S3D Inc. (“S3D”) offers products and applications for Motion Capture and Analysis tailored to the Customers needs.
S3D is offering for sale products and services (collectively and individually, the "Product(s)") that are subject to the following terms and conditions (the "Terms and Conditions"). The Terms and Conditions set forth the legally binding terms with respect to the purchase of the Product(s).
The Customer, as identified by Customers of the Product(s) and/or services offered by S3D ("Customer"), are in consideration of the mutual covenants, agreements and provisions set forth herein and hereon, hereby agrees that the purchase of the Product(s) offered by S3D shall be subject to and in accordance with the following Terms and Conditions:
1. Orders for Product(s), Applicability
All Customer order(s) for Product(s) shall be subject to these Terms and Conditions and, if applicable, an authorized quotation issued by S3D. Such order(s), if accepted by S3D, shall have significance as a reference document only. The parties hereby agree that these Terms and Conditions shall govern and control the relationship between S3D and the Customer, that the terms and conditions contained herein shall supersede the terms and conditions contained in a Customer issued purchase order, and that any deviation from these Terms and Conditions needs to be expressly agreed upon in writing by S3D and the Customer. S3D reserves the right to refuse orders in its sole discretion, or to accept such orders on a separate contract form, or to limit the types and amounts of the Product(s) ordered. Acceptance of or payment for any of the Products constitutes Customer’s agreement to these Terms and Conditions.
Prices for the Product(s) shall be the then current prices for such Product(s) in effect at the time of acceptance of an order by S3D or in accordance with an authorized and valid S3D quotation. Prices are exclusive of all charges or levies of any nature including all federal, state, municipal or other governmental excise, sales, use, occupational or like taxes now in force or enacted in the future and, therefore, are subject to an increase in amount equal to any tax S3D may be required to collect or pay upon the sale or delivery of Product(s) purchased. If a certificate of exemption or similar document is required in order to exempt the sale from sales or use tax liability, Customer will obtain and furnish evidence of such exemption at time of placement of order. All prices are subject to adjustment on account of changes in specifications, quantities, shipment arrangements, and the like or the inclusion of terms and conditions which had not been part of any valid price quotation issued by S3D.
Unless otherwise specified by S3D in writing, the purchase price shall be paid exclusively into the bank account stated on the S3D invoice. A discount may only be deducted if it has expressly been agreed upon in writing. Unless otherwise agreed upon in writing, the purchase price shall be settled in accordance to the payment terms in the official and approved quote. In the case of late payments, S3D shall be entitled to charge interest as follows: two and a half percent (2.5 %) or the legal statutory rate, whichever is higher, on all amounts due more than forty-five (45) days. The obligation of S3D to deliver the Product(s) or otherwise perform hereunder shall be subject to the then current credit terms and policies as established by S3D from time to time, unless fixed prices have been agreed upon.
The risk of loss, title in and right of possession of the Product(s) and responsibility for all transportation expenses shall pass to the Customer upon delivery to the carrier. Subject to S3D right to stop shipment of Products already in transit, such carrier shall thereafter be deemed to be acting for Customer regardless of the carrier used or the freight
terms. Shipment will be made "best way," either prepaid or collect, as requested by Customer. If Customer requests prepaid shipment, actual charges incurred shall be billed and shall be due and payable to S3D in accordance with S3D regular payment terms. S3D will not assume any liability in connection with such shipment, nor shall any carrier be its agent. All shipping dates quoted or otherwise agreed to by S3D are estimate only. S3D will use its reasonable efforts to meet scheduled dates, but assumes no liability for failure to do so. In the event that an order remains in S3D's warehouse for more than 14 days, S3D has the right at its sole discretion to either: (i) deliver product to Customer and invoice Customer, or (ii) charge a restocking fee of 25% of the invoiced price and sell the Product(s) to third parties. Any extension beyond the fourteen (14) day period specified herein shall require the express written consent of S3D. Deliveries are always made under retention of title. S3D retain the right of possession of the goods until Customer makes full payment of all claims arising from the business relation with Customer.
5. Force Majeure
S3D shall not be responsible for delays or non-performance directly or indirectly caused by governmental regulations or requirements, acts of God, unavailability of materials, work stoppages, slowdowns, boycotts or other causes beyond S3D's reasonable control. In the event of delay due to any such cause, time for delivery shall be extended for a period of time equal to the duration of the delay, and Customer shall not be entitled to refuse delivery or otherwise be relieved of any obligations hereunder, or have any claims against S3D.
6. Limited Warranty
All Products offered by S3D are warranted to the original Customer of the Product(s) ("Customer") to be free from defects in workmanship and materials for a period of six (6) months from the date of installation or no longer than twelve (12) months from the date of shipment per S3D records. During the term of the warranty, S3D will replace any Product(s) or part(s) thereof which prove to be defective in material and software. A replacement will not be made for damage due to misuse, abuse, neglect, accident, or improper installation. A replacement will not be made for any damage incurred during the shipping process. S3D is not responsible for, and will not pay, any labor charges, damage incurred during installation, repair, or replacement, damage incurred to other related part(s), injuries, loss of
income, incidental and consequential damages, damages or any other loss whatsoever connected therewith.
7. WARRANTY TERMS
A. Enforcement of Warranty Notice
The Customer shall notify S3D in writing of any defects in the Product(s) that the Customer has detected and requires to be corrected under this Warranty. Such notice shall be made without delay, but in any case within ten (10) days of and during the term of the Warranty. The notice shall contain a description of the defect and a description of the probable cause of it if available.
If, after S3D has conducted appropriate tests and inspections as determined by S3D - at their sole discretion - the Product(s) or a part thereof is found to have defects that fall within this Warranty, exclusive remedy shall be made, at the sole option and discretion of S3D, by either repairing the defects or faults, or by supplying the respective correct Product or part of the Product to the Customer. Either S3D or the Customer or a third party shall perform repairs, at S3D's sole discretion.
B. Precondition for Warranty Handling
This Warranty is given on the condition precedent that the Product(s) is in all respects erected, operated, handled, serviced and maintained properly and is running under normal operating conditions as determined by S3D.
Excluded from the Warranty are, and S3D shall have no responsibility for damages of any kind as a result of one of the following events: the repair and replacement of the Product(s) or any part thereto due to normal wear and tear, vandalism, accidents, negligence, or otherwise without any fault of S3D; repairs, alterations or adjustments to the Product(s) performed or originated by the Customer or any third party without S3D’s prior written consent; unreasonable use, misuse, abuse, accident, alteration, modification, reengineering, neglect, lack of maintenance, or use after the Product(s) is significantly worn. The Warranty described above applies only to Products manufactured by S3D. Report of Date of Installation The Customer shall notify S3D in writing of the exact date of installation of the Product(s); this obligation shall constitute another condition precedent for this Warranty.
C. Defective Part(s) Transportation
The Customer shall bear the cost and risk of transport of defective Product(s) or any part thereof to the S3D facility, while S3D shall bear the cost and risk of transport of repaired or replacement Product(s) or any part thereof to the port of destination. S3D will pay for the freight using the same method of transportation as the original shipment. S3D will not be responsible for additional duties and taxes charged for bringing a shipment of "warranted item" into any other location other than the original shipment.
D. Defective Part(s) and their Return
At S3D request, defective part(s) replaced in accordance with this Warranty shall be placed at the disposal for inspection and analysis of S3D service personnel. Any defective part(s) shall not be returned without authorization of S3D; instead, S3D will determine at its sole discretion whether the defective part(s) will be returned to S3D or disposed of.
E. Payments due by the Customer
Any monies due to be paid by the Customer to S3D shall be paid in full, and S3D shall credit the Customer for any warranty claims separately, if necessary. Should the Customer make any deductions, S3D shall forthwith be discharged from the performance of its obligations under this Warranty until the Customer has paid S3D such deduction in full.
Should the need arise to employ professional collection agents and/or attorneys to effect payment of any monies due under any portion of this Agreement, all such costs incidental to collection, including court costs, reasonable attorney fees, through any appeal necessary, will be borne by the Customer.
G. Other Exclusions
All claims beyond those allowed in these Terms and Conditions for any loss or damage from whatever cause arising, including damage to the Customer's property, shall be excluded and hereby waived by the Customer unless such claim is made based on intentional bad acts or gross negligence by S3D. In such case, damages shall be limited to those that are reasonably foreseeable as a result of the intentional bad acts or gross negligence.
THE WARRANTIES SET FORTH IN THIS SECTION ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES WHETHER STATUTORY, EXPRESSED OR IMPLIED, AND THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR USE AND ALL OTHER WARRANTIES ARISING FROM THE COURSE OF DEALING OR USAGE ARE HEREBY EXCLUDED. THE REMEDIES PROVIDED HEREIN ARE CUSTOMER'S SOLE AND EXCLUSIVE REMEDIES FOR ANY FAILURE BY S3D TO COMPLY WITH ITS WARRANTY OBLIGATIONS. CORRECTION OF THE NONCONFORMITIES IN THE MANNER AND FOR THE PERIOD OF TIME PROVIDED HEREIN SHALL CONSTITUTE COMPLETE FULFILLMENT OF S3D'S OBLIGATIONS REGARDING DEFECTIVE PRODUCT(S),WHETHER THE CLAIMS BY THE CUSTOMER ARE BASED IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE) OR OTHERWISE.
8. Limitations of Liability; Exclusive Remedy
S3D will not be liable to Customer under this Agreement, whether in contract, in tort (including negligence) under any warranty or otherwise for any special, indirect, incidental or consequential loss or damage, or loss of profits or revenues even if S3D has been advised of the possibilities of such damages. The remedies set forth in Sections 6 and 7 this Agreement are exclusive, and S3D’s liability for damages to the Customer for any cause whatsoever, including performance or nonperformance by S3D or Product(s) provided hereunder, regardless of the form of the action, under any warranty or otherwise will be limited to the remedies provided therein.
9. Intellectual Property
S3D may discontinue, without liability, delivery of Product(s) if, in its opinion and sole discretion, their use constitutes, or may create the risk of, patent, copyright, trademark or trade secret infringement. S3D makes no warranty against patent, copyright, mask work, trademark or trade secret or other infringement by Product(s) if designed to Customer's
specifications, or if used in combination with non-S3D Products supplied, and if a claim, suit or action is based thereon, Customer shall defend, indemnify and hold harmless S3D therefore.
10. Confidential Clause
The Customer agrees to hold Confidential Information, including but not limited to calculations, codes, schemas, etc., which were made available to the customer upon placing the order, in confidence in accordance with the terms of this Agreement. The Customer shall exercise at least the same degree of care as he uses with regards to his own Confidential Information, but in no event less than reasonable degree of care, in protecting the Confidential Information of S3D. The Customer shall instruct his Authorized Representatives of this obligation under this Agreement. The Customer shall be responsible for any breach of this Agreement by his Authorized Representatives. At S3D’s request, all Confidential Information in the possession of the Customer shall be promptly returned to S3D or
destroyed. Confidential Information means any (material) nonpublic information disclosed to the Customer whether orally, in writing, through any means of communication, by or on behalf of S3D. The Customer shall not disclose these documents to third parties, unless S3D has expressly consented to such disclosure in writing.
11. Health Insurance Portability and Accountability Act (HIPAA)
In case information, which is subject to the Health Insurance Portability and Accountability Act of 1996 (HIPAA), Public Law 104- 191, is used by the Customer or forwarded to third parties, the Customer shall inform S3D whether any compliance rules of the Health Insurance Portability and Accountability Act (HIPPA) also apply to S3D.
12. Limitation of Reengineering
The Customer will not (i) work around any technical limitations in the Product(s) or (ii) rent, lease, lend, sell, redistribute the Product(s) or any parts of it, or (iii) copy, exploit, modify, create any derivative work of, or include in any other software, the Product(s) or any parts of it, or (iv) either directly or indirectly unbundle or repackage the Product(s), decompile, disassemble, decipher, reverse engineer, reengineer or otherwise attempt to derive source
code or the underlying ideas, algorithms, structure or organization from the Product(s) or directly or indirectly permit any of the Customer’s employees/personnel to unbundle, repackage, decompile, disassemble, decipher, reverse engineer, reengineer or otherwise attempt to derive source code or the underlying ideas, algorithms, structure or organization from the Product(s), except as specifically authorized in writing by S3D.
13. Product Changes
S3D reserves the right to change its products at any time, provided that such changes do not impair the proper functioning of Product(s).
14. Cancellation or Postponement by Customer
Orders accepted by S3D cannot be canceled or shipments postponed except by written notice to S3D. In the event that Customer cancels or postpones an order(s) or any part thereof, S3D's standard cancellation or postponement charges will apply.
15. Cancellation or Postponement by S3D
Should S3D become aware of circumstances or otherwise be caused to anticipate that Customer will not render performance, or should S3D have doubts as to Customer’s creditworthiness, S3D may suspend any outstanding deliveries resulting from any existing agreement with Customer or to make said deliveries only upon upfront payment. If Customer fails to meet such a request within a reasonable period of time, S3D may cancel the Agreement and demand damages.
16. Data obtained during Services
All data that has been created by S3D within a service of capturing or processing data will stay at S3D’s sole right of using them as long as the full order has not been paid. S3D will keep a lifelong right to use the data for themselves.
A. Any of the following will constitute an act of default hereunder. Customer:
B. In the event an act of default shall occur, S3D shall have the right to and may elect any or all of the following remedies which shall be cumulative and not exclusive:
18. Governing Law
This Agreement and any order accepted hereunder shall be governed by and interpreted, construed and enforced in accordance with the laws of the State of California, exclusive of its conflict of laws provisions.
19. Arbitration and Venue
Except as provided below, the parties agree to submit any disputes relating to this Agreement and the purchase of Product(s) for final resolution and determination to arbitration, applying the American Arbitration Association Rules for Commercial Disputes. The proceedings shall be held in Los Angeles, California, be in English, and any award shall be enforceable in any court of competent jurisdiction according to the laws of the state of California unless the nature of the dispute is suitable to injunctive relief thereby affording a party the right to pursue redress in court without proceeding to arbitration. Any dispute arising under this Agreement that cannot be arbitrated as provided herein shall be brought only in a court of competent jurisdiction in Los Angeles County, California, USA, with the parties waiving any defense of venue or personal jurisdiction.
Customer shall not delegate any duties or assign any rights or claims under this Agreement without S3D’s prior written consent, and any such attempted delegation or assignment shall be void and constitute an act of default according to section 15.
21. Compliance with laws
Customer, this Agreement and all Product(s) purchased hereunder are subject to all laws, regulations, orders or other restrictions that may now or hereafter be imposed by the government of the United States or any agency thereof, including but not limited to all regulations relating to the sale, re-sale, export, re-export or redistribution of Products.
If any of the provisions of this Agreement are found invalid or unenforceable under any applicable statute or rule of law, such provisions are, to that extent, deemed omitted, but this Agreement and the remainder of its provisions shall otherwise remain in effect. No provision of this Agreement shall be deemed waived, amended or modified by either
party, unless such waiver, amendment or modification is in writing and signed by the parties. The waiver of one default under this Agreement shall not be deemed a waiver of subsequent or similar defaults.
23. Each order under this Agreement shall be treated as a separate contract and default by either party arising out of a particular order shall not constitute or be deemed to constitute a default of any other order or this Agreement itself. No lawsuit, regardless of form, arising out of this Agreement may be brought more than one (1) year after the cause of action occurs.
THESE TERMS AND CONDITIONS SHALL SUPERSEDE AND TAKE PRECEDENCE OVER ALL PROPOSALS, CUSTOMER PURCHASE ORDERS OR ANY OTHER WRITTEN OR ORAL COMMUNICATIONS BETWEEN THE PARTIES, EXCEPT AS OTHERWISE PROVIDED HEREIN. RECEIPT BY THE CUSTOMER OF PRODUCT(S)
HEREUNDER SHALL BE DEEMED CONCLUSIVE EVIDENCE OF CUSTOMER’S AGREEMENT THAT THE PURCHASE, USE AND POSSESSION OF PRODUCT(S) ARE GOVERNED EXCLUSIVELY BY THESE TERMS AND CONDITIONS.