Customer agrees to pay Sity Communications, Inc. for the equipment and/or services pursuant to the terms of these terms and conditions, the purchase orders entered into in connection with these terms and conditions and the attached exhibits. Unless otherwise mutually agreed, all amounts shall be stated in U.S. Dollars. Except as otherwise provided in the specific purchase order, payment of amounts due to Sity Communications, Inc. hereunder shall be due and payable by customer within thirty (30) days of receipt of the applicable invoice. If Customer cancels an order and Sity Communications, Inc. has incurred any costs, including, for example, costs associated with obtaining, designing, storing, delivering, installing, de-installing or designing equipment for the Customer, the Customer shall be invoiced and shall pay for such costs. In the event the Customer fails to pay amounts due as provided in these terms and conditions and any attached exhibits, Sity Communications, Inc. may, at its option, and without prejudice to any other remedies available to it, suspend and/or cancel these terms and conditions and/or the related documents. Except as provided herein, all amounts paid are non-refundable.
Neither party shall disclose any pricing terms as provided by these terms and conditions and/or the related documents to any third party, except to legal or business advisers acting under duty of confidentiality, or as required by law, provided that nothing herein shall preclude either party from announcing the existence of an agreement between the parties.
TITLE AND RISK OF LOSS
Title to, and risk of loss with respect to, the equipment purchased hereunder shall transfer to Customer upon placement of the equipment with a carrier for delivery at Sity Communications, Inc.’s designated shipping point.
LIMITATION OF LIABILITY
Except as expressly required by law, Sity Communications, Inc. shall not be liable to Customer for compensation, reimbursement or incidental and/or consequential damages, even if advised of such possibility, that result in any way from performance or nonperformance of any obligation relating to these terms and conditions, the related documents or any equipment purchased, including but not limited to damages resulting from (i) the loss of prospective profits Or anticipated sales; or (ii) expenditures, inventory, investments, leases or commitments in connection with the business or goodwill of the other party. In no event shall the maximum liability of any party, together with the maximum liability of its officers, employees, agents, reseller and representatives under these terms and conditions and related documents for any matter related thereto exceed the amounts paid and payable by customer to Sity Communications, Inc. hereunder and thereunder.
Sity Communications, Inc. warrants that it has good and marketable title to the equipment purchased hereunder. For a period of one year after delivery, Sity Communications, Inc. warrants the equipment to be in operating condition. Customer will notify Sity Communications, Inc. of any equipment failures. Any material determined to be defective, at Sity Communications, Inc.’s option, will be repaired, replaced or credited in a commercially reasonable manner and time frame. If applicable, Sity Communications, Inc. will issue Customer a return authorization number. After receiving this number, Customer will ship the failed equipment to a Sity Communications, Inc. distribution center as specified by the Sity Communications, Inc. account executive. Customer shall be responsible tor the freight costs to ship defective equipment under warranty to Sity Communications, Inc. and Sity Communications, Inc. will be responsible for the cost of freight for the return of equipment to Customer.
EXCEPT AS EXPRESSLY PROVIDED IN THE “WARRANTY” SECTION
ABOVE, THE EQUIPMENT PROVIDED BY SITY COMMUNICATIONS, INC. TO CUSTOMER IS PROVIDED ‘AS IS’. SITY COMMUNICATIONS, INC. DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT W ILL SITY COMMUNICATIONS, INC. BE LIABLE TO CUSTOMER OR ANY OTHER THIRD PARTY FOR ANY INDIRECT DAMAGES, FAILURE, DISRUPTION, DOWNTIME, INCORRECT LINKAGE OR OTHER NON-PERFORMANCE BY SITY COMMUNICATIONS, INC. HEREUNDER. WARRANTIES MADE HEREUNDER OR UNDER RELATED DOCUMENTATION ARE NOT APPLICABLE WHERE
EQUIPMENT HAS BEEN RENDERED INOPERABLE DUE TO MISUSE,
MISHANDLING, IMPROPER INSTALLATION OR ALTERATION BY CUSTOMER. Additionally, to the extent the equipment contains, or relies for operation upon, proprietary software, Sity Communications, Inc. makes no representation or warranty whatsoever and, as between the parties, its shall be the sole responsibility of Customer to ensure that any and all licenses or rights for the possession and use of such software have been acquired.
SITY COMMUNICATIONS, INC. INDEMNITY
Sity Communications, Inc., at its O\VTI expense, will defend, indemnify and hold Customer, its officers, directors, employees, agents and successors harmless against any liability, or any litigation cost or expense (including reasonable attorneys’ fees), arising out of third party claims against Customer resulting from Sity Communications, Inc.’s negligent performance of its obligations hereunder. Sity Communications, Inc. shall be relieved of the foregoing obligations in the event Customer does not provide Sity Communications, Inc. with: (i) prompt written notice of such claim (unless Sity Communications, Inc. suffers no prejudice by the failure to be so promptly notified), (ii) authority to proceed as contemplated herein, and (iii) at Sity Communications, Inc.’s expense, proper and full information and assistance to settle or defend any such claim.
In the event Customer requests to make changes to any order for equipment or services provided hereunder or under the purchase order or contract to which these terms and conditions are attached, Sity Communications, Inc. will promptly and reasonably consider such changes, provided all requests for any such changes shall (i) be in writing, (ii) where applicable, provide for equitable adjustments in the purchase price or fees, (iii) provide for reimbursement to Sity Communications, Inc. for its costs to implement such changes, and (iv) be subject to Sity Communications, Inc.’s prior written approval, which shall not be unreasonably withheld.
Customer agrees that these terms and conditions and t he related documents comprise the complete and exclusive agreement between Customer and Sity Communications, Inc. regarding the purchase of the equipment and/or services provided hereunder and thereunder. These terms and conditions supersede all prior agreements and understanding between the parties hereto. No modification of or amendment to these terms and conditions or the related documents, nor any waiver of any rights hereunder and thereunder, will be effective unless in writing signed by both parties. These terms and conditions and the related documents shall be governed by and interpreted in accordance with the laws of the State of Texas, USA. These terms and conditions may not be assigned by Customer without the prior written consent of Sity Communications, Inc.