Products. Real Network Solutions, Inc., an Illinois corporation d/b/a Realnets (“Vendor”) offers to provide certain products (“Products”) described in any purchase order, quotation, acknowledgment or oral agreement (“Order”) made by Vendor and the customer listed on such Order (“Customer”). Any agreement by Vendor to provide Products is expressly contingent upon Customer’s consent to the terms and conditions described herein. By accepting any Products, Customer agrees to these terms and conditions. Any different or additional terms proposed by Customer in any acknowledgment form, purchase order, or other form (whether oral or written) are hereby rejected by Vendor notwithstanding Vendor’s shipping of Products unless Vendor has agreed to such additional or different terms in writing.
Price. Unless otherwise expressly specified in writing, (i) all prices are exclusive of taxes, customs, duties, transportation and insurance; and (ii) any and all current or future tax or governmental charge applicable to the sale, delivery, shipment or storage of the Product or Service that Vendor is required to pay or collect are for Customer’s account and must be added to the price, and are not subject to any reduction.
Payment Terms. Vendor must issue invoices for Products sold to Customer. Unless otherwise agreed in writing, Customer must pay the amount of each invoice within 30 days from the date of such invoice. All payments must be in U.S. Dollars. Any payment not made within 30 days from the date of the applicable invoice is subject to a 5% late payment fee. Customer must reimburse Vendor for any and all fees and expenses, including, without limitation, attorneys’ fees and expenses and court costs, incurred by Vendor in collecting any sums due to Vendor. Customer is not entitled to deduct, counterclaim, or set-off against any amount Customer owes to Vendor. If Customer is delinquent in the payment of any sums due and owing to Vendor, Vendor may hold any or all shipments of Products until such payments have been made. As collateral security for the payment of the purchase price of the Products, Customer grants to Vendor a lien on and security interest in and to all of the right, title and interest of Customer in, to and under the Products, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Illinois Uniform Commercial Code.
Delivery. Customer must pay all shipping, handling, and insurance charges. Risk of loss and title to any Products passes to Customer upon delivery of the Products to Customer’s designated shipping point.
Customer Inspection. Customer must immediately inspect all Products for damage and for conformity with the Order. If Customer does not provide Vendor with written notice of any damage to Products or non-conformity with the Order within 7 days of receipt of the Products, Customer has accepted the Products and any and all defects and non-conformities are waived by Customer. Acceptance by Customer of custom designed Products provided by Vendor constitutes an acknowledgement that Customer has reviewed the designs for such Products and is satisfied that the design meets all specifications, requirements, and standards applicable to such Products. In the event Customer provides notice of damage or non-conformity, such notice must describe any damage or other non-conformity in reasonable detail, and Customer must afford Vendor a reasonable opportunity to inspect the Products. No Products will be taken back and credited or replaced unless arrangements for return have been made with Vendor. Any action by Customer against Vendor must be commenced within six months after the cause of action occurs, and no such action may be maintained that is not commenced within such period.
Customer Remedies; Disclaimer of Warranties. Vendor warrants to Customer that for a period of six (6) months from the date of shipment of the Products, that such Products will be free from material defects in material and workmanship. Such warranty does not apply to (1) misuse, abuse, faulty installation, misapplication, wear and tear, extreme environmental conditions, chemical exposure, lack of compliance with applicable instructions, inadequate or improper maintenance, negligence, accident, or tampering of any Product; (2) the incompatibility, improper design, manufacture, installation, operation, or maintenance of Products, accessories, equipment, or materials not supplied by Vendor; or (3) Products manufactured by a third party. Customer’s exclusive remedy as to any Products, and Vendor’s only liability, is the replacement or repair of such Products or repayment to Customer of the purchase price paid for such Products, whichever such remedy Vendor elects. If Vendor elects to repay the purchase price for any Products, Customer must return the Products to Vendor upon written demand. OTHER THAN THE FOREGOING, VENDOR DISCLAIMS ANY AND ALL OTHER WARRANTIES WITH RESPECT TO THE PRODUCTS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE. VENDOR HAS NOT BEEN PROVIDED AND HAS MADE NO ADVICE, RECOMMENDATION OR REPRESENTATION THAT ANY PRODUCTS WILL BE ADEQUATE FOR CUSTOMER’S INTENDED PURPOSES.
Limitation of Liability. Vendor is not liable for a breach of the warranty set forth in Section 6 unless: (i) Customer gives written notice of the defect, reasonably described, to Vendor within 7 days of the time when Customer discovers or ought to have discovered the defect; (ii) Vendor is given a reasonable opportunity after receiving the notice to examine such Products and Customer (if requested to do so by Vendor) returns such Products to Vendor’s place of business at Vendor’s cost for the examination to take place there; and (iii) Vendor reasonably verifies Customer’s claim that the Products are defective. Vendor is not liable for a breach of the warranty set forth in Section 6 if: (i) Customer makes any further use of such Products after giving such notice; (ii) the defect arises because Customer failed to follow Vendor’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Products; or (iii) Customer alters or repairs such Products without the prior written consent of Vendor. IN NO EVENT IS VENDOR LIABLE TO CUSTOMER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF GOODWILL OR BUSINESS INTERRUPTION, FOR ANY MATTER ARISING OUT OF OR RELATED TO PRODUCTS PROVIDED TO CUSTOMER WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE, EVEN IF VENDOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES BY CUSTOMER.
Force Majeure. Vendor will be excused from delays in performing or from its failure to perform hereunder to the extent that such delays or failures result from fire, flood, earthquake, elements of nature or acts of God; labor disruptions or strikes; acts of war, terrorism, riots, civil disorders, rebellions or revolutions, quarantines, wide spread disease or sickness, embargoes and other similar governmental or third party action; or any other cause beyond the reasonable control of Vendor. If performance has been delayed or prevented, Vendor will act diligently to resume performance as soon as reasonably possible.
General. Any and all matters concerning Vendor and Customer, including, without limitation, the enforcement of these terms and conditions, are governed by and construed in accordance with the laws of the State of Illinois, without regard to conflicts of law principles. Any disputes between Vendor and Customer must be resolved in the circuit courts located in county of Vendor’s then-current principal place of business. Customer may not assign its rights and duties under these terms and conditions and/or under any agreement with Vendor with respect to Products without Vendor’s prior written consent. Any failure on the part of Vendor or Customer to comply with any of its obligations hereunder may be waived in writing by the other party. No waiver of any provision of these terms and conditions is a waiver of any other provision, nor does any waiver constitute a continuing waiver. These terms and conditions are binding upon and inure to the benefit of Vendor and Customer and their respective successors and assigns. These terms and conditions may not be modified, changed, or amended except in a writing executed by Vendor. These terms and conditions and the applicable Order constitute the entire and exclusive agreement between Vendor and Customer with respect to Products.