Sales Terms and Conditions

The following terms and conditions govern the sale of Verari Systems, Inc. ("Verari") Products and Support.

1. Definitions
“Products” means hardware, Software, documentation, accessories, supplies, parts, and upgrades that are determined by Verari to be available from Verari upon receipt of Customer’s order. “Custom Products” means Products modified, designed, or manufactured to meet Customer Requirements.

"License Fee" means the fee or fees designated by Verari for Use of Software. Different License Fees may apply to particular Software if more than one Software License is available for that Software.

“Software" means one or more programs capable of operating on a controller, processor or other hardware Product ("Device"), and related documentation. Software is either a separate Product, included with another Product ("Bundled Software"), or fixed in a Device and not removable in normal operation ("Firmware").

"Software License" means the Software license grant and general license terms set forth herein. Each Software License has a corresponding License Fee.

“Support” means hardware maintenance and repair, Software updates, and maintenance; training and other standard support services provided by Verari. “Custom Support” means any agreed non-standard Support, including consulting and custom project services.

“Use” means storing, loading, installing, executing, or displaying Software on a Device.

“Specifications” means a document that provides information specific to a Product.

“Attachments” means attachments that describe or otherwise apply to the sale or license of the Product or Support. If there are any conflicts between the various documents, those of an Attachment prevail over those of this Agreement. Customer accepts and is bound by the terms of the Agreement and the applicable Attachments by accepting delivery of the Product or Service.

2. Prices/Charges
The amount payable for Product or Service will be based on one or more of the following types of charges: One-time and recurring, time and materials, or fixed price. Additional charges may apply (such as special handling or travel related expenses). Verari will inform Customer in advance whenever additional charges apply. Prices are valid for the period quoted by Verari for the applicable purchase agreement ordering period, whichever expires first.

Product prices for an order remain valid for ninety (90) days from the original order date unless otherwise quoted by Verari. Change orders that extend Delivery beyond those validity periods become new orders at prices in effect when Verari receives the change orders. Support prices, except for Custom and prepaid Support, may be changed by Verari upon sixty (60) days written notice. An increase applies on the first day of the invoice or charging period on or after the effective date Verari specifies in the notice.

Prices are exclusive of, and Customer will pay applicable sales, use, consumption, goods and service, value added or like taxes, unless Customer has provided Verari with an appropriate exemption certificate for the Delivery jurisdiction.

3. Orders
All orders are subject to acceptance by Verari. Product orders must specify Delivery within ninety (90) days from order date, unless otherwise agreed or quoted by Verari.

4. Delivery
Verari will make reasonable efforts to meet Customer's Delivery requirements. If Verari is unable to meet Customer's Delivery requirements, alternative arrangements may be agreed. In the absence of such agreement, Customer's sole remedy is to cancel the order.

5. Shipping, Risk of Loss or Damage, and Title
Verari will ship according to Verari's standard commercial practice, and risk of loss or damage and title will pass from Verari to Customer upon delivery to the Verari designated carrier for shipment to Customer or its designated location. Thereafter, Customer assumes the risk of loss or damage and title will pass to Customer. Shipping and handling are additional unless otherwise expressly indicated at time of sale. If Customer requested special packing, or shipping instructions are agreed to by Verari, charges will be billed separately to Customer. Customer must notify Verari within ten (10) days of the date of the invoice if any part of the purchase is incorrect or damaged.

6. Installation and Acceptance
Product installation information is available with Products, on quotations or upon request. Installation by Verari, when included in the purchase price, is complete when the Product passes Verari's standard installation and test procedures.

For Products without installation included in the purchase price, acceptance by Customer occurs upon shipment from Verari. For Products with installation included in the purchase price, acceptance by Customer occurs upon completion of installation by Verari. If customer schedules or delays installation by Verari more than thirty (30) days after delivery, Customer acceptance of the Product(s) will occur on the 31st day after Delivery. [need to review for revenue recognition. Intent is to bundle pricing for standard installation and unbundled for custom installation]

7. Payment
Payment terms are subject to Verari credit approval. Unless otherwise stated, payment is due thirty (30) days from Verari's invoice date. Verari may invoice parts of an order separately. Invoices for contractual support services and maintenance will be issued in advance of the Support period. Verari may discontinue performance if Customer fails to pay any sum due, or fails to perform under this or any other Verari agreement if, after ten(10) days written notice, the failure has not been cured. Amounts delinquent beyond the payment due date are subject to a 1.5% per month late fee prorated for the number of days past due.

8. Warranty
Verari warrants that for a period of one (1) year from the date of Verari’s shipment of Hardware to Customer, its Hardware is free from defects in material and workmanship and conforms to Specifications. Some newly manufactured Verari Products may contain and Verari Support may use remanufactured parts which are equivalent to new in performance. The warranty period for Hardware is a specified, fixed period commencing on its date of Delivery, or the date of installation if installed by Verari.

Verari warrants for a period of ninety (90) days from the date of Verari’s shipment of Software to Customer, that Software will not fail to execute its programming instructions due to defects in materials and workmanship when properly installed and used on the Device designated by Verari. Verari further warrants that Verari owned standard Software will substantially conform to Specifications.

Verari does not warrant that Software will operate in hardware and software combinations selected by Customer, or meet requirements specified by Customer. Verari does not warrant that the operation of Products will be uninterrupted or error free.

If Verari receives notice of defects or non-conformance to hardware Specifications, or substantial non-conformance to Verari owned standard Software Specifications during the warranty period, Verari will, at its option, repair or replace the affected Products.

The warranties provided herein will apply only to those Products and Support which are branded by Verari with a Verari trademark ("Verari Branded"). What about Verari Systems Software products? Verari will resell those products. Verari does not warrant any third party Products or Support even if included with other Verari Branded Products or Support. Furthermore, Verari provides all such third party Products and Support AS IS. However, the original manufacturers or suppliers may provide their own warranties as specified in the documentation accompanying such third party Products and Support.

The above warranties do not apply to defects resulting from:
1) Improper or inadequate maintenance by Customer;
2) Customer or third party supplied software, interfacing or supplies; not clear what interfacing or supplies mean
3) Unauthorized modification;
4) Improper use or operation outside of the Specifications for the Product;
5) Abuse, negligence, accident, loss, or damage in transit;
6) Improper site preparation; or
7) Unauthorized maintenance or repair.
THE ABOVE WARRANTIES ARE EXCLUSIVE AND NO OTHER WARRANTY, WHETHER WRITTEN OR ORAL, IS EXPRESSED OR IMPLIED. TO THE EXTENT PERMITTED BY LAW, VERARI SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT.

9. Support

Customer may order Support from Verari's then current Support offering. Some Support (and related Products) may not be available in all countries. Orders for Support are subject to the terms of the Support Exhibit or quotation in effect on the date of order. To be eligible for Support, Products must be at current specified revision levels and, in Verari's reasonable opinion, in good operating condition.

Support does not cover any damage or failure caused by:
1) Use of non-Verari media, supplies, and other products; or
2) Site conditions that do not conform to Verari's site specifications; or
3) Neglect, improper use, fire or water damage, electrical disturbances, transportation
by Customer, work or modification by people other than Verari employees or
subcontractors, or other causes beyond Verari's control.

Customer may delete Products under Support or cancel Support orders upon thirty (30) days written notice unless otherwise agreed in a Support agreement. Verari may cancel Support orders or delete Products no longer included in Verari's Support offering upon sixty (60) days written notice unless otherwise agreed in a Support agreement.

10. Licenses

In return for the License Fee, Verari grants Customer a non-exclusive license to Use the object code version of the Software listed in Customer's order in conformance with:
1) The terms set forth herein; and
2) Use restrictions and authorizations for the Software specified by Verari in its quotation, invoice or terms that accompany the Software; and
3) Verari's third party suppliers' terms that accompany the Software.

Unless otherwise specified, in return for the applicable License Fee, Verari grants Customer a license to Use one copy of the Software on one Device at any one time. Unless otherwise specified, all Software Licenses will be perpetual unless terminated.

Software is owned and copyrighted by Verari or by third party suppliers. Customer's Software License confers no title or ownership and is not a sale of any rights in the Software. Third party suppliers may protect their rights in the Software in the event of any infringement.

Unless otherwise permitted by Verari, Customer may only make copies or adaptations of the Software for archival purposes or when copying or adaptation is an essential step in the authorized Use of the Software on a backup Device, provided that copies and adaptations are used in no other manner and provided further that the Use on the backup Device is discontinued when the original or replacement Device becomes operable.

Customer must reproduce all copyright notices in or on the original Software on all permitted copies or adaptations. Customer may not copy the Software onto any public or distributed network.

Bundled Software or Firmware provided to Customer may only be used when operating the associated Device in configurations as sold or subsequently upgraded by Verari. Customer may transfer Firmware only upon transfer of the associated Device.

Updates, upgrades, or other enhancements are available under Verari Support agreements. Verari reserves the right to require additional licenses and fees for Use of the Software on upgraded Devices.

Customer will not modify, disassemble, or decompile the Software without Verari's prior written consent. Where Customer has other rights under statute, Customer will provide Verari with reasonably detailed information regarding any intended disassembly or decompilation. Customer will not decrypt the Software unless necessary for legitimate use of the Software.
We would not allow this.

Customer's Software License is transferable subject to Verari's prior written authorization and payment to Verari of any applicable fee(s). Upon transfer of the Software License, Customer will immediately deliver all copies of the Software to the transferee. The transferee must agree in writing to the terms of Customer's Software License. All Software License terms will be binding on involuntary transferees, notice of which is hereby given. Customer's Software License will automatically terminate upon transfer.

Verari may terminate Customer's or any transferee's or sublicensee's Software License upon notice for failure to comply with any applicable Software License terms. Immediately upon termination, the Software and all copies of the Software will be destroyed or returned to Verari. Copies of the Software that are merged into adaptations, except for individual pieces of data in Customer's or transferee's or sublicensee's database, will be removed and destroyed or returned to Verari. With Verari's written consent, one copy of the Software may be retained subsequent to termination for archival purposes.

11. Intellectual Property Rights
Verari will defend or settle any claim against Customer that Verari Branded Products or Support (excluding Custom Products and Custom Support), delivered under these Verari Terms and Conditions of Sale and Service, that infringe a patent or copyright, trade secret or trademark in the country where Products are used, sold or receive Support, provided Customer: 1) promptly notifies Verari in writing; and 2) cooperates with Verari in, and grants Verari sole control of the defense or settlement.

If a claim is made or appears likely to be made, customer agrees to permit Verari to enable Customer to continue to use, modify or replace the Product with one that is functionally equivalent. If Verari determines that none of these alternatives is reasonably available, Verari will refund Customer’s purchase price upon return of the Products at the Product’s then net book value.

Verari has no obligation for any claim of infringement arising from:
1) Verari's compliance with Customer's designs, specifications or instructions;
2) Verari's use of technical information or technology provided by Customer;
3) Product modifications by Customer or a third party;
4) Product use prohibited by Specifications or related application notes; or
5) Product use with products that are not Verari Branded.

These terms state Verari's entire liability for claims of intellectual property infringement.

12. Limitations of Liability and Remedies

To the extend that Verari is held legally liable to a Customer, Verari’s total liability is limited to no more than 1) payments referred to in the Intellectual Property Rights section above; 2) damages for bodily injury, direct damages to tangible property of up to $1 million or, 3) the amount of any other actual direct damages up to the lesser of $1 million or the charges for the Product or Service that is the subject of the Claim.

Notwithstanding the Section 11 above, in no event will Verari or its affiliates, subcontractors or suppliers be liable for any of the following: Incidental, special or consequential damages including downtime costs or lost profits

13. General
1) The Parties hereby agree that they may do business electronically, including contract formation, order placement and acceptance. Any orders placed by Customer and accepted by Verari on any Verari website or Verari/Customer extranet site will create fully enforceable obligations that will be subject to the terms hereof. Such orders and acceptances will be deemed for all purposes to be
a) Business records originated and maintained in documentary form,
b) A “writing” or “in writing,”
c) “Signed”;
d) An “original” when printed from electronic files or records

The Parties further agree not to contest the validity or enforceability of such transactions under the provisions of any applicable law relating to whether certain agreements are to be in writing or signed by the Party to be bound thereby and will be admissible if introduced as evidence on paper in any judicial, arbitration, mediation, or administrative proceeding to the same extent and under the same conditions as other business records originated and maintained in documentary form. In addition, the Parties agree that transactions may be conducted through Electronic Data Interchange or other electronic methods, as agreed by the Parties. Customer and Verari will adopt commercially reasonable security measures to limit access to passwords and to limit access to unauthorized use of the sites or issuance of messages caused by the failure of its security measures.

2) Verari will not be liable for performance delays or for non-performance, due to causes beyond its reasonable control.

3) If either party becomes insolvent, is unable to pay its debts when due, files for bankruptcy, is the subject of involuntary bankruptcy, has a receiver appointed, or has its assets assigned, the other party may cancel any unfulfilled obligations.

4) Customer may not assign any rights or obligations hereunder without prior written consent from Verari.

5) Customer who exports, re-exports or imports Products, technology or technical data purchased hereunder, assumes responsibility for complying with applicable laws and regulations, and for obtaining required export and import authorizations. Verari may suspend performance if Customer is in violation of applicable regulations.

6) Disputes arising in connection with these Verari Terms and Conditions of Sale and Service will be governed by the laws of the country and locality in which Verari accepts the order.

7) Provisions herein which by their nature extend beyond the termination of any sale or license of Products or Support will remain in effect until fulfilled.

8) If any term or provision herein is determined to be illegal or unenforceable, the validity or enforceability of the remainder of the terms or provisions herein will remain in full force and effect.

9) These Verari Terms and Conditions of Sale and Service and any Attachments constitute the entire agreement between Verari and Customer, and supersede any previous communications, representations or agreements between the parties, whether oral or written, regarding transactions hereunder. Customer's additional or different terms and conditions will not apply. Customer's purchase or license of Products and Support will constitute Customer's acceptance of these Verari Terms and Conditions of Sale and Service, which may not be changed except by an amendment signed by an authorized representative of each party.