Entire Agreement. These Terms and Conditions shall constitute the entire agreement (the “Agreement” or “Terms and Conditions”) between Digital Intelligence, Inc. (“DI”, “we” or “us”) and you with respect to the subject matter hereof. These Terms and Conditions are controlling and supersede any prior or contemporaneous agreements, understandings or representations, oral or written, relating to the subject matter hereof. These Terms and Conditions govern in the event of any conflict between these Terms and Conditions and any provision offered by you, the terms of which, whether conflicting, supplemental or otherwise, are hereby expressly rejected.
Payment Terms; Orders; Quotes. Any quotation we provide will be valid for the duration stated in the quotation. If no duration is stated, the quotation will be valid for 7 days. If we agree to extend credit terms to you, you agree to pay invoices net 30 days following the date of delivery unless we have agreed to another term. Delay in delivery, misdelivery, improper delivery or nondelivery of any installment shall in no way affect your obligation to accept and pay for remaining installments upon delivery. Any amount not paid in full within 30 days of date of invoice will be subject to a service charge of 1˝% per month on the unpaid balance, until paid in full. Where payment is made by credit card, such payment is subject to the approval of the financial institution issuing the credit card and we will not be liable in any way if such financial institution refuses to accept or honor the credit card for any reason.
Taxes and Other Charges. You must pay any tax, fee or other charge imposed as a result of the sale and/or shipment of the Products sold to you, now imposed by federal, state, municipal or any other governmental authorities or hereafter becoming effective for or during the period hereof, except for our franchise taxes and taxes on our net income.
Title and Risk of Loss; Delivery. Title and risk of loss pass to you upon shipment from our facility, unless otherwise agreed by us. Any claim for Products damaged in shipment must be submitted by you to the carrier. We are not responsible for Products damaged or lost in shipment. Unless otherwise agreed in writing, the method of shipment shall be at our discretion. Any delivery or shipment date is an estimate only.
Cancellation or Default by You. This Agreement may not be cancelled, in whole or in part, except with our prior written consent. If we determine your credit is impaired, or if you fail to pay any amount when due, under this Agreement or any other agreement, or if, at any time, you indicate an intention to refuse to perform, we may at our option require full or partial payment in advance of shipment or production or terminate this Agreement as regards further shipments, and, thereupon all of your obligations with respect to shipments previously made shall become immediately due and payable. In the event of such termination, you will remain liable for any and all loss or damage sustained due to your default.
Force Majeure. We shall not be liable for any loss, damage, delays, changes in shipment schedules or failure to deliver caused by any event beyond its control, including, without limitation, accident, fire, actual or threatened strike or riot, explosion, mechanical breakdown (including technological or information systems), plant shutdown, unavailability of or interference with necessary transportation, any raw material or power shortage, compliance with any law, regulation or order, acts of God or public enemy, prior orders from others, or limitations on our or our suppliers’ products or marketing activities or any other cause or contingency beyond our control.
Limitation on Warranty and Remedies. Unless otherwise stated on the Invoice, we warrant to you that any Digital Intelligence-branded Product (excluding accessories) will be free from defects in materials and/or workmanship for a period of one (1) year from the date of shipment. During the warranty period, we will, at our option: (i) repair the Product, or (ii) replace the Product with a comparable Product. Any replacement parts or Products will be new or serviceably used, comparable in function and performance to the original part or Product, and warranted for the remainder of the original warranty. If applicable, an additional limited warranty statement will be included with each product shipped to you. We reserve the right to modify this warranty statement at any time, in our sole discretion. We will honor any such warranty only upon receipt of payment in full for the product to be warranted. You represent that you have used your own independent skill and expertise in connection with the selection and use of the Products purchased pursuant to this Agreement, and that it will independently determine the suitability for each use for which it is purchased. THIS LIMITED WARRANTY DOES NOT COVER, AND SHALL AUTOMATICALLY BECOME NULL AND VOID, FOR THE FOLLOWING REASONS: ABUSE, MISUSE, ACCIDENT OR PROBLEMS WITH ELECTRICAL POWER; IMPROPER STORAGE, INSTALLATION, APPLICATION OR MAINTENANCE; FAILURE TO NOTIFY US OF A CLAIMED COVERED DEFECT WHEN AND AS REQUIRED BY THIS AGREEMENT; OR FAILURE TO USE THE PRODUCTS IN ACCORDANCE WITH OUR SPECIFICATIONS AND STANDARD OPERATIONAL GUIDELINES. THIS WARRANTY IS EXCLUSIVE, AND EXCEPT AS EXPRESSLY SET OUT IN THIS AGREEMENT, WE MAKE NO OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AND DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN ANY EVENT, YOUR SOLE REMEDY SHALL BE A CREDIT FOR THE COST OF SUCH PRODUCTS OR, AT OUR OPTION, REPLACEMENT OF SUCH PRODUCTS. WE SHALL UNDER NO CIRCUMSTANCES, WHETHER FOR A FAILURE OF ITS LIMITED REMEDY OR OTHERWISE, BE LIABLE TO YOU OR OTHERWISE FOR SPECIAL, INCIDENTAL, DIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES. NO WAIVER, ALTERATION, ADDITION OR MODIFICATION OF THE FOREGOING CONDITIONS SHALL BE VALID UNLESS MADE IN WRITING AND SIGNED BY AN OFFICER OF DIGITAL INTELLIGENCE.
Limitation of Actions. Any action for breach of this Agreement, other than for non-payment, must be commenced within one year of the date of shipment, or due date of delivery in the event of non-delivery, of the particular shipment upon which such claim is based. Your remedies set forth in this Agreement are exclusive and our total liability for damages to you or any third party shall be limited to the purchase price of the particular shipment with respect to which such damages are claimed.
Products. Our policy is one of on-going product update and revision. We may revise and discontinue products at any time. We 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 quotation is possible. The parts and assemblies used in building our products are selected from new and equivalent-to-new parts and assemblies in accordance with industry practices. Spare parts may be new or reconditioned.
Third Party Products. Third party products may carry different return and warranty policies than our products. Third party products may be returned in accordance with the third party program's return policy in effect on the date of invoice. Any warranty and technical support provided on a third party product is provided by the original manufacturer, not by us. The warranties and technical support may vary from product to product.
Software License and Warranty. Title to any software installed with the Products remains with the applicable licensor(s). All software is subject to the applicable license agreement which is included with the Product(s). You agree to be bound by the license agreement once the software is opened, the package is opened or its seal is broken. Warranty for any software shall be in accordance with the license agreement. We do not warrant any software under this Agreement.
Not For Resale; Resellers. If you are not an authorized Digital Intelligence reseller, you agree and represent that you are buying for your own internal use and not for resale. If you are an authorized Digital Intelligence reseller, these terms and conditions apply to the sales of the Products insofar as they are consistent with the terms and conditions of the separate reseller agreement signed with us. In the event there is any inconsistency between the terms and conditions of the separate reseller agreement and these terms and conditions, the separate reseller agreement applies.
Export Control. Products obtained under these terms and conditions are subject to export laws and regulations of the United States of America.
Our Remedies. In the event you default on any of your obligations, we have all rights and remedies available under law or equity, including but not limited to, the right of immediate sale or recovery of the Products, without notice or liability. Furthermore, you will pay any attorneys’ fees we incur in enforcing these Terms and Conditions.
Indemnification. You shall indemnify and hold us harmless from and against any and all claims, actions, suits, proceedings, costs, demands, damages and liabilities of any nature, relating to or in any way arising out of the delivery, rejection, installation, possession, use, operation, control or disposition of the Products.
Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the state of Wisconsin, U.S.A, excluding conflict or choice of law provisions, and you agree to submit to the jurisdiction and venue of the courts of Waukesha County, Wisconsin.
Amendment. This Agreement can only be amended by a writing signed by an officer of Digital Intelligence and specifically stating that it is an amendment.