Subject to the express terms of any other valid agreement, you (“Purchaser”) have with Topcon Solutions, Inc. and its affiliates (“Topcon”), and subject to any applicable terms and conditions published from time to time on Topcon's websites, the following terms and conditions of sale (“Terms”) establish the basis on which the purchase of products, software or services (“Product(s)”) is made by and between Purchaser and Topcon. Every Product order placed with Topcon is conditioned on and confirms Purchaser's acceptance of these Terms. Any terms or conditions to the contrary appearing on orders or within Purchaser's terms and conditions of purchase or any other documentation shall be of no effect. No waiver, modification, or addition to these Terms, or any assignment of Purchaser's rights or obligations hereunder shall be valid or binding on Topcon unless in writing and signed by an authorized Topcon representative.
1. Product Orders. Orders are not binding on Topcon until accepted by Topcon via a Topcon Sales Order or otherwise. Orders accepted by Topcon cannot be cancelled for any reason without the prior written consent of Topcon. Software licensed by Topcon to Purchaser cannot be returned or refunded once password(s), options or OAFs have been provided. However, in some instances, provided the software has not been activated, Purchaser may be permitted to exchange the software within 14 days of purchase upon approval of Topcon.
2. Payment and Taxes. Unless otherwise agreed upon in writing, payment is due to Topcon upon delivery of the Product to Purchaser. Purchaser agrees to pay interest on all past due sums at the highest rate permitted by law. Notwithstanding such interest charges, Topcon may repossess the Products as a result of any non-payment. All payments by Purchaser to Topcon are non-refundable. Purchaser is responsible for all sales and other taxes associated with the sale of the Products.
3. Delivery Terms. Unless agreed otherwise, delivery will be F.C.A Topcon's facility. Title to Products passes from Topcon to Purchaser on shipment from Topcon's facility. Loss or damage occurring during shipping is Purchaser's responsibility. Prior to payment in full, Purchaser grants Topcon a security interest in the Products to secure the remaining purchase price and grants Topcon the authority to file financing statements and take other appropriate steps to further secure and perfect Topcon's interest in the Products. Prior to payment in full, Purchaser will insure the Products for their full retail value and hereby assigns to Topcon the insurance proceeds (up to the remaining purchase price) in the event of damage or destruction to the Products.
4. Installation/Trainings. Unless otherwise agreed upon in writing Topcon has no obligations with respect to installation or training relating to the use of any Products. The scope and related details of installations and training to be supplied by Topcon shall agreed upon in writing.
5. Intellectual Property. Any software embedded in the Products is licensed to Purchaser on a non-exclusive basis and only as an embedded part of the Products. Except for the limited right in the previous sentence, Purchaser is not granted any intellectual property right to Products or property of Topcon by entering into these Terms or by virtue of any of the Terms stated herein or otherwise. Purchaser shall not, nor allow any third party to, copy, decompile, disassemble or otherwise reverse engineer the Products, or attempt to do so. Purchaser is prohibited from, and shall prevent any third party from, removing, covering or altering any of Topcon's patent, copyright or trademark notices placed upon, embedded in or displayed by the Products or their packaging and related materials.
6. Warranty and Limitation of Liability.
AS A RETAILER/SUPPLIER TOPCON MAKES NO WARRANTIES, EXPRESSED OR IMPLIED REGARDING THE PRODUCTS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE. TOPCON DOES NOT ACCEPT LIABILITY BEYOND THE REMEDIES SET FORTH HEREIN, INCLUDING ANY LIABILITY FOR PRODUCTS NOT BEING AVAILABLE FOR USE, FOR LOST OR CORRUPTED DATA OR SOFTWARE, OR FOR PROVIDING SERVICES AND SUPPORT. TOPCON WILL NOT BE LIABLE FOR LOST PROFITS, LOSS OF BUSINESS, LOSS OF DATA, COST OF COVER OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY. THIS LIMITATION OF LIABILITY APPLIES TO ANY PRODUCTS, SERVICES AND/OR SUPPORT THAT PURCHASER PURCHASES OR RECEIVES FROM TOPCON. PURCHASER AGREES THAT FOR ANY LIABILITY WHATSOEVER, TOPCON IS NOT LIABLE OR RESPONSIBLE FOR ANY AMOUNT ABOVE THE AGGREGATE DOLLAR AMOUNT PAID BY PURCHASER TO TOPCON FOR THE PURCHASE OF PRODUCTS.
(a) NOTICE REGARDING PRODUCTS EQUIPPED WITH GPS AND WIRELESS TECHNOLOGY: Purchaser’s use of certain Products is dependent on the availability and coverage of wireless networks, telecommunications networks, positioning systems and the internet, which involve facilities that are owned and operated by third parties. Operation of the Products may depend on system availability and capacity, system and equipment upgrades, repairs, maintenance, modifications and relocation, Purchaser’s equipment, terrain, signal strength, structural conditions, weather and atmospheric conditions, governmental regulations, suspected fraudulent activities, acts of God and other conditions beyond Topcon's reasonable control. Topcon will not be responsible for the unavailability, termination or performance degradation of or limits in wireless networks, wireless coverage, positioning systems, the internet or any other third-party systems or facilities.
7. Confidential Information. These Terms, non-public information about the Products, and Topcon manuals are all confidential information of, and intellectual property belonging to, Topcon that Purchaser may not disclose to third parties without Topcon's written consent.
8. Export Control Law. The sale and delivery of Products may be subject to export regulations of the United States or other countries. Purchaser will not export or re-export directly or indirectly, any Product in violation of any law or regulation, (including, without limitation, any law or regulation of the United States Government or any other country or any agency), or to embargoed or otherwise restricted countries, or sell Products to companies listed on the denied persons list published by the United States Department of Commerce. Purchaser further warrants that it will not export or re-export any Product with knowledge that it will be used in the design, development, production or use of chemical, biological, nuclear or ballistic weapons. Laws and regulations change frequently. It is Purchaser's responsibility to know the law pertaining to export/import procedures in the country of destination of the Product. Purchaser will defend, indemnify and hold Topcon harmless against any liability (including attorneys' fees) arising out of Purchaser's failure to comply with the terms of this paragraph
9. Settlement of Disputes. These Terms are governed by California law (excluding conflicts of laws). Any dispute arising under, out of, or in any way related to these Terms shall be exclusively resolved by binding arbitration after written demand from one party to the other pursuant to the rules and regulations of the American Arbitration Association governing commercial transactions. The arbitration proceeding shall be conducted in Alameda County, California within 90 days of any demand for arbitration. Each party will pay one-half of the costs of the arbitration. Any arbitration decision or award shall be final and not subject to appeal. Neither party shall commence litigation against one another with respect to any dispute subject to arbitration hereunder, except as necessary to enforce this provision or an arbitrator's decision.
10. Notices. Any notice hereunder shall be in writing, shall be sent by certified mail or reputable overnight courier and shall be deemed to have been received and be effective on the day delivered to Purchaser at its main business address and to Topcon at both of the following addresses:
Topcon Solutions, Inc.
legalnotices_POC@topcon.com
297 Commonwealth Drive
Carol Stream, IL 60188