| |
1.
Definitions. As used in this Agreement:
(i)
“we”, “our”, “us” and "Mighter" mean,
collectively, Mighter Ltd, Inc. and its
subsidiaries and divisions from time to time.
(ii) “you”, “your” or “Customer” means the
person or entity which is agreeing to this
Agreement and/or purchasing any Equipment or
Service.
(iii) “Authority” means any government agency or
instrumentality or regulator.
(iv) “Equipment” means any and all hardware or
equipment that we may provide to you or a
Representative from time to time, including any
Software provided or used in connection
therewith.
(v) “including” or “includes” are intended to
identify some, but not all, examples relevant to
the subject matter and, therefore, should be
read as “including, but not limited to” or
“includes, but not limited to;”.
(vi) “Mighter Parties” means collectively,
Mighter, our officers, directors, control
persons, employees and agents.
(vii) "Representative" means individually, and
the term "Representatives" means collectively,
any and all of your officers, directors and
employees and any person(s) and/or entity(ies)
which is(are) authorized to act on your behalf,
and the officers, directors and employees of
such person(s) and/or entity(ies).
(viii) "Service" means individually, and the
term "Services" means collectively, any and all
services whatsoever that were, are or will be
from time to time provided by us to you or a
Representative, including any and all
consultation, training, integration, support and
maintenance.
(ix) “Software” means all computer programs,
object code, source code, firmware, routines,
subroutines, revisions, supplements, modules,
and upgrades, in each case, in any language,
format or medium.
(x) The term "Source" means individually, and
the term “Source(s)” means collectively, the
direct and indirect third party licensors,
vendors, service providers, subcontractors and
sources of any of any Equipment or components
thereof or any of the Services.
(xi) the term “Taxes” means any and all taxes,
surcharges, tariffs, duties and similar charges
assessed by any Authority and any interest or
penalties relating thereto.
2. Customer Representations. The individual
entering into this Agreement represents and
warrants that either: (i) (s)he is entering into
this Agreement as principal and is the Customer;
or (ii) if (s)he is not the Customer, that (s)he
has the express authority to enter into this
Agreement on behalf of and to bind the Customer
to its terms. If the Customer breaches this
latter representation, the individual entering
into this Agreement acknowledges and agrees that
(s)he will be responsible for all obligations of
the Customer.
3. Contrary or Additional Terms. Mighter’s
acceptance of a purchase order and/or provision
of equipment or services is expressly limited to
the terms of this Agreement and any contrary or
additional terms in any purchase order or other
communication are hereby expressly rejected. No
variation of these terms and conditions is
permitted unless expressly accepted by a
Director of Mighter in writing.
4. Order. No order shall be binding on Mighter
until accepted by Mighter in writing.
5. Errors. Errors in pricing or arithmetic by
Mighter are subject to correction.
6. Right to Reject Orders & Sales. Mighter
reserves the right to limit or reject any orders
or to terminate any Services at any point,
without explanation, such termination to be
effective immediately.
7. Price . Except as may be otherwise agreed in
writing by Mighter, The price for all Mighter
Equipment and all Services shall be Mighter’s
current price at the day of provision of the
same.
8. Cancellation of an Order. Any order may be
cancelled at any time by Customer or Mighter,
provided, that if the cancellation by Customer
is (a) within 90 days of scheduled delivery, as
liquidated damages, Customer shall pay to
Mighter an amount equal to 30% of the purchase
price, (b) within 60 days of scheduled delivery,
as liquidated damages, Customer shall pay to
Mighter an amount equal to 50% of the purchase
price, (c) within 30 days of scheduled delivery,
as liquidated damages, Customer shall pay to
Mighter an amount equal to 70% of the purchase
price, or (d) within 10 days of scheduled
delivery, as liquidated damages, Customer shall
pay to Mighter an amount equal to 90% of the
purchase price, or (e) after delivery, as
liquidated damages, Customer shall pay to
Mighter an amount equal to 100% of the purchase
price.
9. Title of Equipment. Title to all Equipment
delivered by Mighter remains with Mighter until
Mighter receives full payment therefor in
immediately available funds.
10. Shipment of Equipment. Except as otherwise
agree in writing by Mighter, all deliveries of
Equipment shall be F.O.B. Mighter’s facility.
11. Acceptance of Equipment and Services. It is
Customer’s responsibility to inspect any
Equipment delivered to Customer and provide
Mighter with written notice of any
non-conformity or defect within one business day
of delivery. Customer is deemed to have
irrevocably accepted any Equipment delivered by
Mighter at the end of the business day after the
date of receipt of the same at the Customer
location. |
12.
Abuse and Fraudulent Use. You are responsible
for taking care of the Equipment and ensuring
that it is used responsibly and in accordance
with all applicable laws, rules, regulations and
your agreements with licensors and service
providers.
13. Payment Terms & Invoices. Mighter generally
will invoice immediately after completion of
work or delivery of goods. You shall pay the
full amount within thirty (30) days of the date
of the invoice and in accordance to the
instructions on the billing statement or
invoice, without any set-off or deduction
whatsoever. Notwithstanding anything else in
this or any other Agreement, Mighter may at any
time change the payment terms or demand adequate
assurances if it determines that it is insecure,
in its sole good faith discretion. Payment must
be made in U.S. Dollars. If we do not receive or
are charged back for payment, we may suspend any
delivery or Service until outstanding charges
are paid in full. If you have problems with or
questions regarding information contained in any
invoice or billing statement we send to you, you
must notify us in writing immediately. Absent
such notice within 60 days, such billing
statement or invoices shall be conclusively
deemed correct.
14. Taxes. The rates, charges and
prices for Services and the sale of Equipment
are exclusive of applicable Taxes. You will be
solely responsible for and you shall pay all
Taxes arising from the provision of Services and
the sale Equipment, excluding any taxes or other
charges based on Mighter’s net income, but not
excluding taxes or other charges based on
Mighter revenues. In the absence of applicable
exemption certificates, Mighter may invoice you
and you shall pay 100% of all Taxes that are
payable by Mighter.
15. Credit Information & Approval. Sales of
Equipment and provision of Services are subject
to Mighter credit approval. Mighter requires the
establishment of credit or the ability to pay
invoices according to the established terms. You
authorize Mighter to obtain credit information
concerning you from trade references and credit
reporting agencies and such other sources as
Mighter deems necessary to augment credit
information supplied by you.
16. Late or Deficient Payments; Failures to Make
Payments; Credit Limits. Payments received after
the due date on the bill may incur late payment
charges on all amounts past due in the amount of
1.5% per month (18% per annum) or the maximum
rate allowed by law, whichever is lower. If past
due, Mighter may refer your account to attorneys
and/or collection agencies for further action.
You shall pay any and all costs, fees and
expenses that Mighter incurs to collect any
charges from you, including all court costs,
attorneys’ fees and collection agency fees and
commissions to the extent allowed by law.
17. Sales Are Final. All sales of Equipment and
Services orders by you or a Representative that
are accepted by us are final and irrevocable.
18. Software. Customer shall not, and shall
cause its affiliates and its and their employee,
agents and service providers (collectively,
“Representatives”) not to: (a) copy any Software
included in or with any Equipment or (b)
publish, disclose, distribute, give access to or
offer any such Software or any portion thereof
to any third party, (c) remove or modify any
disclaimer or copyright or trademark notice
contained in the Equipment or any such Software
or (d) reverse engineer, disassemble,
de-compile, or use any other means to attempt to
discover or to discover source code contained in
any such Software. br>
19. Terminations. Mighter reserves the right to
terminate any arrangement for purchase of
Equipment or an Services at any time. The terms
and provisions of this Agreement shall survive
any such termination or expiration of any
service agreement or provision of Services.
220. Compliance with Applicable Laws. You hereby
assume full responsibility for, and shall
ensure, compliance with any and all requirements
and restrictions of applicable laws whatsoever,
that may apply to (i) export of any Equipment
outside the European Union, the United States or
Canada, or (ii) use of any Equipment or any of
the Services outside the European Union, the
United States or Canada.
21. Disclaimer of Warranties & Limits of
Liability. TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW AND SUBJECT TO OUR EXPRESS
OBLIGATIONS UNDER OUR EXPRESS STANDARD LIMITED
WARRANTY, A COPY OF WHICH IS AVAILABLE ON
REQUEST, WE AND THE SOURCES HEREBY EXPRESSLY
DISCLAIM ANY AND ALL WARRANTIES, GUARANTIES,
CONDITIONS, COVENANTS AND REPRESENTATIONS
RELATING TO ANY AND ALL EQUIPMENT AND SERVICES,
INCLUDING ANY RELATING TO OUR PRICES,
MERCHANTABILITY, QUALITY, ACCURACY, FITNESS FOR
A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT,
TIMELINESS, CURRENCY, PRICING, ABSENCE OF
VIRUSES OR DAMAGING OR DISABLING CODE, WHETHER
EXPRESS OR IMPLIED (IN LAW OR IN FACT), ORAL OR
WRITTEN, OR FROM A COURSE OF DEALING OR USAGE OF
TRADE. TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW AND SUBJECT TO OUR EXPRESS
OBLIGATIONS UNDER OUR EXPRESS |
OBLIGATIONS UNDER OUR STANDARD LIMITED WARRANTY,
ALL EQUIPMENT AND SERVICES ARE BEING PROVIDED AS
IS AND YOU ASSUME THE ENTIRE RISK OF AND AGREE
TO RELEASE AND DISCHARGE MIGHTER PARTIES AND THE
APPLICABLE SOURCE(S) FROM ANY AND ALL
RESPONSIBILITY AND LIABILITY FOR ANY LOSS, COST,
CLAIM OR DAMAGE (INCLUDING DIRECT, INDIRECT OR
CONSEQUENTIAL DAMAGES OR LOST PROFITS) ARISING
OUT OF OR OTHERWISE RELATING TO ANY EQUIPMENT OR
SERVICES, OR ANY USE OF ANY OF EQUIPMENT AND
SERVICES OR ANY MALFUNCTION, DELAY,
INTERRUPTION, OMISSION OR FAILURE OF ANY
EQUIPMENT AND SERVICES, EVEN IF WE OR THE
APPLICABLE SOURCE HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH LOSSES OR DAMAGES. YOU
UNDERSTAND AND AGREE THAT THE FOREGOING
DISCLAIMERS AND LIMITATIONS ALLOCATE THE RISKS
BETWEEN US AND YOU AS AUTHORIZED BY APPLICABLE
LAWS. THE PRICES CHARGED BY US REFLECT AND ARE
SET IN RELIANCE UPON THIS ALLOCATION OF RISK AND
THE EXCLUSION OF DAMAGES SET FORTH IN THIS
AGREEMENT. SOME STATES/JURISDICTIONS DO NOT
ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL
OR CONSEQUENTIAL DAMAGES, SO THE ABOVE
LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
MOREOVER, THESE LIMITATIONS DO NOT APPLY TO ANY
LIABILITIES THAT CAN NOT BE EXCLUDED OR LIMITED
BY APPLICABLE LAW.
22. Force Majeure. Notwithstanding anything else
in this Agreement, Mighter will not be liable to
you or anyone else for any failure or Issue
regarding any Service or Equipment due to causes
beyond Mighter’s reasonable control (“Force
Majeure”), including acts of God, fire,
explosion, vandalism, cable cut, storm or other
catastrophes, national emergency, insurrections,
terrorism, war, equipment failure or problems,
satellite or third party hardware failure or
problems, acts or omissions of any Source,
riots, direction, action or request of any
government or authority or instrumentality
thereof. Mighter’s obligation to perform will be
suspended for the duration of a period of Force
Majeure, but Force Majeure does not suspend in
any way payment obligations under this
Agreement.
23. Cumulative Rights and Remedies; Survival.
Our rights and remedies and your obligations in
this Agreement are cumulative and are in
addition to our rights and remedies and your
obligations under law, as any of the same may be
amended or supplemented from time to time. This
Agreement shall be binding upon you and your
respective successors and assigns and inure to
the benefit of ighter Parties, the Source(s)
and their respective successors and assigns.
This Agreement is irrevocable and shall survive
the termination of any such Agreement, use of
the Services, and your account with us.
24. Agreement Modifications; Headings. This
Agreement may be modified or waived only by a
written instrument duly executed by one of our
executive officers. Any failure by us at any
time to enforce performance by you of any
provision of this Agreement shall in no way
affect our rights thereafter to enforce the
same, nor shall the waiver by us of any breach
of any provision hereof be deemed to be a waiver
by us of any other breach of the same or any
other provision hereof. Any and all headings in
the text of this Agreement are solely for
convenience or reference and do not constitute a
part of this Agreement, nor do they affect the
meaning, construction or effect of this
Agreement.
25. Assignments & Transfers. This Agreement
cannot be assigned without the express written
consent of Mighter.
26. Governing Law. This Agreement will be
governed and construed in all respects by the
laws of the State of New York (without reference
to the choice or conflicts of law provisions
thereof) and applicable federal laws.
27. Dispute Resolution. Notwithstanding anything
set forth in this Agreement, any controversy
concerning the subject matter of this Agreement
between you or any Representative, on the one
hand, and any Mighter Parties, on the other
hand, that cannot be resolved by negotiation and
mutual agreement shall be brought in a Federal
or state court in the City of New York. Mighter
and Customer hereby irrevocably consent to the
jurisdiction of such Courts, waive any claim or
defense that such forum is not convenient or
proper, and consent to service of process by any
means authorized by New York law (other than by
publication). Each party waives any right to
trial by jury with respect to any dispute, suit,
action or proceeding arising our of or relating
to any Purchase Order or Equipment or Services
provided or to be provided by Mighter or
otherwise relating to the relationship of the
parties, whether in contract, tort or otherwise. |
|
