequacy, quality, merchantability, and fitness for a particular purpose of such information.
(B) Buyer will indemnify, defend, and hold harmless Meritech and its owners, parents, affiliates, subsidiaries, officers, directors, employees, representatives, and agents, from and against any and all liabilities, losses, damages, claims, costs or expenses (including reasonable attorneys’ fees and costs) incurred by Meritech with respect to (i) claims of misuse of proprietary information and infringements of IP based on designs, drawings, Specifications, or other information which Buyer provides to Meritech or which is developed by Meritech or others in conjunction with Buyer, (ii) the design, manufacture, integration or usage of a Good which alone or as a component in an assembly, is alleged or proved to have caused injury or damage, (iii) Buyer’s failure to comply with any applicable foreign, federal, state, or local law, rule, regulation, order, or ordinance, including without limitation U.S. export control laws, regulations, or orders, or Buyer’s failure to provide Meritech adequate information related thereto, and (iv) any breach of Buyer’s obligations under this Order.
LIMITED LIABILITY: (A) to the maximum extent permitted by applicable law, in no event will Meritech be liable to buyer or to any third person or entity with respect to the subject matter of this order, under any equity, common law, tort, contract, estoppel, negligence, strict liability, warranty, or other theory, for any (i) incidental, special, punitive, exemplary, consequential, or indirect damages, or (ii) damages relating to diminution or depreciation in value, delay or idle time for labor and equipment, or loss of sales, contracts, business, profits, revenues, production, savings, data, opportunity, use, reputation, or goodwill, even if the remedies provided for in this order fail for their essential purpose and even if a party has been advised of the possibility of any of the foregoing damages or the foregoing damages could have been reasonably foreseen.
(B) subject to section ASSUMPTION OF RISK & INDEMNIFICATION (A) and to the maximum extent permitted by applicable law, in no event will Meritech’s aggregate liability arising out of or related to this order, under any equity, common law, tort, contract, estoppel, negligence, strict liability, or other theory exceed the lesser of (i) the total of the amounts paid to Meritech for the goods and services sold pursuant to this order during the 12 months immediately prior to the incident giving rise to such liability, or (ii) $500,000.
(C) except as otherwise expressly provided herein, any action against Meritech must be brought within 12 months after the date such cause of action accrued. each provision in this order that provides for a limitation of liability, disclaimer of warranty, or exclusion of damages is severable and independent of any other provision and is to be enforced as such.
FORCE MAJEURE: The obligations of Buyer and Meritech shall be suspended and neither shall be liable for any damages suffered by the other if the failure of Buyer or Meritech to perform arises from an event of Force Majeure. An “event of Force Majeure” includes acts of God, weather or other action of the elements, warlike action, insurrection, revolution, civil strife, piracy, civil war, hostile action, strikes or other labor stoppages, acts of public enemies or material changes to state, federal or local laws, rules or regulations. Lack of funds or financial resources shall not be considered an event of Force Majeure.
REPRESENTATIONS AND WARRANTIES OF BUYER: Buyer represents and warrants to Meritech that (a) the information set forth on this invoice accurately represents (i) Buyer’s exact legal name; (ii) Buyer’s form of organization and jurisdiction of organization; (iii) Buyer’s principal place of business or executive offices and, if different, mailing address; and (iv) all other information set forth in this invoice pertaining to Buyer is accurate and complete, and (b) Buyer has sufficient financial resources to pay its debts and other financial obligations (including trade debts) as they come due, including the obligation to pay the purchase price and any fees owed hereunder to Buyer.
COVENANTS; So long as any portion of the purchase price or fees payable to Meritech hereunder remain unpaid, (a) Buyer shall not, without at least 30 days prior written notice to Meritech: (i) change its jurisdiction of organization, (ii) change its organizational structure or type, (iii) change its legal name, or (iv) change its tax identification number or other organizational number (if any) assigned by its jurisdiction of organization, (b) Buyer shall maintain the Product and keep the Product in good repair and working condition, and (c) Buyer shall not convey, sell, lease, transfer or otherwise remove the Product from Buyer’s facilities, without the prior written consent of Meritech.
DEFAULT: Meritech may enter Buyer’s principal place of Business upon prior written notice, and any amounts outstanding as of the date thereof, including without limitation, accrued interest, shall become immediately due and payable if Buyer (a) breaches any covenant, obligation, or warranty specified herein, (b) fails to make any payment due hereunder or pay any other obligations after such obligations are due and Meritech has provided Buyer with notice of such default, (c) becomes insolvent, enters into bankruptcy or a receiver is appointed in respect of any of its business or Buyer makes an assignment for the benefit of creditors, or (d) breaches any other provision of these Terms and Conditions.
ENFORCEMENT: The exclusive forum for adjudication of any controversy or dispute relating to the interpretation of or performance under or any matter relating to these Terms and Conditions or the Product shall be the state or federal courts located in the City and County of Denver, Colorado. Buyer waives any objection which it may now or hereafter have to such venue of any such action, suit or proceeding or any claim of forum non conveniens, and irrevocably submits itself to the nonexclusive jurisdiction of any such state or federal court for the purposes of any such action, suit or service proceeding.
WAIVER: Any waiver by Meritech of these Terms and Conditions or any defaults hereunder shall not constitute a waiver of the remaining Terms and Conditions or of any partial invalidity or unenforceability, and no failure or delay in exercising any right hereunder shall operate as a waiver thereof.
SEVERABILITY: If any provision hereof is held to be illegal, invalid or unenforceable under any present or future laws, such provision shall be fully severable and the terms and conditions herein shall be construed and enforced as if such illegal, invalid or unenforceable provision had never been made a part hereof. The remaining provisions herein shall remain in full force and effect and shall not be affected by such illegal, invalid or unenforceable provisions or by their severance here from.
GOVERNING LAW: This transaction shall be governed in all respects by the laws of the State of Colorado, without regard to its conflict of laws provisions.
SUCCESSORS AND ASSIGNS: These Terms and Conditions and everything herein contained shall inure to the benefit of and be binding upon Buyer, Meritech and each of their heirs, executors, administrators and permitted successors and assigns.
ENTIRE AGREEMENT: This document constitutes the entire, complete, and exclusive agreement between Buyer and Meritech with respect to the subject matter hereof. All prior proposals, negotiations and representations, if any, including any purchase orders or written quotes, that are different from or in addition to the terms and conditions herein are hereby rejected and shall not be binding on Meritech.