PACKETCRAFT HARDWARE TERMS AND CONDITIONS OF SALE
These Packetcraft Hardware Terms and Conditions of Sale (“Terms of Sale”) set forth the terms and conditions under which Packetcraft, Inc. (“Packetcraft”) will sell you or the entity that you represent (“You”) development boards, evaluation boards, demonstration boards, and other hardware (“Hardware”). The Hardware comes preloaded with Packetcraft’s proprietary software in binary form (“Software”). Use of the Software is subject to Packetcraft’s Evaluation Agreement set forth at https://www.packetcraft.com/evaluation-agreement (“Evaluation Agreement”). Please read the Evaluation Agreement carefully.
BY COMPLETING AN ORDER FOR HARDWARE THAT LINKS TO OR INCORPORATES THESE TERMS OF SALE, BY CLICKING TO ACCEPT THESE TERMS OF SALE, BY ELECTRONICALLY OR MANUALLY SIGNING THESE TERMS OF SALE, AND/OR BY USING THE HARDWARE, YOU SIGNIFY YOUR AGREEMENT TO ALL TERMS, CONDITIONS, AND NOTICES CONTAINED OR REFERENCED IN THESE TERMS OF SALE AND IN THE EVALUATION AGREEMENT. IF YOU DO NOT AGREE TO SUCH TERMS, CONDITIONS AND/OR NOTICES, YOU MAY NOT USE THE HARDWARE OR ANY INSTALLED SOFTWARE.
These Terms of Sale and the Evaluation Agreement constitute the entire agreement between Packetcraft and You regarding Your purchase of Hardware, and supersede all prior communications and agreements, written or verbal, relating thereto. Any additional, inconsistent or different terms and conditions in any order or other communication from You are hereby expressly rejected. Packetcraft reserves the right to revise these Terms of Sale in its sole discretion at any time and without prior notice to You by updating these Terms of Sale at https://www.packetcraft.com/hardware-terms-conditions-of-sale, provided that such changes shall be effective from the moment a revised posting is made only with respect to Hardware purchased after the revision date. Thus, You should visit these Terms of Sale periodically to review changes. If You disagree with any changes thereto, Your sole remedy is to discontinue any future Hardware purchases. Acceptance by You of Hardware after a change has been posted constitutes Your acceptance of the change thereafter.
2. Pricing; Payment Terms.
(a) The price of the Hardware purchased hereunder is as designated in Your online shopping cart or other price quote provided by Packetcraft. Once an order for Hardware is received, before the order is accepted by Packetcraft, Packetcraft shall have the right to revise the pricing for the Hardware.
(b) Prices do not include any taxes, now or hereinafter enacted, applicable to the Hardware sold hereunder. You agree to pay or reimburse any such taxes which Packetcraft is required to pay or collect. Your total invoiced amount will include the price of the Hardware plus any applicable sales and/or use tax. Such tax is based on the bill-to address and the sales and use tax rate in effect at the time You purchase the Hardware. Packetcraft will charge sales and use tax only in states where local regulations and laws require it, to the best of Packetcraft’s knowledge.
(c) The payment option(s) available to You are as specified by Packetcraft upon purchase. Unless specified to the contrary in writing by Packetcraft, You shall pay the purchase price of the Hardware and any taxes with a validly authorized credit card.
(d) Packetcraft will deliver an invoice to You when the Hardware is shipped. Notwithstanding the foregoing, Packetcraft will extend credit for orders in Packetcraft’s sole discretion and reserves the right to require payment for an order before Packetcraft ships the Hardware for such order, including without limitation in the event You have any unpaid prior orders outstanding at the time an order is received. In the event that Packetcraft extends credit for an order, the associated invoice is payable within thirty (30) days of the date of such invoice unless otherwise specified, and You shall pay a late charge equal to the lesser of 1.5% of the total amount payable per month (pro-rated if necessary) or the maximum amount permitted under applicable law, on any past due balance.
(e) All Hardware sales are final. If Hardware becomes unavailable following Your purchase but prior to delivery, Your sole and exclusive remedy is a full refund of the purchase price. If technical problems prevent or unreasonably delay delivery of Your Hardware, Your sole and exclusive remedy is either replacement or full refund of the purchase price, as determined by Packetcraft.
(f) You shall pay all amounts due without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). Packetcraft may at any time, without limiting any other rights or remedies it may have, set off any amount You owe to it against any amount payable by Packetcraft to You.
(g) Packetcraft reserves the right to recover any and all fees incurred as a result of the referral for collection of any of the above fees to an agency or legal firm.
3. Delivery, Risk of Loss and Title.
(a) Unless specified to the contrary in writing by Packetcraft, You shall be responsible for all costs associated with shipping the Hardware to You.
(b) Any delivery date specified by Packetcraft is approximate only. Packetcraft shall not be liable for any loss or expense, whether arising in tort or contract, incurred by You if the delivery does not meet any specified approximate delivery date.
(c) Unless specified to the contrary in writing by Packetcraft, risk of loss or damage of the Hardware shall pass to You at the point of shipment.
(d) Packetcraft will retain title to the Hardware until payment of the price of the Hardware is received in full by Packetcraft. If You fail to make payment on the Hardware, and it has already been delivered, Packetcraft may use all legal means to recover such Hardware at Your expense.
(e) Until title to the Hardware has passed to You, You shall: (i) store the Hardware separately from all other goods held by You so that it remains readily identifiable as Packetcraft’s property, (ii) not remove, deface or obscure any identifying mark or packaging on or relating to the Hardware, (iii) maintain the Hardware in satisfactory condition and keep it insured against all risks for its full price from the date of delivery, and (iv) give Packetcraft such information relating to the Hardware as Packetcraft may require from time to time.
4. All Sales Final; Refunds; Returns.
All sales of Hardware are final, and Packetcraft will not provide refunds with respect to Hardware Sales. You do not have the right to return any item of Hardware except as expressly provided in Section 5.
5. Limited Warranty; Replacement and Repair of Hardware; Limitation of Liability.
Packetcraft warrants each item of Hardware against defects in material and workmanship for a period of thirty (30) days from original date of shipment (the “Warranty Period”). This limited warranty is for the benefit of the original end purchaser only and is not transferable by the end purchaser. With respect to any Hardware that Packetcraft ships to You in exchange for a defective or damaged item of Hardware, the Warranty Period for such shipped Hardware shall not be extended beyond the end of the Warranty Period for the original Hardware. THIS LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES OF QUALITY AND PERFORMANCE, WRITTEN, ORAL OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THIS LIMITED WARRANTY SHALL NOT APPLY IF THE HARDWARE HAS BEEN REPAIRED OR ALTERED, EXCEPT BY PACKETCRAFT, OR IF IT HAS BEEN SUBJECTED TO MISUSE, NEGLIGENCE, OR ACCIDENT. In the event any defect in the material or workmanship of the Hardware arises during the Warranty Period, Packetcraft’s sole liability shall be (at the option of Packetcraft) to repair or replace any Hardware returned by You during the Warranty Period, provided that (a) Packetcraft is notified in writing by You of the claimed defect(s) during the Warranty Period, (b) the Hardware is returned to Packetcraft in the undamaged original Hardware packaging, and (c) Packetcraft’s examination of the Hardware discloses to its satisfaction that the defect(s) were not caused by misuse, negligence, accident, or unauthorized repair or alteration by You or on Your behalf. For any Hardware in the United States that is repaired or replaced under this limited warranty, You will bear the expense of shipping such Hardware to Packetcraft, and Packetcraft will bear the cost of shipping the Hardware back to You. However, You will bear the expense of shipping any Hardware repaired or replaced under this warranty to or from any non-U.S. location, and all shipping costs to and from Packetcraft for any Hardware that is repaired or replaced outside the scope of this limited warranty will be at Your expense. PACKETCRAFT’S ONLY LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY CLAIM OF A DEFECT IN THE HARDWARE, WHETHER ARISING IN TORT OR CONTRACT, IS AS STATED IN THIS SECTION 5. IN NO EVENT SHALL PACKETCRAFT OR ITS AFFILIATES, LICENSORS OR SUPPLIERS HAVE ANY OTHER LIABILITY FOR ANY LOSS OR DAMAGE, WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), BREACH OF STATUTORY DUTY, OR OTHERWISE, EVEN IF FORESEEABLE, ARISING IN CONNECTION WITH ANY HARDWARE OR THESE TERMS OF SALE. IN PARTICULAR, PACKETCRAFT SHALL NOT BE LIABLE FOR (I) LOST PROFITS, (II) LOST DATA, (III) LOSS OF BUSINESS, GOODWILL OR REPUTATION, OR (IV) FOR ANY OTHER SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF PACKETCRAFT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THE TOTAL CUMULATIVE LIABILITY OF PACKETCRAFT AND ITS AFFILIATES, LICENSORS AND SUPPLIERS RELATING TO ANY HARDWARE OR THESE TERMS OF SALE FROM ALL CAUSES OF ACTION OF ANY KIND, INCLUDING TORT, CONTRACT, NEGLIGENCE AND STRICT LIABILITY, EXCEED THE LESSER OF THE TOTAL AMOUNTS YOU PAID TO PACKETCRAFT UNDER THESE TERMS OF SALE DURING THE SIX (6) MONTHS PRECEDING YOUR CLAIM(S), OR $500. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. WITHOUT LIMITING ANY OTHER CONDITION SET FORTH IN THIS SECTION, PACKETCRAFT WILL HAVE NO WARRANTY OBLIGATION HEREUNDER IF YOU FAIL TO RETURN THE HARDWARE IN THE UNDAMAGED ORIGINAL PACKAGING OR IF YOU HAVE INSTALLED ANY SOFTWARE OR FIRMWARE IN THE HARDWARE OTHER THAN THE SOFTWARE OR FIRMWARE INITIALLY INSTALLED ON, OR EMBEDDED IN THE HARDWARE OR ANY SOFTWARE OR FIRMWARE UPDATE SUBSEQUENTLY PROVIDED BY PACKETCRAFT. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, OR SOME OR ALL OF THE FOREGOING LIMITATION OF LIABILITY, SO SOME OR ALL OF THE FOREGOING DISCLAIMERS AND/OR LIMITATION MAY NOT APPLY TO YOU.
NOTHING IN THESE TERMS OF SALE EXCLUDES OR LIMITS ANY LIABILITY OF PACKETCRAFT THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
6. Governing Law; Venue.
Unless prohibited by applicable law, these Terms of Sale shall be interpreted in accordance with the laws of the state of California without reference to its conflict of law provisions. Any litigation, suit or other proceeding regarding the rights or obligations of the parties hereunder shall be conducted exclusively before the state and federal courts located in San Diego, California, and the parties specifically consent to San Diego, California, as the exclusive venue for any such proceeding. These Terms of Sale and the transaction hereunder shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
7. Use of Hardware for Evaluation Purposes Only; Software and Firmware.
(a) You are permitted to use the Hardware solely in connection with your evaluation of the Software. You shall not use the Hardware for any commercial purpose.
(b) The Hardware comes preloaded with the Software. You shall not: (a) use the Hardware with any software other than the Software and Firmware (defined below); or (b) use the Software for any purpose other than in connection with the Hardware.
(c) Certain software is embedded in the Hardware by Packetcraft or the third-party supplier of the Hardware (the “Firmware”). Subject to these Terms of Sale, Packetcraft grants You a non-exclusive, non-sublicensable, non-transferable, revocable, limited license to use the Firmware provided by Packetcraft solely with the Hardware and in binary executable form only. You will have the right to use any Firmware provided by a third-party supplier of the Hardware as granted to end users by such supplier, and Packetcraft hereby passes such license through to You. The foregoing does not include a license to any source code. You shall not cause, or permit any third party to, reverse engineer, decompile, modify, translate or disassemble any of the Firmware; create derivative works based upon any of the Firmware; or do anything else that would adversely affect the intellectual property rights of Packetcraft and its licensors and suppliers in and to the Firmware. You acknowledge that the source code underlying the Firmware is the confidential and proprietary information of Packetcraft, its licensors and/or suppliers.
(d) You shall not install any firmware or other software on any Hardware other than the Software or Firmware or an update to the Software or Firmware provided by Packetcraft. If You install any software or firmware on the Hardware other than the Software or Firmware (or any Software or Firmware update provided by Packetcraft), such action will be deemed a material breach of these Terms of Sale that will void the limited warranty set forth in Section 5. In addition, without limiting any other remedy available to Packetcraft, Packetcraft reserves the right to bring an action against You for breach of contract and infringement of intellectual property rights in such event.
8. Intellectual Property.
Except as set forth in Section 7, nothing in these Terms of Sale shall be deemed to convey any intellectual property right to You in and to the Hardware, Software, Firmware or any other technology of Packetcraft or its licensors or suppliers. Your right to use the Software will be governed by the Evaluation Agreement. You agree that (although Packetcraft may request that You contribute towards the design and development of its products), Packetcraft and its licensors and suppliers, as applicable, are the sole owners of all intellectual property rights in and to the Hardware and other property described in this Section.
(a) Your failure to perform Your obligations hereunder including, without limitation, payment in full of the purchase price for the Hardware, shall constitute a default under these Terms of Sale.
(b) You represent that You are not located in, domiciled in, a resident of, controlled by the government of, or organized under the laws of a country or region that is subject to a U.S. government embargo (currently, Crimea, Cuba, Iran, North Korea, Syria and Venezuela); and (b) You are not on or, directly or indirectly, owned, in whole or part, by any person or persons on the U.S. Treasury Department’s List of Specially Designated Nationals and Blocked Persons or any other U.S. government list of parties with respect to which transactions are forbidden or restricted. You shall not export, re-export, import, or transfer the Hardware or Software in violation of U.S. law or in any manner that is forbidden for U.S. citizens, including, without limitation, transfer to a country or region that is subject to a U.S. government embargo, and You shall not assist or facilitate others in doing any of the foregoing.
(c) No waiver by either Party of any condition or the breach of any provision of these Terms of Sale in any one or more instances shall be deemed a further or continuing waiver of the same or any other condition or provision.
(d) You may not assign or otherwise transfer any rights hereunder without Packetcraft’s prior written consent, and any attempt to do so without consent is void. These Terms of Sale are binding upon and for the benefit of the respective successors and assigns of the parties hereto.
(e) If any provision of these Terms of Sale is unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms of Sale and shall not affect the validity and enforceability of any remaining provisions.
(f) These Terms of Sale embody the entire agreement between the Parties with respect to the subject matter hereof and supersede all prior negotiations, discussions, agreements and understandings between the parties relating to the subject matter hereof; provided, however, that any use of the Software is also governed by the Evaluation Agreement (available at https://www.packetcraft.com/evaluation-agreement).
(g) Unless otherwise specified herein, all notices, invoices and other communications required or permitted to be given or made hereunder shall be in writing and: (i) if to Packetcraft, delivered personally or sent by pre-paid, first class certified or registered mail, return receipt requested or by overnight courier, to Packetcraft, Inc., 10755 Scripps Poway Pkwy. #500, San Diego, CA 92131, Attn: Legal Notices; or (ii) if to You, sent by email to the email address You provided in connection with Your purchase of the Hardware, or delivered personally, sent by pre-paid, first class certified or registered mail, return receipt requested or by overnight courier, to the mailing address You provided in connection with Your purchase of the Hardware.
(h) Except as provided in Section 1, any changes in these Terms of Sale are not valid unless in a writing signed by an officer of Packetcraft. Preprinted terms on or attached to any order You issue hereunder and all other separate terms and/or documents introduced after the acceptance of this Agreement or delivery of Hardware, even if signed by Packetcraft, shall be null and void and of no effect without a mutually signed amendment hereto expressly referencing this Agreement.
(i) You acknowledge that You have read these Terms of Sale, understand them, and agree to all terms and conditions in these Terms of Sale.
(j) A person who is not a party to these Terms of Sale shall not have any rights to enforce its terms.
(k) Packetcraft shall not be liable for any failure or delay in its performance under these Terms of Sale due to causes beyond its reasonable control, and Packetcraft’s time for performance or cure under these Terms of Sale shall be extended for a period equal to the duration of the cause.