EXHIBIT A-TERMS AND CONDITIONS
Certain terms used herein shall have the meaning ascribed to such terms as set forth in Schedule 1. All the defined terms as set forth in Schedule 1, if defined in the singular or present tense, shall also retain such general meaning if used in the plural or past tense, and if used in the plural or past tense, shall retain the general meaning if used in the singular or present tense.
- Limited Warranty
2.1 The Company warrants the workmanship and materials of the goods the Company provides to the Buyer (the “Goods Sold”) for a period of one (1) year, as of the date of purchase of the Goods Sold (the “Warranty”).
2.2 THE COMPANY DISCLAIMS ANY OTHER WARRANTIES, CONDITIONS OR REPRESENTATIONS, WHETHER OR NOT IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE GOODS SOLD OR ANY OF THE TRANSACTIONS REASONABLY CONTEMPLATED BY THE PARTIES HERETO PURSUANT TO THE AGREEMENT INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS OF TITLE, NON‑INFRINGEMENT, MERCHANTABILITY, FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT THE COMPANY KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED OR IS OTHERWISE, IN FACT, AWARE OF ANY SUCH PURPOSE), WHETHER ALLEGED TO ARISE BY LAW, BY REASON OF THE BUYER’S USAGE IN THE TRADE OR BY COURSE OF DEALING. THE BUYER HEREBY RELEASES THE COMPANY AND THE COMPANY’S REPRESENTATIVES FROM ANY CLAIMS AND DAMAGES, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY CLAIM THE BUYER HAS AGAINST ANY THIRD PARTY.
2.3 THE COMPANY SHALL NOT BE LIABLE TO THE BUYER (NOR TO ANY PERSON CLAIMING ANY RIGHT DERIVED FROM OR AS SUCCESSOR TO THE BUYER’S RIGHTS) FOR INCIDENTAL, INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND INCLUDING, WITHOUT LIMITATION, LOST REVENUES OR PROFITS, OR LOSS OF BUSINESS ARISING OUT OF THE AGREEMENT, IRRESPECTIVE OF WHETHER THE COMPANY HAS ADVANCE NOTICE OF THE POSSIBILITY OF SUCH DAMAGES. THE BUYER COVENANTS, REPRESENTS AND WARRANTS THAT THE COMPANY SHALL NOT BE HELD LIABLE TO THE BUYER, OR ANY OTHER PERSON, IN RELATION TO THE GOODS SOLD AND/OR THE SERVICES, IN AN AMOUNT GREATER THAN THE PRICE OF THE GOODS SOLD AND/OR THE SERVICES.
- Price and Price Increases
3.1 The price for the quoted goods (the “Goods Price”), and/or the Services (the “Services Price”), includes all taxes and shipping charges, unless the Company indicates otherwise in a signed writing. The Estimate, in relation to the Goods Price and/or the Services Price, shall be of no effect ten (10) days after the Buyer receives the Estimate, unless the Buyer has provided the Offer.
3.2 The Goods Price and/or the Services Price shall remain in effect over the course of a specific length of time if agreed upon by the Parties in writing. After that specific time period ends, the Company reserves the right to change the Goods Price and/or the Services Price.
3.3 If the Goods Price and/or the Services Price is in relation to a good and/or service provided on a periodic basis (weekly, monthly, yearly, etc.), with no specific length of time agreed upon by the Parties, then the Company shall provide the Buyer with no less than thirty (30) days written notice prior to any change in the Goods Price and/or the Services Price (the “Price Change”). If the Buyer does not agree to the Price Change, then the Buyer must stop using and/or return the goods and/or cancel the services associated with the Price Change before the date in which the Price Change would take effect.
3.4 If the Buyer cancels a service provided by the Company, then such service shall terminate on the last day associated with the specific length of time previously agreed upon by the Parties or the end of the period in which the Buyer cancelled the service, if such service was provided on a periodic basis.
- Refund Policies
Unless otherwise provided by law, the Buyer covenants, represents and warrants that the Buyer shall not be entitled to any refund of the amount paid in association with the Goods Sold and/or the Services unless otherwise agreed to by the Company in writing. If such refund is agreed to by the Company, the Buyer covenants, represents and warrants that the Buyer shall be responsible for any and all costs associated with the return of any Goods Sold.
- Intellectual Property
The Buyer covenants, represents and warrants that the Company owns any and all Rights in and to the Intellectual Property in and to the Goods Sold and/or any derivation thereof, as well as any Intellectual Property Developed during the provision of the Services (“AMC’s Intellectual Property”). The Buyer shall not acquire or attempt to acquire any Right in and to AMC’s Intellectual Property. The Buyer shall not contest any Rights of the Company in and to AMC’s Intellectual Property. The Buyer shall not at any time apply for any registration of any of AMC’s Intellectual Property or assist any other Person with such action.
The Buyer shall fully indemnify and hold the Company and the Company’s Representatives (the “Indemnified Parties”) harmless from and against all Losses incurred by any of the Indemnified Parties with respect to, arising from and/or out of any Claim that relates to and/or arises out of any act or omission of the Buyer in relation to the Agreement, the use of the Goods Sold, and/or acts by the Buyer during the receipt of the Services.
The Buyer shall be solely responsible to pay any excise and/or use taxes, and/or any other tax not otherwise set forth on the Estimate.
- Binding Authority
The Buyer covenants, represents, and warrants that the Person executing the Agreement on the Buyer’s behalf has authority to execute the Agreement and to bind the Buyer to the Agreement.
The Buyer shall not assign the Buyer’s respective Rights or delegate any of the Buyer’s duties pursuant to the Agreement without the consent of the Company, including, without limitation, the Warranty, except to a Person which has succeeded to substantially all the business and/or assets of the Buyer and assumed in writing the Buyer’s obligations pursuant to the Agreement, and the Agreement shall be binding upon and inure to the benefit of the Parties and the Parties’ respective Affiliates.
No delay or failure to exercise any power or Right herein shall constitute a waiver thereof without a written expression of the waiver, signed by the Parties (a “Written Waiver”), and no Written Waiver shall constitute a waiver of any power or Right herein except the particular power or Right with respect to the particular event described in such Written Waiver.
- Jurisdiction and Venue
The Parties hereby submit to the exclusive jurisdiction of the federal and state courts located in the State of Nevada, County of Clark, for any actions, suits, or proceedings asserting a breach of the Agreement only. The Parties hereby irrevocably and unconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of an alleged breach of the Agreement, in the courts of the State of Nevada or of the United States of America located in the State of Nevada, and hereby further irrevocably and unconditionally waive and agree not to plead or Claim in such court that any such action, suit, or proceeding brought in such court has been brought in an inconvenient forum. The Agreement shall be construed in accordance with the laws of the State of Nevada.
- Partnership/Joint Venture
The Agreement does not create a partnership, joint venture, or formal business organization of any kind, and neither Party has the Right to make any commitment of any kind for or on behalf of the other Party.
If any provision of the Agreement or the application thereof to any Person or circumstance shall be invalid, illegal or unenforceable to any extent, the remainder of the Agreement and the application thereof shall not be affected and shall be enforceable to the fullest extent permitted by Law. Without limiting the generality of the foregoing sentence, to the extent that any provision of the Agreement is prohibited or ineffective under Law, the Agreement shall be considered amended to the smallest degree possible in order to make the Agreement effective under Law.
The Agreement contains, and is intended as, a complete statement of all terms of the arrangements between the Parties with respect to the matters provided for herein, supersedes any previous agreements and understandings between the Parties with respect to those matters, and cannot be modified or terminated except by a subsequent agreement in writing signed by the Parties.
“Acceptance” shall have the meaning attributed to such term as set forth in the Estimate.
“Agreement” shall mean the result of the Acceptance, as embodied in the terms of the Estimate and the Terms and Conditions.
“AMC’s Intellectual Property” shall have the meaning attributed to such term as set forth in Section 5.
“Buyer” shall have the meaning attributed to such term as set forth in the Estimate.
“Claim” shall mean any demand, complaint, request for redress, assertion of a cause of action or other claim whatsoever.
“Contract” shall mean all agreements, contracts, understandings, undertakings, obligations, and other documents or matters where there is or was an agreement to be bound.
“Control” shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of any Person, or the power to veto major policy decisions of any such Person, whether through the ownership of voting securities, by Contract, or otherwise.
“Company” shall have the meaning attributed to such term as set forth in the Estimate.
“Develop” shall mean to develop, conceive, discover, reduce to practice, create, or otherwise arise out of a Person’s efforts in any manner whatsoever and through any means whether now known or hereafter developed.
“Estimate” shall have the meaning attributed to such term as set forth in the Estimate, incorporated herein by way of reference.
“Goods Price” shall have the meaning attributed to such term as set forth in Section 3.
“Goods Sold” shall have the meaning attributed to such term as set forth in Section 2.
“Indemnified Parties” shall have the meaning attributed to such term as set forth in Section 6.
“Intellectual Property” shall mean all foreign, federal, state, and common-law trademarks, service marks, domain names, Internet path names and addresses of whatsoever nature, trade dress, copyrights, know-how, show-how, patents, inventions (whether or not patentable), mask works, proprietary data, customer lists, strategic plans, financial data, trade secrets, all other intangible assets of whatsoever nature, and all applications for registration and/or issuance with respect to all of the foregoing, whether or not any of the foregoing is registerable or patentable, including, with respect to all of the foregoing: (a) all goodwill associated with any and all of the foregoing; (b) all patents, continuations, continuations-in-part, divisionals, reissues, and extensions; and (c) all moral rights associated with any and all of the foregoing.
“Law” shall mean collectively, all federal, state and local laws, statutes, codes, ordinances, orders, decrees, rulings, rules and regulations, including judicial opinions and precedents.
“Losses” shall mean any and all costs, expenses, fees (including, without limitation, attorneys’, accountants’, investigators’, witnesses’ and professionals’ fees), charges, expenditures, liabilities, damages and other losses of whatsoever nature.
“Offer” shall have the meaning attributed to such term as set forth in the Estimate.
“Parties” shall have the meaning attributed to such term as set forth in the Estimate.
“Party” shall have the meaning attributed to such term as set forth in the Estimate.
“Person” shall mean any natural person, corporation, limited liability company, limited partnership, partnership trust, association, organization or other entity of whatsoever nature.
“Price Change” shall have the meaning attributed to such term as set forth in Section 3.
“Representatives” shall mean all shareholders, directors, officers, employees, agents, representatives, attorneys, and accountants either holding equity in, retained by, employed by, commissioned by or otherwise Controlled by a subject Person.
“Rights” shall mean all rights, title, and interest of any kind.
“Schedule” shall mean an enumerated schedule all of which shall be deemed attached hereto and incorporated herein by way of specific reference or references within the Terms and Conditions.
“Section” shall mean an enumerated provision of the Terms and Conditions.
“Services” shall mean the services required to be provided by the Company to the Buyer as identified in the Estimate.
“Services Price” shall have the meaning attributed to such term as set forth in Section 3.
“Terms and Conditions” shall mean the Terms and Conditions as set forth in Exhibit A.
“Warranty” shall have the meaning attributed to such term as set forth in Section 2.
“Written Waiver” shall have the meaning attributed to such term as set forth in Section 10.