These
General Terms and Conditions ("Agreement") are
applicable to your purchase of SkyeTek’s product (the
“Product”) and/or services (“Services”) and support
(“Support”) provided to you by SkyeTek, Inc. By
accepting delivery of the Product and/or Services and
Support, you accept and are bound to the Terms and
Conditions of this Agreement.
Other
Documents. This Agreement may NOT be
altered, supplemented, or amended by the use of any
other document(s) unless otherwise agreed to in a
written agreement signed by both you and
SkyeTek.
Prices; Orders; Quotes; Payment
Terms. Unless otherwise agreed in
writing, the prices specified in the price list
published by SkyeTek and in force on the date of
acceptance of the order shall apply to your order.
Price quotes are good for 30 days. All prices
quoted by SkyeTek are exclusive of sales tax, possible
export or import duties, shipping, handling and
insurance costs. SkyeTek reserves the right to
adjust the prices for the Products and/or Services and
Support from time to time. SkyeTek may ship and/or
invoice parts of an order separately.
Payment
terms are within SkyeTek's sole discretion, and, unless
otherwise agreed to by SkyeTek, payment must be made at
the time of purchase. Payment for the Product
and/or Services and Support may be made by credit card,
wire transfer, or some other prearranged payment
method.
Shipping Charges; Taxes; Title;
Risk of Loss. Shipping and handling are
additional unless otherwise expressly indicated at the
time of sale. All sales are made FOB Point (as defined
by the INCOTERMS 2000) in Westminster, CO, USA. Freight
and handling charges from SkyeTek's warehouse in
Westminster, Colorado, are prepaid and added to the
invoice, billed collect or billed to a 3rd party.
For loss or damage that occurs during shipping by a
carrier selected by SkyeTek, SkyeTek is responsible for
filing the claim. For loss or damage that occurs during
shipping by a carrier selected by you, you are
responsible. You must notify SkyeTek within 30 days of
the date of your invoice if you believe any part of your
purchase is missing, wrong or damaged. Only Colorado
customers need to remit sales tax. Unless you
provide SkyeTek with a valid and correct tax exemption
certificate applicable to your purchase of Product and
the Product ship-to location, you are responsible for
sales and other taxes associated with the order.
Shipping dates are estimates only.
International Orders. In
addition to the United States and its territories,
SkyeTek accepts international orders to ship via an “Air
Cargo” freight forwarder. All orders of international
origin are exported from the US in accordance with the
Export Administration Regulations. Diversion contrary to
US Law is prohibited. All duties and taxes will be your
responsibility.
Warranties.
SkyeTek warrants that the products shall be free from
material defects in materials and workmanship for a
period of one (1) year from the date of the
invoice. SkyeTek’s Licensed Software
incorporated into each product shall perform and have
functionality substantially in accordance with the
specifications set forth in SkyeTek’s then-current
published specification for a period equal to the
duration of the product warranty.
SkyeTek shall
(at its discretion) only be obliged to repair any defect
free of charge, or to make the parts available that are
necessary for the repair, or to replace the defective
Product. If SkyeTek finds that repair or
replacement of the Product is not (or no longer)
possible or disproportionately troublesome, as your sole
and exclusive remedy, SkyeTek shall be entitled to
credit the price paid by you for the defective Product,
without being liable for any further
damages. The warranty for a repaired unit
shall be limited to the longer of the original Warranty
Period or ninety (90) days from the date of replacement.
SKYETEK MAKES NO WARRANTY OR REPRESENTATION,
EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO,
NON-INFRINGEMENT, WARRANTIES OF PERFORMANCE OR
MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE OF THE
PRODUCTS. ANY BUYER OR USER ACKNOWLEDGES THAT IT ALONE
HAS DETERMINED THAT THE PRODUCTS WILL SUITABLY MEET
THEIR INTENDED USE REQUIREMENTS. SKYETEK DISCLAIMS
ALL OTHER WARRANTIES, EXPRESS OR
IMPLIED.
Return Policies;
Exchanges. Product that you purchase
directly from SkyeTek (and not a 3rd party) may be
returned or exchanged only in accordance with SkyeTek's
return policy in effect on the date of the invoice or
acknowledgement. You must contact us directly before you
attempt to return the Product to obtain a Return
Material Authorization Number for you to include with
your return. You must return the Product to us in its
original or equivalent packaging. You are responsible
for risk of loss, shipping and handling fees for
returning or exchanging the
Product.
Service and
Support. Technical Support is available
Monday through Friday (excluding Holidays) from 9:00am
until 5:00pm MT (Mountain Time). Before requesting
support, please have your invoice date and number
available. SkyeTek has no obligation to provide Service
and Support until SkyeTek has received full payment for
the Product and/or Service and Support purchased.
SkyeTek is not obligated to provide Service and Support
purchased from or through a third
party.
Limitation of Liability.
SKYETEK SHALL NOT BE RESPONSIBLE FOR SPECIAL,
INDIRECT OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS OR
COMMERCIAL LOSS IN ANY WAY CONNECTED WITH THE PRODUCTS
AND/OR SERVICE AND SUPPORT, WHETHER SUCH CLAIM IS BASED
ON CONTRACT, WARRANTY, NEGLIGENCE OR STRICT
LIABILITY.
In no event shall SkyeTek’s liability
arising out of or relating to this Agreement exceed the
individual price of the Product and/or Service and
Support that gave rise to the liability.
In no
event shall SkyeTek be responsible for warranty, repair
or other claims regarding the Products unless SkyeTek’s
analysis confirms that the Products were properly
handled, stored, installed and maintained and not
subject to contamination, abuse, misuse, or
inappropriate modification or
repair.
Change in
Specifications. Product specifications
and accessories may be changed at any time based on
improvements and other reasons. Please consult
with your SkyeTek representative at any time to confirm
actual specifications of purchased Products.
Intellectual Property
Rights. All intellectual property rights
(“IP”), including but not limited to copyrights,
patents, model rights and trademark rights with respect
to products and services delivered by SkyeTek (including
but not limited to software developed by SkyeTek,
drawings, calculations, sketches, schematics, technical
data, know-how, methodologies, processes, technologies
or algorithms and advices) remain with SkyeTek and are
not being transferred to you, unless and insofar as
parties agree explicitly otherwise in writing. You
acknowledge that SkyeTek’s IP is valuable and agree that
you will not modify, reverse engineer, decompile, create
other works from, or disassemble any product or software
contained in the product unless otherwise authorized in
writing by SkyeTek. You shall refrain from
infringements of copyrights, patents, model rights,
trademark rights or any other intellectual property
rights of SkyeTek. In case intellectual property
rights are being created under a contract between
SkyeTek and you, all such rights will belong to SkyeTek
and, in as far as necessary, you will transfer such
rights to SkyeTek and you shall in every way co-operate
in such transfer. You indemnify SkyeTek against
all third party claims with respect to infringement of
intellectual property rights insofar as such
infringement is related to the development, delivery or
use of goods that have been developed by SkyeTek
according to your specification.
This indemnity
also applies in case SkyeTek alters an existing product
according to your instructions. SkyeTek
indemnifies the customer against third party claims with
respect to infringement of intellectual property rights
by the Product that has been developed by SkyeTek
independently, provided that you shall immediately
inform SkyeTek of such claim in writing, give SkyeTek
sole control of the defense thereof, and reasonably
cooperate as requested by
SkyeTek.
Governing Law. This
Agreement and any Sales there under shall be governed by
and construed in accordance with the laws of the State
of Colorado without giving effect to any principles or
conflicts of law, and any action related hereto shall be
brought in State or Federal court in Denver, CO.
If any provision of this agreement shall be unlawful,
void or for any reason unenforceable, then that
provision shall be deemed severable from this agreement
and shall not affect the validity and enforceability of
any remaining provisions.