AVMEDA TERMS AND CONDITIONS OF SALE AND SOFTWARE LICENSE
1. As used herein: “Avmeda”, “Marsis”, “we”, “us” and “our” shall mean Avmeda, LLC., a Nevada Corporation. “Customer” and “you” shall mean the purchaser of the items of hardware and Licensee of the software as indicated on the front page of this form.
2. Except as specifically noted herein-below, these Terms and Conditions are applicable to both the sales of the items of hardware and license of the items of computer software listed on the front page hereof.
3. Customer’s order is binding only when accepted in writing at our principal office in Las Vegas, Nevada U.S.A. The terms and conditions of sale are only those stated below. If any other terms and conditions are in Customer’s order, they are hereby rejected unless independently approved in writing by us.
4. We will use every effort to make shipments as scheduled and may make partial shipments. However, the completion of the order is subject to acts of God or the public enemy, fires, floods, unusually severe weather, delays caused by governments (including government priorities, preferences, or allocations), delays of suppliers in furnishing materials and services, and any other causes beyond our control.
5. If the items ordered are to be exported from the United States, the quoted shipping dates are subject to the receipt of all export documents and authorizations. Regardless of ultimate
destination, the prices are based on packing for domestic shipment unless otherwise stated.
6. Prices quoted, unless otherwise stated, are F.O.B. Origin and do not include sales, use, excise, or similar taxes or duties. Customer will pay these items directly if the law permits or will reimburse us if we are required to pay them. Customer will provide tax exemption certificates or evidence of tax payment on request.
7. In the event credit has not been established, we reserve the right to require payment or the issuance of an irrevocable letter of credit in advance of shipment. Any amounts not paid when
due shall bear interest at the rate of 2% per month or at the highest rate permitted by law (whichever is less), from the date of shipment until paid. Avmeda reserves, and Customer hereby grants, a purchase money security interest in each item listed on the sales quote. Avmeda shall have the right to file a copy of this document as a financing Statement.
8. Customer’s order will be deemed a representation that Customer is solvent and able to pay for the items ordered. If Customer fails to make payments when due, or if bankruptcy or insolvency proceedings are instituted by or against Customer, Customer will be deemed in default, and we will have the right to terminate our obligations by written notice to Customer, but such termination will not affect Customer’s obligation to pay for items delivered or work in progress.
9. Payment for all items sold or licensed hereunder shall be made solely in U.S. currency and must be made pursuant to the terms stated on the sales quote form.
10. This document, and all documents incorporated herein by reference, sets forth the entire agreement of the parties with respect to the subject matter hereof (the “Agreement”) and supersedes any and all prior agreements of the parties relating to such. All modifications to this Agreement must be in writing and executed by both parties to be valid and enforceable.
11. In the event any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be contrary to the law, the remaining provisions of this Agreement will remain in full force and effect. The waiver or any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party.
12. Any successful action brought by Avmeda to enforce Customer’s obligation make payments, Avmeda shall be entitled to recover, in addition to any other remedy under this Agreement, reasonable Attorney fees and costs.
13. This Agreement shall be governed in all respects by the laws of the State of Nevada, without regard to conflicts of law. Venue for any action brought to enforce or determine the meaning of or the rights of he parties under this Agreement shall be Clark County, Nevada or the U.S. District Court for the District of Nevada.
CLAIM FOR DAMAGE IN SHIPMENT
14. All items should be inspected and tested by Customer as soon as received. If any damage is discovered, a claim should be filed by Customer with the carrier. A full report of the damage should be Forwarded to us so that we can arrange for repair or replacement.
15. If this sale is F.O.B. Origin, we are not responsible for damage or loss in transit. We can arrange for in-transit insurance at Customer’s expense, but we will not do so without Customer’s written instructions. If this sale is F.O.B. Destination, we must receive Customer’s claim for loss or damage in transit within ten (10) days after receipt of shipment, which must be accompanied by an Acknowledgement of loss or damage signed by the carrier.
16. Avmeda warrants (the “Limited Warranty”) to the original buyer (“Customer”) that all hardware and software sold or licensed hereunder(excluding the software media) (collectively, the “Product”) will be free of defects in materials and workmanship for a period of (i) one year from the date of purchase for a new system , and (ii) 90 days (or, if longer, the remainder of the initial one year new System warranty period) from the date of purchase for spare parts, AVMEDA repairs, demonstration systems, and factory refurbished systems.
17. This Limited Warranty covers only those defects which arise in the normal use of the product, and does not apply if (i) the Product was modified or serviced by the Customer or a third party without our written approval or (ii) the failure is caused by misuse, abuse, electrical fault, accident (e.g., spilled drinks, dropped), improper packing, shipment or installation, or misapplication as determined Solely by Avmeda.
18. Avmeda warrants that for a period of 90 days from the date of delivery: (i) the media on which the software component of any Product (“Software”) is furnished will be free of defects in materials and workmanship under normal use; and (ii) the Software substantially conforms to it's published specifications. Except for the foregoing, the Software is provided AS IS. In no event does Avmeda warrant that the Software is error free, that the Product will operate with any software or hardware other than that provided by Avmeda or specified in the Product documentation, or that the Product will satisfy any end-user’s own specific Requirements.
19. Any warranty that is given to us on any component in a system by the manufacturer of that component will be transferred to you to the extent that we are allowed by each manufacturer to
transfer such warranties
20.Should this Product fail to be in good working order during the warranty period, we will, at its sole discretion, repair, exchange, or replace the defective Product or component(s) with a comparable Product or component(s) as provided below. The original Product will be of new manufacture, but may include used parts and/or components (with functionality at least equivalent to original).The replacement Product or components may be either new or reconditioned (with functionality at least equivalent to the original).
21. If any fault develops, the following steps should be taken:
(a) Notify us by giving the item model number, serial number, and details of the difficulty. On receipt of this information, you will be given service data or shipping instructions
(b) On receipt of shipping instructions, forward the item prepaid. If the item or the fault is not covered by warranty, an estimate of charges will be furnished before work begins.
22. At Customer’s request, we will make reasonable efforts to provide warranty service at the Customer’s premises, provided the customer pays our then current rates for field service and the associated travel and living expenses. If a fault has been caused by improper installation, maintenance, or use, or by abnormal conditions of operation, repairs will be billed at the current rates.
23. Normal labor, material, and shipping charges will apply to repairs outside the scope of the Limited Warranty.
24. EXCEPT AS PROVIDED HEREIN, AVMEDA AND ITS SUPPLIERS DISCLAIM TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL WARRANTIES AND CONDITIONS, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,UNINTERRUPTED OR ERROR-FREE OPERATION, AND NON-INFRINGEMENT. IN ADDITION, NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY AVMEDA OR ITS SUPPLIERS SHALL CREATE A WARRANTY.
RETURNS, EXCHANGES AND REFUNDS
25. Before returning the Product for repair or replacement, it is necessary to obtain a Return Merchandise Authorization (RMA) number by emailing firstname.lastname@example.org. You must provide the system’s Serial number (or a copy of the invoice showing date of original purchase) and/or the Hardware Maintenance Agreement number if any.
26. In order to provide you with exchange components in advance of receiving the non-functioning components, we will need (i) a company purchase order (or credit card deposit) for the value of parts being provided (ii) the serial number of the component being returned. Your PO or credit card will not be billed if the non-functioning parts are returned as described below with in 7 days.
27. The non-functioning part should be properly packed and shipped pre-paid to us with the RMA number clearly displayed on the outside of the package and on the accompanying RMA form. We will refuse to accept any package without a valid RMA number.
28. Any software purchased from Avmeda and successfully downloaded are ineligible for return. Any software purchased online retailer and all other Resellers and OEM’s cannot be returned to Avmeda for any reason and must be returned to the original place of purchase. Depending on the place of purchase, the return policy will vary in accordance to each individual company.
29. In any case Avmeda should approve refund before processing any refund. Customers should return any hardware license or Support must delete license from customer computer. All shipping costs, bank charges and 3rd party payment gateway charges such as PayPal / Stripe etc fees must be deducted from the amount customer paid. Avmeda will also charge 20% re-stocking, shipping, handling fee from the refund amount. Customer acknowledges that in the event of direct refund from Bank / PayPal / Stripe etc Avmeda has the right taking legal actions for compensation of the refund including all legal and attorney fees.
30. Avmeda offers free email. phone and remote support for the customers who has valid annual software maintenance (ASM). All software purchased has 1 year ASM included from the date of order. Ongoing years ASM can be purchased at the 20% of the current software list price. Avmeda has right to stop providing support customers who does not have valid ASM. Under some conditions Avmeda may ask extra fee for the support services such as weekend or off hours. Avmeda will let customer know in advance in the event of any extra fee may occur.
31. Avmeda Standard support during the business hours GMT+3 / 9:00 - 18:00 ( GMT-7 / 8:00-17:00 pacific time zone). Depending on the support work load emails and online chats will be replied in 72 hours max unless its national holiday.
32. Avmeda has right to stop providing standard support and response in the case of defamation, misdemeanor and derision.
30. If any claim is made that any of the items covered by this Agreement infringes any U.S. patent, trade secret, or copyright of any third person, the Customer shall give Avmeda prompt, written notice of this claim, and Avmeda, at its election and expense shall defend or settle the claim and any ensuing lawsuit. Our total liability to Customer will not, under any circumstances, exceed the purchase price paid for the allegedly infringing item.
31. We will not be liable for any infringement arising from the combination of items or from the use of an item in practicing a process. Customer agrees at its expense to protect and defend us against any claim of patent infringement arising from compliance with Customer’s designs, specifications or instructions and to hold us harmless from damages, cost, and expenses or attributable to any such claim.
THE FOREGOING STATES THE EXCLUSIVE REMEDY OF THE CUSTOMER FOR ANY ALLEGED PATENT, TRADEMARK OR COPYRIGHT INFRINGEMENT BY ANY ITEM SUPPLIED UNDER THIS ORDER.
32. Title to the ordered software shall be and remain in Avmeda. Avmeda grants a non-exclusive license to use such software on one computer, which license shall terminate if Customer discloses Software to others without Avmeda’s consent.BY USING AVMEDA SOFTWARE PRODUCTS, CUSTOMER ACKNOWLEDGES THAT PRODUCTS ARE COVERED BY THE TERMS OF AVMEDA STANDARD SOFTWARE LICENSE AGREEMENT FOUND IN THAT SOFTWARE’S ONSCREEN LICENSE PAGE.
LIMITATION OF DAMAGES/LIMITATION OF LIABILITY
33. IN NO EVENT WILL AVMEDA HAVE ANY OBLIGATION OR LIABILITY (WHETHER IN TORT,CONTRACT, WARRANTY OR OTHERWISE AND NOTWITHSTANDING ANY FAULT,NEGLIGENCE, PRODUCT LIABILITY, OR STRICT LIABILITY), FOR (I) ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOST REVENUE, PROFITS OR BUSINESS INTERRUPTION LOSSES, SUSTAINED OR ARISING FROM OR RELATED TO THE SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. AVMEDA’S LIABILITY FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL AT ALL TIMES AND IN THE AGGREGATE AMOUNT BE LIMITED TO THE AMOUNT ACTUALLY PAID BY CUSTOMER TO AVMEDA UNDER THE CONTRACT UNDER WHICH SUCH LIABILITY AROSE. ANY ACTION, SUIT, OR PROCEEDING ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT MUST BECOMMENCED WITHIN ONE (1) YEAR AFTER THE CLAIM OR CAUSE OF ACTION ACCRUED