TERMS and CONDITIONS of SALE
Orders. Any orders from BUYER for Products shall be made by delivery of a purchase order to PATHFINDER DIGITAL, LLC which shall be governed, exclusively, by the terms set forth herein. These terms and conditions of SALE shall prevail in case of inconsistency and conflict of terms and conditions.
Scope of Work. PATHFINDER DIGITAL, LLC shall furnish the Product as specified in its marketing literature. Unless specifically stated otherwise in the quote with fees identified, no other performance requirement, specification or deliverable shall exist (including but not limited to integration, installation, or commissioning).
Delivery. Delivery shall be FOB ORIGIN (EX WORKS if international) Sanford, FL.
Payment. Unless otherwise stated, payment terms are fifty percent (50%) down and the balance due net 30 upon delivery of each unit purchased. PATHFINDER DIGITAL LLC may deliver units individually. Any amounts due PATHFINDER DIGITAL, LLC but not received by PATHFINDER DIGITAL, LLC within the time periods as stated in the quotation shall bear interest from the date of invoice, at the lesser rate of one percent (1 %) per month or the highest interest rate allowed by law. BUYER shall pay PATHFINDER DIGITAL, LLC any and all collection and/or litigation expenses, including reasonable attorneys’ fees, incurred by PATHFINDER DIGITAL, LLC in collecting any late payments.
Taxes and Duties. BUYER is responsible for payment of all taxes, duties or similar charges resulting from the sale of Products. BUYER shall within thirty (30) days of delivery either provide PATHFINDER DIGITAL, LLC proof of payment of all taxes, duties or similar charges or provide PATHFINDER DIGITAL, LLC a certificate evidencing exemption of payment of all such charges. If such proof or certificate is not so received PATHFINDER DIGITAL, LLC, at its election, may pay said charges and bill BUYER.
Warranty. Unless otherwise stated, PathFinder Digital, LLC hereinafter “PATHFINDER”, warrants to BUYER and BUYER only that the Products purchased herein are free from defects in workmanship and material for a period of one (1) year from the date of Delivery.
PATHFINDER agrees, subject to PATHFINDER's evaluation, to make good FOB ORIGIN (EX WORKS if international) Sanford FL all defective parts of such Product which are returned, within thirty (30) days of issuance of written return authorization by PATHFINDER, to PATHFINDER's factory, transportation prepaid, provided that:
I. PATHFINDER receives prompt written notification of such defects.
II. PATHFINDER issues prior written authorization to BUYER to return such parts to PATHFINDER's factory.
III. Product has been operated in accordance with the PATHFINDER's instructions and has been properly maintained.
IV. Product has not been misused, altered, or repaired by the BUYER.
V. Product was installed properly according to PATHFINDER's standards and criteria.
All returned parts of the Product become PATHFINDER's property. Correction of such defects by repair or replacement at PATHFINDER's factory and shipment of the repaired or replacement parts FOB ORIGIN (EX WORKS if international) Sanford FL shall constitute BUYER's sole and exclusive remedy and the fulfillment of all of PATHFINDER's obligations in respect to the Product. The BUYER agrees that except for such repair and replacement, PATHFINDER shall in no event be liable for damage or damages of any kind connected with the use of the Product or its failure to function properly including but not limited to property installed on the Product by BUYER or others. In the event PATHFINDER fails to repair or replace any defective parts BUYER agrees that the exclusive measure of damages for such breach shall be the reasonable cost of repair or replacement of the defective part or parts at the time of the breach.
ALTERATION, MODIFICATION OR UNAUTHORIZED REPAIR OF THE PRODUCT, OPERATION OF PRODUCT OUTSIDE OF PATHFINDER'S OR THE ORIGINAL MANUFACTURER’S RECOMMENDED ENVIRONMENTAL CONDITIONS (INCLUDING BUT NOT LIMITED TO TEMPERATURE AND HUMIDITY AND DRIVING ON UNPAVED ROADS OR OTHER POOR CONDITIONS), IMPROPER INSTALLATION OR OTHER MISUSE VOIDS THIS WARRANTY AND OPERATES TO RELIEVE PATHFINDER FROM ALL LIABILITY THEREUNDER.
PATHFINDER SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTIAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR REVENUES, WHICH MAY ARISE OUT OF OR UNDER THIS CONTRACT. THE LIMITATION IN THE PREVIOUS SENTENCE AND THE EXCLUSION OF INDIRECT, CONSEQUENTIAL, SPECIAL AND INCIDENTAL DAMAGES SHALL REMAIN IN FULL FORCE AND EFFECT EVEN IF THE REMEDIES FOR BREACH OF WARRANTY PROVIDED IN THIS CONTRACT FAIL OF THEIR ESSENTIAL PURPOSE. THE ABOVE LIMITATION SHALL BE EFFECTIVE REGARDLESS OF THE FACT HAT PATHFINDER IS OR HAS BEEN MADE AWARE OF THE POSSIBILITY OR LIKELIHOOD OF ANY SUCH POTENTIAL DAMAGES.
THE WARRANTY STATED HEREIN IS PERSONAL TO BUYER AND IS EXPRESSLY IN LIEU OF ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND OF ANY OTHER OBLIGATIONS OR LIABILITY ON THE PART OF THE PATHFINDER, OR ANY OF ITS AFFILIATES WHETHER IN CONTRACT, TORT OR OTHERWISE. THE PATHFINDER NEITHER ASSUMES NOR HAS AUTHORIZED ANY PERSON TO ASSUME FOR IT ANY OTHER WARRANTY OR LIABILITY IN CONNECTION WITH THE PRODUCT SOLD BY IT.
IT IS SPECIFICALLY UNDERSTOOD AND AGREED THAT PATHFINDER DOES NOT UNDERTAKE TO DO MORE OR OTHER THAN TO CONVEY TO BUYER PATHFINDER’S RIGHT, TITLE AND INTEREST IN AND TO THE PRODUCT; NOR SHALL PROOF OF ALLEGED DEALINGS OR TRADE USAGES, INCONSISTENT WITH THE TERMS HEREOF, BE ADMISSIBLE TO EXPAND THIS OBLIGATION.
Components that are shipped as replacement parts to the Product may be remanufactured; provided, however, said remanufactured parts shall in all other ways perform and conform to the specifications of new parts. Any replacement Product or any repair, modification, installation or other service performed by PATHFINDER shall be warranted for a period of ninety (90) days from the date of delivery or the remainder of the original warranty, whichever is longer.
In the event that any of the Products require repair, replacement or servicing, whether under warranty or not under warranty, BUYER is responsible for delivery of the Products DDP PathFinder’s factory or to the appropriate manufacturer’s facility in the United States with all costs of carriage, risks of loss, export and import costs incurred by BUYER. Further, BUYER is responsible for all export and import clearance. Delivery of returned and/or replaced Products shall be made FOB ORIGIN (EX WORKS if international) Sanford FL in the United States. Any fees or costs associated for the repair and/or replacement of Products outside of the warranty shall be paid in full prior to delivery to BUYER. In the event fees or costs are incurred to diagnose the Products, and BUYER elects not to have the Products repaired, BUYER shall nonetheless pay such fees and costs at Manufacturer’s standard rates prior to the Products being returned to BUYER.
Limitation of Liability. This Agreement sets forth BUYER’S exclusive remedies with respect to any claim pursuant to the purchase of Products. The remedies of the BUYER as set forth herein are exclusive, and the liability of PATHFINDER DIGITAL, LLC with respect to any sale or anything done in connection therewith, such as the performance or breach thereof or from the manufacture, sale, delivery, resale, installation or use of any Product(s) covered by or furnished under this Agreement, whether arising out of a statute, agreement, negligence, strict liability in tort, or under any warranty or otherwise, shall not exceed the price of the equipment supplied upon which such liability is based, except as expressly provided for herein. PATHFINDER DIGITAL, LLC SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTIAL OR
CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR REVENUES, WHICH MAY ARISE OUT OF OR UNDER THIS AGREEMENT INCLUDING THE PERFORMANCE OF THE WARRANTY IN EFFECT EVEN IF THE REMEDIES FOR BREACH OF WARRANTY PROVIDED IN THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE. THE ABOVE LIMITATION SHALL BE EFFECTIVE REGARDLESS OF THE FACT THAT PATHFINDER DIGITAL, LLC IS OR HAS BEEN MADE AWARE OF THE POSSIBILITY OR LIKELIHOOD OF ANY SUCH POTENTIAL DAMAGES.
Waiver. The failure of PATHFINDER DIGITAL, LLC or BUYER at any time or from time to time to exercise any of its rights under this Agreement shall not be deemed to be a waiver of any such rights nor shall it prevent PATHFINDER DIGITAL, LLC or BUYER from subsequently asserting or exercising any such rights.
Indemnification. BUYER shall indemnify and hold PATHFINDER DIGITAL, LLC and its officers, agents, servants, subsidiaries, assigns and employees, harmless from any direct loss, damage, liability or expense, resulting from the use of the Products.
Software License. Subject to BUYER'S compliance with all material obligations under this Contract, PATHFINDER DIGITAL, LLC hereby grants to BUYER a nonexclusive, nontransferable right and license to use software programs embedded in Product(s) which BUYER has purchased hereunder, in Object Code only, for use as part of the Product(s). No modification or preparation of derivative works of such software whatsoever is permitted. Said software license is subject to the following restrictions: (1) Only a personal, nontransferable and non-exclusive right to use the software with a single designated Product is granted to BUYER; (2) PATHFINDER DIGITAL, LLC or its supplier retains all title to the software, and all copies thereof, and no title to the software, or any intellectual property in the software, is transferred to BUYER; (3) BUYER may not copy the software; (4) BUYER agrees not to reverse assemble, decompile, or otherwise attempt to derive source code from the software; (5) BUYER agrees to comply with all export and re-export restrictions and regulations of the Department of Commerce or other United States agency or authority, and not to transfer, or authorize the transfer, of the software to a prohibited country or otherwise in violation of any such restrictions or regulations; (6) BUYER may transfer the software to a transferee in connection with the transfer of the Product(s)in which it is incorporated (i) only to a transferee within the same country, and (ii) to a transferee within a different country only with the written consent of PATHFINDER DIGITAL, LLC and in compliance with US law, and in either case subject to the transferee's executing a written license agreement in the same form as the license agreement granted herein unless the transferee is the U.S. Government in which case these requirements do not apply and PATHFINDER DIGITAL, LLC hereby acknowledges to the transfer of this Software License to the U.S. Government under the prime contract for which this purchase was made; (7) Although the software is copyrighted, it is unpublished and contains proprietary and confidential information of PATHFINDER DIGITAL, LLC and its supplier and is considered by PATHFINDER DIGITAL, LLC and its supplier to contain trade secrets, and the BUYER shall agree to hold the software in confidence. Without limiting the foregoing, the BUYER shall agree to protect the software at least to the same extent that the BUYER protects its own similar confidential information and to take all reasonable precautions to safeguard the confidentiality of such software. The BUYER shall further agree not to use the software to develop competitive systems or derivative products, or for any other purpose except the operation of the designated Product(s); (8) PATHFINDER DIGITAL, LLC's suppliers are direct and intended beneficiaries of this license agreement and may enforce it directly against the BUYER.