Terms and Conditions
STANDARD TERMS AND CONDITIONS OF SALES
The quotation to which these Terms and Conditions of Sale are attached (the “Quote”) is an offer to sell the quoted services (the “Services”) to the named purchaser (the “Buyer”), conditional on the Buyer’s agreement to the terms and conditions set forth below and OOMIND STUDIO agrees to sell the same only upon these terms and conditions. Except as specifically provided otherwise below, this document constitutes the entire agreement of the parties with respect to the purchase and sale of the Services and supersedes all prior understandings or agreements, whether written or verbal. No term or condition of Buyer’s order inconsistent with the terms and conditions hereof shall be binding on OOMIND STUDIO. Any additional or different terms, including but not limited to those on Buyer’s purchase orders (the “Purchase Orders”), are hereby rejected by OOMIND STUDIO and disclaimed by Buyer. Any amendment to these terms and conditions must be in writing, must OOMIND STUDIO. Unless otherwise specified in the Quote, or unless withdrawn earlier by OOMIND STUDIO, the Quote will expire thirty (30) days from the date issued.
(a) Prices in the Quote are in US dollars, include packaging for domestic or international commercial shipment, as appropriate, and are exclusive of any other amounts including without limitation fees for export, special packaging, transportation and insurance, and are payable as per the Quote.
(b) Prices do not include any taxes, customs duties or tariffs. When OOMIND STUDIO has the legal obligation to pay or collect any such taxes, duties or tariffs, the appropriate amount shall be paid by Buyer unless Buyer provides OOMIND STUDIO with a valid exemption certificate. Buyer agrees to indemnify and hold OOMIND STUDIO harmless for any liability for any tax, duty or tariff in connection with the sale, as well as the collection or withholding thereof, including penalties and interest.
2. ORDER ACCEPTANCE
Purchase Orders are subject to formal acceptance in writing (via email, by letter or fax) by OOMIND STUDIO’ contractual representative even if received elsewhere by a salesperson, selling agent or other representative. OOMIND STUDIO will use commercially reasonable efforts to confirm or reject any Buyer Purchase Order within five (5) business days of receipt by OOMIND STUDIO’ contractual representative.
3. PAYMENT TERMS
(a) OOMIND STUDIO will invoice Buyer for each shipment. The amount invoiced will include the price of the Services plus all applicable taxes, fees, transportation, insurance, and other fees or charges. If all Service in Buyer’s Purchase Order are not shipped at the same time, OOMIND STUDIO will invoice Buyer at the time of shipment for the Services being shipped. Payments shall be remitted to: OOMIND STUDIO, El Salvador, San Salvador, San Salvador.
(b) Unless otherwise specified, payments are due thirty (30) days after the date of invoice.
(c) OOMIND STUDIO shall not be liable under any warranty stated herein if the purchase price has not been paid in full.
(d) OOMIND STUDIO may offset amounts OOMIND STUDIO owes to Buyer against amounts Buyer owes to OOMIND STUDIO, whether under the same or a different Purchase Order.
4. ACCEPTANCE OF SERVICES
Acceptance of services shall occur immediately upon completion unless buyer provides written notification of non-conformity within 15 calendar days of completion.
5. WARRANTIES EXCLUSIVE
To the full extent allowed by law, the foregoing warranties and remedies are exclusive and are in lieu of all other remedies, warranties, terms, or conditions, express or implied, either in fact or by operation of law, statutory or otherwise. OOMIND STUDIO’ warranties herein convey to Buyer and to the ultimate end user (the “End User”), but are not extended to any other third parties. OOMIND STUDIO neither assumes nor authorizes any other person to assume for it any other liability in connection with the sales, installation, maintenance or use of its Products or performance of Services. Replacement Products assume the warranty status of the Product being replaced and have no separate or independent warranty of any kind.
OTHER THAN AS EXPRESSLY SET FORTH ABOVE, OOMIND STUDIO MAKES NO WARRANTIES, EXPRESS, STATUTORY, IMPLIED, OR OTHERWISE. OOMIND STUDIO SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES AND CONDITIONS OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
LIMITATION OF LIABILITY. OOMIND STUDIO’, OR ITS AFFLIATES’ OR ITS SUPPLIERS’ TOTAL LIABILITY ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO DIRECT, ACTUAL DAMAGES UP TO BUT NOT TO EXCEED THE PURCHASE PRICE OF THE SERVICES. IN NO EVENT SHALL OOMIND STUDIO BE LIABLE FOR COSTS OF SUBSTITUTE PRODUCTS OR SERVICES, LOST PROFITS OR REVENUE, BUSINESS INTERRUPTION, CLAIMS OF THIRD PARTIES, LOSS OF INFORMATION ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, OR ANY SPECIAL, INDIRECT, RELIANCE, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY REGARDLESS OF THE REASON. THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER OOMIND STUDIO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
6. BUYER CHANGE ORDER AND CANCELLATION
Any and all changes to Buyer’s Purchase Orders must be provided by written (paper-based or electronically transmitted) notice from Buyer. Any change order increasing the purchase quantity is subject to acceptance by OOMIND STUDIO’ contractual POC.
7. CANCELLATION FOR DEFAULT
OOMIND STUDIO may, upon written notice to Buyer, cancel any or all Buyer Purchase Orders effective immediately if:
(i) Buyer fails to perform any material obligations and such failure is not remedied within fifteen (15) calendar days after notice has been given;
(ii) Buyer fails to pay for purchases in accordance with the terms stated herein;
(iii) Buyer: ceases doing business as a going concern; makes an assignment for the benefit of creditors; is unable to pay its debts as they become due; files a voluntary petition in bankruptcy; is adjudicated to be a bankrupt or insolvent debtor; files a petition seeking for itself any reorganization; or consents or acquiesces in the appointment of a trustee, receiver or liquidator; or
(iv) any proceeding seeking involuntary reorganization, or similar relief is filed against Buyer which is not dismissed within thirty (30) days after filing, or if any trustee, receiver or liquidator of Buyer or any substantial part of its business assets or properties is appointed without OOMIND STUDIO’ consent or acquiescence and such appointment is not vacated within thirty (30) days after such appointment. Any cancellation pursuant to this clause will be in addition to and not in lieu of any other remedies available to OOMIND STUDIO.
8. FORCE MAJEURE
OOMIND STUDIO will be excused from any obligation to the extent performance thereof is prevented by acts of God, fire, flood, riots, material shortages, strikes, governmental acts, disasters, earthquakes, inability to obtain labor or materials through its regular sources, or any other cause beyond OOMIND STUDIO’ reasonable control.
9. LICENSE AGREEMENTS
Notwithstanding anything to the contrary herein, to the extent the Services are delivered with a OOMIND STUDIO or Third Party Product license agreement(s) (the “License Agreement(s)”), the terms and conditions of such License Agreement(s) shall apply in addition to the terms and conditions set forth herein. To the extent there is a conflict between the terms and conditions of such License Agreement(s) and those set forth herein, the term or condition set forth in the License Agreement(s) shall govern in all cases. Nothing herein shall be construed to grant any rights or license to use any Product or other intellectual property in any manner or for any purpose not expressly permitted by the License Agreement.
10. CONFIDENTIAL INFORMATION
Buyer acknowledges that Products contain a combination of trade secret, know-how, patent, proprietary, and confidential information of a commercial or technical nature (“Confidential Information”), and are valuable property of OOMIND STUDIO. Buyer agrees to protect Confidential Information with the same confidentiality protections as are used, or should be used, for its own confidential information, and in any case, shall make the best commercial effort to protect such Confidential Information. Confidential Information is and remains the sole property of OOMIND STUDIO (or its licensors, if any). Buyer shall not reverse engineer any Products.
11. PUBLICITY AND USE OF OOMIND STUDIO MARKS
Buyer shall not release any publicity, advertisement, or news release regarding any contract, subcontract or purchase order with OOMIND STUDIO without OOMIND STUDIO’ express written consent. Buyer shall not use any GENERAL DIGITAL SOFTWARE SERVICES trade/service marks or trade names (“collectively “marks”) for any purpose whatsoever without the express written consent of OOMIND STUDIO, except as expressly permitted by the rules of use set forth in OOMIND STUDIO’ website.
OOMIND STUDIO may freely assign or pledge the payments due (and the documentation supporting such payment obligation) from Buyer under the applicable Purchase Order, and may assign all of its other rights and obligations by giving Buyer written notice thereof but without being obligated to obtain Buyer’s consent prior thereto. In the event of an assignment, OOMIND STUDIO shall be discharged of any further liability pursuant to the affected Purchase Orders. Buyer may not assign its rights or delegate its obligations under any or all of its Purchase Orders unless OOMIND STUDIO’ written consent is obtained prior thereto and any such assignment without such consent shall be void.
If any provision of these terms and conditions is held by a court, government agency or other legal authority of competent jurisdiction to be invalid, illegal or unenforceable, such invalidity, illegality or unenforceability shall not invalidate, void or render unenforceable any other portion of these terms and conditions.
14. SURVIVAL OF TERMS
The termination or cancellation of any Buyer Purchase Order shall not affect the parties’ obligations and rights hereunder which by their nature should be understood to survive such termination or cancellation.