Terms and Conditions of Sale, Service and Technical Support ("Terms and Conditions")
"Cherrypal" means Cherrypal and it's subsidiary companies selling products to the Customer as identified in Cherrypal's
Quotation or Invoice.
"Customer" means the person or legal entity identified in Cherrypal's Quotation or Invoice.
"Contract" means a contract for sale by Cherrypal to the Customer of the products and/or services incorporating these
Terms and Conditions.
"Cherrypal-branded" means computer hardware products that are marked with the "Cherrypal" brand, including all standard components thereof, but does not include any of the following items:
I. Software, sound cards, speakers, external devices, accessories or parts added to the Cherrypal-branded hardware products after they are shipped from Cherrypal;
II. Accessories or parts added to the Cherrypal-branded hardware products through Cherrypal's Custom Factory Integration Services at Customer's request;
III. Accessories or parts that are not installed in the Cherrypal factory;
IV. Third Party Software and Peripheral products; or
V. Monitors, keyboards and mice, to the extent that they are not included on Cherrypal's standard price list.
"Order Confirmation" means formal acknowledgement of Product ordered by Customer, sent by Cherrypal.
"Price" means the price as per Cherrypal Quotation and Order Confirmation and the latter shall have precedence.
"Product(s)" means the products as described in Order Confirmation and may include Cherrypal-branded products, third party products and Service Offerings
"Service Offering (s)" means the different service options offered by Cherrypal for the Products or any part of them and for varying periods, as described in Cherrypal's published literature, including but not limited to Cherrypal's Invoice and/or Cherrypal's Service Description.
"Third Party Products" means products other than Cherrypal-branded.
2. FORMATION OF CONTRACT
2.1 No Contract shall come into existence until the Customer's order has been accepted by Cherrypal and such acceptance has been received by the customer. The Contract shall be deemed to be concluded at the time and place where such acceptance is received by the Customer. The Customer warrants that it is buying for its own internal use only and not for re-sale purposes.
2.2 The Products sold and/or services rendered are subject to these Terms and Conditions to the exclusion of any other terms and conditions stipulated or referred to by Customer. The Customer acknowledges that it is aware of the contents of and agrees to be bound by these Terms and Conditions. Neither Cherrypal's acknowledgment of a purchase order nor it's failure to object to conflicting, different, or additional terms and conditions in a purchase order shall be deemed an acceptance of such terms and conditions or a waiver of the provisions hereof.
2.3 These Terms and Conditions are subject to the laws of California.
3. ORDERS, PRICE AND PAYMENT
3.1 Unless credit terms have been expressly agreed by Cherrypal, payment for the Products and/or services shall be made in full before physical delivery of the Products and/or services.
3.2 The Customer shall pay for all shipping and handling charges.
3.3 The Customer shall bear all country, provincial, government, state and local sales, use, goods and services, value added, excise, privilege and similar levies/taxes.
4.1 All software provided is subject to the terms and conditions of the license agreement relating to that software. Customer acknowledges its obligations to abide by such license agreements. Customer acknowledges that Cherrypal does not warrant any software under these Terms and Conditions. In addition to any rights the Customer may have under statute, all software is warranted in accordance with the license agreement that governs its use.
4.2 All rights, title or interest in respect of the intellectual property rights in the software remain with Cherrypal or the licensor of the software at all times.
5. TITLE AND RISK
Title to and risk in the Products shall pass to the Customer upon delivery of the Products to Customer. Title to those products, which are software, shall remain with the applicable licensor(s) at all times.
6.1 Cherrypal shall deliver the Products to the place of delivery designated by the Customer and agreed to by Cherrypal.
6.2 Cherrypal may, at its discretion, deliver the Products by installments in any sequence. Where the Products are so delivered by installments, each installments shall be deemed to be the subject of a separate contract and no default or failure by Cherrypal in respect of any one or more installments shall vitiate the Contract in respect of Products previously delivered or undelivered Products.
6.3 Any dates quoted by Cherrypal for the delivery of the Products are approximate only and shall not form part of the Contract.Cherrypal shall not be liable for any delay in delivery of the Products and/or services, howsoever caused.
6.4 Cherrypal may revise and/or discontinue products at any time without notice as part of Cherrypal's policy of on-going product up-date and revision. Revised or updated products will have the functionality and performance of the products ordered. The Customer accepts that Cherrypal's policy may result in differences between the specification of products delivered to the Customer and the specification of products ordered
7. ACCEPTANCE OF PRODUCTS
7.1 Unless the Customer notifies Cherrypal to the contrary on the day of delivery and such notification is confirmed in writing within two (2) days, the Products shall be deemed to have been accepted by the Customer as being in good condition and in accordance with the Contract. The Customer shall not be entitled to withhold payment of all or any of the Price of the Products whilst any claim is being investigated by Cherrypal.
7.2 New Cherrypal-branded Products (excluding Cherrypal co-branded products) purchased under these Terms and Conditions directly from Cherrypal by an end-user Customer may be returned by Customer up to fifteen (15) days from the date of the invoice for a replacement, refund or credit of the purchase price in accordance with Cherrypal's "Return Policy" in effect on the date of the invoice. The refund or credit will not include any shipping and handling charges forming part of the purchase price. Products returned under Cherrypal's "Return Policy" must be received by Cherrypal in as-new or as-shipped-by-Cherrypal condition, including conformance to invoiced specification, and all of the manuals, diskettes, CDs, power cables and other items included with a Product must be returned with it.
8.1 Unless specified otherwise and in addition to any rights the Customer may have under statute, Cherrypal warrants to the Customer that Cherrypal branded products will from invoice date be free from defects in materials and workmanship affecting normal use for a period of one (1) year or such other period as may be set out in Cherrypal's invoice.("Standard Warranty" And "Relevant Warranty" period as appropriate).
8.2 This Standard Warranty or Relevant Warranty does not cover damage, fault, failure or malfunction due to external causes, including accident, abuse, misuse, problems with electrical power, servicing not authorized by Cherrypal, usage and/or storage and/or installation not in accordance with product instructions, failure to perform required preventive maintenance, normal wear and tear, act of God, fire, flood, war, act of violence or any similar occurrence; Products with missing or altered Service Tags or serial numbers; any attempt by any person other than Cherrypal personnel or any person authorised by Cherrypal, to adjust, repair or support the Products and problems caused by use of parts and components not supplied by Cherrypal.
8.3 The Standard Warranty or Relevant Warranty does not cover any items that are in one or more of the following categories: software; external devices; accessories or parts added to the Product after the Product is shipped from Cherrypal.
8.4 Subject to clause 9 below, during the Standard Warranty or Relevant Warranty period as the case may be and beginning on the invoice date, Cherrypal will repair or replace Cherrypal-branded Products returned to Cherrypal's facility. Customer must prepay shipping and transportation charges, and insure the shipment or accept the risk of loss or damage during such shipment
8.5 While not affecting any non-excludable warranty or guarantee implied by law, Cherrypal does not give any warranty that the Products are fit for any particular purpose and this Standard Warranty is given in place of all warranties, conditions, terms, undertakings and obligations implied by statute, common law, trade usage, course of dealing or otherwise including warranties or conditions of merchantability, fitness for purpose, satisfactory quality and/or compliance with description, all of which are hereby excluded to the fullest extent permitted by law.
8.6 The Customer agrees that to the extent permitted by law, in relation to Third Party Products purchased through Cherrypal, where such of the Third Party Products are covered by a relevant manufacturer's warranty, then the Customer will first make a claim against the manufacturer and shall utilise that warranty for the support of such Third Party Products and in any event not look to Cherrypal but shall look to the relevant manufacturer for such warranty support in the first instance.
9. SERVICE AND TECHNICAL SUPPORT
Cherrypal will provide general service and technical support to the Customer in accordance with the then-current service and technical support policies in effect. Service and support offerings may vary from product to product. If Customer purchases optional services and support as listed on Cherrypal's invoice, Cherrypal will provide the optional service and support to Customer in accordance with the then-current terms and conditions in the optional service contract between Cherrypal and Customer in addition to the Standard Warranty or Relevant Warranty. Cherrypal may, at its discretion, revise its general and optional service and support programs and the terms and conditions that govern them. Cherrypal has no obligation to provide service or support until Cherrypal has received full payment for the Product or service/support contract for which service or support is requested.
10.1 Cherrypal shall not be liable in contract or in tort for any loss or damage suffered and consumer rights are limited to those set out in these Terms and Conditions and under statute.
10.2 To the extent permitted by law and subject to clause 10.6, Cherrypal's total liability herein in respect of each event or series of connected events shall not exceed the total price paid for the purchase of products and/or services under these Terms and Conditions.
10.3 The Customer shall indemnify Cherrypal and keep Cherrypal fully and effectively indemnified against any loss of or damage to any property or injury to or death of any persons caused by any negligent act or omission or wilful misconduct of the Customer, its employees, agents or sub-contractors or by any breach of its contractual obligations arising out of these Terms and Conditions.
10.4 To the extent permitted by law, Cherrypal and Customer agree that Cherrypal will not be liable for Products not being available for use, or for data or software which is lost, corrupted, deleted or altered. Cherrypal shall not be liable to the Customer for any incidental, indirect, special or consequential damages b) loss of opportunity, c) loss of revenue, d) loss of profit or anticipated profit, e) loss of business f) loss of contracts, g) loss of goodwill, h) loss arising out of business interruption, i) loss arising out of or in connection with pollution of contamination arising out of or in connection with the purchase, use or performance of Products or services, even if Cherrypal has been advised of their possibility.
10.5 To the extent permitted by law, any typographical, clerical or other error or omission in sales literature, quotation, price list, acceptance of offer, invoice or other documents or information issued by Cherrypal shall be subject to correction without any liability on the part of Cherrypal.
10.6 Under the Act, where implied conditions and warranties cannot be excluded, Cherrypal's liability for breach of such conditions and warranties (other than a condition or warranty implied by section 69 of the Act) shall be limited, at Cherrypal's option, to :
(a) in the case of Products, the replacement of the Products or the supply of equivalent Products; the repair of such Products; the payment of the cost of replacing the Products or of acquiring equivalent Products; or the payment of the cost of having the Products repaired; OR
(b) in the case of services, the supplying of services again; or the payment of the cost of having services supplied again.
11. FORCE MAJEURE
Neither party shall be liable for any delay in performing any of its obligations under these Terms and Conditions if such delay is caused by circumstances beyond the reasonable control of the party so delaying, and such party shall be entitled to a reasonable extension of time for the performance of such obligations.
12. EXPORT RESTRICTIONS
Each party, at its own expense, will comply with all applicable laws, orders and regulations of any governmental authority with jurisdiction over its activities in connection with these Terms and Conditions and any Contract. Each party will furnish to the other party any information required to enable the other party to comply with applicable laws and regulations related to the Products. Cherrypal and Customer acknowledge that Products licensed or sold under any Contract are subject to export control laws and regulations, including those of the countries from which they were supplied and in which they are used and agrees to abide by those laws and regulations. Products purchased under any Contract may not be sold, leased or otherwise transferred to restricted end-users or to restricted countries. In addition, the Products may not be sold, leased or otherwise transferred to, or utilized by, an end-user engaged in activities related to weapons of mass destruction, including but not necessarily limited to, activities related to the design, development, production or use of nuclear materials, nuclear facilities, or nuclear weapons, missiles or support of missile projects, or chemical or biological weapons. The Customer and Cherrypal agree to comply with all applicable export laws, regulations and orders. In addition, each party agrees to indemnify, defend and hold the other harmless from any claims, demands or causes of action against the other due to the indemnifying party's violation or alleged violation of the applicable export laws, regulations and orders.
13. GOVERNING LAW
These Terms and Conditions shall be governed by and construed in accordance with the laws of California and shall be subject to the non-exclusive jurisdiction of the courts of California.
14.1 The Customer shall not assign or otherwise transfer any Contracts or any of its rights and obligations hereunder whether in whole or in part without the prior written consent of Cherrypal. Any such unauthorized assignment shall be deemed null and void.
14.2 If any provision of these Terms and Conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Terms and Conditions and the remainder of the provisions in question shall not be affected thereby.
14.3 No Waiver No failure or delay on Cherrypal's part in exercising any power or right under this Agreement operates as a waiver, nor does any single or partial exercise of any power or right preclude any other or further exercise, or the exercise of any other power or right
December 15, 2009 Revised Edition