The execution of an order form or purchaseorder by you as the Purchaser of the Hardware, (“Customer”) andacceptance and acknowledgment by Zero Day Inc in the form of invoice orpurchase order acceptance (the “OrderForm”), constitutes the Customer’s, and if applicable, any end user’s (“End User”) agreement to the followingHardware Terms and Conditions (hereinafter the “Termsand Conditions”) regulating the sale of equipment, parts, supplies andproducts (“Hardware”) specified in theOrder Form. Customer and ZERO DAY INC. (hereinafter collectively referred to asthe “Parties”) are to be bound byand accept the Terms and Conditions provided below. If Customer and/or EndUser, as the case may be, disagree with these terms and conditions, do notfinalize the order, or if the order has been placed, return the Hardwareimmediately upon receipt without using it.
ZERO DAY INC. shall sell to Customer and Customer shall purchase from ZERO DAY INC., the Hardware set out in the Order Form, in the quantities and at the purchase price set out in the Order Form, and under the terms and conditions set forth in these Terms and Conditions.
2.1.Customer shall pay the total purchase price for the Hardware, plus shipping and handling (if any), on the date or in accordance with the schedule specified inthe Order Form.
2.2.Customer shall be responsible for all taxes applicable to this purchase and the import of the Hardware, including, but not limited to all sales tax, VAT,import taxes, customs duties, and any similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Customer.
2.3.Customer shall not be responsible for any taxes imposed on, or with respect to,ZERO DAY INC.’s income, revenues, gross receipts, personnel or real or personal property, or other assets.
2.4.Unless otherwise agreed to in the Order Form, full payment of the invoice shall be made within 30 days of receipt of the invoice and Customer agrees to pay interest in the amount of 1.5% per month for any amounts that have not been paid within this 30-day period. Customer shall reimburse ZERO DAY INC. for all costs incurred in collecting any late payments, including, without limitation,attorneys’ fees.
2.5.Unless otherwise agreed by the Parties in the Order Form, the purchase price for the Hardware does not include the software service costs associated with the Hardware. All software associated with the Hardware ordered is provided asa service and is not sold. Such software is governed by the terms of separate agreements provided by ZERO DAY INC. in connection with the software, including but not limited to any Software as a Service (SaaS) agreements, or other software-related documentation by which Customer agrees to be bound.
Upon receipt and following written acceptance of the Customer’s purchase order, or submission of an invoice, ZERO DAY INC. shall provide Customer with a written acknowledgment of the order, and upon receipt of the portion of payment due bythe Customer, ZERO DAY INC. shall commence work on filling Customer’s order. ZERO DAY INC. shall provide Customer with an estimated delivery date based on the type and quantities of Hardware ordered and will use commercially reasonable efforts to deliver Hardware by such dates, but will not be liable in anyway what so ever for any delay or failure to do so. Furthermore, any delay by Customer in the payment of an invoice in accordance with the payment schedule may result in a delay in the estimated delivery date, for which ZERO DAY INC.shall not be liable.
4.1. The Hardware will be delivered to Customer at the location listed in the Order Form(the “Delivery Point”) using ZERO DAY INC.’s standard methods for packaging and shipping of such Hardware described in the Order Form, within a reasonable timeon or after the date on the Order Form, subject to the availability of finished goods. ZERO DAY INC. shall not be liable for any delays, loss, or damage in transit.
4.2.Customer shall be responsible for the payment of all freight handling,delivery, and insurance charges for shipment of the Hardware as invoiced by ZERO DAY INC. and all shipping terms shall be accepted by Customer when placing an order with ZERO DAY INC..
4.3. ZERO DAY INC. may, in its sole discretion, without liability or penalty, make partial shipments of Hardware to Customer. Each shipment will constitute a separate sale and Customer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of the quantity purchased under these Terms and Conditions.
Title to Hardware shall pass to Customer at the later of (i) the time risk of loss tosuch Hardware transfers to Customer as provided by the applicable agreed delivery terms and (ii) payment in full has been made to ZERO DAY INC.. As collateral security for the payment of the purchase price of the Hardware,Customer hereby grants to ZERO DAY INC. a lien on and security interest in andto all of the right, title, and interest of Customer in, to, and under the Hardware, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds)of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under Division 9 of the California Uniform Commercial Code.
6.1.Customer shall be responsible for carefully inspecting the Hardware upon delivery and maintaining all original packaging until Hardware has been installed and found to be in proper working order.
6.2.Should the Customer find the Hardware to be damaged or defective at delivery,Customer must notify ZERO DAY INC. Customer Support at support@newsunroad.comwithin 30 days from the date of arrival (“Delivery Date”) and await return or replacement instructions if needed. If Customer fails to notify ZERO DAY INC.of the damage or defect within 30 days of the Delivery Date, Customer shall bear the costs of repairing or replacing the Hardware including any shipping and insurance costs.
6.3.Should it be found during the Warranty Period, but following the initial 30-day period that the Hardware is not working properly, Customer must contact ZERO DAY INC. Customer Support at support@newsunroad.com to confirm the problem and obtain return instructions if needed. If any component of the Hardware is returned for repair or replacement at any time following purchase by Customer and ZERO DAY INC. discovers that the Warranty is inapplicable due to the reasons provided in the Limited Warranties section, the Hardware will not be repaired and will be returned to Customer at Customer’s expense unless Customer authorizes and pays for repair. Whether Customer authorizes repair or not, ZERO DAY INC. reserves the right to charge a “No Fault Found” fee where the Hardware is found not to be defective due to any fault of ZERO DAY INC..
6.4.Should Customer cancel an accepted Hardware Order within 10 days prior to shipment or reject conforming Hardware received under an accepted order, ZERO DAY INC. is entitled to claim reasonable compensation for restocking and other expenses actually incurred.
Unless otherwise specified on the Order Form, Customer shall be solely responsible forthe installation and operation of the Hardware, including without limitation obtaining all permits, licenses, or certificates required for the installation or use of the Hardware. Customer shall not use, duplicate or disclose any technical data delivered or disclosed by ZERO DAY INC. to the Customer for any purpose other than for installation,operation, or maintenance of Hardware.
In the event that Customer requires installation services, such services shall be setout in the Order Form.
8.1. The limited warranty on Hardware as set out below, relates only to Hardware products manufactured by ZERO DAY INC. and marketed and branded as such (“ZERO DAY INC. Products”).
8.2. All Hardware manufactured, branded, and marketed by third parties shall be delivered “as is” and shall be covered by the third-party manufacturer or vendor warranties, if any. Third-party Hardware shall not be covered by the ZERO DAY INC. Limited Warranty.
8.3. ZERO DAY INC. warrants the ZERO DAY INC. Hardware to be free from defects in workmanship and materials under normal use for two (2) years from the date of shipment (the “Warranty Period”) on condition that the Hardware has been completely paid for and as set forth below. “Normal use” includes mounting ZERO DAY INC. Hardware in an environment free from condensing moisture, rain, or other source of water or dust egress (i.e. IP20) and with adequate ventilation and proper orientation of the unit. (i.e. Connectors pointing up/down and“face” pointing toward the center of the room.)
8.4. ZERO DAY INC.’s obligation and Customer’s exclusive remedy under this Limited Warranty is, at ZERO DAY INC.’s option, to either (i) repair or replace the ZERO DAY INC. Hardware, provided that the Customer (a) returns the ZERO DAY INC.Hardware to the location designated by ZERO DAY INC. within the Warranty Period; and (b) pre-pays the freight costs both to and from such location; or(ii) deliver replacement components to the Customer, provided the Customer installs, at its cost, such components in or on the ZERO DAY INC. Hardware (as instructed by ZERO DAY INC.), provided, that if ZERO DAY INC. requests, the Customer (a) returns the ZERO DAY INC. Hardware to the location designated by ZERO DAY INC. within the warranty period; and (b) prepays the freight costs both toand from such location. In all cases, if Customer does not return the ZERO DAYINC. Hardware within the time period designated by ZERO DAY INC., ZERO DAY INC.will invoice, and Customer will pay within thirty (30) days of the invoice date, for the cost of the replacement Hardware and/or components.
8.5. For ZERO DAY INC. Hardware that has become discontinued or obsolete (“Obsolete Hardware”), ZERO DAY INC. may, at its discretion, replace such Obsolete Hardware with a different product model (“New Hardware”), provided that the New Hardware has substantially similar features as the Obsolete Hardware. The New Hardware shall be warranted as set forth in this Limited Warranty.
8.6. The terms under this Limited Warranty section set forth Customer’s sole remedy forthe failure of the Hardware products to conform to their respective warranties.
8.7. This Limited Warranty does not include costs for removal or installation of Hardware, or costs for replacement labor or materials, which are the responsibility of the Customer. This Limited Warranty does not apply to any software associated with the Hardware. This Limited Warranty does not apply to goods that have been: installed improperly or in non-recommended installations;installed to a socket that is not functional, or is not in safe operating condition, or is damaged, or is in need of repair; tampered with; modified or repaired with parts or assemblies not certified in writing by ZERO DAY INC.;converted; altered; damaged; subjected to misuse, improper storage, improper care or improper maintenance (collectively, “Exceptions”).
If ZERO DAY INC.identifies any Exceptions during examination, troubleshooting, or performing any type of support on behalf of Customer, then Customer shall pay for and/or reimburse ZERO DAY INC. for all expenses incurred by ZERO DAY INC. in examining, troubleshooting, performing support activities, repairing or replacing any Equipment that satisfies any of the Exceptions defined above. The above Limited Warranties do not apply in the event of Force Majeure, as defined in these Terms and Conditions.
8.8. THE WARRANTIES SET FORTH IN THIS LIMITED WARRANTY ARE THE ONLY WARRANTIES GIVEN WITH RESPECT TO THE HARDWARE SOLD OR OTHERWISE PROVIDED BY ZERO DAY INC.. ZERO DAY INC. EXPRESSLY DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS, WARRANTIES,CONDITIONS, EXPRESSED, IMPLIED, STATUTORY, OR OTHERWISE, REGARDING ANY MATTER IN CONNECTION WITH THIS ZERO DAY INC. LIMITED WARRANTY OR WITH THE TERMS AND CONDITIONS, INCLUDING WITHOUT LIMITATION, WARRANTIES AS TO FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT, AND TITLE.
8.9. ZERO DAY INC. ASSUMES NO LIABILITY FOR COSTS OR EXPENSES ASSOCIATED WITH LOST REVENUE OR WITH THE REMOVAL OR INSTALLATION OF HARDWARE OR EQUIPMENT. THE FOREGOING REMEDIES ARE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES FOR THE FAILURE OF EQUIPMENT OR SERVICES TO CONFORM TO THEIR RESPECTIVE WARRANTIES.
ZERO DAY INC. shall at its sole discretion and on a case-by-case basis, reserve the right to authorize a full refund of any Hardware purchased where a refund has been requested within 30 days of the Delivery Date. In such case, where are fund is approved, Customer or its End User will return the Hardware to ZERO DAY INC. and be responsible for shipping and insurance charges, as well as any damage to the Hardware which takes place en route to ZERO DAY INC..
10.1. INNO EVENT SHALL ZERO DAY INC. BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT,INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, AND/OR IN CONNECTION WITH ANY BREACH OF THESE TERMS AND CONDITIONS, REGARDLESS OF (i)WHETHER SUCH DAMAGES WERE FORESEEABLE, (ii) WHETHER OR NOT ZERO DAY INC. WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (iii) THE LEGAL OR EQUITABLE THEORY(CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND (iv) THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
10.2. INNO EVENT SHALL ZERO DAY INC.’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS AND CONDITIONS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO ZERO DAY INC. FOR THE GOODS SOLD HEREUNDER.
The Hardware is purchased for use by Customer and may not be purchased for resale,lease, loan or to be gifted to another party, without the prior written consent of ZERO DAY INC..
12.1.Customer agrees that ZERO DAY INC. owns all right, title, and interest to all intellectual property and other proprietary rights to all documents and materials, calculations, drawings, models, plans, sets of tools, technology,software, designs, engineering details, schematics and similar data relating toor incorporated in the ZERO DAY INC. Hardware and, and any accompanying documentation or information derived from the foregoing. Customer shall take reasonable precautions to prevent unauthorized access and use of the Hardware and to the extent permitted by law, shall not allow any third party from copying, decompiling, disassembling or otherwise reverse engineering or attempting to do so, the ZERO DAY INC. Hardware or otherwise provided by ZERO DAY INC..
12.2. ZERO DAY INC. grants Customer a non-exclusive, non-transferable license to use the firmware incorporated in the ZERO DAY INC. Hardware (“Firmware”) strictly forthe use of the Hardware. Customer shall not copy, decompile, or reverse engineer any Firmware, nor shall it permit any third party from doing so.
Customer shall indemnify, defend, and hold harmless ZERO DAY INC., its officers,directors, employees, agents, affiliates, successors,and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, fees and the costs of enforcing any right to indemnification under these Terms and Conditions, and the cost of pursuing any insurance providers, arising out of or resulting from any claim of a third party arising out of or occurring in connection with the Hardware products purchased from ZERO DAY INC. or Customer’s negligence, willful misconduct, or breach of these Terms and Conditions. Customer shall not enter into any settlement without ZERO DAY INC.’s or Indemnified Party’s prior written consent.
Any delay or failure of ZERO DAY INC. to perform its obligations under these Terms and Conditions will be excused to the extent that the delay or failure was caused directly by an event beyond ZERO DAY INC.’s control, without ZERO DAY INC.’sfault or negligence and that by its nature could not have been foreseen by ZERO DAY INC. or, if it could have been foreseen, was unavoidable (which events may include natural disasters, embargoes, explosions, riots, wars, acts of terrorism, epidemics, pandemics, strikes, labor stoppages or slowdowns, or other industrial disturbances, and shortage of adequate power or transportation facilities) (“Force Majeure” event).
Customer shall comply with all export laws and restriction regulations (i) of the United States Department of Commerce(https://www.bis.doc.gov/index.php/regulations/commerce-control-list-ccl ), the United States Department of Treasury Office of Foreign Assets Control, or other United States agencies or authorities and (ii) of the country or countries in which Customer resides, is doing business in, is exporting to or alike.Furthermore, Customer will not export, or allow the export or re-export of the Hardware in violation of any such restrictions, agrees to comply with the above and warrants, and represents that it is not located in, under the control of, nor a resident of any restricted country. Customer shall defend, indemnify and hold ZERO DAY INC. harmless against any liability (including attorneys’ fees) arising outof Customers failure to comply with the terms of this section.
If any term or provision of these Terms and Conditions is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of these Terms and Conditions or invalidate or render unenforceable such term or provision inany other jurisdiction.
These Terms and Conditions shall be governed by and construed in accordance with the laws of the State of California, U.S.A without regard to the conflicts of laws principles thereof. The Parties will attempt in good faith to resolve all disputes, disagreements, or claims arising from these Terms and Conditions and will allow the other reasonable opportunity to comply before claiming that the other Party has not met its obligations. Any dispute or controversy concerning the interpretation, enforceability, termination, or breach of the Terms &Conditions shall be finally settled under the exclusive jurisdiction of and venue of the Courts of San Francisco, California.
All rights and remedies provided in these Terms and Conditions are cumulative and not exclusive, and exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties, or otherwise. Notwithstanding the aforesaid, the Parties intend that Customers rights under Sections 6, 8, and 9 are Customer’s exclusive remedies for the events specified.
19.1.Customer shall not assign, transfer, delegate, or subcontract any of its rights or obligations under these Terms and Conditions without ZERO DAY INC.’s prior written consent. Any purported assignment, transfer, delegation, or subcontract in violation of this section shall be null and void. No assignment, transfer,delegation, or subcontract shall relieve Customer of any of its obligations hereunder. ZERO DAY INC. may at any time assign, transfer, delegate, or subcontract any or all of its rights or obligations under these Terms and Conditions without consent.
19.2. The Terms and Conditions shall be binding and inure to the benefit of the Parties and their respective permitted successors and permitted assigns.
Any notice or other communication given by either party to the other regarding these Terms and Conditions, shall be deemed given and served when personally delivered by a reputable international courier requiring a signature for receipt, or five (5)business days after mailing (postage prepaid), addressed to the Party at its notice address. Either party may change its notice address by written notice tothe other. Your notice address will be the address appearing on the accepted Order Form, purchase order, or other ordering form.
Subject tothe terms of any written Master Hardware, SAAS, and Professional Services Agreement, these Terms and Conditions, including and together with any related exhibits, schedules, attachments, and appendices, shall constitute the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings,agreements, and representations and warranties, both written and oral,regarding such subject matter.
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