© 2017 Cloud Collected. All Rights Reserved.
560 Peoples Plaza #312
Newark, DE 19702
These terms and conditions govern the sale of Products (“Product or Products”) and provisions of services (“Services”) by Cloud Collected LLC. (CC) and its affiliates (“Seller”) as well as by third party vendors and/or service providers of Seller. These terms and conditions (“Agreement”) take precedence over Buyer’s supplemental or conflicting terms and conditions to which notice of objection is hereby given. Neither Seller’s commencement of performance or delivery shall be deemed or construed as acceptance of Buyer’s supplemental or conflicting terms and conditions. CC’s failure to object to conflicting or additional terms will not change or add to the terms of this agreement. Buyer’s acceptance of the Products and/or Services from Seller shall be deemed to constitute acceptance of the terms and conditions contained herein.
All orders placed by Buyer are subject to acceptance by Seller. Orders may not be cancelled or rescheduled without Seller’s written consent. All orders must identify the products, unit quantities, part numbers, applicable prices and requested delivery dates of the Products being purchased. Seller many in its sole discretion allocate Product among its Customers. Seller may designate certain Products and Services as non-cancellable, non-returnable (“NCNR”) and the sale of such Products shall be subject to special terms and conditions contained in Seller’s Customer Acknowledgement or NCNR Product Forms, which shall prevail and supersede any inconsistent terms and conditions contained herein or elsewhere.
The prices of the Products are those specified on the front of the invoice. Pricing for undelivered Products may be increased in the event of an increase in Seller’s cost, change in market conditions or any other causes beyond the Seller’s reasonable control. Price quotations shall automatically expire in thirty (30) days from the date issued, or as otherwise stated in the quotation.
Unless otherwise agreed to in writing by Seller, all prices quoted are exclusive of transportation and insurance costs, duties, and all taxes including federal, provincial, state and local sales, excise and value added, goods and services taxes and any other taxes. Buyers agrees to indemnify and hold Seller harmless for any liability for tax in connection with the sale, as well as the collection or withholding thereof, including penalties and interest thereon. When applicable, transportation and taxes shall appear as separate items on Seller’s invoice.
Payment may be made by Western Union, bank draft, money order, credit card, or wire transfer (all fees are borne by the Buyer). Typical payment terms are pre-paid terms due to the nature of the solutions offered. Where Seller has extended credit to Buyer, terms of payment shall be net thirty (30) days from date of invoice, without offset or deduction. On any past due invoice, Seller may impose interest at the rate of one and a half [1.5%] per month. If Buyer fails to make each payment when it is due, Seller reserves the right to change or withdraw credit and thereby suspend or cancel performance under any or all purchase orders or agreements in which the Seller has extended credit to Buyer. In the event of default by Buyer, Seller shall be entitled to costs, fees, and expenses, including but not limited to recovery of attorney fees, court costs and fees, and collections costs.
All deliveries will be made “EXWORKS” place of shipment. Title and risk of loss pass to the Buyer upon delivery of the product to the carrier. Seller’s delivery dates are estimates only and Seller is not liable for delays in delivery or for failure to perform due to causes beyond the reasonable control of the Seller, nor shall the carrier be deemed an agent of the Seller. A delayed delivery of any part of an Order does not entitle the Buyer to cancel other deliveries.
In the event that production of the products ordered by Buyer exceed or falls short of the number of products ordered by a figure not exceeding 5% of such number, Buyer shall nevertheless accept the products produced at the prices quoted on the order attached hereto.
When prototypes are necessary or requested by Buyer, samples shall be submitted to Buyer for approval before production begins. Tooling and production of units prior to sample approval shall be done at Buyer’s expense and risk.
Buyer shall defend, indemnify and hold Cloud Collected LLC. harmless, including its payment of all costs, expenses and attorneys fees, from and against any and all claims of patent infringement brought against, or involving, Cloud Collected LLC. which arise from its production and/or sales of goods produced in accordance with designs or specifications provided by Buyer, or utilizing parts or components designed or provided by Buyer.
Recognizing that Cloud Collected LLC. necessarily draws upon its long held expertise in specialized product design to facilitate the production of product under an order; and, also recognizing that all costs or expenses born by Buyer in arriving at the preproduction stage under this Agreement are not a true representation of the value imparted to the process by Cloud Collected LLC. through its experience and expertise; and further recognizing that Cloud Collected LLC. must itself draw upon its incremental additions to product technology in its design markets to maintain itself as a viable producer of specialized products, Buyer hereby agrees that all engineering designs and processes created by Cloud Collected LLC. in facilitating product development for Customer shall be and remain the property of Cloud Collected LLC., to be utilized by it in producing other products in the future. Provided, however, in no event shall Cloud Collected LLC. now, or in the future, withhold such engineering designs and processes from Buyer, and to the extent necessary, hereby grants a perpetual and royalty free license to Buyer to utilize such designs and processes in the future Cloud Collected LLC. production of the products produced under this Agreement.
Engineering or design changes suggested by Cloud Collected LLC. are made in the best interest of the parties hereto. However, Cloud Collected LLC. shall not be liable for any loss or damage arising out of or by reason of or resulting from any such changes, it being understood and agreed that Customer shall assume full responsibility for the failure or success of such changes. Notwithstanding the above, unless specifically agreed to in writing by the parties hereto, all engineering and/or process design work contracted for by the Customer shall remain the sole property of Cloud Collected LLC., including but not limited to all design documentation, layouts, art work and process information. All such work product shall be deemed Cloud Collected LLC. Confidential Information.
Shipments will be deemed to have been accepted by Buyer upon delivery of the said shipment to Buyer unless rejected upon receipt. Buyer shall perform all inspections and tests Buyer deems necessary as promptly as possible but in no event later than 7 days after delivery of product, at which time Buyer will be deemed to have irrevocably accepted the Products. Any discrepancy in shipment quantity must be reported within 7 days after delivery. Buyer may not return products without a return material authorization (“RMA”) number. RMA valid for 30 days from date issued. Buyer may not return NCNR Products. Any product returned by Buyer due to Buyer’s error may be subjected to a restocking change equivalent to 100% of the value of such Product as specified in the Seller’s invoice to Buyer.
In the event that Buyer desires to cancel this Agreement or delay production or delivery of the products, it shall give 8 (8) weeks written notice thereof to Cloud Collected LLC. Such rescheduled shipments must be within sixty (60) days of the original scheduled ship date, and remain within the original contract period. Cloud Collected LLC. reserves the right to approve any such request for delay or cancellation pending agreement on reimbursement of the costs attributable to the delay or cancellation. All additional costs to Cloud Collected LLC. resulting from any such action by Buyer, including but not limited to additional costs in materials, labour, overhead and engineering, will be paid by Buyer. In the event that the goods are standard goods normally carried as stock in trade by Cloud Collected LLC., Buyer shall pay any additional restocking costs incurred by Cloud Collected LLC. resulting from any such action by Buyer.
In the event the Buyer delays production or delivery of the goods, the Buyer shall pay to Cloud Collected LLC. the carrying costs incurred by Cloud Collected LLC. for the period of the delay. Such carrying costs will include, but not be limited to, material handling costs, re-tooling charges, additional production set-up costs and interest carrying costs.
In the event this Agreement is cancelled or if less than the total order quantity is shipped within the lesser of a twelve month period or the term of the order, the Buyer shall pay, and Cloud Collected LLC. will bill the Buyer for the quantity actually shipped, not at the unit price stated in the sales order, but at the appropriate price for the quantity actually shipped.
In the event this Agreement is cancelled the Buyer shall pay a unique materials charge. This charge will include the price of all materials in stock and on order for the sales order. Cloud Collected LLC. will make reasonable efforts to return and cancel all material for the sales order and reduce the unique materials charge accordingly.
Seller will transfer to Buyer any Product warranties and indemnities authorized by the manufacturer, including any transferable warranties and indemnities for intellectual property infringement. Seller warrants to Buyer that Products purchased hereunder will conform to the applicable manufacturer’s specifications for such products and that any value-added work performed by Seller on such Products will conform to Buyer’s specifications. If Seller breaches this warranty, Buyer’s remedy is limited to (at Seller’s election) (1) refund of Buyer’s purchase price for such Production (without interest), (2) repair of such Products, or (3) replacement of such Products; provided that such Products must be returned to Seller, along with acceptable evidence of Purchase, within 20 days from date of delivery, transportation charges prepaid. No warranty will apply if the Product has been subject to misuse, static discharge, neglect, accident or modification, or has been soldered.
SAVE AS EXPRESSLY PROVIDED IN THESE TERMS AND CONDITIONS, ALL IMPLIED WARRANTIES, TERMS AND CONDITIONS (EITHER STATUTORY OR OTHERWISE) ARE EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. IN PARTICULAR, SELLER MAKES NO WARRANTY RESPECTING THE MERCHANTABILITY OF THE PRODUCTS OR THEIR SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS AND WARRANTIES AGAINST LATENT DEFECTS.
BUYER SHALL NOT BE ENTITLED TO, AND SELLER SHALL NOT BE LIABLE FOR, LOSS OF PROFITS, OR REVENUE, PROMOTIONAL OR MANUFACTURING EXPENSES, OVERHEADS, BUSINESS INTERUPTION COST, LOSS OF DATA, REMOVAL OR REINSTALLATIONS COSTS, INJURY TO REPUTATION OR LOSS OF BUYERS, PUNITIVE DAMAGES, INTELLECTUAL PROPERTY INFRINGEMENT, LOSS OF CONTRACTS OR ORDERS OR ANY INDIRECT, SPECIAL INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE. BUYER’S RECOVERY FROM SELLER FOR ANY CLAIM SHALL NOT EXCEED THE PURCHASE PRICE PAID FOR THE AFFECTED PRODUCTS IRRESPECTIVE OF THE NATURE OF THE CLAIM WHETHER IN CONTRACT, TORT, WARRANTY, OR OTHERWISE. BUYER WILL INDEMNIFY, DEFEND AND HOLD SELLER HARMLESS FROM ANY CLAIMS BASED ON (a) SELLER’S COMPLIANCE WITH BUYER’S DESIGNS, SPECIFICATIONS, OR INSTRUCTIONS, (b) MODIFICATION OR ANY PRODUCTS BY ANYONE OTHER THAN SELLER, or (c) USE IN COMBINATION WITH OTHER PRODUCTS.
Buyer certifies that it will be the recipient of the Products to be delivered by Seller. Buyer acknowledges that the Products are subject to the export/import control laws and regulations of various countries. Products sold by the Seller cannot be transferred, sold or re-exported to any part on the “Listed Countries” of Canada ’s ACL controls Myanmar. In addition, all origin goods are controlled and can not be exported by the Buyer or resold to any party that may export the goods to US embargoed destinations. The U.S. embargoed countries include Cuba, Iran, North Korea, Libya, Sudan & Syria.
Products sold by Seller are not designed, intended or authorized for use in life support, life sustaining, nuclear, or other applications in which the failure of such Products could reasonably be expected to result in personal injury, Loss of life or catastrophic property damage. If Buyer uses or sells the Products for use in any such applications: (1) Buyer acknowledges that such use or sale is at Buyer’s sole risk; (2) Buyer agrees that Seller and the manufacturer of the Products are not liable, in whole or in part, for any claim or damage arising from such use; and (3) Buyer agrees to indemnify, defend and hold Seller and the manufacturer of the Products harmless from and against any and all claims, damages, losses, costs, expenses, and liabilities arising out of or in connection with such use or sale.
Seller is not liable for failure to fulfill its obligations for any accepted Order or for delays in delivery due to causes beyond Seller’s reasonable control including, but not limited to acts of God, natural or artificial disaster, riot, war, strike, delay by carrier, shortage of Product, acts or omissions of other parties, acts or omissions of civil or military authority, Government priorities, changes in law, material shortages, fire, strikes, floods, epidemics, quarantine restrictions, acts of terrorism, delays in transportation or inability to obtain labour, materials or Products through its regular sources, which shall be considered as an event of force Majeure excusing Seller from performance and barring remedies for non-performance. In an event of force Majeure condition, the Seller’s time for performance shall be extended for a period equal to the time lost as a consequence of the force Majeure condition without subjecting Seller to any liability or penalty. Seller may, at its option, cancel the remaining performance, without any liability or penalty, by giving notice of such cancellation to the buyer.
If technical assistance or advice is offered or given to buyer, such assistance or advice is given free of charge and only as an accommodation to Buyer. Seller shall not be held liable for the content or Buyer’s use of such technical assistance or advice nor shall any statement made by any of Seller’s representatives in connection with the Products or Services constitute a representation or warranty, express or implied.Consulting or Training: If consulting or training is provided on a contractual basis, such consulting or training represents the current view of Cloud Collected LLC. on the issues discussed or documented as of the date of publication. Because CC must respond to changes in market conditions, it should not be interpreted to be a commitment on the part of CC and CC cannot guarantee the accuracy of any information presented after the date of publication.
If consulting or training is provided on a contractual basis, such consulting or training represents the current view of Cloud Collected LLC. on the issues discussed or documented as of the date of publication. Because CC must respond to changes in market conditions, it should not be interpreted to be a commitment on the part of CC and CC cannot guarantee the accuracy of any information presented after the date of publication.
INFORMATION PROVIDED IN THESE CONSULTING OR TRAINING ENGAGEMENTS IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND FREEDOM FROM INFRINGEMENT.
This Agreement shall be subject to and be interpreted in accordance with the laws of Delaware, United States for any dispute between Seller and Buyer, (b) Buyer may not assign this Agreement without the prior written consent of Seller. Seller or its affiliate may not perform the obligations under this Agreement. This Agreement is binding on successor and assigns, (c) Products, including software or other intellectual property, are subject to any applicable rights of third parties, such as patents, copyrights, and/or user licenses.