ANNEX A – TERMS AND CONDITIONS OF SALE
These terms and conditions of sale constitute an integral part of EyeClick Ltd.’s and its subsidiaries (“Seller”) purchase order form /quotation to which these terms and conditions of sale are attached (the “Quotation”), and supersede any and all other terms and conditions, whether in Seller’s purchase order, sales literature or otherwise.
- Upon the signing and returning of the Quotation by Customer to Seller, the Quotation will constitute a valid purchase order (the “Purchase Order”), which includes these terms and conditions of sale and the warranty set forth as Annex B, and which shall be binding upon Customer.
- The “Products” referred to herein, shall mean EyeClick-branded hardware and/or third party hardware provided by EyeClick and/or EyeClick-branded software, as specified herein according to the relevant Purchase Order.
- The Consideration stated in the Purchase Order is the consideration to be paid by the Customer for the Products, pursuant to the payments terms set forth therein.
- All past due amounts of the Consideration shall bear interest at the rate of (a) one and a half percent (1.5%) per month; or (b)the maximum rate permitted by the applicable law, whichever is lower, beginning with the date on which the applicable amount became past due.
- The Consideration payable by Customer is the net amount to be received by Seller, and does not include any type of taxes, levies, charges or fees.
- Risk of loss and damage shall pass to the Customer, upon delivery. After said delivery Customer shall be responsible for any loss, damage, theft, defects or destruction caused to the Products, due to any cause whatsoever.
- Seller will provide suitable packaging for the Products ordered pursuant to the Purchase Order, for normal shipping by air. Special packaging requested by Customer will be at Customer’s expense.
- Delivery dates are as specified in the Purchase Order. All delivery dates are estimated. Seller shall not be responsible for any delay caused by, or related to, any circumstances of force majeure, including without limitation, fire, war, act of God, strike, governmental action, or any other circumstances beyond Seller’s control. Any delay, shall not relieve Customer of its obligations under the Purchase Order.
- IN NO EVENT WILL SELLER OR ITS SUPPLIERS BE LIABLE WITH RESPECT TO THE SUBJECT MATTER HEREIN, UNDER ANY LEGAL, CONTRACTUAL OR EQUITABLE THEORY (WHETHER IN CONTRACT, TORT, INDEMNITY OR OTHERWISE) FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND WHETHER OR NOT ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES; (B) DAMAGES FOR LOST PROFITS OR LOST DATA; OR (C) COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES; AND SELLER’S ENTIRE AGGREGATE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID TO SELLER BY CUSTOMER IN RESPECT OF THE PRODUCT GIVING RISE TO THE LIABILITY.
- It is expressly understood and agreed that Seller shall retain all proprietary rights of any kind whatsoever to any invention, software, improvement or design contained in the Products and/or developed by Seller during the course of the parties’ relationship, including, but not limited to, all patent rights, provided however that Customer shall only have the limited right to use the Products delivered by Seller hereunder.
- Seller makes no promise or representation that the Products shall conform to any federal, state, or local laws, regulations, ordinances, codes or standards. Prices quoted do not include the cost of any inspections or permits. It is Customer’s responsibility to apply for and to obtain any and all licenses, permits and other authorizations required for the import, sale and/or otherwise handling of the Products.
- Customer shall hold Seller harmless and indemnify Seller against any and all costs, expenses or damages, including, without limitation, attorney’s fees, arising from, or relating to, any claims or causes of actions, tort or otherwise, which may be asserted against Seller, by any third person or entity resulting from any act or omission of Customer or any other cause of action, arising out of, or in connection with the subsequent sale of the Products by Customer, its agents or affiliates.
- The Quotation and Purchase Order will be governed by and construed under the laws of the State of New-York, USA and the competent courts of New-York, USA shall have sole and exclusive jurisdiction over any dispute under such.
- In the event of a material breach of the terms hereof by Customer or any proceedings, voluntary or involuntary, in bankruptcy or insolvency, by or against Customer, or in the event of the inability of the Customer to meet its debts as they become due, or in the event of the appointment, with or without Customer’s consent, of any assignee for the benefit of creditors, or receiver, Seller shall be entitled, at its absolute and sole discretion, to cancel any unfilled part of this Purchase Order without any liability whatsoever.
- The Warranty policy of EyeClick is attached hereto as Annex B. The warranty constitutes an integral part of this Purchase Order and Quotation.
- No waiver of any default or breach, by any party, shall be deemed to be a waiver of any subsequent default or breach, by that party. Customer may not deduct or set-off, for any reason whatsoever.
ANNEX B – EYECLICK PRODUCT WARRANTY
This Warranty constitutes an integral part of EyeClick Ltd.’s and its subsidiaries (“EyeClick”) Purchase Order, and supersedes any and all other warranty terms and conditions, whether in Seller’s purchase order, sales literature or otherwise.
IMPORTANT: By using your EyeClick Product1 you agree to be bounded by the terms of the EyeClick limited warranty (the “Warranty”) as set out below. Do not use your product until you have read the terms of the warranty. If you do not accept and agree to the terms of the Warranty, do not use the product.
WHAT IS COVERED BY THIS WARRANTY?
EyeClick warrants the EyeClick Product from the date of delivery for a period of (the “Warranty Period“):
- One (1) year limited Warranty for the PC (under manufacturer’s warranty)
- One (1) year limited warranty for the projector (under manufacturer’s warranty)
- One (1) year limited warranty for the camera (under manufacturer’s warranty)
- Three (3) months limited Warranty for the Projector Lamp (under manufacturer’s warranty)
- One (1) year limited warranty for additional hardware elements provide by EyeClick including the Amplifier, Speakers, cables and mounting unit.
- Software: One (1) year Warranty, during which, you shall be entitled to free software updates released by EyeClick.
Upgrades shall be available upon request and additional quote and fee. After the first year, the Warranty Period may be extended subject to the terms and fees as will be defined by EyeClick at that time.
Notwithstanding the aforesaid, the Warranty Period shall apply only when used in the manner for which it was designed, and when conforms substantially to its end-user manual and other documentation delivered with the Product and prevailing at time of delivery.
WHAT IS NOT COVERED BY THIS WARRANTY?
EXCEPT FOR THE LIMITED WARRANTY EXPRESSLY PROVIDED ABOVE, EYECLICK MAKES NO WARRANTIES WITH RESPECT TO ANY PRODUCT AND DISCLAIMS ALL STATUTORY AND IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF TITLE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. EyeClick does not warrant that the operation of the EyeClick Product will be uninterrupted or error-free. EyeClick is not responsible for damage arising from failure to follow instructions relating to the EyeClick Product’s use, or from maintenance or other services not performed by EyeClick or an EyeClick Authorized Service Provider (“EASP“).THIS WARRANTY DOES NOT APPLY: (a) to consumable parts, such as batteries or protective coatings that are designed to diminish over time, unless failure has occurred due to a defect in materials or workmanship; (b) to cosmetic damage, including but not limited to scratches, dents and broken plastic on ports; (c) to damage caused by use with another product; (d) to damage caused by accident, abuse, misuse, liquid contact, fire, earthquake or other external cause; (e) to damage caused by operating the EyeClick Product outside EyeClick’s published
1 EyeClick–branded hardware and/or third party hardware provided by EyeClick and/or EyeClick –branded software guidelines, including, but not limited to the change of the location of EyeClick’s product after installation; (f) to damage caused by service (including upgrades and expansions) performed by anyone who is not a representative of EyeClick or an EASP; (g) to an EyeClick Product that has been modified to alter functionality or capability without the written permission of EyeClick; (h) to defects caused by normal wear and tear or otherwise due to the normal aging of the EyeClick Product, or (i) if any serial number has been removed or defaced from the EyeClick Product.
IMPORTANT RESTRICTION FOR EYECLICK SERVICE
EyeClick may restrict warranty service for its products to the country where EyeClick or its Authorized Distributors originally sold the system.
Before receiving Warranty service, EyeClick or its agents may require that you furnish proof of purchase details, respond to questions designed to assist with diagnosing -the service required and follow EyeClick’s procedures for obtaining Warranty service.
EyeClick may install system software updates as part of Warranty service that will prevent the EyeClick Product from reverting to an earlier version of the system software.
WHAT WILL EYECLICK DO IN THE EVENT THE WARRANTY IS BREACHED?
If during the Warranty Period you submit a valid claim to EyeClick or an EASP, EyeClick may, at its sole discretion, use reasonable commercial efforts to either(i) repair the EyeClick Product or part using new or previously used parts that are equivalent to new in performance and reliability, or (ii) replace the Eyeclick Product or part with a device that is at least functionally equivalent to the EyeClick Product and is formed from new and/or previously used parts that are equivalent to new in performance and reliability.
EyeClick reserves the right to change the method by which EyeClick may provide Warranty service to you, and your
EyeClick Product’s eligibility to receive a particular method of service.
When an Eyeclick Product or part is replaced any replacement item becomes your property and the replaced or refunded item becomes EyeClick’s property.
HOW TO OBTAIN WARRANTY SERVICE?
If in the scope of the Warranty Period, Please contact an EyeClick representative at firstname.lastname@example.org or an EASP. An EyeClick representative or an EASP will help determine whether your EyeClick Product requires service and, if it does, will inform you how EyeClick will provide it.
LIMITATION OF LIABILITY
EXCEPT AS PROVIDED IN THIS WARRANTY AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, EYECLICK SHALL NOT BE LIABLE UNDER ANY LEGAL, CONTRACTUAL OR EQUITABLE THEORY (WHETHER IN CONTRACT, TORT, INDEMNITY OR OTHERWISE) FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES RESULTING FROM ANY BREACH OF WARRANTY OR CONDITION, OR UNDER ANY OTHER LEGAL THEORY, INCLUDING BUT NOT LIMITED TO LOSS OF USE; LOSS OF REVENUE; LOSS OF ACTUAL OR ANTICIPATED PROFITS (INCLUDING LOSS OF PROFITS ON CONTRACTS); LOSS OF THE USE OF MONEY; LOSS OF ANTICIPATED SAVINGS; LOSS OF BUSINESS; LOSS OF OPPORTUNITY; LOSS OF GOODWILL; LOSS OF REPUTATION; LOSS OF, DAMAGE TO, COMPROMISE OR CORRUPTION OF DATA; OR ANY INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE HOWSOEVER CAUSED INCLUDING THE REPLACEMENT OF EQUIPMENT AND PROPERTY, ANY COSTS OF RECOVERING, PROGRAMMING, OR REPRODUCING ANY PROGRAM OR DATA STORED IN OR USED WITH THE EYECLICK PRODUCT OR ANY FAILURE TO MAINTAIN THE CONFIDENTIALITY OF INFORMATION STORED ON THE EYECLICK PRODUCT.
You shall hold EyeClick harmless and indemnify it against any and all costs, expenses or damages, including, without limitation, attorney’s fees, arising from, or relating to, any claims or causes of actions, tort or otherwise, which may be asserted against it, by any third person or entity resulting from any act or omission conducted by you or any other cause of action, arising out of, or in connection with the subsequent sale of the Products by you, your agents or affiliates, during and post the Warranty Period.
No EyeClick reseller, agent, or employee is authorized to make any modification, extension, or addition to this Warranty. If any term is held to be unlawful or unenforceable, the legality or enforceability of the remaining terms shall not be affected or impaired.
No waiver of any default or beach, by any party, shall be deemed to be a waiver of any subsequent default or breach, by that party.You may not deduct or set-off, for any reason whatsoever.
Thank you for your business!