This document sets out the standard terms and conditions which form part of any contract of sale between Amino Technologies (US), LLC (“Amino”) and the counter-party (the “Purchaser”) set out in the Order Acknowledgement (the “Order Acknowledgement”). These terms and conditions should be read in conjunction with the Order Acknowledgement. In the event of a conflict between these terms and conditions and the Order Acknowledgement or any other agreements between the parties, these terms and conditions shall prevail unless such an agreement expressly provides that it supersedes a particular provision of these terms and conditions.
1.1. Definitions. Unless the context requires otherwise, the following words have the following meanings in these terms and conditions: “Contract” means, collectively, these terms and conditions, the Software License Agreement attached hereto, any end-user license applicable to software included in or with the Goods, the Order Acknowledgement and any additional Amino agreements referenced in the Order Acknowledgement. “Goods”, “Products” means the goods sold to the Purchaser as more specifically set out in the Order Acknowledgement. All references to “sale” or “sell” herein shall mean “license” in respect of software. “Software” means the firmware and/or software supplied with or intended by Amino for use with the Products. Notwithstanding anything to the contrary herein, the Software License Agreement, and any applicable end-user license shall govern the rights and obligations for use of the software included in or with the Products.
1.2. Headings. The headings in these terms and conditions are provided for reference only and shall not affect the interpretation of the terms and conditions.
1.3. Entire Agreement. The Contract constitutes the entire understanding of the parties in relation to the subject matter referred to therein and supersede any previous proposals, agreements or representations (whether oral or written) between the parties. Amino shall not be bound by, and specifically objects to, any term, condition or other provisions which are different from or in addition to the provisions of this Contract (whether or not it would materially alter this Contract) which is proffered by Purchaser in any Purchase Order, receipt, acceptance, confirmation, correspondence or otherwise, unless Amino specifically agrees to any such provision in a writing signed by Amino.
1.4. No variation. No variation to the Contract shall be binding unless confirmed in writing by Amino. For the avoidance of doubt, Amino’s employees and agents are not authorized to make any oral representations concerning the Goods.
2.1. The Contract shall not be binding on Amino unless and until the Purchase Order is confirmed in a written Order Acknowledgement by an authorized signatory of Amino.
2.2. Unless otherwise specified in the Order Acknowledgement, delivery dates quoted by Amino are estimates only and shall not form a binding commitment on the part of Amino. While Amino will make all reasonable effort to procure the timely delivery of the Goods, Amino shall not be liable for any delay howsoever caused.
2.3. Amino may, at its option, deliver the Goods by more than one consignment. If the Goods are delivered by separate consignments, each consignment shall be deemed to be the subject of a separate contract and no default or failure by Amino in respect of any one or more consignments shall vitiate the Contract in respect of Goods previously delivered or undelivered Goods.
2.4. Amino may, in its absolute discretion, allow the Purchaser to cancel or otherwise vary its order after acceptance by Amino. Any variation or cancellation shall be upon such term as Amino shall decide. Save as herein provided, orders accepted by Amino may not be varied or cancelled.
2.5. Risk of damage to, or loss of, the Goods shall pass to the Purchaser:
2.5.1. in the case of Goods to be delivered at Amino’s premises, at the time when Amino notifies the Purchaser that the Goods are available for collection; or
2.5.2. in the case of Goods to be delivered otherwise than at Amino’s premises, at the time when Amino tenders delivery of the Goods.
2.6. All Goods shall be deemed to have been accepted by the Purchaser upon delivery in accordance with the delivery instructions agreed between the parties. If the Purchaser fails to take delivery of any part of the Goods when they are made available to it or fails to provide the instructions or authorizations reasonably required to enable the Goods to be delivered on the due date, Amino shall be entitled, upon giving notice in writing to the Purchaser, to store or arrange for storage of the Goods whereupon risk in the Goods shall pass to the Purchaser, delivery shall be deemed to have taken place, and the Purchaser shall pay to Amino all costs and expenses (including storage and insurance charges) arising from its failure.
2.7. In the event that:
2.7.1. the Purchaser makes any arrangement or composition with its creditors or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation(otherwise than for the purposes of solvent amalgamation or reconstruction) or if a receiver is appointed in respect of any of the assets of the Purchaser or if some event having an equivalent effect occurs; or
2.7.2. if the Purchaser is deemed, by any applicable laws, to be unable to pay its debts when it falls due; or
2.7.3. if Amino reasonably believes that any of the events mentioned above is about to occur in relation to the Purchaser and notifies the Purchaser accordingly, then without prejudice to Amino’s other rights or remedies, Amino shall be entitled to cancel or suspend any further deliveries of the Goods without any liability to the Purchaser.
3.1. Unless otherwise specified in the Order Acknowledgement, payment for the Goods will be invoiced on or at any time after delivery and shall be payable within the period specified in the invoice. The time for payment shall be of the essence.
3.2. All invoices are payable without discount of any kind. Under no circumstances shall the Purchaser be entitled to make any deduction, set off without Amino’s express permission.
3.3. Unless otherwise specified in the Order Acknowledgement, Amino’s prices do not include import or export fees, duties, tariffs or other charges associated with exporting and importing the Goods. All costs incurred for shipping and handling will be borne by the Purchaser and reimbursed to Amino on demand.
3.4. Title to the Goods shall not pass to the Purchaser until such time as Amino receives full payment in cleared funds. In this respect, the Purchaser hereby grants Amino the right during normal business hours to enter the Purchaser’s premises solely for the purpose of recovering any Goods for which full payment has not been made.
3.5. If the Purchaser fails to make any payment on the due date then, without prejudice to Amino’s other rights, Amino shall be entitled to:
3.5.1. cancel and/or suspend any further deliveries of the Goods to the Purchaser; and
3.5.2. charge the Purchaser interest (both before and after judgment) on the unpaid amount, at the rate of 3% per annum above the prime lending rate quoted by the United States Federal Reserve from time to time until full payment is received.
3.6. If any event referred to in Clause 2.7 occurs and if any Goods have been delivered but not paid for, payment for such Goods shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
3.7. You acknowledge and agree that we have the right to adjust the price of the Products in any Contract, acting reasonably and upon giving notice to you, in the exceptional circumstances in which we suffer an increase in the costs incurred by us in performing the agreement, which shall include the costs of any raw materials or components used by us to manufacture the Products, such price change to take effect automatically and to apply to any order for Products placed in accordance with these Conditions.
4.1. The Purchaser warrants that it will not reverse engineer or copy any of the Goods supplied by Amino or otherwise resell or make the same available to anyone who, in the Purchaser’s reasonable opinion, is likely to do so. The Purchaser agrees that the Software contained in the Goods is subject to the Software License Agreement and any applicable end user license, and warrants that any end user license shipped with the Goods by Amino will not be removed from the packaging of the Goods prior to delivery to the end user, and will be provided to the end user at the time of installation, and that agreement to be bound by the end user license, or terms equivalent thereto, will be added to any other items for which Purchaser requests acceptance by the end user.
5.1. Amino warrants that the Goods will correspond with their specification, if any, set out in the Order Acknowledgement and will be free from defects in material and workmanship for the warranty period set out in the Order Acknowledgement, or twelve (12) months from the Purchase Date if no term is specified in the Order Acknowledgement. If a defect exists, at its option Amino will
(a) repair the Product at no charge, using new or refurbished replacement parts,
(b) exchange the Product with a Product that is new or which has been manufactured from new or serviceable used parts and is at least functionally equivalent to the original Product, or
(c) refund the purchase price of the Product. A replacement Product/part assumes the remaining warranty of the original Product. When a Product or part is exchanged, any replacement item becomes Purchaser’s property and the replaced item becomes Amino’s property. When a refund is given, Purchaser’s Product becomes Amino’s property. The Purchaser must obtain a Return Merchandise Authorization (RMA) from Amino before returning any Product for repair or service. Purchaser must prepay shipping and transportation charges to Amino’s repair center, and insure the shipment or accept the risk of loss or damage during such shipment and transportation. Amino will ship the repaired or replacement Products to Customer freight prepaid. Amino shall have no further liability to the Purchaser.
5.2. Before Purchaser delivers a Product for warranty service it is Purchaser’s responsibility to keep a separate backup copy of any application data that it intends to retain, to remove any end-user personally identifying information, and to disable any security passwords. Purchaser will be responsible for restoring all such information. Purchaser acknowledges that Data recovery is not included in the warranty service and Amino is not responsible for data that may be lost or damaged during transit or a repair.
5.3. This Limited Warranty applies only to hardware Products manufactured by or for Amino that:
(a) can be identified by the “Amino” trademark, trade name, or logo affixed to them; or
(b) to which Amino has agreed to apply Purchaser’s trademarks. The Limited Warranty does not apply to any non-Amino hardware products or any software, even if packaged or sold with Amino hardware. Non-Amino manufacturers, suppliers, or publishers may provide their own warranties. Software distributed by Amino under the Amino brand name (including, but not limited to system software) is not covered under this Limited Warranty. Refer to the Software License Agreement for the warranties applicable to Software. Amino is not liable for any damage to or loss of any programs, data, or other information stored on any media, or any non-Amino product or part not covered by this warranty. Recovery and reinstallation of system and application software and user data are not covered under this Limited Warranty.
5.4. This warranty does not apply:
(a) to damage caused by normal wear and tear, accident, negligence, abuse, misuse, misapplication, wilful damage, acts of God, or non-Amino products;
(b) to Products which have had unauthorized alterations or repairs;
(c) to a Product or apart that has been modified without the written permission of Amino;
(d) if any Amino serial number has been removed or defaced;
(e) to Products subject to improper installation, abnormal working conditions, or effects of excessive electrical current or voltage whether or not caused by lightning; or
(f) to damage due to failure to adhere to instructions on use of the Goods.
5.5. THIS WARRANTY AND REMEDIES SET FORTH ABOVEARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, REMEDIES AND CONDITIONS, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED. AMINO SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IF AMINO CANNOT LAWFULLY DISCLAIM IMPLIED WARRANTIES UNDER THIS LIMITED WARRANTY, ALL SUCH WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSEARE LIMITED IN DURATION TO THE DURATION OF THIS WARRANTY. No Amino reseller, agent, or employee is authorized to make any modification, extension, or addition to this warranty.
5.6. AMINO IS NOT RESPONSIBLE FOR DIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES RESULTING FROM ANY BREACH OF WARRANTY OR CONDITION, OR UNDER ANY OTHER LEGAL THEORY, INCLUDING BUT NOT LIMITED TO LOST PROFITS, DOWNTIME, GOODWILL, DAMAGE TO OR REPLACEMENT OF EQUIPMENT AND PROPERTY, ANY COSTS OF RECOVERING, REPROGRAMMING, OR REPRODUCING ANY PROGRAM OR DATA STORED IN OR USED WITH AMINO PRODUCTS, AND ANY FAILURE TO MAINTAIN THE CONFIDENTIALITY OF DATA STORED ON THE PRODUCT. AMINO SPECIFICALLY DOES NOT REPRESENT THAT IT WILL BE ABLE TO REPAIR ANY PRODUCT UNDER THIS WARRANTY OR MAKE A PRODUCT EXCHANGE WITHOUT RISK TO OR LOSS OF PROGRAMS OR DATA. Some states and provinces do not allow the exclusion or limitation of incidental or consequential damages or exclusions or limitations on the duration of implied warranties or conditions, so the above limitations or exclusions may not apply to you. This warranty gives you specific legal rights, and you may also have other rights that vary by state or province.
5.7. In relation to third party products purchased through Amino, where such products are covered by a relevant manufacturer’s warranty, then the warranty set out in this Clause shall not extend to such products and such manufacturer’s warranty shall be the sole warranty in respect of such products.
5.8. Notwithstanding anything in this Clause, except in the case of death or personal injury, Amino’s total liability under any Contract shall not exceed the amount received by Amino under the Contract.
6.1. Beyond the terms of the Amino Warranty presented in Section 5, Purchaser is not entitled by effect of these terms and conditions to Amino support services such as phone support, on-site support, Software upgrades, etc.
6.2. Amino offers a number of basic and extended support services that can be procured separately
7.1. Non-waiver. Failure or neglect by Amino to enforce at any time any of the provisions hereof shall not be deemed to be a waiver of Amino’s rights here under nor prejudice Amino’s rights to take subsequent action.
7.2. Force Majeure. Amino shall not have any liability whatsoever to the Purchaser for any loss resulting from a cause over which Amino does not have direct control, including but not limited to, failure of electronic or mechanical equipment or communication lines, unauthorized access, theft, labor problems or force majeure. For this purpose, “force majeure” is defined to include any cause beyond Amino’s reasonable control, including but not limited to any act of God, severe weather, failure of power supplies, flood, lightning or fire, the act or omission of Government, or other competent authority, or war.
7.3. Severability. In the event that any part of the Contract shall be determined by any competent authority to be invalid or unenforceable, such part shall to that extent be severed from the remaining part of the Contract which shall continue to be valid to the fullest extent permitted by law.
7.4. Notices. All notices shall be in writing and shall be deemed to have been duly given when delivered by hand, posted by recorded delivery or sent by facsimile or email to the party at the postal address, facsimile number or email address set out in the purchase order or Order Acknowledgement or to such addresses or numbers as the respective party hereto may specify to the other in writing from time to time. Notices delivered by hand, sent by facsimile or email shall be deemed received the first working day following such delivery, posting or sending. Notices that have been posted by mail shall be deemed received on the fifth working day following posting.
7.5. Governing Law and Jurisdiction. This Contract, and all disputes arising out of or related to this Contract, shall be governed by and construed under the laws of the State of California without reference to conflict of laws principles. All such disputes shall be subject to the jurisdiction of the state or federal courts with jurisdiction for San Mateo County, California, and the parties submit to the venue and personal jurisdiction of such courts. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not govern this agreement.
By using the software provided by AMINO TECHNOLOGIES (US), LLC. (“Amino”) in connection with the Products (“Software”) you acknowledge that you (“Licensee”) have read this Software License Agreement (“Agreement”), understand it, and agree to its terms.
Amino hereby grants to Licensee a limited, non-transferable, non-assignable, non-sublicensable, non-exclusive license to:
(a) use the Software solely in connection with Amino Products;
(b) provide the Software to an end-user of the Products on terms no less restrictive than this Software License Agreement. Any other use of the Software is not licensed hereunder. The Software is owned by Amino and/or its licensors and is protected by United States copyright and other laws and international treaty provisions.
Except as expressly permitted by this Agreement, Licensee shall not
(a) remove any copyright, trade secretor other proprietary right notices contained on or in the Software as provided by Amino,
(b) reproduce or modify any Software or copy thereof,
(c) reverse assemble, reverse engineer or decompile any Software, or copy thereof, in whole or in part (except as provided by applicable law),
(d) sell, transfer or otherwise make available to others the Software, or any copy thereof, or
(e) apply any techniques to derive any trade secrets embodied in the Software. Licensee shall take all appropriate actions to ensure that:
(i) the Software is not copied by Licensee (except as allowed herein) or any third parties, and
(ii) the Software is not used in any equipment other than Amino component products. Licensee shall secure and protect the Software and copies thereof from disclosure. In the event that Licensee becomes aware that any Software or copies are being used in a manner not permitted by the license, Licensee shall immediately notify Amino inwriting of such fact. Licensee will fully cooperate with Amino so as to enable Amino to enforce its proprietary and property rights in the Software. Licensee agrees that Amino shall have prompt and reasonable access to the Software at all times and that Amino may take immediate possession thereof upon termination or expiration of the associated license. Licensee’s obligations under this paragraph shall survive any termination of the license, or the Agreement.
Amino does not warrant that the Software will meet the Licensee’s requirements (unless such requirements are agreed in writing between the parties), or will operate in combinations which may be selected for use by Licensee, or that the operation of the Software will be uninterrupted or error free. Licensee is responsible for determining the appropriate use of and establishing the limitations of the software and its associated Documentation as well as the results obtained by use thereof. Amino warrants only that the media containing the Software will be free from damage or physical defects when distributed to Licensee. The sole, exclusive remedy for breach of this warranty is that Amino will replace the defective media if returned to Amino within ninety (90) days after delivery to Licensee.
THE WARRANTY STATED ABOVE IS THE ONLY WARRANTY APPLICABLE TO THE SOFTWARE. LICENSEE ASSUMES ALL RESPONSIBILITY FOR SELECTION OF THE SOFTWARE TO ACHIEVE ITS INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE OF AND RESULTS OBTAINED FROM THE SOFTWARE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AMINO DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT WITH RESPECT TO THE SOFTWARE AND ACCOMPANYING WRITTEN MATERIALS IF ANY. NO VERBAL OR WRITTEN INFORMATION GIVEN BY AMINO, ITS AGENTS OR EMPLOYEES SHALL CREATE A GUARANTY OR IN ANY WAY INCREASE THE SCOPE OF THISWARRANTY.
THE REMEDY SET FORTH ABOVE SHALL CONSTITUTE LICENSEE’S SOLE AND EXCLUSIVE REMEDY FOR A BREACH OF THE WARRANTY MADE BY AMINO HEREIN OR ANY OTHER OBLIGATION OF AMINO HEREUNDER, ARISING BY COURSE OF DEALING OR PERFORMANCE, CUSTOM, USAGE IN THE TRADE OR OTHERWISE, INCLUDING COMPLIANCE WITH MATERIALS DECLARATION REQUIREMENTS, OR NON INFRINGEMENT OR MISAPPROPRIATION OF ANY RIGHT,TITLE OR INTEREST OF LICENSEE OR ANY THIRD PARTY. NO ORAL OR WRITTEN STATEMENT OR REPRESENTATION BY AMINO, ITS AGENTS OR EMPLOYEES SHALL CONSTITUTE OR CREATE A WARRANTY OR EXPAND THE SCOPE OF ANY WARRANTY HEREUNDER.
LICENSEE ASSUMES THE ENTIRE COST OF ANY DAMAGE RESULTING FROM THE INFORMATION CONTAINED IN OR COMPILED BYTHE SOFTWARE. NEITHER AMINO NOR ITS SUPPLIERS SHALL BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES RESULTING FROM THE USE OF THE SOFTWARE OR ARISING OUT OF ANY BREACH OF ANY EXPRESS OR IMPLIED WARRANTY ON THE SOFTWARE. THIS DISCLAIMER OF WARRANTIES AND LIMITED WARRANTY ARE GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA WITHOUT REFERENCE TO CONFLICTS OF LAWS PRINCIPLES. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE ON THIS PRODUCTIS LIMITED TO THE APPLICABLE WARRANTY PERIOD SET FORTH ABOVE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. LICENSEE MAY HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE (OR JURISDICTION TO JURISDICTION) AND THESE LIMITATIONS MAY NOT BE APPLICABLE TO LICENSEE.
IN NO EVENT, WILL AMINO’S TOTAL LIABILITY TO LICENSEE FOR ALL DAMAGES IN ANY ONE OR MORE CAUSE OF ACTION EXCEED THE AMOUNT PAID BY LICENSEE FOR THE SOFTWARE.
The Software and any accompanying documentation are deemed to be “commercial computer Software” and “commercial computer Software documentation,” respectively, pursuant to DFAR Section227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction release, performance, display or disclosure of the Software and accompanying documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
Licensee may not export, or re-export the Software
(a) into, or to a national or resident of, any country to which the United States has embargoed goods, or
(b) to anyone on the United States Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By using the Software, Licensee is representing and warranting that it is not located in, under the control of, or a national or resident of any such country or on any such list.
Licensee may terminate this Agreement at any time by destroying or returning to Amino all copies of the Software and associated documentation. This Agreement will terminate:
(a) at any time that Licensee no longer uses the Amino component product or
(b) if Amino finds that you have violated any of the terms of this Agreement. Upon termination, you agree to destroy or return to Amino all copies of the Software and documentation and, upon Amino's request, to certify in writing that all known copies, including backup copies, have been destroyed. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent of subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless it is made in writing and is signed by an authorized representative of the waiving party. All provisions relating to confidentiality, proprietary rights, and nondisclosure shall survive the termination of this Agreement.
This Agreement is governed by the laws of the United States and the State of California, without reference to conflict of laws principles. Any dispute between Licensee and Amino regarding this Agreement will be subject to the exclusive venue of the state and federal courts presiding in the County of Santa Clara, State of California. This Agreement is the entire agreement between Licensee and Amino and supersedes any other communications or advertising with respect to the Software and documentation. If any provision of this Agreement is held invalid, the remainder of this Agreement will continue in full force and effect. Amino may modify the Software and may amend or modify this Software License Agreement at any time in its sole discretion upon notice to you. Licensee agrees that any methods set forth therein will constitute sufficient notice of any change to this Agreement. Licensee’s continued use of the Software following notice of such change shall be deemed to be its acceptance of any such change. If Licensee does not agree to any such change, it must immediately stop using the Software and notify Amino that Licensee is terminating this Agreement.
