CAREFULLY READ THE FOLLOWING LEGAL AGREEMENT. FOR PURPOSES OF THIS AGREEMENT, “PRODUCTS” REFERS TO: (A) PRODUCTS, (B) CONSULTING, SUPPORT, AND MAINTENANCE SERVICES PACKAGES AS IDENTIFIED ON OUR WEBSITE AND CATALOG; AND (C) ANY SOFTWARE CONTAINED IN SKYFLY NETWORKS PRODUCTS AND ANY UPDATES THERETO. SERVICES AS DEFINED IN SECTION (B) ABOVE, AND PROFESSIONAL CONSULTING SERVICES AVAILABLE FOR PURCHASE (COLLECTIVELY, “SERVICES”), SHALL BE SUBJECT TO ADDITIONAL TERMS AND CONDITIONS AS REFERENCED HEREIN. USE OR RESALE OF THE PRODUCTS CONSTITUTES ACCEPTANCE BY YOU (“PURCHASER”) OF THESE TERMS AND CONDITIONS. SKYFLY NETWORKS SHALL NOT BE BOUND BY ANY ADDITIONAL, INCONSISTENT AND/OR CONFLICTING PROVISIONS IN ANY AGREEMENT (INCLUDING WITHOUT LIMITATION ANY RESELLER OR DISTRIBUTOR AGREEMENT BETWEEN PURCHASER AND SKYFLY NETWORKS), ORDER, RELEASE, ACCEPTANCE OR OTHER WRITTEN CORRESPONDENCE FROM PURCHASER UNLESS EXPRESSLY AGREED TO IN WRITING BY SKYFLY NETWORKS.
The price of the Products shall be set forth in SkyFly Networks’ price list then in effect when SkyFly Networks accepts Purchaser’s order or when such items are shipped, whichever is lower, less any applicable discount. SkyFly Networks reserves the right to change its price list without prior notice. Prices do not include freight, insurance, or other similar charges. Any such charges will be added to the price or separately invoiced to Purchaser. Prices, and associated costs, fees and charges, if any, attributable to Services are identified in SkyFly Networks’ professional services terms or as further described in SkyFly Networks’s terms of support published here: http://www.adminrugs.com/B2B/Catalog/
Purchaser shall pay all invoices issued under this Agreement within Seven (7) Business Days from date of invoice. Shipments, deliveries, and performance of work will at all times be subject to the approval of SkyFly Networks’ credit department and SkyFly Networks may at any time decline to make any shipments or deliveries or perform any work except upon receipt of payment or upon terms and conditions or security satisfactory to SkyFly Networks. Purchaser hereby grants a security interest in the Products sold under this Agreement and the proceeds thereof until payment of the full purchase price to SkyFly Networks. Purchaser agrees to execute any financing statements, continuation statements, and/or other documents as SkyFly Networks requests to protect its security interest.
Purchaser will pay or reimburse SkyFly Networks for all sales, use, value-added, and other taxes (except taxes on SkyFly Networks’ net income), and all customs, duties and tariffs now or hereafter claimed or imposed by any governmental authority upon the sale of the Products or licensing of the Software to Purchaser, or upon payments to SkyFly Networks under this Agreement.
Shipment of Products
SkyFly Networks will use commercially reasonable efforts to ship the Products at the times requested in purchase orders accepted by SkyFly Networks (in partial or full shipments); provided, however, in the event of shortages of labor, energy, components, raw materials, or supplies and/or interruption of SkyFly Networks’ production or for reasons beyond SkyFly Networks’ reasonable control, shipment may be delayed by SkyFly Networks without liability. Without liability to any person and without prejudice to any other remedy, SkyFly Networks may withhold or delay shipment of any order if you are late in payment and/or are otherwise in default under this Agreement.
4.2. Delivery and Acceptance of Products
SkyFly Networks will deliver Products to Purchaser as follows: (i) if shipped to a destination in the United States, delivery of Products will be made F.O.B. (SkyFly Networks’ place of shipment) (INCOTERMS 2000) and risk of loss or damage to the Products will pass to Purchaser upon delivery of the Products to the carrier at the F.O.B. point, and (ii) if shipped to a destination outside the United States, delivery will be EX WORKS (SkyFly Networks’ facility and/or place of manufacture) (INCOTERMS 2000) and risk of loss or damage to the Products will pass to Purchaser when the Products are placed at the disposal of Purchaser. Subject to Section 2.2 (“Security Interest”), title to the Products (other than the Software and Documentation (as defined in Section 5 (“License; Title”)) will pass to Purchaser upon SkyFly Networks’ tender of delivery to the carrier for shipment. The Products will be deemed accepted by Purchaser upon shipment.
The SkyFly Networks’ Software is licensed subject to the terms and conditions of the then-current SkyFly Networks Software license agreement for such SkyFly Networks Software in effect at the time the SkyFly Networks Software is provided. In the case of Third Party Software, the Third Party Software is licensed by the third party to the Purchaser subject to any applicable terms and conditions. Purchaser agrees that Purchaser will not attempt, and if Purchaser is a corporation, Purchaser will use Purchaser’s best efforts to prevent Purchaser’s employees and contractors from attempting, to reverse engineer, disassemble, modify, translate, create derivative works, rent, lease, loan, distribute, and/or sublicense the Products, in whole or in part. Title to and ownership of the Software and Documentation, and any improved, updated, modified or additional parts thereof, and all copyright, patent, trade secret, trademark, and/or other intellectual property rights embodied in the Products, shall at all times remain the property of SkyFly Networks or SkyFly Networks’ licensors.
SkyFly Networks warrants SkyFly Networks Products solely to Purchasers and pursuant to the terms and conditions of the warranty card and the software license agreement provided with the Product at the time of shipment or download. In the event of a failure of any SkyFly Networks Product to comply with the foregoing warranty during the applicable warranty period (a “Defect”), SkyFly Networks shall, at its option, repair or replace the SkyFly Networks Product or refund the fees paid by Purchaser for such SkyFly Networks Product (following Purchaser’s return of the SkyFly Networks Product), or provide a workaround for the Defect. Products provided as replacement products may be new or refurbished products. The foregoing sets forth Purchaser’s sole and exclusive remedies for a breach of the above limited warranties. SkyFly Networks makes no warranty as to the Third Party Products and Third Party Software.
Third Party Products distributed by SkyFly Networks are returnable to SkyFly Networks. SkyFly Networks Products shall be non-returnable except as provided in Section 6.1 (“Limited Warranty”) or under a current maintenance support entitlement. Prior to any return by Purchaser of any SkyFly Networks Product, Purchaser shall obtain a Return Material Authorization (“RMA”) from SkyFly Networks. Purchaser shall return the entire contents of the defective SkyFly Networks Product and dated proof of purchase for the defective SkyFly Networks Product, if requested by SkyFly Networks, marked with the RMA number, to SkyFly Networks’ designated repair facility, freight prepaid within Seven (7) Business Days of receipt of the RMA, with a written statement describing the Defect. SkyFly Networks shall only be obligated under its warranty for SkyFly Networks Products with Defects which are reproducible by SkyFly Networks in the execution environment. SkyFly Networks will pay the transportation charges (excluding taxes, duties, and/or customs) in accordance with the warranty program or support plan purchased for such SkyFly Networks Product. SkyFly Networks may refuse any SkyFly Networks Product not accompanied by an RMA and such refused shipments will be returned to Purchaser freight collect. Purchaser retains sole responsibility for risk of loss or damage to SkyFly Networks Products during shipment to and from SkyFly Networks hereunder. Replacement products will be warranted for the remaining warranty period of the original Product.
Disclaimer of Warranties
EXCEPT AS SET FORTH ABOVE, THE PRODUCTS AND SOFTWARE ARE PROVIDED “AS IS” AND SKYFLY NETWORKS AND ITS SUPPLIERS AND AUTHORIZED PARTNERS MAKE NO OTHER WARRANTIES, EXPRESS, IMPLIED, AND/OR STATUTORY, REGARDING PRODUCTS, EXCEPT TO THE EXTENT SUCH EXCLUSIONS OR LIMITATIONS ARE PROHIBITED BY APPLICABLE LAW. ALL IMPLIED WARRANTIES AS TO SATISFACTORY QUALITY, PERFORMANCE, MECHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, AND/OR NON-INFRINGEMENT ARE EXPRESSLY DISCLAIMED. YOU ASSUME RESPONSIBILITY FOR SELECTING THE SOFTWARE TO ACHIEVE YOUR INTENDED RESULTS, AND FOR YOUR USE THEREOF. WITHOUT LIMITING THE FOREGOING PROVISIONS, SKYFLY NETWORKS MAKES NO WARRANTY THAT THE SOFTWARE WILL BE ERROR-FREE OR FREE FROM INTERRUPTIONS OR OTHER FAILURES, AND/OR THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS. SOME JURISDICTIONS IN NORTH AMERICA DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES AND/OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, SO SUCH LIMITATIONS AND/OR EXCLUSIONS MAY NOT APPLY TO PURCHASER.
Purchaser may obtain maintenance and support services for SkyFly Networks’ Products by contacting SkyFly Networks’ Manager Marketing & Sales for the appropriate maintenance agreement, subject to the terms thereof. Such terms and conditions are as further described in SkyFly Networks’ terms of support published here: http://www.adminrugs.com/B2B/Support/Terms/. SkyFly Networks may, in its sole discretion, impose additional charges for updates and new versions of SkyFly Networks Products that encompass features or functions not performed by the SkyFly Networks Products as originally sold to Purchaser. Maintenance and support services for SkyFly Networks Products will be provided to Purchaser in accordance with the terms and conditions associated with such service. SkyFly Networks will not provide any maintenance and/or support services for any Third Party Products attached and/or assembled with its products. In this case, Maintenance and/or support services may be provided by Third Party subject to any applicable Third Party terms and conditions.
Limitation of Liability
IN NO EVENT WILL SKYFLY NETWORKS BE LIABLE TO PURCHASER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, AND/OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS AND LOST SAVINGS, HOWEVER CAUSED, WHETHER FOR BREACH OR REPUDIATION OF CONTRACT, TORT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE, WHETHER OR NOT SKYFLY NETWORKS WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT, SKYFLY NETWORKS’ TOTAL LIABILITY TO PURCHASER ARISING FROM OR IN RELATION TO THIS AGREEMENT OR THE PRODUCTS SHALL BE LIMITED TO THE TOTAL PAYMENTS TO SKYFLY NETWORKS UNDER THIS AGREEMENT FOR THE RELEVANT PRODUCTS. IN NO EVENT WILL SKYFLY NETWORKS BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO DAMAGES ARISING FROM DEATH OR PERSONAL INJURY IN ANY JURISDICTION WHERE SUCH LIMITATION IS PROHIBITED BY APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES; SO SUCH EXCLUSIONS MAY NOT APPLY TO PURCHASER.
Purchaser agrees to exercise at least the same degree of care to safeguard the confidentiality of the Products and any other confidential information of SkyFly Networks as Purchaser would exercise to safeguard the confidentiality of Purchaser’s confidential information, but not less than reasonable care. Purchaser agrees not to (i) disclose to any third party any confidential information of SkyFly Networks; (ii) reproduce the Products or any portion thereof in any form or medium, or (iii) use the Products or other confidential information of SkyFly Networks for any purpose not specified in this Agreement. Purchaser warrants that all persons having access to the Products and/or other confidential information of SkyFly Networks under this Agreement will abide by the obligations set forth in this Section 9. Purchaser agrees not to remove or destroy any copyright, logo, trademark, trade name, proprietary markings, and/or confidentiality legends placed upon or contained within the Products, its containers or Documentation. Purchaser agrees to comply with all legends that appear on or in the Products.
Term and Termination
The term of this Agreement shall continue unless terminated in accordance with this Section. SkyFly Networks may terminate this Agreement at any time upon (i) bankruptcy, insolvency, and/or receivership of Purchaser; or (ii) any material default by Purchaser of this Agreement not cured within Seven (7) Business Days after Purchaser receives written notice thereof.
In exercising its rights under this Agreement, Purchaser agrees to comply strictly and fully with all export controls and regulations imposed on the Products by the US and/or any country or organization or nations within whose jurisdiction Purchaser operates or does business.
If Products are being acquired by the U.S. Government, the Software and/or related Documentation is commercial computer software and commercial computer software documentation developed exclusively at private expense, and (i) if acquired by and/or on behalf of a civilian agency, shall be subject to the terms of this computer software license as specified in 48 C.F.R. 12.212 of the Federal Acquisition Regulations and its successors; and (ii) if acquired by and/or on behalf of units of the Department of Defense (“DoD”) shall be subject to the terms of this commercial computer software license as specified in 48 C.F.R. 227.7202, DoD FAR Supplement and its successors.
Purchaser shall not assign this Agreement or transfer any of the rights, duties, and/or obligations arising under this Agreement without the prior written consent of SkyFly Networks. This Agreement shall be binding upon, and inure to the benefit of, the successors and permitted assigns of the parties. This Agreement will be governed by and construed according to the laws of the state (Illinois, United States of America); with regard to body of law controlling conflicts of law. In the event of any dispute and/or claim arising out of this Agreement, the parties hereby submit to the jurisdiction of the federal and state courts located in Illinois, United States of America, as applicable. This Agreement may be amended and/or supplemented only by a writing that refers explicitly to this Agreement and that is signed on behalf of both parties. No waiver will be implied from conduct and/or failure to enforce rights, and no waiver will be effective unless in a writing signed on behalf of the party against whom the waiver is asserted. If any part of this Agreement is found invalid and/or unenforceable that part will be enforced to the maximum extent permitted by law and the remainder of this Agreement will remain in full force. This Agreement represents the entire agreement between the parties relating to its subject matter and supersedes all prior representations, discussions, and/or agreements, whether written or oral.