Purchase Terms and Conditions
PRICES AND PAYMENT: Prices are those set out in the order to which these Terms and Conditions are attached. Prices are in dollars unless otherwise expressly indicated. Prices do not include any taxes, customs duties etc. mBreath has the legal obligation to pay or collect any such taxes, the appropriate amount shall be paid by Purchaser. Purchaser will pay the applicable purchase price in accordance with the schedule elected on the Order. All payments are to be made in dollars. If at any time Purchaser is delinquent in payment, mBreath may, in its discretion, withhold shipment or cancel any Incentives set forth on the order.
SHIPMENT Shipment shall be as indicated on the face of the Pre-Order. Any specified shipment or delivery dates are estimates on Shipment shall be mBreath’s designated warehouse.
TITLE, RISK OF LOSS: Title to hardware and risk of loss of all Products passes from mBreath to Purchaser upon the Products being made available to a common carrier or Purchaser’s designee at the Products’ point of manufacture or distribution.
PRODUCT RETURNS: Products with defects covered by the applicable warranty as specified in the documentation that accompanies the Product may be returned for remedy under such warran Prior to returning any Product, Purchaser must obtain a valid Return Materials Authorization (“ RMA”) number from mBreath, and unless otherwise specified, an issued RMA number shall expire and is no longer valid after sixty (60) days from the date of issuance. WARRANTY mBreath warranties that the hardware comprising the Product will be free from defects in workmanship and materials for a 360-days period following date of shipment (the “Warranty Period”). Purchaser’s exclusive remedy and mBreath’s sole obligation and liability under this warranty is to promptly repair or (at mBreath’s option) replace any failed component returned by Purchaser in accordance herewith because of defects in workmanship or material. These warranties do not apply to any Product which has been
(i) repaired by an unauthorized person or altered, except by mBreath or in accordance with its instructions, or
(ii) modified or used in a manner not intended or in conjunction with another vendor’s product resulting in the defect, or
(iii) damaged in shipping or by improper environment, abuse, misuse, accident or negligence. This warranty also excludes degradation caused by normal wear and tear. Replacement parts furnished under this warranty may be refurbished or contain refurbished components.
THE FOREGOING WARRANTIES AND LIMITATIONS ARE, TO THE MAXIMUM EXTERNT PERMITTED BY LAW, EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING WITHOUT ANY LIMITATION WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
SOFTWARE: The software embedded in the Product and documentation provided with the Product are protected under copyright and trade secret laws and contain proprietary information of mBreath and its licensors, in such event Purchaser agree to notify, or Purchaser’s Purchasers to notify mBreath of any such intended examination of the Software and Purchaser or Purchaser’s Purchaser may procure support and assistance from mBreath. Purchaser agrees not to translate, nor to authorize any third party to translate any portion of the Software or associated documentation into any other format or foreign language without the prior written consent of mBreath. Purchaser shall abide by the terms of any proprietary notices or markings, and shall use the documentation and the Software only for purposes contemplated by the documentation, and shall not disclose to others or reproduce the Software, unless specifically authorized by mBreath, and shall be liable for all loss or damage to mBreath from any failure to so abide or from any unauthorized disclosure of the documentation or Software to any other party. mBreath retains all title and ownership of the Software and associated intellectual property rights.
LIMITATION OF LIABILITY EXCEPT AS REQUIRED BY LAW-
(I) MBREATH SHALL NOT UNDER ANY CIRCUMSTANCES BE LIABLE TO ANY PERSON FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES RESULTING FROM USE OR MALFUNCTION OF THE PRODUCTS OR ANY SOFTWARE, LOSS OF PROFITS OR REVENUES OR COSTS OF REPLACEMENT GOODS, EVEN IF MBREATH IS INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES, AND
(II) IN NO EVENT WILL MBREATH’S LIABILITY IN CONNECTION WITH THE PRODUCTS EXCEED THE AMOUNTS ACTUALLY PAID TO MBREATH FOR THE PRODUCTS GIVING RISE TO SUCH LIABIL THESE LIMITATIONS APPLY TO ALL CAUSES OF ACTION IN THE AGGREGATE. THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
Neither party shall be liable for delays or failure to meet its obligations hereunder due to causes beyond the party’s reasonable control, provided the nonperforming party promptly notifies the other party of the nonperformance and takes all reasonable steps to recommence performance promptly. This agreement shall be governed by and construed in accordance with the Indian law .