Unless Customer has another valid agreement with UP-Servers, the following terms and conditions will apply. UP-Servers's sale of Products and Support and UP-Servers's license of Software are governed by these UP-Servers Terms and Conditions of Sale and Service
1. Definitions
a) "Delivery" means standard UP-Servers shipping to and arrival at the receiving area at the "Ship To" address specified in Customer's order.
b) "Exhibits" means attachments that describe or otherwise apply to the sale or license of Products or Support.
c) "License Fee" means the fee or fees designated by UP-Servers for Use of Software. Different License Fees may apply to particular Software if more than one Software License is available for that Software.
d) "Products" means hardware, Software, documentation, accessories, supplies, parts forth herein. Each Software License has a corresponding License Fee.
e) "Software" means one or more programs capable of operating on a controller, processor or other hardware Product ("Device") and related documentation. Software is either a separate Product, included with another Product ("Bundled Software"), or fixed in a Device and not removable in normal operation ("Firmware").
f) "Software License" means the Software license grant and general license terms set forth herein. Each Software License has a corresponding License Fee.
g) "Specifications" means specific technical information about UP-Servers Products which is published in UP-Servers or component supplier's Product manuals and technical data sheets in effect on the date UP-Servers ships Customer's order.
h) "Support" means hardware maintenance and repair; Software updates and maintenance; training; and other standard support services provided by UP-Servers. "Custom Support" means any agreed non-standard Support, including consulting and custom project services.
i) "Use" means storing, loading, installing, executing or displaying Software on a Device.
2. Prices
a) Prices are valid for the period quoted by UP-Servers or for the applicable purchase agreement ordering period, whichever expires first. Product prices for an order remain valid for thirty(30) days from the original order date unless otherwise quoted by UP-Servers. Change orders that extend Delivery beyond those validity periods become new orders at prices in effect when UP-Servers receives the change orders. Support prices, except for Custom and prepaid Support, may be changed by UP-Servers. upon sixty(60) days written notice.
b) Prices are exclusive of, and Customer will pay, applicable sales, use, consumption, goods and service, value added or like taxes, unless Customer has provided UP-Servers with an appropriate exemption certificate for the Delivery jurisdiction.
3. Orders
a) All orders are subject to acceptance by UP-Servers. Product orders must specify Delivery within thirty(30) days from order date, unless otherwise agreed or quoted by UP-Servers.
b) Customer will specify Ship To addresses within the country where the order is placed, unless otherwise agreed.
4. Delivery
UP-Servers will make reasonable efforts to meet Customer's Delivery requirements. If UP-Servers is unable to meet Customer's Delivery requirements, alternative arrangements may be agreed. In the absence of such agreement, Customer's sole remedy is to cancel the order.
5. Shipment, risk of loss or damage, and title
UP-Servers will ship according toUP-Servers's standard commercial practice, and risk of loss or damage and title will pass from UP-Servers to Customer at the moment the product leaves UP-Servers's premises. Shipping and handling charges will be listed separately on UP-Servers's invoice when not included in the Product's purchase price. If Customer requested special packing or shipping instructions are agreed to by UP-Servers, charges will be billed separately to Customer, and risk of loss or damage and title will pass to Customer on delivery to Customer's carrier or designate. The decision to insure the shipment or not is at customer's discretion.
6. Installation and acceptance
a) Product installation information is available with Products, on quotations or upon request. Installation by UP-Servers, when included in the purchase price, is complete when the Product passes UP-Servers's standard installation and test procedures.
b) For Products without installation included in the purchase price, acceptance by Customer occurs upon Delivery to carrier. For Products with installation included in the purchase price, acceptance by Customer occurs upon completion of installation by UP-Servers. If Customer schedules or delays installation by UP-Servers more than thirty(30) days after Delivery, Customer acceptance of the Product(s) will occur on the 31st day after Delivery.
7. Payment
a) Payment terms are subject to UP-Servers credit approval. Payment is due Cash On Delivery (COD) unless otherwise agreed. Invoices for contractual support services and maintenance will be issued in advance of the Support period. UP-Servers may change credit or payment terms at any time when, in UP-Servers's opinion, Customer's financial condition, previous payment record, or the nature of Customer's relationship with UP-Servers so warrants.
b) UP-Servers may discontinue performance if Customer fails to pay any sum due, or fails to perform under this or any other UP-Servers agreement if, after ten(10) days written notice, the failure has not been cured.
8. Warranty
a) Product warranty period and additional information is available with Products, on quotations, or upon request.
b) Products purchased from UP-Servers will receive the standard warranty of one year, unless otherwise stated in our offer. If Customer moves such Products to another country where UP-Servers has Support presence, then Customer will receive the destination country standard warranty.
c) Customer may receive a different warranty when the Product is purchased as part of a system. UP-Servers reserves the right to change the warranty. Such changes will affect only new orders.
d) The warranty period begins on the date of Delivery, or the date of installation if installed by UP-Servers. If Customer schedules or delays installation by UP-Servers more than thirty(30) days after Delivery, the warranty period begins on the 31st day after Delivery.
e) If Customer transfers a Product to another user, warranty service is available to that user for the remainder of the warranty period.
f) UP-Servers warrants UP-Servers hardware Products against defects in materials and workmanship. UP-Servers further warrants that UP-Servers hardware Products conform to Specifications, in full accordance with the manufacturer's warranties.
g) UP-Servers warrants that Software will not fail to execute its programming instructions due to defects in materials and workmanship when properly installed and used on the Devices designated by UP-Servers. UP-Servers further warrants that UP-Servers owned standard Software will substantially conform to Specifications. UP-Servers does not warrant that Software will operate in hardware and software combinations selected by Customer, or meet requirements specified by Customer.
h) UP-Servers does not warrant that the operation of Products will be uninterrupted or error free.
i) If UP-Servers receives notice of defects or non-conformance to hardware Specifications, or substantial non-conformance to UP-Servers owned standard Software Specifications during the warranty period, UP-Servers will, at its option, repair or replace the affected Products. If UP-Servers is unable, within a reasonable time, to repair, replace or correct a defect or non-conformance in a Product to a condition as warranted, Customer will be entitled to a refund of the purchase price upon prompt return of the Product to UP-Servers. Customer will pay expenses for return of such Products to UP-Servers. UP-Servers will pay expenses for shipment of repaired or replacement Products.
j) UP-Servers warrants that UP-Servers Support will be provided in a professional and workmanlike manner. Some newly manufactured UP-Servers Products may contain and UP-Servers Support may use remanufactured parts which are equivalent to new in performance.
k) The warranties provided herein will apply only to those Products and Support which are branded by UP-Servers with an UP-Servers trademark ("UP-Servers Branded"). UP-Servers does not warrant any third party Products or Support even if included with other UP-Servers Branded Products or Support. Furthermore, UP-Servers provides all such third party Products and Support AS IS. However, the original manufacturers or suppliers may provide their own warranties as specified in the documentation accompanying such third party Products and Support.
l) The above warranties do not apply to defects resulting from:
1) improper or inadequate maintenance by Customer;
2) Customer or third party supplied software, interfacing or supplies;
3) unauthorized modification;
4) improper use or operation outside of the Specifications for the Product;
5) abuse, negligence, accident, loss or damage in transit;
6) improper site preparation; or
7) unauthorized maintenance or repair.
m) THE ABOVE WARRANTIES ARE EXCLUSIVE AND NO OTHER WARRANTY, WHETHER WRITTEN OR ORAL, IS EXPRESSED OR IMPLIED. TO THE EXTENT PERMITTED BY LAW, UP-Servers SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT.
9. Support
a) Customer may order Support from UP-Servers's then current Support offering. Some Support (and related Products) may not be available outside Belgium . Orders for Support are subject to the terms of the Support Exhibit or quotation in effect on the date of order.
b) To be eligible for Support, Products sold by UP-Servers must be at current specified revision levels and, in UP-Servers's reasonable opinion, in good operating condition.
c) UP-Servers may, at no additional charge, modify Products to improve operation, supportability and reliability, or to meet legal requirements.
d) Relocation of Products is Customer's responsibility. Relocation may result in additional Support charges and modified service response times. Support of Products moved to another country is subject to availability.
e) UP-Servers will provide Support for products that are not UP-Servers Branded when approved by UP-Servers in writing. UP-Servers will provide Support for UP-Servers Products when Customer allows UP-Servers to perform modifications if requested by UP-Servers under Section 9. c) above. Customer is responsible for removing any products not eligible for Support to allow UP-Servers to perform Support services. If Support services are made more difficult because of such product(s), UP-Servers will charge Customer for the extra work at UP-Servers's standard rates.
f) Support does not cover any damage or failure caused by:
1) use of non-UP-Servers media, supplies and other products; or
2) site conditions that do not conform to UP-Servers's site specifications; or
3) neglect, improper use, fire or water damage, electrical disturbances, transportation by Customer, work or modification by people other than UP-Servers employees or subcontractors, or other causes beyond UP-Servers's control; or
4) inability of any non-UP-Servers products in Customer's environment to correctly process, provide or receive date data (i.e., representations for month, day, and year), and to properly exchange date data with the Products supplied by UP-Servers.
g) Customer is responsible for maintaining a procedure external to the Products to reconstruct lost or altered Customer files, data or programs. Customer will have a representative present when UP-Servers provides Support services at Customer's site. Customer will notify UP-Servers if Products are being used in an environment which poses a potential health or safety hazard to UP-Servers employees or subcontractors; UP-Servers may require Customer to maintain such Products under UP-Servers supervision and may postpone service until such hazard is remedied.
h) Customer may delete Products under Support or cancel Support orders upon thirty(30) days written notice unless otherwise agreed in a Support agreement. UP-Servers may cancel Support orders or delete Products no longer included in UP-Servers's Support offering upon thirty(30) days written notice unless otherwise agreed in a Support agreement.
10. Licenses
a) In return for the License Fee, UP-Servers grants Customer a non-exclusive license to Use the object code version of the Software listed in Customer's order in conformance with:
1) the terms set forth herein; and
2) Use restrictions and authorizations for the Software specified by UP-Servers in its quotation, invoice or terms that accompany the Software; and
3) UP-Servers's third party suppliers' terms that accompany the Software.
In the event of a conflict, the third party suppliers' terms that accompany the Software will take precedence over the Use restrictions and authorizations specified by UP-Servers and the terms set forth herein, and the Use restrictions and authorizations specified by UP-Servers will take precedence over the terms set forth herein.
b) Unless otherwise specified, in return for the applicable License Fee, UP-Servers grants Customer a license to Use one copy of the Software on one Device at any one time.
c) Unless otherwise specified, all Software Licenses will be perpetual unless terminated or transferred in accordance with Section 10. k).
d) If Customer is an UP-Servers authorized reseller, Customer may sublicense the Software to an end-user for its Use or (if applicable) sublicense the Software to an UP-Servers authorized reseller for subsequent distribution to an end-user for its Use. These sublicenses must incorporate the terms of this Software License in a written sublicense agreement, which will be made available to UP-Servers upon request. If Customer is not a UP-Servers authorized reseller, Customer may not sublicense the Software unless otherwise agreed to by UP-Servers in writing.
e) Software is owned and copyrighted by UP-Servers or by third party suppliers. Customer's Software License confers no title or ownership and is not a sale of any rights in the Software. Third party suppliers may protect their rights in the Software in the event of any infringement.
f) Unless otherwise permitted by UP-Servers, Customer may only make copies or adaptations of the Software for archival purposes or when copying or adaptation is an essential step in the authorized Use of the Software on a backup Device, provided that copies and adaptations are used in no other manner and provided further that the Use on the backup Device is discontinued when the original or replacement Device becomes operable.
g) Customer must reproduce all copyright notices in or on the original Software on all permitted copies or adaptations. Customer may not copy the Software onto any public or distributed network.
h) Bundled Software or Firmware provided to Customer may only be used when operating the associated Device in configurations as sold or subsequently upgraded by UP-Servers. Customer may transfer Firmware only upon transfer of the associated Device.
i) Updates, upgrades or other enhancements are available under UP-Servers. Support agreements: UP-Servers reserves the right to require additional licenses and fees for Use of the Software on upgraded Devices.
j) Customer will not modify, disassemble or decompile the Software without UP-Servers's prior written consent. Where Customer has other rights under statute, Customer will provide UP-Servers with reasonably detailed information regarding any intended disassembly or decompilation. Customer will not decrypt the Software unless necessary for legitimate use of the Software.
k) Customer's Software License is transferable subject to UP-Servers's prior written authorization and payment to UP-Servers of any applicable fee(s). Upon transfer of the Software License, Customer will immediately deliver all copies of the Software to the transferee. The transferee must agree in writing to the terms of Customer's Software License. All Software License terms will be binding on involuntary transferees, notice of which is hereby given. Customer's Software License will automatically terminate upon transfer.
l) UP-Servers may terminate Customer's or any transferee's or sublicensee's Software License upon notice for failure to comply with any applicable Software License terms. Immediately upon termination, the Software and all copies of the Software will be destroyed or returned to UP-Servers. Copies of the Software that are merged into adaptations, except for individual pieces of data in Customer's or transferee's or sublicensee's database, will be removed and destroyed or returned to UP-Servers. With UP-Servers's written consent, one copy of the Software may be retained subsequent to termination for archival purposes.
11. Intellectual property rights
a) UP-Servers will defend or settle any claim against Customer, (or third parties to whom Customer is authorized by UP-Servers to resell or sublicense), that UP-Servers Branded Products or Support (excluding Custom Products and Custom Support), delivered under these UP-Servers Terms and Conditions of Sale and Service infringe a patent, utility model, industrial design, copyright, trade secret, mask work or trademark in the country where Products are used, sold or receive Support, provided Customer:
1) promptly notifies UP-Servers in writing; and
2) cooperates with UP-Servers in, and grants UP-Servers sole control of the defense or settlement.
b) UP-Servers will pay infringement claim defense costs, settlement amounts and court-awarded damages. If such a claim appears likely, UP-Servers may modify the Product, procure any necessary license, or replace it. If UP-Servers determines that none of these alternatives is reasonably available, UP-Servers will refund Customer's purchase price upon return of the Product if within one year of Delivery, or the Product's net book value thereafter.
c) UP-Servers has no obligation for any claim of infringement arising from:
1) UP-Servers's compliance with Customer's designs, specifications or instructions;
2) UP-Servers's use of technical information or technology provided by Customer;
3) Product modifications by Customer or a third party;
4) Product use prohibited by Specifications or related application notes; or
5) Product use with products that are not UP-Servers Branded.
d) These terms state UP-Servers's entire liability for claims of intellectual property infringement.
12. Limitation of liability and remedies
a) Products are not specifically designed, manufactured or intended for sale as parts, components or assemblies for the planning, construction, maintenance or direct operation of a nuclear facility. Customer is solely liable if Products or Support purchased by Customer are used for these applications. Customer will indemnify and hold UP-Servers harmless from all loss, damage, expense or liability in connection with such use.
b) To the extent UP-Servers is held legally liable to Customer, UP-Servers's total liability is limited to: payments described in Sections 8. i) and 11. b) above; damages for bodily injury; direct damages to tangible property up to a limit of € 50,000; other direct damages for any claim based on a material breach of Support services, up to a maximum of 12 months of the related Support charges paid by Customer during the period of material breach; and other direct damages for any claim based on a material breach of any other term of these UP-ServersTerms and Conditions of Sale and Service, up to a limit of €50,000 or the amount paid to UP-Servers for the associated Product, whichever is less.
c) Notwithstanding Section 12. b) above, in no event will UP-Servers or its affiliates, subcontractors or suppliers be liable for any of the following: incidental, special or consequential damages (including downtime costs or lost profits, but excluding payments described in Section 11 above and damages for bodily injury); damages relating to Customer's procurement of substitute products or services (i.e., "cost of cover"); or damages for loss of data, or software restoration.
d) THE REMEDIES IN THESE UP-Servers TERMS AND CONDITIONS OF SALE AND SERVICE ARE CUSTOMER'S SOLE AND EXCLUSIVE REMEDIES.
13. General
a) The Parties hereby agree that they may do business electronically, including contract formation, order placement and acceptance. Any orders placed by Customer and accepted by UP-Servers on any UP-Servers.be website or UP-Servers/Customer extranet site will create fully enforceable obligations that will be subject to the terms hereof. Such orders and acceptances will be deemed for all purposes to be
1) business records originated and maintained in documentary form,
2) a “writing” or “in writing,”
3) “signed” and
4) an “original” when printed from electronic files or records established and maintained in the normal course of business.
The Parties further agree not to contest the validity or enforceability of such transactions under the provisions of any applicable law relating to whether certain agreements are to be in writing or signed by the Party to be bound thereby and will be admissible if introduced as evidence on paper in any judicial, arbitration, mediation, or administrative proceeding to the same extent and under the same conditions as other business records originated and maintained in documentary form. In addition, the Parties agree that transactions may be conducted through Electronic Data Interchange or other electronic methods, as agreed by the Parties. Customer and UP-Servers will adopt commercially reasonable security measures to limit access to passwords and to limit access to the sites to authorized persons. Each party will be responsible for any unauthorized use of the sites or issuance of messages caused by the failure of its security measures.
b) UP-Servers will not be liable for performance delays or for non-performance, due to causes beyond its reasonable control.
c) If either party becomes insolvent, is unable to pay its debts when due, files for bankruptcy, is the subject of involuntary bankruptcy, has a receiver appointed, or has its assets assigned, the other party may cancel any unfulfilled obligations.
d) Customer may not assign any rights or obligations hereunder without prior written consent from UP-Servers.
e) Customer who exports, re-exports or imports Products, technology or technical data purchased hereunder, assumes responsibility for complying with applicable laws and regulations, and for obtaining required export and import authorizations. UP-Servers may suspend performance if Customer is in violation of applicable regulations.
f) Disputes arising in connection with these UP-Servers Terms and Conditions of Sale and Service will be governed by the laws of Belgium .
g) Provisions herein which by their nature extend beyond the termination of any sale or license of Products or Support will remain in effect until fulfilled.
h) If any term or provision herein is determined to be illegal or unenforceable, the validity or enforceability of the remainder of the terms or provisions herein will remain in full force and effect.
i) Customer will not register or use any internet domain name which contains UP-Servers's trademarks (e.g. “UPServers”, UP-Servers or “UP”) in whole or in part or any other name which is confusingly similar thereto.
j) These UP-Servers Terms and Conditions of Sale and Service and any Exhibits constitute the entire agreement between UP-Servers and Customer, and supersede any previous communications, representations or agreements between the parties, whether oral or written, regarding transactions hereunder. Customer's additional or different terms and conditions will not apply. Customer's purchase or license of Products and Support will constitute Customer's acceptance of these UP-Servers Terms and Conditions of Sale and Service, which may not be changed except by an amendment signed by an authorized representative of each party