KATEEVA TERMS AND CONDITIONS OF SALE

For purposes of these Terms and Conditions of Sale, the buyer is referred to herein as “Buyer”.  Kateeva, Inc. is the seller and is referred to herein as “Kateeva” or “Seller”.  Buyer’s submission of a purchase order constitutes acceptance of these Terms and Conditions of Sale and any additional terms which may be set forth in Kateeva’s Quotation (collectively, the “Agreement “). Seller’s acceptance of Buyer’s purchase order is conditioned upon Buyer’s acceptance of this Agreement.  Any other terms set forth in Buyer’s purchase order or any other related documentation or communication, which conflicts with the Agreement are null and void unless agreed to by both parties in a signed writing. In the event Buyer objects to the terms of this Agreement, such objection must be in writing delivered to Seller by the earlier of, within five (5) days from receipt of this Agreement, or prior to Buyer’s issuance of a purchase order.  Further, Buyer’s failure to make such timely objection shall be deemed acceptance of this Agreement.

 

  1. 1.   Pricing and Taxes. Prices quoted are valid for thirty (30) days from the date of this Agreement and are based upon Seller receiving a purchase order for the entire quantity quoted with deliveries specified over a maximum period of one year. Prices do not include any taxes such as importation or customs taxes that may be applicable now or hereafter enacted. Taxes may be added by Kateeva to the sales price on Kateeva invoices in compliance with applicable law, and will be paid by Buyer unless Buyer provides Kateeva with a proper tax exemption certificate. In the event that Buyer terminates the Agreement in for the full price quoted in this Agreement and termination charges.

 

  1. 2.   Payment Terms. Unless otherwise agreed by Kateeva, terms of payment shall be net thirty (30) days from date of invoice. Where Kateeva has extended credit to Buyer, Kateeva reserves the right to modify the amount of credit or terms of payment, or revoke Buyer’s credit at any time immediately upon notice. Payment of invoices shall be made without regard to whether Buyer has made or may make any inspection and/or acceptance of the Products. As used herein, Products shall mean the items listed on the Quotation Sheet, and may also include services (“Products”). Buyer may not cancel a purchase order.

 

2a. If Buyer becomes insolvent, or is named in a voluntary petition for bankruptcy or any proceeding relating to insolvency, receivership, or liquidation, or is named involuntarily in such petition or proceeding that is not dismissed within sixty (60) days after filing, or makes an assignment for the benefit of creditors, Seller may by written notice cancel Buyer’s order. Buyer shall not be entitled to set-off any amount owed by Kateeva, for any reason, at any time, against any amount payable by Buyer in connection with the Agreement, without the prior express written permission of Kateeva. In the event Kateeva resorts to a third party or to litigation in order to collect amounts due Kateeva, Buyer agrees to pay costs of collection for amount owed to Kateeva, including, but not limited to, attorney’s fees, court costs, and interest in the amount of 1% per month (12% per annum) or the maximum amount allowed by applicable law, whichever is greater, from the date the amount is due.

 

  1. 3.   Substitutions and Product Modifications. Unless otherwise expressly agreed by the parties, Kateeva may modify the specifications of Products or designs so long as such modified Products or designs substantially conform to the original specifications. Any variation in quantities shipped over or under the quantities ordered (not to exceed 10%) shall constitute compliance with Buyer’s order and the stated unit price of Products will continue to apply. Any changes or modifications requested by Buyer, to volume, materials, quality, shipping, delivery, scope of work, specifications, or otherwise, must be expressly agreed to in writing by Kateeva, and Kateeva hereby reserves the right, under its sole discretion, to adjust the price of such Products affected by Buyer’s change request.

 

  1. 4.   Title and Delivery. All shipments of Products shall be delivered Ex Works (Incoterms 2010) Kateeva facilities, unless otherwise agreed in writing. Title, risk of loss, and damage to Products shall pass to Buyer upon Kateeva’s delivery of the Products at Kateeva’s dock, and any loss or damage thereafter shall not relieve Buyer from any obligation hereunder. Buyer shall be liable for costs of insurance and transportation and for all import duties, taxes and any other expenses incurred or licenses or clearance required at port of entry and destination. Kateeva may deliver Products in installments. Shipping dates are approximate. Kateeva shall not be liable for any loss or expense, whether by way of contract or tort, (consequential or otherwise) incurred by Buyer if Kateeva fails to meet the specified estimated delivery schedule because of unavoidable delays in production or any other delays beyond Kateeva’s control, provided reasonable efforts are used to perform. Until the full purchase price hereunder is received, Seller shall retain a security interest in the Products delivered and the right to immediate possession thereof, including all documents relating to the same in the event of Buyer’s failure to fulfill its contractual obligations hereunder upon giving Buyer as least ten (10) days prior written notice of such failure and intent to repossess. Buyer shall take any and all action, including the execution of further instruments which may be reasonably to perfect said security interest.

 

  1. 5.   Termination and Cancellation. Buyer may not, without Seller’s express written agreement, cancel or modify a purchase order or this Agreement except at Buyer’s expense for all costs and damages incurred by Seller due to such cancellation or modification.

 

  1. 6.   Limited Warranty. THE FOLLOWING WARRANTIES ARE IN LIEU OF ANY AND ALL OTHER WARRANTIES WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. KATEEVA’S SOLE AND EXCLUSIVE LIABILITY FOR ANY BREACH OF WARRANTY SHALL BE (AT KATEEVA’S OPTION) TO REPAIR OR REPLACE THE PRODUCTS, OR CREDIT THE PURCHASE PRICE OF PRODUCTS PAID BY BUYER. Kateeva warrants to Buyer for the Warranty Period that:  i) Products shall be free from defects in workmanship and materials; ii) Products shall conform to Kateeva’s written specifications and drawings; and iii) at the time of delivery, Kateeva has title to the Products free and clear of any and all liens and encumbrances, provided that the foregoing shall not be construed as a warranty of non-infringement (the “Warranty”). Unless otherwise agreed in writing, the Warranty Period shall be six (6) months from the date of manufacture for inks, and the earlier of: A) twelve (12) months from the date of acceptance, or B) ninety (90) days from the date of shipment, for tools; and i) ninety (90) days from installation, or (ii) one year from shipment, for spare parts  (“Warranty Period”). THE FOREGOING LIMITED WARRANTY SHALL NOT APPLY TO ANY PRODUCT WHICH HAS BEEN ALTERED, MODIFIED, USED IN A MANNER NOT ORIGINALLY INTENDED, DAMAGED DUE TO A FORCE MAJEURE EVENT, OR STORED IN A MANNER INCONSISTENT WITH SELLER’S WRITTEN DOCUMENTATION AND INSTRUCTIONS.

 

6a. Kateeva’s Warranty and Warranty Periods as hereinabove set forth shall not be enlarged, by, and no obligation or liability shall arise out of Kateeva’s rendering of technical advice in connection with Buyer’s order of the Products subject to the Agreement unless set forth in a signed writing.  If the Products furnished by Kateeva fail to conform to the Warranty as set forth above, Kateeva’s sole and exclusive liability shall be (at Kateeva’s option) to repair, replace or credit Buyer’s account for any such Products which are returned by Buyer during the applicable Warranty Period, provided that (i) Kateeva is promptly notified in writing upon discovery by Buyer that such Products failed to conform to the Warranty, with a detailed explanation of any alleged nonconformity including the Product type and serial number, and (ii) Kateeva’s examination of such Products shall disclose to Kateeva’s satisfaction that such alleged nonconformities actually exist and were not caused by accident, misuse, neglect, alteration, improper installation, unauthorized repair, improper testing or by any other means beyond the control of Kateeva. If Kateeva elects to repair or replace such Products, Kateeva shall have a commercially reasonable time to make such repairs or replace such Products. If Kateeva, in its sole discretion, determines that the alleged nonconformity does not fall within the Warranty as set forth above, Buyer shall credit Kateeva for all cost associated with Kateeva’s inspection of the Products.

 

6b. EXCEPT AS EXPRESSLY PROVIDED HEREIN, SELLER MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO THE PRODUCTS SOLD HEREUNDER, AND SELLER DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND FREEDOM FROM INFRINGEMENT. NO AGENT, EMPLOYEE OR REPRESENTATIVE OF SELLER HAS ANY AUTHORITY TO BIND SELLER TO ANY AFFIRMATION, REPRESENTATION OR WARRANTY EXCEPT AS STATED IN THIS AGREEMENT.

 

  1. 7.   Confidential Information. “Confidential Information” means all information or material disclosed by Kateeva, its contractors, representatives or agents, or otherwise made available or accessible to Buyer in connection with the Agreement and shall include, but is not limited to: this Agreement, trade secrets, documentation, software, specifications, prototypes, data, source code, object code, algorithms, manuals, diagrams, procedures, “know-how”, manufacturing processes, procedures and related technology, prices and pricing policies. Buyer shall not disclose Confidential Information to any third parties unless Buyer receives Kateeva’s express written consent for disclosure. Buyer shall use Confidential Information solely for internal purposes in furtherance of the Agreement and for the mutual benefit of the parties. Buyer may only disclose Confidential Information to those employees, directors, or officers of Buyer who have a need to know the Confidential Information for purposes relating to the Agreement. Such employees, directors, officers of Buyer must be bound in writing to treat and protect Confidential Information in a manner that is consistent with this provision. Obligations under this provision shall continue until such Confidential Information is publicly known and available through no act or omission of Buyer. Upon request of Kateeva, Buyer shall destroy or return all Confidential Information to Kateeva.

 

  1. 8.   Intellectual Property Rights. Products may include software, which is incorporated into or provided for use therewith. Such software is not sold, but rather is licensed solely for Buyer’s internal use with such Products, in accordance with the Seller’s Embedded Software Usage License Agreement, attached hereto as Exhibit A and any other use restrictions applicable for that software. Such license is conditioned upon payment in full of all amounts due hereunder, and is non-exclusive, non-assignable, non-sublicensable, and perpetual (unless a different term is specified by Seller in the documentation or otherwise in writing). Except as otherwise set forth in writing, the sale of Products to Buyer under the Agreement shall not grant, convey, or confer upon Buyer or any third party, a license or any right whether express or implied, to Kateeva owned patents, trademarks, copyrights, know-how, trade secrets, work product, proprietary information, or any other Kateeva owned intellectual property. Buyer will not, and will not permit others, to reverse engineer, copy, incorporate, use in any other works, or modify the Products, in whole or in part (including software).

 

  1. 9.   Indemnity. Buyer agrees to indemnify and hold Kateeva, its agents, contractors, consultants, employees, officers, and directors, harmless from all claims, losses, suits, judgments, awards, costs or expenses whether arising in tort or contract, including reasonable attorney’s fees, expenses and costs, arising out of the (i) use of Products applicable to Buyer’s designs and/or products, or Kateeva’s assistance in the use of Products, (ii) negligent acts or omissions of Buyer or its employees, or (iii) Buyer’s breach of this Agreement.

 

  1. 10.  Limitation of Liability. Notwithstanding anything to the contrary contained in the Agreement or any attachments thereto, Kateeva’s total aggregate liability for any and all claims, costs, expenses, penalties, or damages, arising under the Agreement, including without limitation, claims for delays in delivery or performance, shall in no event exceed the total purchase price of the Products giving rise to the claim, received by Kateeva under the Agreement (the “Limitation of Liability”). FURTHERMORE, IN NO EVENT SHALL KATEEVA BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE, COLLATERAL, EXEMPLARY, INCIDENTAL, LOSS PROFITS, LOSS OF REVENUE, ECONOMIC LOSSES, OR CONSEQUENTIAL DAMAGES OR LOSSES OF ANY KIND, REGARDLESS OF WHETHER ARISING FROM BREACH OF CONTRACT, WARRANTY, TORT, OR OTHERWISE.

 

  1. 11.  Compliance with Laws. Buyer shall at all times comply with all applicable federal, state and local laws and regulations, including export laws of the United States of America and other countries. Each party shall secure, at its own expense, such licenses and export and import documents as are necessary for each respective party to fulfill its obligations in accordance with this Agreement.

 

  1. 12.  Severability. A finding that any phrase, clause, or provision of the Agreement is invalid or unenforceable in any jurisdiction will not affect the validity or enforceability of any other phrase, clause or provision of the Agreement.

 

  1. 13.  Waiver. Any failure of Kateeva to enforce at any time, or for any period of time, any of the provisions set forth herein, shall not constitute a waiver of such provisions or in any way affect the validity of the Agreement.

 

  1. 14.  Force Majeure. Kateeva shall not be liable for any delay in delivery or for non-delivery, in whole or in part, caused by the occurrence of any event beyond the control either of Kateeva or Kateeva’s suppliers, including, but not limited to, war (whether an actual declaration thereof is made or not), sabotage, insurrection, riot, terrorism, both foreign and domestic, or other act of civil disobedience, act of a public enemy, failure or delay in transportation, act of any government or any agency or subdivision thereof, judicial action, labor dispute, accident, fire, explosion, flood, storm or other act of God, shortage of labor, fuel, raw material or machinery or technical failure where Kateeva has exercised ordinary care in the prevention thereof. Kateeva shall have sole discretion to allocate production and deliveries among Kateeva’s customers.

 

  1. 15.  Assignments. The rights and obligations stated herein shall not be assigned or delegated by Buyer, including by operation of law, without the written consent of Seller. Any change of control of Buyer shall be deemed to be an attempted assignment for purposes of this Agreement. Kateeva may assign this Agreement in whole or in part without consent of Buyer.
  2. Governing Law; Jurisdiction.This Agreement shall be governed by, construed and enforced in accordance with the laws of the State of California without giving effect to the principles of conflicts of law and without regard to the United Nations Convention on Contracts for the International Sale of Goods. Buyer hereby irrevocably submits to the jurisdiction of any California or federal court sitting in Alameda County, California over any action or proceeding arising out of or relating to this Agreement or the Products purchased hereunder and agrees that all claims in respect of such action or proceeding may be heard and determined in any such court. Buyer further agrees that venue for any such action shall lie exclusively with courts sitting in Alameda County, California, unless Seller and Buyer agree in writing to the contrary.

 

  1. 16.  Complete Agreement. This Agreement constitutes the complete understanding between the parties, superseding all prior representations and agreements. No addition to or modification of any provision herein shall be binding upon Kateeva unless such modification is made in writing and signed by a duly authorized representative of Kateeva.

 

EXHIBIT A –

KATEEVA EMBEDDED SOFTWARE USAGE LICENSE AGREEMENT

IMPORTANT: READ CAREFULLY

This license agreement (the “Agreement”) is a legal contract between You (as defined below) and Kateeva, Inc. (“Kateeva”) that governs Your use of any software, data, and other materials that was embedded and/or installed in this Kateeva tool by Kateeva (such software, data, and materials, individually and collectively, the “Software”; such tool, the “Kateeva Tool”).  By activating or otherwise using this Kateeva Tool, You (1) accept and agree to the terms and conditions of this Agreement on behalf of yourself, any entity(ies) on whose behalf you have so activated and/or used the Kateeva Tool, and the employees and contractors of such entity(ies) (collectively, “You”) and (2) acknowledge that such terms and conditions are binding on You.

IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, IMMEDIATELY CEASE THE ACTIVATION AND USE OF THIS KATEEVA TOOL.

  • License Grant. Subject to the terms and conditions of this Agreement and conditioned upon Your compliance with such terms and conditions, Kateeva hereby grants to You a terminable (in accordance with this Agreement), nonexclusive, non-assignable, non-transferable, and non-sublicensable license, under Kateeva’s copyrights in and to the Software to use, in accordance with Kateeva’s instruction manual(s), the Software solely in machine-readable and object code form and solely on this Kateeva Tool as located at the site it was initially installed by You and/or Kateeva.
  • Prohibition on Reverse Engineering. You and any and all third parties acting on your behalf may not reverse engineer and/or decompile the Software and/or this Kateeva Tool in any manner and/or for any purpose and any attempt by You and/or any such third party to do so shall immediately render the above license null, void, and without effect.
  • Reservation of Rights. Kateeva hereby disclaims, and nothing in this Agreement shall constitute or be construed or otherwise interpreted as Kateeva’ agreement, authorization or otherwise, to grant or otherwise provide for, (a) any implied license that, absent this disclaimer, may arise from the foregoing license grant and (b) except for those licenses and rights expressly granted in this Agreement, any right, license, authorization, release, immunity, forbearance, forfeiture, waiver, estoppel, exhaustion or otherwise under any intellectual property rights of Kateeva and its affiliates with respect to any of Your activities and/or those of any third party. No license or right is granted to You by implication, estoppel or otherwise, under any intellectual property rights now or hereafter owned or controlled by Kateeva and/or such affiliates except for those licenses and rights expressly granted in this Agreement.
  • Warranty Disclaimer. The Software is provided “as is” and without warranty of any type or kind. KATEEVA HEREBY DISCLAIMS ANY AND ALL WARRANTIES OTHERWISE ASSOCIATED WITH THE SOFTWARE, WHETHER STATUTORY, EXPRESS, OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
  • Limitation of Liability. IN NO EVENT WILL KATEEVA BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, STRICT LIABILITY, NEGLIGENCE OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOST PROFITS, OR COST OF PROCUREMENT OF SUBSTITUTE SOFTWARE, GOODS, OR SERVICES, EVEN IF INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL KATEEVA’S TOTAL LIABILITY UNDER OR ARISING OUT OF THIS AGREEMENT EXCEED TEN-THOUSAND UNITED STATES DOLLARS (USD 10,000). THE EXCLUSION OF DAMAGES AND LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION WERE AND ARE AN EXPRESS PART OF THE BARGAIN BETWEEN THE PARTIES.
  • Termination; Injunctive Relief. This Agreement and the license contained herein shall immediately terminate upon any breach of this Agreement by You. You acknowledge and agree that any breach of this Agreement and/or the license contained herein will cause Kateeva irreparable harm and, in the event that You breach or threaten to breach this Agreement and/or such license, Kateeva shall be entitled to immediate injunctive and other appropriate equitable relief in any court of competent jurisdiction.
  • Miscellaneous. This Agreement will be governed by and construed in accordance with the laws of the State of California without regard to or application of conflicts of law rules or principles and expressly excluding the United Nations Convention on Contracts for the International Sale of Goods.  Any legal action arising under this Agreement will be brought solely in the federal or state courts of the Northern District of California, and You hereby irrevocably consent to the exclusive jurisdiction and venue thereof. If for any reason a court of competent jurisdiction finds any material provision of this Agreement invalid or unenforceable, such provision will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect. Failure by Kateeva to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. This Agreement is the complete and exclusive agreement between Kateeva and You with respect to the subject matter hereof, superseding and replacing any and all prior and contemporaneous agreements, communications, and understandings (both written and oral) regarding such subject matter.

 

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