Effective Date: September 23, 2020
These Terms and Conditions of Sale (“Agreement) apply to the purchase of the LobiBox hardware (“Product”) ordered by Customer (“Customer”) or quoted by OpenTV, Inc., (“Seller”). Any other additional or inconsistent terms or conditions, including warranties or indemnities, referenced in a purchase order, or other document or communication, (“Order”) from Customer or any course of dealings between the parties or usage of trade are expressly disclaimed and rejected. The sale or Order of any Products is expressly conditioned on Customer’s assent to the terms and conditions of this Agreement. In addition to accepting this Agreement, to activate and use the Product, Customer understands that the Terms of Service and End-User License Agreement are separate and distinct from the terms and conditions of this Agreement and will require acceptance by Seller or the end-user, whichever the case may be. Seller may amend this Agreement at any time and without notice.
Orders. Unless expressly stated on the quote, Seller quotes are subject to change at any time without notice. Customer’s Order is subject to acceptance by Seller. Orders between Customer and Seller are established with Seller's written acceptance or Seller’s execution of the Order. Customer may only change, cancel or reschedule Orders for Products at no charge up to three business days before scheduled shipment and upon written notice to Seller, unless the Product has been modified or otherwise reconfigured in accordance with Customer’s specifications. Cancellation will not relieve Customer’s duty to pay for Products shipped. If an Order is properly cancelled, Customer’s sole remedy and Seller’s sole obligation will be a full refund of the purchase price paid for the Product. Cancellation of Orders following shipment must be made in accordance with the return policies of the manufacturer of the Product. Seller may correct, without liability, any typographical, clerical or other error or omission in any quote, statement of work, price list, order acknowledgement, invoice, correspondence, or other document. Products sold to Customer may be re-sold with advance written notice to Seller.
Price. Prices are quoted in US dollars and are subject to change without notice at any time before the Order is accepted. Prices are net of taxes including sales, use, excise, VAT, environmental, disposal, duties, or other taxes or fees. Customer pays the total purchase price for the Product plus shipping (to the extent shipping is not prepaid by Customer), including shipping charges that are invoiced to Seller as a result of using Customer’s carrier account number. If applicable, Customer is responsible for providing Seller with a tax exemption certificate acceptable to the taxing authorities or evidence of a valid direct pay permit. In the event an audit by a taxing authority reveals that Customer was not entitled to a tax exemption, Seller will invoice Customer any assessed taxes, penalties, and interest, including court costs, filing fees and attorneys’ fees.
Payment. Payment terms are Net 30 without any setoff, offset or deduction of any payment not due, taxes or otherwise, in the currency indicated on the invoice. Seller may invoice Customer separately for partial shipments or shipping charges. Payment or credit terms are at Seller's sole discretion and all Orders are subject to Seller's credit approval. Seller reserves the right to suspend further deliveries of Product until payment is received. Customer agrees to pay interest on all past-due sums at the lower of 1.5% per month or the highest rate allowed by law. Customer grants Seller a security interest in the Products to secure payment in full. Customer authorizes Seller to file a financing statement reflecting any security interest. Unless otherwise provided by applicable law, any credits provided to Customer by Seller expire if unused within 12 months from the date the credit was issued.
Delivery. Any shipping dates provided by Seller or any deadlines contained in a statement of work or any other document are estimates only. Seller will use commercially reasonable efforts to meet requested shipping times. Seller reserves the right to make shipments in installments and allocate the shipment of Products among its customer base. Delay in shipment of one installment will not entitle Customer to cancel other installments. Product will ship EXW (facilities of any Seller supplier), Incoterms 2010, freight and handling prepaid and added to the invoice. Customer authorizes Seller to choose the appropriate manner and means of all shipping of Product if a carrier is not designated in advance. For international shipping from the US or within or among non-US countries, expedited shipping, or other special considerations, Customer is responsible for paying all actual charges associated with the requests including all export and import duties, or other related costs.
Title. Title to Product will not pass to Customer until Seller has been paid in full for the Products. Notwithstanding anything in this Agreement, title to any software either embedded into Product remains with Seller or its applicable licensor(s), and Customer’s rights and obligations related to the software are contained in the Terms of Service.
Returns. Not all Products are eligible for return. Returns are subject to the policies of each original manufacturer or publisher. If software was downloaded electronically, it is not returnable. For information contact Seller at firstname.lastname@example.org.
Warranties, Exclusions and Disclaimers. For a period of one year from the date of purchase of the Product, Seller will, at its sole option and expense, repair or replace any Product that malfunctions due to defective parts or workmanship. This warranty is not transferable and applies only to the original Customer that purchased the Product. Seller may, in its sole discretion, make any repair or replacement with new or refurbished parts or components. Repair service, damage due to misuse, abuse, negligence or casualty (e.g., fire), acts of God (including but not limited to lightning, flood, tornado, earthquake, or hurricane), and consumable parts (including batteries) are not covered by this warranty. Damage from unauthorized service or modification of the Product or of any furnished voids this warranty. This warranty does not include reimbursement for inconvenience, installation, loss of use, or unauthorized service. Seller's maximum liability under this warranty is limited to the original purchase price of the Product at issue. NOTWITHSTANDING ANYTHING TO THE CONTRARY AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OR TO THE EXTENT ANY STATUTORY RIGHTS APPLY THAT CANNOT BE EXCLUDED, LIMITED OR WAIVED, WE AND OUR AFFILIATES AND LICENSORS (A) MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE SERVICE OFFERINGS OR THE THIRD-PARTY CONTENT, AND (B) DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED OR EXPRESS WARRANTIES (I) OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, (II) ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE, (III) THAT THE PRODUCT AND SERVICES OR THIRD-PARTY CONTENT WILL BE UNINTERRUPTED, ERROR FREE, ACCURATE, RELIABLE, OR FREE OF HARMFUL COMPONENTS, AND (IV) THAT ANY CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR ALTERED. SELLER RESERVES THE RIGHT, WITHOUT PRIOR NOTICE, TO CORRECT ANY ERRORS OR OMISSIONS AND TO CHANGE OR UPDATE INFORMATION AT ANY TIME BUT IS UNDER NO OBLIGATION TO.
Limitation of Liability. SELLER AND ITS AFFILIATES AND LICENSORS WILL NOT BE LIABLE TO CUSTOMER FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, REVENUES, CUSTOMERS, OPPORTUNITIES, GOODWILL, USE, OR DATA), EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NEITHER SELLER NOR ANY OF ITS AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR (B) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY CUSTOMER IN CONNECTION WITH THIS AGREEMENT OR CUSTOMER’S USE OF THE PRODUCT. IN ANY CASE, EXCEPT FOR PAYMENT OBLIGATIONS UNDER THIS AGREEMENT, SELLER AND ITS AFFILIATES’ AND LICENSORS’ AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNT CUSTOMER PAID FOR THE PRODUCT. THE LIMITATIONS IN THIS SECTION APPLY ONLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
Force Majeure. Seller is not liable for failure to fulfill its obligations under this Agreement due to causes beyond its reasonable control (for example, acts of nature, acts or omissions by Customer, operational disruptions, man-made or natural disasters, epidemic medical crises, strikes, criminal acts, delays in delivery or transportation, or inability to obtain labor, materials or Products through regular sources).
Arbitration and Governing Law. This Agreement is governed by the laws of the State of California, regardless of any conflict of law provisions. All disputes will be resolved by binding arbitration, rather than in court. The Federal Arbitration Act and federal arbitration law apply to this Agreement. The arbitration will be conducted by the American Arbitration Association (AAA) under its rules. Payment of filing, administration and arbitrator fees will be governed by the AAA's rules. Notwithstanding the foregoing Seller and Customer agree that Seller may bring suit in court to enjoin infringement or other misuse of its or its licensors intellectual property rights.
Miscellaneous. Seller may assign or subcontract all or any portion of its rights or obligations related to the sale of Products or assign the right to receive payments without Customer’s consent. Subject to the restrictions in assignment contained in this provision, this Agreement will be binding on and inure to the benefit of the parties and their successors and assigns. No provision of this Agreement may be waived, amended or modified by either party except by a written agreement signed by both Customer and Seller. Any delay or failure by either party to exercise any right or remedy will not constitute a waiver of that Party to enforce its rights. The relationship between Seller and Customer is that of independent contractors and not that of employer-employee, partnership or joint venture. All rights and obligations of the Parties under this Agreement automatically terminate with a cancellation of Order, except for payment obligations or other terms which by their nature are intended to survive termination including limitation of liability, warranty disclaimers, and this survival provision. This Agreement constitutes the entire agreement between the parties regarding the purchase of Products from Seller and supersedes and replaces any previous communications, representations or agreement, written or oral. If any part of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or unenforceable, all other parts will still remain in effect. Headings in this Agreement are for reference purposes only and are not to be interpreted as being part of this Agreement. Any notices required under this Agreement must be in writing. The Parties agree that electronic acceptance of this Agreement is legally valid, effective, and enforceable.