PLEASE READ THIS DOCUMENT CAREFULLY! IT CONTAINS VERY IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND EXCLUSIONS. THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS. IF YOU DO NOT AGREE WITH THESE TERMS, DO NOT ORDER/KEEP YOUR PRODUCT. THE FINAL PLACEMENT AND COMPLETION OF BUYER’S ORDER IS CONTINGENT ON BUYER’S FULL ACCEPTANCE OF THE TERMS AND CONDITIONS IN THIS AGREEMENT.
NOTE: These Consumer Terms of Sale apply to direct purchases made from CoinTerra by phone, the internet or electronic mail.
• Offer and Acceptance. These Terms of Sale (“Agreement”) apply to your purchase of products and/or services and support (“Product”) sold by CoinTerra, including its affiliates or subsidiaries to consumers for their own use (not for resale). CoinTerra offers to sell and deliver Products in accordance with the terms and conditions set forth herein. Acceptance of this offer is expressly limited to such terms. By placing your order for Product, you accept and are bound to the terms of this Agreement. Do not order if you do not agree to be bound by this Agreement. CoinTerra hereby objects to and rejects any additional or different terms proposed by Buyer, including those contained in Buyer’s purchase order, unless CoinTerra expressly agrees to such terms in writing. By placing your order
• Payment Terms; Orders; Quotes; Interest. Terms of payment are within CoinTerra’s sole discretion and unless otherwise agreed to by CoinTerra, non-refundable payment must be received by CoinTerra prior to CoinTerra’s acceptance of an order. Payment for the products will be made by wire transfer or some other prearranged payment method unless credit terms have been agreed to by CoinTerra. CoinTerra is not responsible for pricing, typographical or other errors in any offer by CoinTerra and reserves the right to cancel any orders arising from such errors.
• Shipping Charges; Taxes; Title; Risk of Loss. Shipping, handling and tax are additional unless otherwise expressly indicated at the time of sale. Products are delivered to you Ex Works in accordance with INCOTERMS 2010. This means title to products passes from CoinTerra to you upon shipment. Loss or damage that occurs during shipping by a carrier is your responsibility. You must notify CoinTerra within 21 days of the date of shipment if you believe any part of your purchase is missing, wrong or damaged. Unless you provide CoinTerra with a valid and correct tax exemption certificate applicable to your purchase of Product and the Product ship to location, you are responsible for sales and other taxes associated with the order. Shipping and delivery dates are estimates only.
• Warranties. CoinTerra warrants that its Product(s) will, at the time of shipment and for a period of thirty (30) days thereafter, be free from defects in material and workmanship, be free of all liens and encumbrances, and will conform to CoinTerra’s approved specifications. Buyer must advise CoinTerra in writing of any claims within the warranty period, obtain CoinTerra’s return authorization, and return the Product(s) to a facility or location directed by CoinTerra. If the Product(s) are not as warranted, CoinTerra shall, at CoinTerra’s option, either refund the purchase price of the Product(s) or provide the same or equivalent replacement Product(s), and shall reimburse Buyer for any commercially reasonable cost of transporting the non-conforming Product(s). In no event, however, shall CoinTerra be responsible for any defects that are caused by neglect, misuse or mistreatment by an entity other than CoinTerra, including improper installation, testing or operation, handling during or after shipment, or for any components that have been altered, modified, or overclocked in any way by an entity other than CoinTerra. ,or for any other cause not attributable to defective workmanship or failure to meet specifications on the part of CoinTerra. This warranty shall not be expanded, and no obligation or liability will arise, due to technical advice or assistance, computerized data, facilities or services CoinTerra may provide in connection with Buyer’s purchase. CoinTerra provides no warranty for CoinTerra Product(s) purchased through unauthorized sales channels. CoinTerra warrants replacement Product(s) for the remaining term of the warranty on the originally delivered Product. THIS WARRANTY EXTENDS TO BUYER ONLY AND MAY BE INVOKED ONLY BY BUYER FOR ITS CUSTOMERS. COINTERRA WILL NOT ACCEPT WARRANTY RETURNS FROM BUYER’S CUSTOMERS OR USERS OF BUYER’S PRODUCT(S). THIS WARRANTY DOES NOT APPLY TO DEFECTS ARISING AS A RESULT OF BUYER’S DESIGN OR FORMULA. THE REMEDIES SET FORTH ABOVE ARE COINTERRA’S EXCLUSIVE LIABILITY AND BUYER’S EXCLUSIVE REMEDIES FOR ANY BREACH OF WARRANTY OR NON-CONFORMITY OF THE PRODUCT(S). THE WARRANTY SET FORTH ABOVE IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE WARRANTIES FOR MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY, WHICH ARE HEREBY EXPRESSLY DISCLAIMED. CoinTerra reserves the right to make any changes on this website or the products and/or the programs described at any time without notice. Applicable law may not allow the exclusion of implied warranties, so the above exclusion may not apply to you.
• Software. In the absence of a separate software agreement between Buyer and CoinTerra, the following terms and conditions apply to CoinTerra’s licensed programs:
• Licensed programs include computer software and firmware in all forms. Title to the licensed programs delivered by CoinTerra to Buyer hereunder remains vested in CoinTerra or CoinTerra’s licensor and cannot be assigned or transferred without CoinTerra’s written authorization. Buyer agrees to respect and not to remove any copyright, trademark, confidentiality or other proprietary notice, mark or legend appearing on the software, and not to reverse engineer, disassemble, decompile, or modify any licensed programs.
• For standalone licensed programs provided in connection with the purchase of Product(s) from CoinTerra, CoinTerra grants to Buyer an individual, personal, non-transferable, non-exclusive license, without the right to sublicense, to use the standalone licensed programs for its own internal use in a single computer system to evaluate, demonstrate, test and/or configure Product(s) for CoinTerra authorized applications or to design Product(s) for manufacture by CoinTerra only. Buyer shall faithfully reproduce all of CoinTerra’s copyright notices and other proprietary legends. Buyer agrees not to disclose, in any form, the standalone licensed programs or any portion thereof to any person other than employees of Buyer without the express written permission of CoinTerra.
• For licensed programs embedded in Product(s), CoinTerra grants Buyer a non-transferable, non-exclusive license to use such embedded licensed programs in the CoinTerra authorized operation of Product(s) on which such programs are embedded and subject to the terms and conditions herein. Buyer may transfer its license to use the embedded licensed programs to a third party only in conjunction with Buyer’s sale of any CoinTerra Product(s) or Buyer product on which the CoinTerra Product(s) with embedded licensed program is installed. Buyer’s transfer of the embedded licensed program as authorized herein must be under terms consistent with and no less stringent than the terms set forth in this document. Except as specifically permitted in this document, embedded licensed programs may not be sublicensed, transferred or loaned to any other party without CoinTerra’s prior express written consent.
• If Buyer is in default of any of the terms and conditions of this document, the rights granted herein by CoinTerra may be terminated on one (1) month’s prior written notice. Within one (1) month after termination, Buyer will furnish to CoinTerra a certificate certifying that the original and all copies of the licensed programs and derivative versions thereof, in whole or in part and in any form, have been destroyed.
• EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SOFTWARE IS PROVIDED “AS IS” AND “WITH ALL FAULTS”. COINTERRA EXPRESSLY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SOFTWARE, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF NONINFRINGMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTY OF CONTINUED OR UNINTERRUPTED OPERATION OF THE SOFTWARE LICENSED HEREUNDER.
• Changed or Discontinued Product. CoinTerra’s policy is one of ongoing update and revision. CoinTerra may revise and discontinue Product at any time without notice to you and this may affect information saved in your online “cart.” CoinTerra will ship Product that has the functionality and performance of the Product ordered, but changes between what is shipped and what is described in a specification sheet or catalog are possible.
• Export Conditions. If, at the time or times of CoinTerra’s performance hereunder, an export license is required for CoinTerra to lawfully export Product(s) or technical data, then the issuance of the appropriate license to CoinTerra or its subcontractor shall constitute a condition precedent to CoinTerra’s obligations hereunder. You agree to comply with all applicable export laws, regulations and orders, including, but not limited to, all such laws, regulations and orders of the United States of America. Specifically, but without limitation, you agree that you will not resell, re-export or ship, directly or indirectly, any Product(s) or technical data in any form without obtaining appropriate export or re-export licenses. You acknowledge that the applicable export laws, regulations and orders may differ from item to item and/or time to time.
• Resale Prohibited. Unless expressly authorized in writing by CoinTerra, you shall not resell Product(s). If you breach the terms of this paragraph, in addition to CoinTerra’s cancellation rights, you agree to fully indemnify CoinTerra, its officers, employees and distributors from any and all resulting liability, including attorneys’ fees and costs.
• All Sales Final. All sales are final and non-refundable except as expressly provided in this Agreement. No cancellation or rescheduling of orders by Buyer will be accepted.
• Excusable Delay. CoinTerra shall not be liable for any delay or failure to perform due to any cause beyond its control or the control of its suppliers or subcontractors such as, for example, strikes, acts of God(or lack there of), acts of extra terrestrials, acts of Buyer, interruption of transportation or inability to obtain the necessary labor, materials or facilities. Delivery schedules shall be considered extended by a period of time equal to the time lost because of any excusable delay. In the event CoinTerra is unable wholly or partially to perform because of any such cause it may cancel its acceptance of Buyer’s order without liability to Buyer.
• Limitation of Liability. IN NO EVENT SHALL COINTERRA’S AGGREGATE LIABILITY FOR ANY BREACH, WARRANTY, INDEMNITY OR OTHER OBLIGATION OR LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE SALE OF PRODUCT(S) OR SERVICES HEREUNDER OR THE USE OF ANY COINTERRA PRODUCT PROVIDED HEREUNDER, EXCEED THE PURCHASE PRICE OF THE PARTICULAR PRODUCT(S) OR SERVICES WITH RESPECT TO WHICH LOSSES OR DAMAGES ARE CLAIMED.
IN NO EVENT SHALL COINTERRA BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL
DAMAGES OF ANY NATURE WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF USE AND LOSS OF GOODWILL), REGARDLESS OF WHETHER COINTERRA HAS BEEN GIVEN NOTICE OF ANY SUCH ALLEGED DAMAGES, AND REGARDLESS OF WHETHER SUCH ALLEGED DAMAGES ARE SOUGHT UNDER CONTRACT, TORT OR OTHER THEORIES OF LAW. BUYER UNDERSTANDS AND AGREES THAT THE FOREGOING LIABILITY LIMITATIONS ARE ESSENTIAL ELEMENTS OF THIS CONTRACT AND THAT IN THE ABSENCE OF SUCH LIMITATIONS, THE MATERIAL AND ECONOMIC TERMS OF THIS CONTRACT WOULD BE SUBSTANTIALLY DIFFERENT.
• Contingencies. CoinTerra shall not be in breach of this contract and shall not be liable for any non-performance or delay in performance if such non-performance or delay is due to a force majeure event or other circumstances beyond CoinTerra’s reasonable control, including but not limited to shortages of labor, energy, fuel, machinery or materials, technical or yield failures, war, civil unrest, any government act, law or regulation, including any judicial order or decree, any communication or power failure, labor dispute, natural disaster, fire, flood, earthquake, explosion, terrorist act or Act of God. In the event of a shortage of components, CoinTerra may, at its sole discretion, allocate component production and deliveries.
• Governing Law. The terms of this document shall be interpreted, construed and governed in all respects in accordance with the laws of the state of Texas, U.S.A., excluding its conflict of laws provisions. Neither the UN Convention on Contracts for the International Sale of Goods (Vienna, 1980), nor the Uniform Computer Information Transactions Act (UCITA) shall not apply to any purchases made hereunder.
• Personal Jurisdiction. Any and all actions arising out of or related to this Agreement shall be resolved by a court located in Travis County, Texas and Buyer agrees to submit to the personal jurisdiction of the courts located within Travis County, Texas for the purposes of litigating any such actions.
• Dispute Resolution. CoinTerra and Buyer will attempt to settle all claims (other than claims relating to intellectual property issues) through negotiation or non-binding mediation prior to commencement of any formal proceedings.
• Arbitration. Notwithstanding the “Dispute Resolution” clause above, should CoinTerra and Buyer fail to reach an agreement or settlement via negotiation or non-binding mediation, Buyer agrees that ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN BUYER AND COINTERRA, its agents, employees, principals, successors, assigns, affiliates, subsidiaries (collectively “CoinTerra”) arising from or relating in any way to your purchase of Product, this Agreement, its interpretation or the breach, termination or validity thereof, the relationships which result from this Agreement (including relationships with third parties who are not signatories to this Agreement), CoinTerra’s advertising or any related purchase SHALL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION IN THE CITY OF AUSTIN, TEXAS. The arbitrator shall have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision including any unconscionability challenge or any other challenge that the arbitration provision or the Agreement is void, voidable or otherwise invalid. The arbitration shall be administered by one (1) arbitrator selected under the rules of the American Arbitration Association (“AAA”). The arbitrator shall be selected from the American Arbitration Association (“AAA”) or the Judicial Arbitration and Mediation Services, Inc. (“JAMS”) (or a substitute forum if both are unavailable). The arbitration shall be conducted on a confidential basis pursuant to the Commercial Arbitration Rules of the AAA. Arbitration proceedings shall be governed by this provision and the applicable procedures of the selected arbitration administrator, including any applicable procedures for consumer-related disputes, in effect at the time the claim is filed. The arbitration proceeding will be limited solely to the individual dispute or controversy between Buyer and CoinTerra. All arbitrations shall be conducted and related correspondences be written using the English language.
You agree to an arbitration on an individual basis. In any dispute, NEITHER BUYER NOR COINTERRA SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER BUYERS, OR ARBITRATE OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision shall be severed and the remaining arbitration terms shall be enforced, but in no case shall there be a class arbitration.
The arbitrator shall be empowered to grant whatever relief would be available in court under law or in equity. This transaction shall be governed by the Federal Arbitration Act 9 U.S.C. sec. 1-16 (FAA). Any award of the arbitrator(s) shall be final and binding on each of the parties, and may be entered as a judgment in any court of competent jurisdiction. Information on AAA or JAMS and their applicable rules are available at the following numbers and URLs: American Arbitration Association, (800) 778-7879, www.adr.org; JAMS, (800) 352-5267, www.jamsadr.com
• Other Miscellaneous Terms.
Waiver. Failure by CoinTerra to exercise or enforce any rights hereunder shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement thereof at any time or times thereafter.
Notices. Any notice hereunder shall be deemed to have been duly given if sent by pre-paid first class post to the party concerned at its last known address.
Amendments. No modifications to this document shall be binding unless expressly agreed to in writing by CoinTerra.
Severability. If any provision of this Agreement shall be deemed invalid or unenforceable, it shall be modified to the extent necessary to cure such invalidity or unenforceability, provided, however, that if such modification is not possible without creating a conflict with any other material term or condition of this Agreement, such invalid or unenforceable provision shall be deemed stricken from this Agreement.
No Assignment. Neither party may assign its rights and obligations hereunder without the prior written consent of the other, though CoinTerra is permitted to subcontract all or part of its obligations hereunder as it deems necessary. Any unauthorized assignment shall be null and void.
Disclaimer for Critical Applications. Product(s) sold under these terms and conditions are not designed, intended or authorized for use as a critical component in life support or safety devices or systems, or any FDA Class 3 medical devices or medical devices with a similar or equivalent classification in a foreign jurisdiction, or any devices intended for implantation in the human body. Sale for such use is subject to CoinTerra’s advance written authorization for product use and a separate indemnification agreement signed by Buyer. Buyer agrees to indemnify, defend and hold harmless CoinTerra, its directors, officers, employees, representatives, agents, subsidiaries, affiliates, distributors, and assigns, against any and all liabilities, losses, costs, damages, judgments, and expenses, arising out of any claim, demand, investigation, lawsuit, regulatory action or cause of action arising out of or associated with any unauthorized use, even if such claim alleges that CoinTerra was negligent regarding the design or manufacture of the Product(s).
Entire Agreement. This document constitutes the entire Agreement. This Agreement supersedes all other communications.