The following terms and conditions apply to transactions involving the sale or lease of equipment or provision of maintenance services by ZAPS Technologies, Inc. (the “Company”) to its customers.
1. Price and Payment Terms.
1.1 Price. The transaction pricing will be covered in a quote document provided by the Company.
1.2 Shipping Terms. All equipment will be shipped FOB Corvallis, OR U.S.A. or other designated shipping point. Upon shipment, customer assumes the entire risk of loss or damage to equipment whether resulting from fire, theft, governmental action, or any other cause whatsoever, whether or not covered by insurance.
1.3 Payment Terms. Payment terms will also be included in the quote document. Should the payment or any part thereof not be paid by the due date, customer shall be obligated to pay the Company interest on arrears at the rate of 1.5% per month (or the maximum permitted by law if lower) from the due date until the arrears are paid and Company shall have all other remedies at law or in equity to collect the amounts owed. For equipment sale transactions, upon payment of the purchase price in full, Company will deliver to customer title to equipment free and clear of all liens and encumbrances except those imposed by customer.
1.4 Taxes. Customer shall timely pay all charges and taxes (Federal, state and local) which may now or hereafter be imposed or levied upon the sale, purchase, ownership, rental, leasing possession or use of the equipment and maintenance services provided by Company excluding, however, all taxes based on Company’s net income.
2. Site Preparation and Commissioning
Company shall supply written site preparation and commissioning requirements, if any, for its equipment. Customer shall be responsible for site preparation and commissioning in accordance with such requirements. Before delivery of the equipment, Company shall have the option to conduct an inspection of the site preparation prior to delivery.
3. Delivery and Inspection
Upon delivery of the equipment, customer shall inspect same, and if equipment is in good operating condition, customer shall confirm acceptance in writing. Unless customer, within a reasonable time (not to exceed two weeks) following delivery, gives Company written notice specifying a particular defect in the equipment, it shall be conclusively presumed, as between Company and customer, the equipment is in good operating condition.
4. Warranty and Support
4.1 Warranty. For a period of one year after delivery (“Warranty Period”), Company shall warrant its equipment to be free from defects in workmanship and materials under normal application and use. During the Warranty Period, Company will repair the equipment to keep it in, or restore it to, good working order. These warranties are subject to the Customer Support guidelines, Customer Responsibilities and Conditions Precedent set forth in the remainder of this section.
4.2 Customer Support.
4.2.1. The Company will offer technical product support by telephone and email from 9 a.m. until 5 p.m. Pacific Time, Monday through Friday except for holidays to answer questions regarding use and maintenance of the equipment.
4.2.2. Expanded “on call” telephone support will be available on an emergency basis at anytime. Access to the telephone “on call” support shall be limited to two (2) of customer’s designated employees who are familiar with the use of the equipment. The Company reserves the right to limit this support.
4.2.3. The Company will provide written instructions covering equipment operating, maintenance and repair information.
4.2.4. The Company may provide on-site technical product support to respond to equipment issues it determines cannot be handled by telephone support. If on-site support is deemed necessary, then Company may take up to five business days in continental U.S. and Hawaii to arrive on site.
4.2.5. Expedited on-site technical product support may be offered by Company to customer for an additional charge if desired.
4.3 Customer Responsibilities. Customer shall (a) provide a suitable operating environment for the equipment as reasonably specified by Company; (b) provide routine operating maintenance and comply with other instructions in operating manuals; (c) grant Company access to its facilities and equipment as necessary for Company to perform maintenance and repairs; (d) remove or make backup copies of customer’s data, information, and programs stored on the equipment presented for service; and (e) inform Company of changes in the equipment’s location.
4.4 Conditions Precedent. Company shall bear no responsibility for correcting, curing, or otherwise remedying any nonconformity or defect in the equipment it supplies (or any other breach with respect to the condition or operation of the equipment) if: (a) the Customer does not comply with its responsibilities in paragraph 4.3 above; (b) the equipment is not maintained and operated under normal conditions by qualified personnel in accordance with applicable operating manuals; (c) the equipment incorporates spare or replacement parts other than those purchased from Company; (d) the equipment has been altered, abused, misused, or taken apart; (e) the nonconformity or defect has not been reported to Company within five (5) days of the occurrence; (f) if the nonconformity or defect is caused by electrical equipments or software not provided by Company; (g) damage is caused by moving, service or modification of Company supplied equipment or connection of the equipment to other equipment, by customer or a third party, without Company’s consent; or (h) the nonconformity or defect has arisen as a result of damage to the equipment occurring subsequent to shipment, unless, in any such case, such event or condition directly results from the fault or negligence of Company.
4.5 EXCEPT AS SPECIFIED IN SECTION 4.1 ABOVE, COMPANY MAKES NO WARRANTY OF ANY KIND TO CUSTOMER OR TO ANY THIRD PARTY WITH RESPECT TO ITS EQUIPMENT. COMPANY SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY NOT STATED HEREIN.
4.6 Remedy. As Customer’s exclusive remedy for any nonconformity or defect in its equipment (or any other breach with respect to the condition or operation of the equipment) for which Company is responsible, Company shall, during the Warranty Period, provide reasonable efforts to correct or cure such nonconformity or defect.
5. Limitation of Liability
The liability of Company to customer for any claim whatsoever related to Company equipment or service, including any cause of action sounding in contract, tort, or strict liability, shall not exceed the payments made by Customer for the equipment or service. In no event shall Company be liable to customer for any loss of profits; any incidental, special, exemplary, or consequential damages; or any claims or demands brought against customer by any other party, even if Company has been advised of the possibility of such claims or demands.
6. Proprietary Rights
6.1 Ownership. Company has and will at all times retain sole and exclusive ownership of all patents, copyrights, trademarks, trade names, logos, designations related to Company supplied equipment , in whole and in part, and all copies thereof, including but not limited to all modifications thereof, whether or not the equipment is incorporated in or combined with any other product.
6.2. Modifications. Customer agrees not to modify Company supplied equipment in any manner without the prior written consent of Company nor permit any third party to do so.
6.3. No Reverse Engineering. Customer agrees not to disassemble, decompile, or reverse engineer Company supplied equipment or to permit any third party to do so.
6.4 Copyright Notices. Customer will not delete or in any manner alter the copyright, trademark, and other proprietary rights notices of Company or its vendors appearing on or in the equipment as delivered to Customer.
6.5 Data Rights. Customer agrees to and grants to Company the right to use customer data in any manner that does not identify the customer.
7.1 Confidential Information of Company.
(a) All documentation and information, including without limitation Company supplied equipment drawings, techniques, algorithms and processes and technical and marketing information which are supplied by Company to customer (“Confidential Information”) are the trade secrets of Company and will be treated confidentially by customer and its employees and will not be disclosed by customer without Company’s written permission. Customer will not use, modify, reproduce, remanufacture or in any way duplicate all or any part of the Confidential Information without Company’s written approval. Customer agrees to protect the Confidential Information with at least the same standard of care and procedures, but no less than reasonable care, which it uses to protect its own trade secrets and proprietary information of similar importance.
(b) Customer agrees that all of its employees, consultants or agents having access to Confidential Information will execute confidentiality agreements with customer that imposes confidentiality obligations on such employees, consultants or agents. If customer ceases use of the equipment, Customer shall return all Confidential Information to Company or at Company’s option customer shall destroy all Confidential Information and provide written certification of such destruction executed by an officer of customer.
(c) Information will not be considered to be Confidential Information if it: (i) is already or otherwise becomes publicly known through no fault of customer; (ii) is lawfully received from third parties without restriction on disclosure and without breach of non-disclosure obligation; or (iii) can be shown by customer to have been independently developed by itself prior to such disclosure without use of Confidential Information.
7.2 Confidentiality. The Company and customer shall not disclose the terms and conditions of their business dealings; provided however, that either party may disclose such terms and conditions (a) when required by law, and (b) to its respective professional advisors and financial professionals. Either party may divulge privately to third parties that a business relationship exists between the Company and customer.
8. Default The following shall be considered events of material default:
(a) Any sum of money owed by customer is not paid when due and remains unpaid for a period of ten (10) business days or more after notice of default from Company;
(b) Either party commits a breach of any confidentiality requirement described above and, after receiving notice of the breach from the other party, fails to take within a reasonable time steps reasonably adequate to prevent a similar breach;
(c) Any act where either becomes insolvent, is a party to a bankruptcy or receivership, or makes a general assignment for the benefit of creditors; and
(d) Any material breach of any provision of the terms and conditions described herein or in the quote document (other than those addressed above) that occurs and within 10 business days after notice of the breach, is not cured or, if cure requires more than 10 business days, reasonable progress toward cure has not been made.
In the event of material default, the nondefaulting party shall have the right to immediately terminate the related transaction by giving written notice of termination. If customer is the defaulting party and has not received title to the equipment, customer shall return the equipment and all related documentation to Company.
Waiver by Company of any breach of any provision of these terms and conditions by customer shall not be deemed a waiver of future compliance therewith and such provision shall remain in full force and effect. Neither party will be responsible for delays or failures resulting from acts beyond its control.
9. Transfer of Equipment
Customer shall not transfer ownership Company supplied equipment or any part thereof without Company’s prior written consent. As a condition to any such transfer, the customer will require the transferee to provide written acceptance of the terms and conditions set forth herein in a form that is acceptable to the Company.
Customer assumes liability for and shall indemnify and hold harmless Company from and against all losses, damages, claims, actions, expenses and disbursements, including legal expenses, in any way relating to or arising from its use of Company supplied equipment.
11.1 The Company and its customers will attempt to settle any dispute arising out of or relating to their business dealings through cooperation and negotiation in good faith. Either party may initiate such negotiations at any time upon written request to the other. Either party may demand that the dispute be submitted to mediation, by written notice to the other party. When such a demand is made, the parties shall within ten (10) days jointly make arrangements for the mediation of the dispute with a mutually agreeable trained business mediator. If the dispute has not been resolved within thirty (30) days of any written demand for mediation, the dispute shall be submitted to the mutually agreed upon arbitration service for binding arbitration. The arbitration shall be conducted within the State of Oregon, in accordance with the mutually agreed upon arbitration services then current rules for arbitration of business disputes. Judgment upon the award rendered by the arbitrator may be entered by any court having jurisdiction thereof. The arbitrator is not empowered to award punitive damages, and each party hereby irrevocably waives any right to recover such damages hereunder. Nothing included in these terms and conditions will prevent either party from resorting to judicial proceedings for the purpose of seeking injunctive relief or to avoid the barring of the claim under the applicable statute of limitations. The terms and conditions set forth herein and all transactions between the Company and its customers shall be governed, in all respects, by the law of the State of Oregon, wherein it is deemed executed. Customer agrees that the State, and Federal Courts which sit in the State of Oregon, shall have jurisdiction of all controversies and disputes arising hereunder and customer submits to the jurisdiction of such State and Federal Courts of Oregon and consents to service of process, as same may be authorized under the laws of the State of Oregon.
11.2 In any arbitration or litigation relating to their business dealings, the prevailing party will be entitled to recover all reasonable expenses of litigation, including attorney fees and on any appeal or petition for review and interest at the legal rate, from the date such expenses are incurred.
11.3 Any notice required or permitted under these terms and conditions shall be given in writing and shall be deemed effectively given upon personal delivery or upon deposit with the United States Postal Service, by registered or certified mail, to a current officer of the Company or customer.
11.4 Company and customer waive any and all right to a trial by jury in any action or proceeding relating in any way to their business dealings.
11.5 If any of the terms and conditions set forth herein are in conflict with any statute or rule of law in any jurisdiction wherein it may be sought to be enforced, then such terms and conditions shall be deemed null and void to the extent of such conflict, but without invalidating the remaining terms and conditions herein.
11.6 No purchase order, invoice nor memorandum will be effective to amend or supplement these terms and conditions unless signed by an authorized representative of both parties.
Download a PDF of the ZAPS Limited Warranty