Terms of Sale

These Terms of Sale (“Terms”) shall define the conditions of the sale of Products, Software and Services sold by ANV Technologies, LLC (herein after “ANV”).

  

Definitions

“Products” means any standard or custom hardware, other consumables, or Software licensed under these Terms, including any third-party hardware, consumables or Software included in the Products.

“Service” means any standard service provided by ANV, including services to support the Products and/or Software sold by ANV.

“Software” means one or more computer programs, including third party programs (i) provided with Products on storage media, (ii) downloaded by Customer from ANV’s website or an authorized partner’s website for use on the Products delivered under a Purchase Order, (iii) and/or custom scripts and related documentation identified in a Purchase Order. “Software” does not include computer programs or scripts created for or delivered to Customer by ANV under a separate agreement.

“Customer” means the person(s) or company that purchases the Products or Services from ANV.

Applicability

a)  These Terms are the only terms which govern the sale of the Products and Services by ANV to Customer. The accompanying quotation, confirmation of sale, purchase order, or invoice which references these Terms (the “Purchase Order”) and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. The terms and conditions of these Terms shall prevail to the extent such terms and conditions are inconsistent with the Purchase Order.

b) This Agreement prevails over any of Customer’s general terms and conditions of purchase regardless of whether or when Customer has submitted its Purchase Order or such terms unless otherwise agreed to in writing by ANV. Fulfillment of Customer’s order does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend these Terms.

c)  Notwithstanding anything to the contrary contained in this Agreement, ANV may, from time to time change the Services without the consent of Customer provided that such changes do not materially affect the nature or scope of the Services, or the fees or any performance dates set forth in the Purchase Order.

  

Sale, Delivery and Payment Terms

  1. All Purchase Orders received are subject to acceptance by ANV. Quotations offered by ANV or Purchase Orders received by ANV are not binding until such time that ANV acknowledges the Purchase Order in writing.

  2. Prices exclude any applicable sales tax, value added tax, or similar tax or fees paid by Customer. Customer shall be responsible for all such charges, costs and taxes; provided, that, Customer shall not be responsible for any taxes imposed on, or with respect to, ANV’s income, revenues, gross receipts, personal or real property, or other assets.

  3. Unless otherwise indicated in the Purchase Order, prices do not include shipping and handling charges. All Products are delivered FOB Origin unless otherwise stated on the Purchase Order and acknowledged in writing by ANV.

  4. Customer shall inspect the Products upon receipt. Customer will be deemed to have accepted the Products as stated above unless it notifies ANV in writing of any Nonconforming Goods no later than 1 day after receipt of the Products and furnishes such written evidence or other documentation as required by ANV. “Nonconforming Goods” means only the following: (i) the Products shipped are different than identified in the Purchase Order; or (ii) the Products’ label or packaging incorrectly identifies its contents. If Customer timely notifies ANV of any Nonconforming Goods, ANV shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Products, or (ii) credit or refund the purchase price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Customer in connection therewith. Customer shall ship, at Company expense and risk of loss, the Nonconforming Goods to ANV’s designated facility. If ANV exercises its option to replace Nonconforming Goods, ANV shall, after receiving Customer’s shipment of Nonconforming Goods, ship the replaced Products to Customer, at Company expense and risk of loss. Customer acknowledges and agrees that the remedies set forth in this Section are Customer’s exclusive remedies for the delivery of Nonconforming Goods.

  5. As collateral security for the payment of the purchase price of the Products, Customer hereby grants to ANV a lien on and security interest in and to all of the right, title, and interest of Customer in, to, and under the Products, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under Chapter 679 of the Florida Uniform Commercial Code.

  6. Payment terms are stated in the Purchase Order and must be acknowledged in writing by ANV.  Payment terms are subject to change if Customer’s financial condition or payment record merits such change as determined by ANV in its sole discretion. If the Purchase Order is silent as to payment terms, then Customer shall pay all invoiced amounts due to ANV within 30 days from the date of such invoice. Unless otherwise stated in a Purchase Oder, Customer shall make all payments hereunder by wire transfer and in US dollars.

  7. ANV may elect to charge Customer, and if so elected Customer shall pay, interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall reimburse ANV for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees.

  8. In addition to all other remedies available under this Agreement or at law (which ANV does not waive by the exercise of any rights hereunder), ANV reserves the right to discontinue performance against any Purchase Order without penalty if Customer fails to pay any sum due, or fails to perform under this Agreement or any other agreement between Customer and ANV, after ten (10) days’ written notice, the failure has not been cured.

  9. Delivery dates provided by ANV to Customer are estimates as of the Purchase Order date and ANV shall not be liable for costs or penalties resulting from late delivery; provided, that, ANV will make commercially reasonable efforts to provide Customer with notice of late delivery when practical.

  10. Where applicable, products are delivered with factory calibration certificates containing no data.

  11. With respect to the Services, Customer shall (i) cooperate with ANV in all matters relating to the Services and provide such access to Customer’s premises, systems, networks, and such office accommodation and other facilities as may reasonably be requested by ANV, for the purposes of performing the Services; (ii) respond promptly to any ANV request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for ANV to perform Services in accordance with the requirements of this Agreement; (iii) provide such materials or information as ANV may reasonably request to carry out the Services in a timely manner and ensure that such materials or information are complete and accurate in all material respects; and (iv) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.

Cancellation and Returns

  1. Customers may cancel all or portions of a Purchase Order for non-customized Products as specified in the Purchase Order at no additional cost. Cancellations of custom Products are subject to cancellation charges on a per Product basis as determined by ANV in its sole discretion, which may be up to the full value of the Purchase Order.

  2. Customers may return undamaged and unused non-customized Products in the original unopened packaging within 30 days of delivery, subject to a 30% restocking charge.

  3. Items received due to shipping errors shall be returned to ANV in original unopened packaging with no restocking fee, and shipping will be paid by ANV

  4. Customer must request a Return Material Authorization (“RMA”) number for all Products subject to return for warranty repair or replacement prior to shipment to ANV or authorized repair center. ANV may charge a reasonable processing fee for any of the Products returned for warranty repair or replacement that does not have a RMA.

  5. Customer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with ANV, whether relating to ANV’s breach, bankruptcy or otherwise.

Warranty

  1. ANV only sells third-party products and does not manufacture any Products. For these Products, ANV’s sole responsibility is to pass on to the Customer any applicable manufacturer’s warranty, provided the warranty allows such assignment. ANV does not offer additional warranties beyond those specified by the manufacturer.

Intellectual Property

  1. ANV represents that, to its actual knowledge, the Products or Services are free from infringement of intellectual property rights (including patents, trademarks, and copyrights) of others.

  2. ANV has no obligation for any claim of infringement arising from: ANV’s compliance with, or use of, Customer’s designs, specifications, instructions, or technical information; modifications to the Products by Customer or third party; use of the Products prohibited by or outside the scope of Specifications or related notes; or use of the Products with products not supplied by ANV.

  3. All non-public, confidential or proprietary information of ANV or of any third party included in any Product, the Software or otherwise disclosed to Customer, including but not limited to, non-public Software, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by ANV to Customer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by ANV in writing. Upon ANV’s request, Customer shall promptly return all documents and other materials received from ANV; provided, however, that Customer need not return any non-public software installed on Products. ANV shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Customer at the time of disclosure without reference to ANV’s confidential information; or (c) rightfully obtained by Customer on a non-confidential basis from a third party.

Assumption of Risk; Indemnity and Limitation of Liability

  1. Customer accepts all risks to itself and to any third parties that may result or arise out of Customer’s possession or use of Products and Services and agrees to indemnify and hold harmless ANV, its agents, and employees from all loss, cost, damage, liability, or expense (including damage or injury to person or property (including the Products) and including reasonable legal fees and costs) arising out of its possession or use of the Products and Services.

  2. WITH RESPECT TO ANY REMEDIES EXPRESSLY SET FORTH HEREIN, ANV’S LIABILITY FOR BREACH OF CONTRACT SHALL BE LIMITED TO THE SUCH WITH RESPECT TO OTHER BREACHES OF CONTRACT, ANV SHALL HAVE NO LIABILITY IN EXCESS OF THE AMOUNT OF THE PURCHASE ORDER. IN NO EVENT SHALL ANV BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR OTHER DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM COST OF SUBSTITUTE PROCUREMENT, LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS, LOSS OF SAVINGS, LOSS OF REVENUES, LOSS OF BUSINESS, OR FAILURE OR DELAY IN PERFORMANCE, WHETHER BASED ON BREACH OF WARRANTY OR OTHER CONTRACT BREACH, NEGLIGENCE OR OTHER TORT OR ON ANY STRICT LIABILITY THEORY, EVEN IF ANV HAS BEEN ADVISED OF ANY SUCH DAMAGES. NOR SHALL ANV BE RESPONSIBLE FOR ANY CLAIMS AGAINST CUSTOMER BY A THIRD PARTY.

General

  1. The Customer, who exports, re-exports, or transfers products, technology, or technical data purchased under this agreement, assumes full responsibility for complying with all applicable U.S. and other relevant laws and regulations (“Applicable Laws”) and for obtaining any necessary export authorizations. The Customer expressly agrees not to sell or transfer products, technology, or technical data to companies or individuals listed on the Denied Persons List, the Specifically Designated Nationals and Blocked Persons List, or any other prohibited parties or restricted destinations specified in Applicable Laws, unless explicitly authorized by the appropriate government(s). ANV reserves the right to suspend performance if the Customer is found to be in violation of Applicable Laws.

  2. If ANV’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants, or employees, ANV shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.

  3. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.

  4. ANV shall not be liable or responsible to Customer, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by or results from acts beyond ANV’s control, including, without limitation, the following force majeure events: (a) acts of God; (b) flood, fire, earthquake, pandemics, endemics, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) shortage of adequate power or transportation facilities; and [(i) other similar events beyond the control of ANV.

  5. Provisions of this Agreement which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement, including without limitation, confidentiality provisions.

  6. This Agreement may only be amended or modified in a writing stating specifically that it amends this Agreement and is signed by an authorized representative of each party.

 

Termination

In addition to any remedies that may be provided under this Agreement, ANV may terminate this Agreement with immediate effect upon written notice to Customer, if Customer: (a) fails to pay any amount when due under this Agreement and such failure continues for 30 days after Customer’s receipt of written notice of nonpayment; (b) has not otherwise performed or complied with this Agreement, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.

 

Severability

If any part or parts of this Agreement shall be held unenforceable for any reason, the remainder of this Agreement shall continue in full force and effect. If any provision of this Agreement is deemed invalid or unenforceable by any court of competent jurisdiction, and if limiting such provision would make the provision valid, then such provision shall be deemed to be construed as so limited.

 

Assignment

Neither this Agreement nor Customer’s rights hereunder are assignable except with ANV’s prior, written consent. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under this Agreement.

 

Binding Effect

The covenants and conditions contained in the Agreement shall apply to and bind the Parties and their respective heirs, legal representatives, successors and permitted assigns.

 

Governing Law

This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, United States of America.