These standard terms and conditions of sale (along with any directly associated written Seller specification or quotation) exclusively will govern the sale by Seller of all goods and services to Buyer (including, without limitation, hardware, firmware and software products, training, programming, maintenance, engineering, parts and repair services-- collectively the "Products"). No addition or modification to these terms and conditions will be binding on Seller unless agreed to in writing signed by an authorized representative of Seller. Seller objects to other terms and conditions that may be proposed by Buyer not otherwise consistent with these or other terms and conditions set forth in Seller's written specification, quotation, purchase order or order acknowledgement.
Buyer agrees to pay for all Products by the due date according to the terms of sale stated on each invoice or otherwise agreed to in writing with Seller. All accounts are due and payable at the address shown on Seller's invoice. Credit availability shall be at the sole discretion of Seller and may be terminated and/or changed at any time by Seller. Seller specifically reserves the right to require payment in cash for any shipment or delivery should Seller so determine in its sole discretion. No payment by offset is permitted unless approved by Seller. Buyer agrees to pay interest on all past due accounts at a rate of 1.5% each month on the past due balance, but not to exceed the highest rate lawfully allowed. Acceptance of any payment from Buyer without the accrued interest included shall not be deemed to be a waiver of such accrued interest.
Acknowledged shipping dates are approximate only and based, in part, on prompt receipt of all necessary information from Buyer. Seller shall not be liable for delays in shipping whether or not resulting from causes beyond its control, including, without limitation, fire, labor difficulties or delays in Seller's usual sources of supply. Shipping dates are subject to delays resulting from preference ratings or priority shipments ordered or requested by the United States government or any department, commission or agent thereof, and Seller shall not be liable for any such delays.
Buyer agrees that Seller has not made and does not make any warranty or representation whatsoever, express or implied, as to the Products, including without limitation, any warranty or representation as to: (i) the description, condition, design, quality or performance of the Products; (ii) the merchantability or fitness or suitability of the Products for a particular use or purpose whether or not disclosed to Seller; and (iii) delivery of the Products free of the rightful claim of any person by way of infringement (including, but not limited to, patent or copyright infringement) or the like. Products will be limited solely to the warranty, if any, extended by the original manufacturer or vendor other than Seller to the extent permissible thereunder. Seller does not warrant and will not be liable for any design, material or construction criteria furnished or specified by Buyer and incorporated into the Products.
Limit of Liability
In no event will Seller be liable for incidental, indirect, or consequential damages of any kind. Seller's maximum cumulative liability relative to all other claims and liabilities, including that with respect to direct damages and obligations under any indemnity, whether or not insured, will not exceed the cost of the Products giving rise to the claim or liability. Any action against Seller must be brought within twelve (12) months after the cause of action accrues. The disclaimers and limitations of liability set forth in these standard terms and conditions shall apply regardless of any other contrary provision set forth and regardless of the form of action, whether in contract, tort, or otherwise. Each provision in these standard terms and conditions which provides for a limitation of liability, disclaimer of warranty or condition or exclusion of damages is severable and independent of any other provision and is to be enforced as such.
As security for the payment of the obligations of Buyer owing Seller under any outstanding invoice, Buyer hereby grants to Seller a security interest in the Products described in such invoice or invoices, together with the proceeds thereof. Buyer hereby authorizes Seller to file any financing statement or other document Seller may deem appropriate in order to perfect its security interest. Buyer appoints Seller as its attorney-in-fact to execute and file any such financing statement or statements necessary to perfect Seller's security interest.
Buyer agrees to indemnify and hold Seller and its officers, directors, shareholders, agents, servants, employees and insurers harmless from any and all liabilities and expenses, including without limitation, reasonable attorney's fees, expenses, costs, judgements, settlements, contract losses, damages, injuries (including, but not limited to, liquidated damages) or other costs actually incurred arising directly or indirectly from any alleged or actual defects, non-conformities or breach of warranties with respect to the Products.
Prices and other information shown in any Seller publication (including product catalogs, brochures and web sites) are subject to change without notice and confirmation by specific quotation. Such publications are not offers to sell and are maintained only as a source of general information. Buyer will pay or reimburse Seller for all sales, use, excise or similar taxes. Products comprised of time and material services will be provided in accordance with Seller's published service rates, including applicable overtime and travel expenses in effect as of the date such services are provided, unless otherwise confirmed by Seller's written quotation or order acknowledgement. Billable service time includes travel time to and from the job site and all time Seller's representatives are available for work and waiting (whether on or off the job site) to perform the services.
Buyer requested order changes, including those affecting the identity, scope and delivery of the Products, must be documented in writing and are subject to Seller's prior approval and adjustments in price, scheduling and other affected terms and conditions. Seller reserves the right to reject any change.
All returns of Products will be subject to prior Seller approval and will be subject to Seller's return policies in effect at the time, including applicable restocking charges and other conditions of return. Shipping containers must be clearly marked in accordance with Seller's instructions and shipped freight prepaid by Buyer.
An order may be cancelled by Buyer prior to the shipment only by written notice and upon payment to Seller of reasonable cancellation and restocking charges, including reimbursement for direct costs, plus allowances for disruption. Cancellation charges associated with orders for custom Products or Products specifically manufactured to Buyer's specification may equal the actual selling price of the Products. Seller has the right to cancel an order for cause at any time by written notice and Seller will be entitled to cancellation and restocking charges as identified above. No termination by Buyer for cause will be effective unless and until Seller has failed to correct such alleged cause within forty-five (45) days after receipt of the Buyer's written notice specifying such cause.
Seller shall not be liable for any loss, damage, or delay arising out of its failure to perform hereunder due to causes beyond its reasonable control, including, without limitation, acts of God or the Buyer, acts of civil or military authority, terrorist threats or attacks, fires, strikes, floods, epidemics, quarantine restrictions, war, riots, delays in transportation, or transportation embargoes. In the event of any such delay, Seller's performance date(s) will be extended for that length of time as may be reasonably necessary to compensate for the delay.
Buyer agrees that in the event legal action is necessary to enforce the terms and conditions set forth herein, Buyer shall pay all costs incurred by Seller including, without limitation, attorney's fees and costs of experts. Buyer agrees that it has selected the Products based upon its own judgement and disclaims any reliance upon statements or representations made by Seller. All claims with regard to errors or defects in shipment must be made within five (5) days of delivery or such claim will be barred.
Software End User License Agreement
All McLean Technology Group developed software (the "Software") and accompanying documentation is licensed and not sold. This Software is protected by copyright laws and treaties, as well as laws and treaties related to other forms of intellectual property. McLean Technology Group Inc. (the "Developer") owns intellectual property rights of the Software. The End User (the "Licensee") license to use, copy, or change the Software is subject to these rights and to all the terms and conditions contained herein. Visit the EULA page for more details.
Headings used in this document are provided for convenience only and shall not be used to construe meaning or intent.