PLEASE READ THIS DOCUMENT CAREFULLY! IT CONTAINS VERY IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND EXCLUSIONS THAT MAY APPLY TO YOU.
These terms and conditions of sale (the “Terms and Conditions”) contain the terms and conditions that apply to your purchase from OBR Control Systems, Inc., a Delaware corporation with a principal office located at 32233 West 8 Mile Road, Livonia, MI 48152 ("OBR"), that will be provided to you (the "Customer") on orders for computer systems and/or related products, assemblies and parts (the “Product(s)”) sold in the United States of America. By accepting delivery of the Products described on that invoice, the Customer agrees to be bound by and accepts these Terms and Conditions. The Customer’s terms and conditions shall have no legal effect, unless accepted by OBR in writing.
These Terms and Conditions apply to the relationship between OBR and the Customer, unless the Customer has signed a separate formal purchase agreement with OBR, in which case the separate agreement shall govern; or (ii) unless other OBR standard terms apply to the transaction.
These Terms and Conditions are subject to change without prior written notice at any time, in OBR's sole discretion.
Other Documents
These Terms and Conditions may not be altered, supplemented, or amended by the use of any other document(s). Any attempt to alter, supplement or amend this document or to enter an order for product(s) which is subject to additional or altered terms and conditions will be null and void, unless otherwise agreed to in a written agreement signed by both the Customer and OBR.
Governing Law and Jurisdiction
These Terms and Conditions and any sales hereunder shall be governed by the laws of the State of Delaware in the United States of America, without regard to conflicts of law rules. The application of the United Nations Convention on the International Sale of Goods is expressly excluded. In the event of a dispute arising from or relating to these Terms and Conditions, which is not resolved by negotiation between OBR and the Customer, OBR and the Customer hereby agree to exclusive personal jurisdiction in the State and Federal courts located in Delaware.
Payment Terms; Orders; Quotes; Interest
Terms of payment are within OBR's sole discretion, and unless otherwise agreed to by OBR, payment must be received by OBR upon OBR's acceptance of an order and issuance of the related invoice by OBR. Payment for the Products will be made by credit card or some other prearranged payment method, unless credit terms have been agreed to by OBR if OBR feels insecure concerning payment by the Customer.
Invoices are due and payment shall be received within the time period noted on the issued invoice, measured from the date of the invoice. OBR may invoice parts of an order separately. Orders are not binding upon OBR until accepted by OBR. Any quotations given by OBR will be valid for the period stated on the quotation. OBR will be entitled to adjust agreed prices on the basis of the average change in the cost price of the Products at any time.
The weights, dimensions, capacities, performance ratings, characteristics and other data on OBR’s catalogues, prospectus, circulars, advertisements, price lists, instructions sheets and website are mentioned only as general information. They are only approximate and shall not bind OBR.
The Customer agrees to pay interest on all past-due sums at the highest rate allowed by law. In addition, the Customer shall pay all of OBR's costs of collection of any amounts past due, including, but not limited to, attorneys' fees, court costs, witness fees, travel and lodging, OBR has the right to refuse to deliver the Products if the Customer is past due on any of its debts to OBR. OBR will also be entitled to terminate the contract by notifying the Customer in writing.
Taxes
Prices do not include any Federal, State, municipal or other foreign government duties or taxes (such as sales, use, excise, license, gross receipts or other taxes and assessments).
Shipping Charges and Late Delivery
The method and agency of transportation and routing will be designated by OBR, unless otherwise requested by the Customer. Packing, shipping and transportation charges will be for the Customer’s account.
Any specific shipping date designated in writing signed by OBR shall be interpreted as estimated and in no event shall dates be construed as falling within the meaning of “time is of the essence”. OBR shall not be responsible for any delays in filling orders, nor shall it be liable for any loss or damages resulting from such delays regardless of whether such delays are due to force majeure or otherwise.
Under no circumstances shall the Customer, or the Customer's customers, be entitled to any damages for OBR's failure to ship on time, and the Customer agrees to indemnify, defend and hold OBR harmless against any costs and expenses related to any claims for lost profits or other consequential damages based on OBR's failure to deliver timely.
If the Customer does not accept or pick up the Products at the date specified in the order or later agreed to by OBR, the delivery of the Products shall nevertheless be deemed accepted by the Customer who shall therefore pay for the Products delivered. The storage of the Products arranged by OBR will be at the risk and expense of the Customer. OBR will also be entitled to terminate the contract by notifying the Customer in writing.
Title; Risk of Loss
Title to Products passes from OBR to Customer upon delivery Loss or damage that occurs during shipping by a carrier selected by OBR is OBR's responsibility. Loss or damage that occurs during shipping by a carrier selected by Customer is Customer's responsibility. Title to software will remain with the applicable licensor(s).
Warranties
Generally, OBR provides a limited warranty from the date of the invoice for all its hardware Products. OBR makes no express warranties except those stated in this section and in OBR’s applicable warranty statement in effect on the date of the invoice. Any such warranties will be effective, and OBR will be obligated to honor any such warranties only upon OBR’s receipt of payment in full for the item to be warranted.
OBR disclaims all other warranties, express or implied, including without limitation implied warranties of merchantability and fitness for a particular purpose. OBR’s responsibility for warranty claims is limited to repair and replacement as set forth in OBR’s applicable warranty statement in effect on the date of the invoice.
OBR reserves the right to modify its warranty at any time, in its sole discretion. All software is provided subject to the license agreement that is part of the package. The Customer agrees that it will be bound by the license agreement once the package is opened or its seal is broken. OBR does not warrant any software under these Terms and Conditions.
Indemnification
Except as otherwise provided for herein, the Customer, on its own behalf, and behalf of its parent, subsidiary(ies), affiliated and related companies, and their respective predecessors, past and present officers, directors, shareholders, agents, employees, legal representatives, successors and assigns (the “Indemnifying Parties”) assumes liability for, and shall pay when due, and shall indemnify, reimburse and hold OBR, and its parent, subsidiary, affiliated and related companies, and their respective predecessors, past and present officers, directors, shareholders, agents, employees, legal representatives, successors and assigns (the “Indemnified Parties”) harmless from and against any and all Claims (defined below), directly or indirectly relating to or arising out of the acquisition, use, purchase, shipment, transportation, delivery, lease or sublease, ownership, operation, possession, control, storage, return or condition of the Products (regardless of whether the Products are at the time in the possession of the Indemnifying Parties), the falsity of any representation or warranty of the Customer, or the Customer’s failure to comply with these Terms and Conditions. The foregoing indemnity shall cover, without limitation, any claim for negligence, gross negligence, or liability in tort.
“Claims” means any and all liabilities, losses, damages, actions, suits, demands, claims of any kind and nature and all costs and expenses whatsoever to the extent they may be incurred or suffered by the Indemnified Parties in connection with the Products (including, without limitation, reasonable attorneys’ fees and expenses), fines, penalties (and other charges of applicable governmental authorities), damage to or loss of use of property (including, without limitation, consequential or special damages to third parties or damages to the Customer’s property), or bodily injury to or death of any person(s) (including, without limitation, any agent or employee of the Customer, user of the Products, or any other person).
Intellectual Property Rights
All intellectual property rights, ownership, and interest in the Products, goods, trademarks, trade names, logos, distinctive marks, designs, software, and related materials (the “Intellectual Property”) are exclusively vested in OBR. The Customer shall not reproduce, modify, transfer, grant, assign, license or use the Intellectual Property, except in accordance with these Terms and Conditions.
The Customer shall not remove or alter indications concerning Intellectual Property rights and concerning the confidential nature of information from the Products, goods, services, programs, software, works, distinctive marks, inventions, designs, models and other materials created and/or made available by OBR and the Products delivered.
In the event the Products are produced by OBR in accordance with specifications submitted by the Customer, the Customer shall indemnify OBR against all loss, damages, costs and expenses awarded against or incurred by OBR in connection with or paid or agreed to be paid by OBR in settlement of any claim for infringement of any patent, copyright, design, trademark or other industrial or intellectual property rights of any other person which results from OBR’s use of the Customer’s specifications.
OBR makes no warranty concerning the appropriateness of the Products to the purposes for which the Customer or its customers are acquiring same.
Severability
In the event any term, provision or covenant of these Terms and Conditions shall be judged by any court of competent jurisdiction to be unenforceable, then the validity of the remaining terms, provisions and covenants shall be unaffected and these Terms and Conditions shall be construed as if the unenforceable provision had never been a part of it. If any term, provision or covenant of this Agreement shall be judged unenforceable by a court of competent jurisdiction by reason of its duration, scope or a combination thereof, such covenant shall be adjusted to the extent necessary to cure such lack of enforceability, and these Terms and Conditions shall be construed as if such provision had originally been agreed to in its adjusted form.
Assignment
The Customer shall not assign or transfer these Terms and Conditions or any related contract or purchase order without the prior written consent of OBR. OBR shall expressly be permitted to assign or transfer, without the prior written consent of the Customer, OBR’s right to receive any or all of the payment due from the Customer under these Terms and Conditions.
License Agreement
Warranties, if any, for the software are contained in the license agreement that governs its purchase and use.
Return Policies
Products that are purchased directly from OBR by the Customer may be returned by the Customer for a full refund minus a fifteen percent (15%) restocking and handling fee within ten (10) business days after receipt of the Product from OBR, assuming the Product is unused and not damaged nor tampered with in any way.
Exchanges
From time to time, OBR may, in its sole discretion, exchange Products or portions of a Product. Any exchanges will be made in accordance with OBR's exchange policies in effect on the date of the exchange.
Products
OBR's policy is one of on-going Product update and revision. OBR may revise and discontinue Products at any time. OBR will ship Products that have the functionality and performance of the Products ordered, but changes between what is shipped and what is described in a specification sheet or catalogue are possible. The parts and assemblies used in building the Products are selected from new and assemblies in accordance with industry practices. Spare parts may be new or reconditioned.
Third-Party Products
Third-party products carry different return and warranty policies than the Products. Third party products may be returned to OBR in accordance with their respective return policies in effect on the date of invoice. The original manufacturer, not by OBR, provides any warranty and technical support provided on a third-party product. The warranties and technical support may vary from Product to Product.
Limitation of Liability
OBR does not accept liability beyond the remedies set forth herein, including any liability for Products not being available for use or for lost or corrupted data or software. OBR will not be liable for lost profits, loss of business or other consequential, special, indirect or punitive damages, even if advised of the possibility of such damages, or for any claim by any third party except as expressively provided herein.
Service and Support
OBR endeavors to provide good customer and technical telephone support. OBR promises that its support people will attempt to handle, over the telephone, any problem involving Othe Products. However, OBR's support people may not be able to understand or resolve any given problem. Service offerings may vary from Product to Product. OBR has no obligation to provide service or support until OBR has received full payment for the Product or service/support contract for which service or support is requested.
Headings
The section headings used herein are for convenience of reference only and do not form a part of these Terms and Conditions, and no construction or inference shall be derived there from.
Force Majeure
Neither party shall be in breach of the contract nor liable for delay in performing, or failure to perform, any of its obligations under it if such a delay or failure result from events, circumstances or causes beyond its reasonable control including but not limited to, Acts of God, flood, drought, earthquake or other natural disaster; terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo or breaking off of diplomatic relations; nuclear, chemical, biological contamination or sonic boom, epidemic or pandemic; any law or any action taken by a Government or a public authority including without limitation imposing an export or import restriction, quota or prohibition, and the collapse of buildings, fire, explosion or accident (a "Force Majeure Event").
The Customer shall use all reasonable effort to mitigate the effect of a Force Majeure Event on the performance of its obligations. If a Force Majeure Event prevents, hinders or delays OBR’s performance of its obligations for a continuous period of more than six (6) months, OBR may terminate the contract immediately by giving written notice to the Customer.
Termination
OBR will be entitled to suspend or terminate the contract unilaterally upon written notice to the Customer, with immediate effect, fully or in part if:
(a) the Customer has failed, or it is OBR’s belief that the Customer will fail, to fulfil one or more of its obligations under these Terms and Conditions or any other contracts;
(b) the Customer has suspended payments or has sought the protection of the Bankruptcy Courts;
(c) a petition for the involuntary bankruptcy of the Customer has been filed;
(d) the Customer’s property on OBR’s premises has been attached in execution;
(e) a resolution for the dissolution and/or winding up of the Customer has been adopted;
(f) the enterprise operated by the Customer has been fully or partly transferred to a third party without consent of OBR;
(g) the Customer has disregarded any applicable statute, law, ordinance, code, order, rule, regulation, proclamation or other governmental requirement.
OBR shall not be liable with respect to the Customer for any damages arising from suspension or termination of the contract for the aforementioned reasons.
If the contract is suspended or terminated, performance of the contract already received by the Customer and the payment obligations of the Customer in connection with it will remain. The amounts invoiced by OBR for work actually performed prior to or upon termination of the contract will be immediately due and payable after termination. The Customer agrees to pay any of OBR’s costs, damages, attorneys’ fees and other expenses associated with OBR’s termination of any contract with the Customer pursuant to the terms of this section. OBR’s right of termination shall be without prejudice to any claims or other rights or remedies which OBR may have against the Customer by operation of law or otherwise.