THIS SALES CONTRACT (this “Agreement” or this “Sales Contract”), effective as of 8/6/2019, is made and entered into by and between Evolve PCs LLC, a company organized and existing in Texas, (hereinafter the “Seller”), and the purchaser of goods from Evolve PCs LLC (hereinafter the “Buyer”).
Whereas, Seller is the manufacturer and/or distributor of personal computers, and
Whereas, Buyer wishes to purchase from Seller, and Seller wishes to sell to Buyer, such products, solely upon the terms and conditions contained in this Sales Contract, and on no other terms, unless mutually agreed,
Now, Therefore, in consideration of the foregoing premises, and of the mutual promises and covenants herein contained, the parties, intending to be legally bound, do hereby agree as follows:
The Buyer may place orders (“Order(s)”) with Seller for Seller products and all such Orders will be governed solely by the terms and conditions contained in this Sales Contract, unless otherwise mutually agreed. Any oral understandings are expressly excluded. Seller shall not be deemed to have waived the terms and conditions contained herein if it fails to object to provisions appearing on, incorporated by reference in, or attached to any Buyer order form, and those provisions are hereby expressly rejected. No contrary or additional terms or conditions contained in any Buyer order form shall apply unless agreed to in writing and signed by an authorized representative of Seller. Additionally, Seller reserves the right to reject any Order submitted to it by Buyer.
Delivery shall be made within the time specified on Buyer’s Order or in accordance with Seller’s quoted lead time and monthly delivery rate, whichever is later. Transportation charges shall be prepaid and Buyer shall reimburse Seller upon receipt of an invoice for such charges. Seller
shall have the right to make early, accelerated and/or partial shipments in advance of the contractual delivery schedule, in its sole and absolute discretion.
The Buyer shall inspect and accept, or reject products delivered pursuant to the Order immediately after Buyer takes custody of such products. In the event the products do not comply with the applicable Seller drawings or specifications, the Buyer shall notify the Seller of such nonconformance and give the Seller a reasonable opportunity to correct any such nonconformance. The Buyer shall be deemed to have accepted any products delivered hereunder and to have waived any such nonconformance in the event Seller does not receive notification that the products delivered hereunder do not comply with the Seller’s drawings or specifications, within fifteen (15) days after the Buyer takes custody of such products. Unless otherwise agreed, Buyer shall have no right to conduct inspection at Seller’s facility. In the event the parties hereto mutually agree that Buyer may inspect Seller’s product at Seller’s facility, any such inspection shall be conducted with reasonable prior notice by Buyer to Seller and at reasonable times, on a non-interference basis, and such inspection shall not include the right to establish mandatory inspection points or enter proprietary or competition-sensitive areas of Seller’s facility.
Seller at all times reserves the right, and is entitled in its sole discretion, to make changes, additions or improvements to the products being delivered under an Order without liability or any obligation to incorporate such changes, additions or improvements into any item or product manufactured, sold or delivered prior to incorporation of the change, addition or improvement.
• PRICES AND PAYMENTS.
Prices and payments will be in United States dollars, and payment shall be made in United States currency. Invoice terms are net 30 days unless otherwise specified. Prices quoted are believed to be accurate; however, Seller reserves the right to correct any inadvertent errors in these prices prior to acceptance of the Order. Seller reserves the right to modify or withdraw credit terms at any time without notice and to require guarantees, security or payment in advance of the amount of credit involved. In the event payments are not made in a timely
manner, Seller may, in addition to all other remedies provided at law, either: (1) declare Buyer’s performance in breach and terminate this Order for default; (2) repossess the goods for which payment has not been made; (3) withhold future shipments under this Order until delinquent payments are made; (4) deliver future shipments under this Order on a cash with Order or cash in advance basis even after the delinquency is cured; (5) charge interest on the delinquency at a rate of 1-1/2% per month or the maximum rate permitted by law, if lower, for each month or part thereof of delinquency in payment plus applicable storage charges, or inventory carrying charges; or (6) recover all costs of collection including reasonable attorney’s fees; and (7) at Seller’s option combine any of the above rights and remedies as provided by law.
All amounts that Buyer owes Seller under an Order shall be due and payable according to the terms of an Order. Buyer is prohibited from and shall not set off such amounts or any portion thereof, whether or not liquidated, against sums which Buyer asserts are due it, from its parent affiliates, subsidiaries or other divisions or units under other transactions with Seller, its parents, affiliates, subsidiaries or other divisions or units.
Thank you for your interest in the products and services of Evolve PCs. This Limited Warranty applies to physical goods, and only for physical goods, purchased from Evolve PCs (the "Physical Goods"). What does this limited warranty cover? This Limited Warranty covers any defects in material or workmanship under normal use during the Warranty Period. During the Warranty Period, Evolve PCs will repair or replace, at no charge, products or parts of a product that proves defective because of improper material or workmanship, under normal use and maintenance. This Limited Warranty is not transferable. Seller will pay or reimburse shipping costs for valid warranty claims. What will we do to correct problems? Evolve PCs will repair the Product at no charge, using new or refurbished replacement parts. How long does the coverage last? The Warranty Period for Physical Goods purchased from Evolve PCs is 1 Year from the date of purchase. A replacement Physical Good or part assumes the remaining warranty of the original Physical Good or 1 Year from the date of replacement or repair, whichever is longer.
What does this limited warranty not cover?
This Limited Warranty does not cover any problem that is caused by:
• Conditions, malfunctions or damage not resulting from defects in material or workmanship
• Conditions, malfunctions or damage resulting from negligence, improper maintenance or modification- Damaged or destroyed by natural causes including but not limited to lightning, flood, or other natural disaster- Theft or loss of the Physical Goods Evolve PCs will pay for shipping charges. Evolve PCs shall not assume any risk of loss or damage to the Physical Good while in transit to us. What do you have to do? To obtain warranty service, you must first contact us to determine the problem and the most appropriate solution for you. Deliver the Physical Goods, in either its original packaging or packaging providing an equal degree of protection, including any accessories or documents that shipped with the Physical Goods to the address specified by Evolve PCs. You can contact us by any of the following contact methods:
• By email: email@example.com
• International customers are still covered under our warranty program, but Seller reserves the right to hire 3rd party assistance in helping the Buyer to fixing their goods. The 3rd party assistance will be sourced by the Seller along with being hired and paid for by the Seller. In the case that the system must be shipped back to the Seller, the buyer will be responsible for shipping fees.
• IMPLIED WARRANTIES.
EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, ALL IMPLIED WARRANTIES (INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE) SHALL BE LIMITED IN DURATION TO THE DURATION OF THIS LIMITED WARRANTY. Limitation of Damages EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, Evolve PCs SHALL NOT BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES RESULTING FROM ANY BREACH OF EXPRESS OR IMPLIED WARRANTY OR CONDITION, OR UNDER ANY OTHER LEGAL THEORY.
• CONSUMER PROTECTION.
Some states do not allow the exclusion or limitation of incidental or consequential damages, or allow limitations on how long an implied warranty lasts, so the above limitations or exclusions may not apply to you. This warranty gives you specific legal rights, and you may also have other rights that vary by state to state. Governing Law This Limited Warranty shall be governed by the laws of the State of Texas, United States without giving effect to any conflict of laws principles that may provide the application of the law of another jurisdiction.
• EXCUSABLE DELAY.
The Seller shall be excused from delays in delivery and performance of other contractual obligations under this Order caused by acts or omissions that are beyond the reasonable control and without the fault or negligence of Seller including but not limited to Government embargoes, blockades, seizure or freeze of assets, delays or refusals to grant an export license or the suspension or revocation thereof, or any other acts of any Government, fires, floods, severe weather conditions, or any other acts of God, quarantines, labor strikes or lockouts, riots, strife, insurrection, civil disobedience, war, material shortages or delays in deliveries to Seller by third parties. If the excusable delay circumstances extend for six months, either party may, at its
option, terminate this Order without penalty or liability and without being deemed in default or in breach thereof.
Buyer reserves the right to cancel any portion of this Order affected by a default of Seller or any insolvency or suspension of Seller’s operations or any petition filed or proceeding commenced by or against Seller under any state or federal law relating to bankruptcy, arrangement, reorganization, receivership or assignment for the benefit of creditors.
Except as otherwise specifically agreed in writing by Buyer and Seller, any dispute relating to an Order placed by a Buyer incorporated in the United States which is not resolved by the parties shall be adjudicated by any court of competent jurisdiction. For Orders placed by a Buyer incorporated outside the United States, the parties shall resort to binding arbitration under mutually agreed procedures.
• APPLICABLE LAW.
This Agreement shall be interpreted in accordance with the laws of the jurisdiction in which the Seller’s facility accepting the Order hereunder is located, exclusive of any choice of law provisions. The Seller and Buyer expressly agree to exclude from this Agreement the United Nations Convention on Contracts for the International Sale of Goods, 1980, and any successor thereto.
Unless otherwise agreed, Buyer shall be responsible for compliance with the export control laws and regulations of the U.S. Government, and when required by such laws and regulations shall obtain validated export and re-export licenses required for goods, services and technical data delivered under this Order. Seller shall not be liable to Buyer for any failure to provide goods, services or technical data as a result of any following U.S. Government actions: (1) refusal to grant export or re-export license; (2) cancellation of export or re-export license; or (3) any
subsequent interpretation of U.S. export laws and regulations, after the date of this order, that limits or has a material adverse effect on the cost of Seller’s performance on this Order.
• LIMITATION OF LIABILITY.
Seller’s liability on any claim for loss or damage arising out of, connected with, or resulting from an Order, or from the performance or breach thereof, or from the manufacture, sale, delivery, resale, repair or use of any product covered by or furnished under an Order shall in no case exceed the price allocable to the product or part thereof which gives rise to the claim, except as provided in the paragraph entitled “Patent Indemnity.” In no event shall Seller be liable for special, incidental or consequential damages. Except as herein expressly provided to the contrary, the provisions of this Order are for the benefit of the parties to the Order and not for the benefit of any other person.
• NONDISCLOSURE AND NON-USE OF SELLERS INFORMATION.
Buyer agrees that it will not use Seller’s data for the manufacture or procurement of products which are the subject of this Order or any similar products, or cause said products to be manufactured by or procured from any other source, or reproduce said data and information or otherwise appropriate them without the written authorization of the Seller. Buyer agrees that it will not disclose or make available to any third party any of Seller’s data or other information pertaining to this Order which is proprietary to Seller without obtaining Seller’s prior written consent.
• PATENT INDEMNITY.
Except insofar as an Order calls for products pursuant to Buyer’s designs, drawings or specifications, Seller agrees to pay the amount of any final judgment against Buyer resulting from a suit claiming that any commercial products manufactured or furnished hereunder, by reason of their manufacture, sale or use, infringes any United States patent which has issued at date of contract, and Buyer’s reasonable costs and expenses in defense of such suit if Seller does not undertake the defense thereof, provided Seller is promptly notified of the threat or commencement of such suit and is offered full and exclusive control to conduct the defense or settlement thereof.
Seller’s indemnity shall not apply where infringement would not have occurred from the normal use for which the products were designed. No responsibility is assumed for actual or alleged infringement of any foreign patent. Seller’s liability for damages hereunder is limited to those computed solely on the value of any products sold to Buyer. In no event shall Seller be liable for consequential damages or costs applicable thereto. In the event of any claim that a product furnished hereunder infringes any United States patent, Seller may at its option and expense (a) procure for Buyer the right to continue using the product, or (b) replace or modify the product so that it becomes non-infringing, or (c) grant Buyer a credit for such product, less a reasonable depreciation for use, damage, and obsolescence upon its return to Seller. Buyer agrees to pay all costs and expenses incurred by Seller in its defense and the amount of any judgment against Seller, in any suit or proceeding against Seller based upon a claim of infringement, resulting solely from the Buyer combining any product furnished hereunder with any item not manufactured or furnished by Seller or from the sale or use of any such combination by Buyer.
Seller shall also indemnify Buyer’s Buyers and agents for such infringement, if and to the extent that Buyer has agreed so to indemnify them, but to no greater extent than Seller has indemnified Buyer herein and under the same conditions as set forth herein. In the event any product to be furnished under this Order is to be made in accordance with drawings, samples or manufacturing specifications designated by Buyer and is not the design of Seller, Buyer agrees to defend, indemnify and hold Seller harmless to the same extent and subject to the same requirements as set forth in Seller’s obligation to Buyer as above. The above is in lieu of any other indemnity or warranty, express or implied by Seller, with respect to intellectual property (patents, trade secret, mask works, trademarks, copyrights, or the like).
• SOFTWARE LICENSE.
In the event that any software or software documentation is provided to Buyer by Seller in any form whatsoever under an Order and no software license agreement governing this sale has been signed between Buyer and Seller, Buyer agrees to accept the terms and conditions stated below effective the date of the first delivery hereunder:
• Subject to the terms and conditions herein, the Seller grants to Buyer a nonexclusive, nontransferable license to use the software or software documentation provided herein: (i) in the course of the normal operation in or with Seller products which are installed, or are intended to be installed, on aircraft, (ii) in the analysis or the formatting of reports using data from such Seller products or, (iii) on Seller or non-Seller products that are used to test, maintain, download, or process information compiled by Seller products.
• Making copies of software or documentation except for one copy for archive purposes is prohibited unless specifically authorized by Seller in writing. Should such copying be authorized, Buyer will reproduce and include all Seller proprietary and copyright notices and other legends in the same manner that Seller provides such notices and legends, both in and on every copy of licensed software and documentation and in any form.
• The software license and rights granted by Seller to Buyer hereunder are personal to Buyer. The licensed software and documentation may not be sub-licensed, transferred, or loaned to any other party without Seller’s prior express written consent, except that Buyer may transfer the licensed software and documentation in conjunction with the resale of any flight equipment or Seller supplied test equipment in which the licensed software and documentation is installed or with which it is used. Such permission to transfer is contingent upon the resale or transfer of Buyer’s agreement to use and protect the confidentiality of the licensed software and documentation under the same or similar terms as those set forth in this software license. Buyer will, however, notify Seller in writing of the transfer of the licensed software and documentation.
• Buyer agrees to utilize all licensed software and documentation only as authorized herein. Buyer may not either itself or with the assistance of others, make modifications to the licensed software and documentation, including, but not limited to, translating, decompiling, disassembling or reverse assembling, reverse engineering, creating derivative or merged works, or performing any other operation on licensed software and documentation to recover any other operation on licensed software and documentation to recover any portion of the program listing, object code or source code or any information contained therein.
• Buyer agrees to accept and retain licensed software and documentation in confidence. Buyer agrees to take appropriate action by instruction, agreement or otherwise with Buyer’s employees, or agents or other persons who are permitted access to licensed software and documentation as follows to inform said employees, agents or other persons who may come into contact with it of the confidential nature of licensed software and documentation; and to satisfy its obligations under this software license with respect to use, copying, and protection and security of licensed software and documentation.
• This software license is effective as of the date of first delivery hereunder and shall continue until terminated by Buyer for any reason whatsoever upon thirty (30) days prior written notice to Seller, provided Buyer ceases using and either returns or destroys Seller software and documentation; or by Seller, if Buyer does not comply with any of the terms and conditions of this software license and Buyer fails to remedy such failure within thirty (30) days after having received notice from Seller of such failure.
• Notwithstanding the warranties provided elsewhere herein, Buyer acknowledges that licensed software and documentation may be aircraft or sensor specific and, as such, may require reasonable adjustment or refinement to suit Buyer’s specific requirements.
Buyer shall provide reasonable aid to Seller in accomplishing such adjustments and refinements. Such reasonable adjustments or refinements shall commence on the date of delivery and be provided by Seller to Buyer for a period not to exceed ninety (90) days unless otherwise provided for in writing.
• Buyer agrees that it will not use the license software and documentation in the performance of a contract, or subcontract, with any Government in a manner so as to affect Seller rights to licensed software and documentation. If Buyer desires to use the licensed software or documentation in the performance of a contract or subcontract with a Government, prior to such use, Buyer shall consult with Seller as to the procedures and use of restrictive markings required to protect the ownership interest of Seller.
• This license and sale is subject to the laws and regulations, and other administrative acts, now or hereinafter in effect, of the United States and other governments and their departments and agencies relative to the exportation and/or re-exportation of licensed software and documentation. Buyer acknowledges that it will be responsible for compliance as necessary with such laws, regulations and administrative acts.
• Seller agrees to use reasonable efforts to secure any licenses or permits as may now or hereafter be required by the U.S. Government in connection with the performance of Seller obligations under this Order, but this will not be deemed to require any performance on the part of Seller which cannot lawfully be done pursuant to the laws, regulations and acts referred to above.
• SPECIAL TOOLING AND DATA.
Unless otherwise agreed in writing, all material, software, data processes, equipment, facilities and special tooling, which term includes but is not limited to jigs, dies, fixtures, molds, patterns, special taps, special gages, special test equipment, other special equipment and manufacturing aids and replacements thereof, used in the manufacture of products covered by an Order shall be and remain the property of Seller. Seller retains all rights, title and interest in drawings, engineering instructions, specifications, and all other written data, if any, furnished with the products.
The prices quoted herein do not include sums necessary to cover any taxes or duties including but not limited to Federal, State, Municipal excise, sales or use taxes or import duties upon the production, sales, distribution, or delivery of goods or furnishing of services hereunder. Any
taxes or duties that are due and owing hereunder shall be paid by the Buyer. Accordingly, Seller reserves the right to revise its price after the execution of this Order between the parties to include any and all taxes or duties that may become due hereunder and Seller may invoice Buyer for said additional amount. This clause shall survive the acceptance and complete performance of this Order by the parties herein.
Neither party shall assign this Order or any portion thereof without the advance, written consent of the other party, which consent shall not be unreasonably withheld. The non-assigning party shall not have any obligation to an assignee of the assigning party unless such consent is obtained.
Failure by Seller to assert all or any of its rights upon any breach of this Order shall not be deemed a waiver of such rights either with respect to such breach or any subsequent breach, nor shall any waiver be implied from the acceptance of any payment or service. No waiver of any right shall extend to or affect any other right Seller may possess, nor shall such waiver extend to any subsequent similar or dissimilar breach.
If any provision of these Conditions of Sale is determined to be illegal, invalid, or unenforceable, for any reason, then such provision shall be deemed stricken for purpose of the dispute in question, and all other provisions shall remain in full force and effect.
• LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE EVOLVE PCS ENTITY SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS OR REVENUES, WHETHER INCURRED DIRECTLY OR INDIRECTLY, OR ANY LOSS OF DATA, USE, GOODWILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM (i) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE SERVICES; (ii) ANY CONDUCT OR CONTENT OF ANY THIRD PARTY ON THE SERVICES, INCLUDING WITHOUT LIMITATION, ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES; (iii) ANY CONTENT OBTAINED FROM THE SERVICES; OR (iv) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF THE PCS ENTITY EXCEED THE GREATER OF ONE HUNDRED U.S. DOLLARS (U.S. $100.00) OR THE AMOUNT YOU PAID EVOLVE PCS, IF ANY, IN THE PAST SIX MONTHS FOR THE SERVICES GIVING RISE TO THE CLAIM. THE LIMITATIONS OF THIS SUBSECTION SHALL APPLY TO ANY THEORY OF LIABILITY, WHETHER BASED ON WARRANTY, CONTRACT, STATUTE, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT THE PCS ENTITY HAVE BEEN INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.