Orbital Computers LLC – Terms and Conditions of Sale
Definitions: The following definitions are applicable to these Terms and Conditions of Sale:
"Seller" means Orbital Computers LLC.
"Buyer" means the person or entity placing an order for Orbital Computers LLC products.
"Product(s)" means the specific Orbital Computers LLC product or products, as ordered by Buyer, via Seller's website https://orbitalcomputers.com. The following terms and conditions are applicable to all.
Acceptance of Buyer’s order is expressly conditional on assent to the terms and conditions set forth hereon and on any attachments and they will constitute the complete agreement between the parties. Buyer's acceptance of any products under this order will constitute acceptance of these terms and conditions and they will be controlling in every case. If any of the provisions of Buyer's order or other writings are ambiguous, in addition to, or in conflict with these terms and conditions, those ambiguous, additional or conflicting terms and conditions are expressly rejected and the terms and conditions hereof will govern. These terms and conditions may not be varied or Buyer's order terminated in any manner, unless by a written agreement signed by an authorized representative of each party.
1. PRICES: Prices for products are net to Seller and those as shown on the Orbital Computers LLC website at the time of the order or by written quotation from an authorized Orbital Computers LLC associate. Prices and availability of products are subject to change without prior notice. Seller reserves the right to cancel orders due to misprints, typos, price errors and/or price glitches, incorrect product photography and/or specifications, or any other related reason.
2. DELIVERY SCHEDULES AND REVISIONS: Seller will specify a variable shipment schedule subject to acceptance by Buyer. Orders may not be rescheduled or canceled without Seller’s written approval. Seller’s target shipment date is within fifteen business days of order receipt.
3. DELIVERY, FREIGHT AND RISK OF LOSS: All prices are Ex Works Seller’s Facility Bothell, Washington (Incoterms 2010) with title in and the right of possession to products passing to Buyer upon delivery by Seller to a carrier at the point of shipment. Arrangement for insurance is provided by the Buyer. Seller's standard packaging is suitable for surface and air shipment. Packaging other than Seller's standard is chargeable to Buyer. If shipping instructions are not furnished, Seller will ship via the most practical route considering cost and acknowledged delivery date. Buyer is responsible for all shipping, importation charges, duties, local taxes and transportation costs applicable to the delivery of products ordered to the end destination.
4. INSPECTION, ACCEPTANCE AND RETURN: SELLER WILL NOT ACCEPT RETURNS FOR REFUND, STORE CREDIT, AND/OR EXCHANGE FOR ANY REASON WHATSOEVER; ALL SALES ARE FINAL. Buyer will have seven (7) calendar days after the date of shipment of products to inspect them and to notify Seller of any deficiency. Absent said notice, the products will be deemed accepted. Products being returned to Seller for warranty adjustments pursuant to this provision are subject to Seller's Warranty Policy disclosed in section 6 of this document.
5. SOFTWARE: Software is licensed pursuant to the End User License Agreement(s) which accompany the product.
6.1 Seller warrants the hardware products to be free from defects in material and workmanship under normal use and service. Seller’s obligation under this warranty is limited to correcting the defect in the product which is defective in material or workmanship within three (3) years from the date of shipment to Buyer. For warranty adjustments to take place, products must be returned to Seller's facility with transportation charges prepaid (after the first year). Transportation charges for the repaired or replaced product will be prepaid by the Buyer, both ways. Seller agrees to cover transportation charges for a period of 365 days from the date of order. Buyer is responsible for all shipping, importation charges, duties, local taxes and transportation costs and insurance applicable to warranty returns. Buyer must obtain a Return Material Authorization before the product may be returned. If Seller determines the product failed due to defects in material or workmanship, Seller will repair or replace (at Seller’s option) the defective product free of charge. Seller agrees to provide labor for warranty adjustments for the resonable life of the product, at no additional cost to Buyer, and at Seller's sole discretion, if the product is found to be in compliance with all other parameters set forth herein.
6.2 In all cases, Seller shall determine in its sole discretion whether: (i) such products are defective in workmanship or material; (ii) have not been subject to accident, abuse or misuse; or (iii) have been operated and maintained other than in accordance with the manufacturer’s recommendations and specifications. Seller's determination of defects shall be final. Adjustment will take the form, at Seller's option, of a replacement or repair of the defective or nonconforming products. Seller shall not be responsible for any re-inspection or rejection charges or any costs incurred by Buyer for the removal and/or reinstallation of the product.
6.3 Seller provides software on an “as is” basis only.
6.4 These warranties do not extend to any defect, fault, or accident, which is caused by: (a) improper or inadequate maintenance, installation or use by Buyer or its customers; (b) Buyer’s asoftware, hardware or interfacing items; (c) modifications to the product(s) not authorized by Seller; (d) misuse or misapplication of the product(s) by Buyer or its customers; (e) operation of the product(s) outside Product environmental or electrical specifications including but not limited to exposing the products to overclocking and/or over-volting; (f) gross negligence, accident, or disaster. Dead or stuck pixels on screens (monitors or laptop displays) are not covered under the warranty. The warranties set forth herein shall not apply unless the Products have been kept in a controlled environment (which reasonably limit’s damage resulting from heat, humidity, corrosion, contamination and/or electrostatic discharge) for normal storage and use, with prescribed maintenance, and is in accordance with the applicable component manufacturers specifications. The warranties shall not apply to any Product that has been subject to an accident, excessive stress, modification, or normal wear and tear.
6.5 Seller agrees to transfer to Buyer, to the extent that they are transferable and applicable, those warranties that Seller receives from the manufacturers of the components, subassemblies, assemblies and modules incorporated into the Products sold by Seller to Buyer. Integrated Circuits are warranted only to the extent of any warranty provided by the Original Equipment Manufacturer. Buyer acknowledges that Seller is not the manufacturer of the components, subassemblies or assemblies used in the assembly to the deliverable Products. To the extent legally and contractually permitted, Seller shall pass through to Buyer any transferrable Product warranties, indemnities and remedies provided to Seller by the original equipment manufacturer of components, subassemblies and assemblies incorporated into the deliverable Products to be Buyer’s sole remedy with respect to the Product and Product warranty.
6.6 Any representation or warranty made by any other person, including distributors, resellers, dealers, employees and representatives of Orbital Computers LLC, which are inconsistent or in conflict with or additive to the terms of this Warranty, will not be binding on Seller unless reduced to writing and approved in writing by an officer of Orbital Computers LLC.
6.7 THE ABOVE WARRANTIES ARE EXCLUSIVE OF, AND IN LIEU OF, ALL OTHER WARRANTIES, WRITTEN OR ORAL, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE. NO IMPLIED STATUTORY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WILL APPLY. SELLER WILL NOT BE LIABLE FOR ANY DAMAGES SUSTAINED BY BUYER ARISING FROM DELAY IN THE REPLACEMENT OR REPAIR OF PRODUCTS UNDER THE ABOVE WARRANTY.
7.1 Force Majeure: Seller will not be responsible for its failure to perform due to causes beyond its reasonable control, including but not limited to, acts of God, fire, theft, war, acts of terrorism, riot, embargoes, civil insurrections, strikes, flood, earthquake, volcanic eruption, shortages of material or energy or acts of civil or military authorities, supplier delays, disruptions, and product allocations. If performance is to be delayed by such contingencies, the affected party will notify the other party in writing.
7.2 Limitation of Liability: SELLER’S LIABILITY FOR ANY LOSS OR DAMAGE ARISING OUT OF, CONNECTED WITH, OR RESULTING FROM THIS AGREEMENT, OR FROM THE PERFORMANCE OR BREACH THEREOF, OR FROM THE DESIGN, DEVELOPMENT, MANUFACTURE, SALE, DELIVERY, RESALE, REPAIR OR USE OF ANY GOODS COVERED BY OR FURNISHED UNDER THIS ORDER SHALL IN NO CASE EXCEED THE ORDER PRICE ALLOCABLE TO THE GOODS, OR PART THEREOF, OR SERVICE WHICH GIVES RISE TO THE CLAIM. NOTWITHSTANDING ANYTHING IN THIS ORDER TO THE CONTRARY, SELLER WILL NOT BE LIABLE FOR ANY SPECIAL DAMAGES, INDIRECT DAMAGES, INCIDENTAL DAMAGES, CONSEQUENTIAL DAMAGES, LOSS OF PROFITS, LOSS OF REVENUES OR LOSS OF USE OF ANY PROPERTY OR CAPITAL OF BUYER OR ANY THIRD PARTY, THESE EXCLUSIONS OF TYPES OF DAMAGES AND LIMITATION ON THE AMOUNT OF DAMAGES SHALL APPLY REGARDLESS OF THE THEORY OF LIABILITY, WHETHER BASED ON CONTRACT, INDEMNITY, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER THEORY. THESE EXCLUSIONS OF DAMAGES SHALL BE DEEMED INDEPENDENT OF, AND SHALL SURVIVE, ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY UNDER THE TERMS OF THIS AGREEMENT.
7.3 Taxes: Prices are exclusive of all sales taxes, value added taxes, assessments, and similar taxes and duties for which Buyer may be liable
7.4 Insolvency: Seller will have the right to suspend or cancel this Agreement at any time upon Buyer making an assignment for the benefit of creditors or becoming bankrupt or insolvent, or upon a petition being filed in a court of competent jurisdiction proposing the appointment of a receiver or that Buyer be adjudicated bankrupt or insolvent or reorganized under the provisions of any applicable bankruptcy or insolvency act.
7.5 Seller's Remedies: In addition to the rights and remedies reserved herein, Seller will have all rights and remedies conferred by law and will not be required to proceed with performance of the Agreement arising herein if Buyer is in default to Seller under this or any other contract.
7.6 Severability: In the event that any provision of this Agreement will be held to be invalid or unenforceable, the same will not affect in any respect whatsoever the validity or enforceability of the remainder of this Agreement.
7.7 Waiver: The mere acknowledgment or acceptance of any order with provisions that are ambiguous, in addition to or inconsistent with the terms of this Agreement or the providing of maintenance service pursuant thereto will not be deemed as acceptance or approval of such ambiguous, additional or inconsistent provisions.
7.8 Product Substitution: At its discretion, Seller may substitute part numbers ordered by Buyer with those providing the same product form, fit and function as the originally ordered part number and in compliance with the regulatory requirements of the region indicated on Buyer’s purchase order ship to address.
7.9 Compliance with Laws: The Parties agree to comply with the provisions of all laws and all orders, rules and regulations issued thereunder applicable to this Agreement and performance hereunder.
7.10 Export Controls: Customer acknowledges that re-export of Products under this Agreement is subject to U.S. export regulations or other similar laws or regulations.
7.11. GOVERNING LAW: Any question concerning the validity, construction or performance of this Agreement will be governed by the laws of the State of Washington, USA. Sole venue and exclusive jurisdiction will rest with the courts at Snohomish County, Washington, USA. It is the express desire of the parties that this Agreement and all related documents be written in the English language. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from this Agreement.
8. DISPUTE RESOLUTION:
8.1 Any disagreements which cannot be settled through mutual agreement of the parties, within sixty (60) days of the other party’s receipt of written notice of such disagreement, shall be considered a dispute and shall be subject to arbitration in accordance with the rules and regulations of the American Arbitration Association. The governing law for the arbitration shall be the laws of the State of Washington, without regard to its conflicts of laws rule. Each party in the event of a dispute shall be responsible for the fees of its legal counsel.
8.2 Arbitration will take place in the State of Washington Compliance with the foregoing as a condition precedent to the commencement of any court action.
9. Entire Agreement: This Agreement contains the entire Agreement between the parties, and no modification or waiver of any of the provisions, or any future representation, promise, or addition will be binding upon the parties unless agreed to in writing.
Last updated January 28, 2018