THESE TERMS AND CONDITIONS OF SALE ("TERMS AND CONDITIONS") OF UGOGO LLC OR ITS
AFFILIATES (“UGOGO”) SHALL APPLY TO SALES AND/OR LICENSE OF ALL PRODUCTS, SOFTWARE, AND RELATED SERVICES AS IDENTIFIED HEREIN. CUSTOMER ACKNOWLEDGES THAT IT HAS READ, UNDERSTOOD AND AGREED TO THESE TERMS AND CONDITIONS. CUSTOMER PURCHASE ORDERS CONTAINING ADDITIONAL OR INCONSISTENT TERMS AND CONDITIONS SHALL BE NULL AND VOID. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, ACCEPTANCE OR USE BY CUSTOMER OF ANY PRODUCTS, SOFTWARE, AND SERVICES SHALL CONSTITUTE AN IRREVOCABLE ACCEPTANCE OF THESE TERMS AND CONDITIONS.
UGOGO TERMS AND CONDITIONS OF SALE
(Effective from March, 2023)
1. SALE AND PURCHASE; LICENSE. Ugogo agrees to sell, and Customer agrees to purchase, the system(s), systems’ parts, printing materials and/or other consumables ("Consumables"), and other products and services described to Customer (collectively, the “Product(s)”), upon the terms and conditions set forth herein. Customer shall pay all applicable sales, use and other taxes or duties imposed on the sale, purchase or license of the Products and Software, together with all applicable transportation, insurance and handling charges. Ugogo hereby grants to the Customer a non-exclusive, non-transferable, revocable, and limited license to use the Ugogo provided software ("Software") and instructions, specifications, and similar written information that Ugogo makes available from time to time ("Documentation") in conjunction with the Product. Customer shall not directly or indirectly disassemble, decompile, or reverse engineer the Products or the Software.
2. PAYMENT AND CANCELLATION.
2.1. The Customer may not cancel or change an accepted purchase order without Ugogo’s prior written consent.
2.2. The Customer shall pay for the Products in accordance with written terms detailed by an authorized officer or designee of Ugogo and shall not be entitled to suspend payments, set-off or deduct any amount invoiced by Ugogo. In the event Customer is in default in respect of payment of any sum invoiced by Ugogo, then without prejudice to Ugogo’s other rights and remedies, (a) all outstanding sums shall immediately become due and payable to Ugogo, notwithstanding any credit terms granted to the Customer, (b) Ugogo may delay or suspend delivery or cancel any existing, pending or new orders and/or agreements of or with the Customer, and (c) Ugogo may retain any amount already paid to it by
2.3. Any amount not paid by Customer when due shall bear interest at the rate
of 1.5% (or the highest legal rate) per month.
3. DELIVERY, TITLE AND RISK OF LOSS.
3.1. The Products shall be made available Ex Works at Ugogo's designated facility and Ugogo will cooperate with Customer to facilitate shipping. Ugogo shall make reasonable efforts to adhere to the quoted dates, but may not fulfill all items in an order at one time, and does not make any guarantees in this regard. Ugogo will not be liable for any direct or indirect damage or loss that the Customer may incur resulting from a delay. The Customer will notify Ugogo within ten (10) calendar days following the delivery date of any discrepancies in the list of materials shipped or damages discoverable upon reasonable inspection. If no notification is received within such period, the Products shall be deemed
to be accepted in the quantity specified on the bill of lading or commercial invoice and in good condition and such acceptance will operate as a bar to claims against Ugogo.
3.2. Risk of loss shall pass to Customer when Ugogo makes the Product available to the freight carrier.
3.3. The Products and Software shall remain the property of Ugogo unless and until Ugogo receives all payments due for the Products.
4. INSTALLATION. Ugogo will install those Products or components thereof requiring
installation at Customer's designated facility provided Ugogo has received all applicable payments. Prior to installation, Customer shall, at its expense, complete all applicable site preparations for installation, as specified by the Documentation and applicable law, and shall thereafter provide such other assistance, services and facilities as may be requested by Ugogo to complete such installation. Customer shall
not handle, operate, open, dismantle or use the Products other than upon completion of installation thereof in the presence and under the supervision of authorized Ugogo technical personnel. Upon completion of installation, Ugogo will perform a standard test of the Products and present to the Customer a certificate of installation (“COI”).
5. TRAINING. During installation Ugogo shall provide qualified personnel of Customer with basic training in the use and operation of the Products according to the applicable Documentation.
6. PRODUCT WARRANTY AND INDEMNITIES
6.1. Ugogo warrants that for the period defined in writing by an authorized officer or designee of Ugogo beginning from the date of COI (the “Warranty Period”), each Product or Software shall substantially meet the Ugogo specifications. During the Warranty Period, Ugogo shall repair or replace, at Ugogo’s option, any Product found to contain defects in materials or workmanship with new or refurbished parts all in a workmanlike manner in accordance with standards set forth in applicable support Documentation. Ugogo shall re-acquire the ownership of any defective components that have been replaced. The Customer undertakes to return to Ugogo any replaced component, within thirty (30) days from the replacement thereof, and Ugogo will be entitled to invoice
the Customer for components not returned pursuant to the foregoing terms.
6.2. Exclusion of Warranties. Ugogo's obligations hereunder shall not apply to support, maintenance, repair or replacement necessitated in whole or in part by catastrophe, fault or negligence of the Customer, improper or unauthorized use including without limitation, use prior to receipt of a COI, use of Consumables unauthorized by Ugogo, installation, modification or repair other than by Ugogo or its authorized technical representatives, removal of the Products from the original installation site, unusual stress, power failure, deviation from recommended maintenance procedures, or failure to maintain
the prescribed conditions at the installation site or other failure to comply with applicable Documentation.
THE WARRANTIES SET FORTH IN SECTION 6.1 ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY (INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR AGAINST INFRINGEMENT). UGOGO DOES NOT WARRANT UNINTERRUPTED OR ERROR-FREE OPERATION. THE REMEDY PROVIDED IN SECTION 6.1 SHALL BE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY FAILURE OF UGOGO TO CONFORM WITH SUCH WARRANTY, AND CUSTOMER SHALL HAVE NO CLAIM, EXCEPT AS AFORESAID, AGAINST UGOGO, ITS AFFILIATES OR THE MANUFACTURER, SUPPLIER OR LICENSOR OF THE PRODUCTS, SOFTWARE OR RELATED SERVICES, WHETHER BASED IN CONTRACT, NEGLIGENCE, PRODUCTS LIABILITY, TRADE PRACTICES, OR OTHERWISE. REPAIR OR REPLACEMENT (OR REFUND, AS ELECTED BY UGOGO) IN THE MANNER PROVIDED ABOVE SHALL CONSTITUTE FULFILLMENT OF ALL LIABILITIES OF UGOGO WITH RESPECT TO THE QUALITY AND PERFORMANCE OF THE PRODUCTS, SOFTWARE OR RELATED SERVICES. CUSTOMER IS SOLELY RESPONSIBLE FOR SELECTION OF THE
PRODUCT(S) AND SERVICES TO ACHIEVE CUSTOMER’S INTENDED RESULTS OR FOR CUSTOMER’S PARTICULAR APPLICATIONS.
6.3. Limitation of Liability. REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT SHALL UGOGO, ITS AFFILIATES OR THE MANUFACTURER, SUPPLIER, OR LICENSOR OF THE PRODUCTS, SOFTWARE OR RELATED SERVICES BE LIABLE FOR DAMAGES RELATING TO SUCH OFFERINGS OR OTHERWISE ARISING OUT OF, RELATED TO, OR IN ANY WAY CONNECTED WITH THESE TERMS AND
CONDITIONS EXCEED THE ACTUAL AMOUNT CUSTOMER PAID FOR THE SPECIFIC PRODUCT(S), SOFTWARE OR RELATED SERVICES THAT DIRECTLY GAVE RISE TO THE DAMAGES CLAIMED, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, NEGLIGENCE, PRODUCTS LIABILITY, TRADE PRACTICES, OR OTHERWISE. IN NO EVENT SHALL UGOGO, ITS AFFILIATES OR THE UGOGO LICENSORS, MANUFACTURERS OR SUPPLIERS BE LIABLE FOR ANY LOSS OF REVENUE OR PROFITS
OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR RELIANCE DAMAGES OF ANY KIND EVEN IF UGOGO OR SELLER IS MADE AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
7. CONFIDENTIALITY; PROPRIETARY RIGHTS. Customer acknowledges that these Terms and Conditions (unless made publicly available), all Software, Documentation and all technical and manufacturing techniques, concepts, methods, specifications and information relating to the Products, Software and Documentation shall remain the sole and exclusive property of Ugogo. Customer agrees to hold all such Confidential Information in confidence and not to disclose the Confidential Information to any third party, except to those employees of Customer who must have access to the Confidential Information in order to use the Products, Software and Documentation in accordance with these Terms and Conditions. Upon execution of a non-disclosure agreement satisfactory to Ugogo, the confidential matters may be disclosed to Customer’s consultants who have been retained to perform services in connection with the Products. Customer shall maintain all proprietary markings and legends on all Products, Consumables, Documentation, and Software, and will not make use of any trademark or trade name of Ugogo without the prior written consent of Ugogo. Customer’s obligations under this Section 7 shall survive indefinitely.
8. INFRINGEMENT INDEMNITY. Subject to the restrictions identified below, Ugogo shall assume responsibility for any suit or proceeding brought against Customer, insofar as it is based on a third-party claim that an unaltered Product or Software or any part thereof furnished pursuant to these terms and conditions infringes upon any trademark or patent; provided, however, that Ugogo shall have been given immediate notice in writing of the assertion of any such claim and of the threat or institution of
any such suit or proceeding, and all authority and assistance required for the investigation, preparation, defense and settlement of same. Ugogo, at its election, may defend any such suit or proceeding, substitute non-infringing equipment or software for the Product or Software alleged or determined to infringe any trademark or patent as aforesaid, obtain license rights for use by Customer and/or refund to Customer the
purchase price paid for the infringing Product less depreciation of twenty percent (20%) per year from the date of delivery. This Section 8 states Customer’s entire remedy, and Ugogo's entire liability, for any such infringement or claim thereof. Ugogo shall have no liability for any infringement or claim thereof to the extent it is based upon: (a) the use of any equipment or software not manufactured by Ugogo or its
affiliates or modified by Customer without obtaining Ugogo’s prior written authorization, (b) the use of any Product furnished hereunder with any other equipment, device, software or data not supplied by Ugogo, (c) the result of Ugogo compliance with any of Customer’s designs or specifications, (d) if any of the circumstances giving rise to one or more Warranty Exclusions under Section 6.2 exist, or (e) Customer’s continued use of any Product after receipt of notice of infringement. Without the prior written consent of Ugogo, Customer will not incur any cost or expense in connection with such claim, suit or proceeding or make any admission, or enter into any agreement, in connection therewith.
9. SECURITY INTEREST. So long as any amounts remain to be paid by Customer, Ugogo maintains a lien against, and Customer hereby grants to Ugogo a security interest in, the Products, including all proceeds related thereto or derived therefrom.
10. EXPORT COMPLIANCE. Customer acknowledges that the Products contain technology which may be subject to certain export regulations of the United States. Customer agrees not to export the Products without obtaining the appropriate licenses or approvals in compliance with such regulations.
11. NOTICES. All notices and communications between the parties shall be in writing and sent by (i) certified mail, return receipt requested, (ii) overnight/express courier, or (iii) facsimile (with original to follow) to the last known address of such party (addressed in the case of Ugogo to the attention of the President), or to such other address(es) of which notice is given in accordance with this section, and shall be deemed given when received.
12. ENTIRE AGREEMENT; MODIFICATIONS. These Terms and Conditions contain the entire agreement between the parties and supersedes all prior and contemporaneous representations, promises, statements, agreements and understandings, written or oral, regarding the subject matter hereof. These Terms and Conditions may not be modified or amended except in a writing signed by both parties. In no event shall a purchase order issued by Customer amend, modify or supplement any of these Terms and Conditions.
13. JURISDICTION. These Terms and Conditions shall be governed by and construed under the laws of the Commonwealth of Massachusetts. Any action brought by Customer against Ugogo, under these Terms and Conditions or otherwise, shall be brought only in a competent court sitting, respectively, in Suffolk or Essex Counties. Customer hereby consents to the jurisdiction of such court(s) and waives any applicable right to a jury trial. Customer shall be liable for all costs incurred by Ugogo (including attorneys’ fees) in connection with (i) the collection of any past due amounts owed by Customer, or (ii) any action in which Ugogo is the prevailing party. The United Nations Convention for the Sale of Goods
shall not apply.
14. GENERAL. Customer’s rights or obligations under these Terms and Conditions shall be binding upon and inure to the benefit of each party’s permitted successors and assigns. Ugogo may terminate this Agreement in the event of Customer’s breach of any term hereof. In the event of any insolvency proceeding by or against Customer, Ugogo may cancel all or any part of these Terms and Conditions. The
unenforceability of any provision of these Terms and Conditions shall in no way affect the enforceability of any other provision. A waiver by Ugogo of any provision of these Terms and Conditions must be in writing to be valid by an authorized officer of Ugogo.