Worth Data, Inc.
All purchases by Buyer from Worth Data (hereafter “Seller”) and sales or service by Seller to Buyer shall be governed by these Standard Terms and Conditions (hereafter Agreement). An order is accepted only under the terms of this Agreement and is expressly made conditional on Buyer’s assent to the additional or different terms contained herein. Buyer and Seller may for their respective convenience, desire to use standardized Purchase Order forms and any exhibits, schedules, attachments, or other documents which may contain terms in addition to or at variance with terms of this Agreement. Therefore it is expressly understood and agreed that such forms may be used but shall not add or vary these terms whether or not referenced. Buyers acceptance of goods shipped or services provided by Seller pursuant hereto shall be deemed acceptance of the terms of this Agreement. Verbal representations, unless contained herein shall not be enforceable under this Agreement.
1. Terms of Payment. (A) For Products - Online orders are payable by credit card - Visa, Master Card & American Express Only. Orders by Phone, Fax, E-Mail & Mail - Payment terms for the purchase of Seller’s products or repair charges are net thirty (30) days from date of shipment, subject to the approval by Seller of the amount and terms credit. Each shipment shall be invoiced and paid for when due without regard to other scheduled deliveries. Past due accounts are referred to Dun and Bradstreet for collection. The buyer is responsible for all collection fees necessary to collect an overdue account. Other payment options include Visa, Mastercard, American Express, COD Cash, & prepayment by check or bank transfer.
2. Title & Delivery. (A) Seller ships FOB destination to most USA locations by USPS® Priority Mail, USPS First Class Mail, Federal Express 2 Day service, or Federal Express Ground delivery depending on destination, product weight, and product value. Next Day delivery is available at the net additional cost FOB Santa Cruz, CA, of Next Day delivery over standard delivery. Shipments to the majority of Canada are FOB destination Federal Express International Economy delivery for all orders over $299 USD. Shipments to Canada for all Repairs and orders under $299 USD will incur a $25.99 shipping charge - There may also be additional charges for extended service areas as well. All other international locations are FOB Santa Cruz (Buyer pays) with Federal Express, or US Mail (software only). We do not ship to APO Boxes for Department of Defense orders except software. Risk of loss or damage shall pass from Seller to Buyer upon delivery to common carrier or Buyer’s representative at The FOB Point. Anything shipped FOB Destination is covered by insurance purchased by Seller. Anything shipped FOB Santa Cruz is the Buyer’s responsibility for which to pay insurance, in which case, all claims for damage must be filed by Buyer directly with carrier; (B) Absent specific instructions, Seller will select the carrier for shipment, but by doing so, will not thereby assume any liability in connection with shipment nor shall the Carrier in any way be construed to be The agent of Seller; (C) Seller shall not be liable for any damages or penalty for delay caused solely by transportation or failure to give notice of such delay.
3. Taxes. Prices are exclusive of all federal, state, municipal or other government excise, custom duties, sales, use, occupational or like taxes in force; and any such taxes shall be assumed and paid for Buyer. Since we only have offices in California and do not market directly in any other State, only California sales tax is applicable. In order for California purchasers to exempt a sale from sales or use tax liability, Buyer will supply a Certificate of Exemption or similar document to Seller at the time order placement and before shipment.
4. Software. All software (including firmware) furnished to Buyer is on a licensed basis. Seller grants to Buyer a non-transferable and non-exclusive license to use each software or firmware program delivered hereunder (`Licensed Program’ ). Each such license granted authorizes Buyer to use the Licensed Program in machine-readable form only, and in the case of software supplied with hardware, only on systems supplied by Buyer to Seller under this Agreement. Such license may not be assigned, sublicensed or otherwise transferred by Buyer without prior written consent of Seller, except that, regarding any Licensed Program embodied in a Product, the transfer of such Product shall convey to Buyer’s transferee a license to use such Licensed Program under terms commensurate with the License set forth in this Agreement. No right to copy a Licensed Program in whole or in part is granted except as permitted under the Copyright Law. Buyer shall not modify, merge, or incorporate any form or portion of a Licensed Program with other program material, create a derivative work from a Licensed Program, or use a Licensed Program in a network. Buyer agrees to maintain Seller’s copyright notice the Licensed Programs delivered hereunder, and to include the same on any authorized copies it makes, in whole or in part. Buyer agrees not to decompile, disassemble, decode or reverse engineer any Licensed Program delivered to Buyer or any portion thereof.
5. Infringement Indemnification. Seller shall defend any claim, suit or proceeding brought against Buyer insofar as it is based on a claim that the use or transfer of any Product delivered hereunder constitutes an infringement of a United States patent or copyright in existence as of the date of delivery of the Product to Buyer (an ‘Infringement Claim’) so long as Seller is notified promptly in writing by Buyer as to any such action and is given full authority, information and assistance (at Seller’s expense) for the defense. In addition to Seller’s obligation to defend, Seller shall pay all damages and costs (except consequential damages) awarded therein against Buyer. The obligations set forth above shall not, however, extend to Products delivered hereunder which would give rise to a claim, suit, proceeding, finding or conclusion solely for contributory infringement or inducement of infringement. Seller shall not be responsible for any compromise made by Buyer without its consent. Notwithstanding the foregoing, in the event of an Infringement Claim, Seller’s obligation under this paragraph shall be fulfilled, at Seller’s sole option and expense, if Seller at any time: (A) obtains a license for Buyer to continue the use or to sell the infringing Product purchased from Seller’ or (B) refunds the purchase price paid to Seller by Buyer for such infringing Product less a reasonable amount for use, depreciation, damage, obsolescence, and removes such Product or (C) replaces or modifies the infringing product so as to be substantially functionally equivalent to the Infringing Product but noninfringing. Buyer agrees that the foregoing indemnification shall not apply and moreover, shall be extended to Seller for any claim of U.S. patent infringement which may be brought against Seller because of compliance with Buyer’s particular design requirements, specifications or instructions. Buyer grants to Seller the benefit of any license to Buyer under any patent which may be the subject of an infringement allegation hereunder to the extent permitted by said license: Seller shall have no liability to Buyer under this paragraph if any Infringement Claim is based, upon the (i) use, of Products delivered hereunder in connection or in combination with equipment, devices or software not delivered by Seller, or (ii) use of Products delivered hereunder in a manner for which the same were not designed, or (iii) modification by Buyer of Products delivered hereunder to the extent such modification is the cause of the claim or suit. Seller shall further have no liability to Buyer for any Infringement Claim based on Buyer’s use of transfer of the Product delivered hereunder after Seller’s notice that Buyer shall cease use or transfer of such Product due to such claim. EXCEPT AS STATED ABOVE, SELLER DISCLAIMS ALL WARRANTIES AND INDEMNITIES, EXPRESS, IMPLIED OR STATUTORY, FOR PATENT OR COPYRIGHT INFRINGEMENT.
6. Warranty. (A) Seller’s hardware Products have a warranty period varying from one to three years. Printers are warranted for one year. Products warranted for three years are the LZ400, LZ410-USB, and the LZ410-WDP. All other Worth Data manufactured hardware products have a two year warranty. Such warranty is against defects in materials and workmanship for the applicable warranty period which starts from the date of shipment, provided the hardware product remains unmodified and is operated under normal and proper conditions. The sole obligation of Seller for defective hardware Products is limited to repair or replacement (at Sellers option) on a ‘return to factory’ basis with prior Seller’s authorization. Shipment to Seller will be at be at Buyer’s expense, unless it is within 30 days after the initial shipment of the Product to a U.S. location, in which case the Seller will offer to have the equipment sent back with a call tag at Seller’s expense. Seller will return replaced or repaired equipment within warranty at Seller’s expense. No charge will be made for repair or replacement parts for Products under warranty. (B) The aforementioned provisions do not extend the original warranty period of any Product that had either been repaired or replaced by Seller. (C) the above warranty shall not apply to any Product (i) which has been repaired or altered, except by Seller; (ii) which has not been maintained in accordance with any operating or handling instructions supplied by Seller, or (iii) which has been subjected to unusual physical or or electrical stress, misuse, abuse, negligence or accident. EXCEPT FOR THE WARRANTY OF TITLE AND THE EXPRESS WARRANTIES STATED ABOVE, SELLER DISCLAIMS ALL WARRANTIES ON PRODUCTS FURNISHED HEREUNDER INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR USE. The stated express warranties are in lieu of all obligations or liabilities on the part of Seller for damages including but not limited to special or consequential damages arising out of or in connection with use or performance of the Product. Seller’s liability for damages to Buyer or others resulting from the use of any Product or Service furnished hereunder shall in no way exceed the purchase price of said product or the fair market value said service, except in instances of injury to persons or property. Products for which warranty period has expired will be repaired at the price of materials plus the hourly rate for labor applied. The repair is warranted for 90 days from shipment date back to the Buyer.
7. Notices. Notices or other communications required hereunder shall be in writing, sent by courier, registered or certified mail, and shall be deemed to have been duly given upon receipt thereof, to 623 Swift St., Santa Cruz, CA 95060, unless a notice of change of address shall have been received prior to the notice thereof.
8. Product Returns for Repair. No product will be accepted for return without a Return Authorization Number provided by Seller. Upon request for hardware products deemed defective within 30 calendar days of original shipment to a U.S. location, a call tag will be issued at no charge for return of Product.
9. Product Returns for Credit. Since all Products - bar code readers & software - are sold with a 30 calendar day money back guarantee, excluding custom labels, should buyer desire to return products, Buyer should first obtain an Return Authorization Number from Seller so Seller will know what to do with returned product upon receipt, including exactly how a refund is to be processed. All Product must be returned to Seller prepaid, in resalable condition, undamaged, and the original shipped packaging, including the original packaging material. Once the Return Authorization Number has been obtained, Seller is still obligated to complete the return of the product within 30 days to be eligible for full credit. Seller reserves the right to charge a reasonable restocking fee for any Product returned after 30 days, (10% for 31-60 days, 15% for 61-90 days). After 90 days, no credit will be given for returned Product. Custom pre-printed labels are not returnable for credit at anytime, unless there is a defect or error in printing, which will be corrected and replacement labels sent out at our expense if we are notified of an error with in 7 days of receipt. Supplies used such as labels and ribbons for printers will not be credited. Any replacement parts and associated labor necessary to restore the returned Products to saleable condition, will be deducted from the applicable credit. Shipping charges such as FedEx Priority One, Standard Overnight and all international shipping charges are not refundable.
10. Security interest. Buyer grants to Seller a purchase money security interest in the Products purchased by Buyer until Seller is paid in full. Until such payment Seller may file with the appropriate authorities a copy of this Agreement as a financing statement or Seller may sign and file a financing statement on behalf of Buyer and Buyer hereby appoints Seller as its agent and attorney-in-fact for this purpose.
11. Force Majeure. Shipping dates acknowledged by Seller are approximate and Seller will not be liable for any loss or damage due to its failure to meet scheduled shipping dates. Seller shall in no event be liable for any delay or default in its performance of any obligation under this Agreement caused directly or indirectly by an act or omission of Buyer, fire, flood, act of God, acts of Government, an act or omission of civil or military authority of a state or nation, strike, lockout or other labor problem, inability to secure, delay in securing or shortage of labor materials, supplies, transportation or energy, failures of subcontractors or suppliers, or by war, riot, embargo or civil disturbance, breakdown, or destruction of plant or equipment arising from any cause whatsoever, or any cause or causes beyond Seller’s reasonable control. At Seller’s option and following notice to Buyer, any of the foregoing causes shall be deemed to suspend such obligations of Seller as long as any such cause shall prevent or delay performance, and Seller agrees to make and Buyer agrees to accept performance of such obligations whenever such cause has been remedied.
12. Disputes. Illegal proceedings are commenced to resolve a dispute arising out of or relating to this Agreement, the prevailing party shall be entitled to recover all of its costs, attorney fees, and expert witness fees, including any costs or attorney fees in connection with any appeals.
13. Entire Agreement; No Waiver. This Agreement, along with any schedules, exhibits or attachments which are executed by Buyer and Seller, shall constitute the entire Agreement between Buyer and Seller, and no attempted variation, modification or waiver of any provision of this Agreement shall have any force or effect unless consented to in writing signed by the party against whom enforcement thereof is sought. Such variation, modification or waiver shall be effective only in the specific instance consented to. A failure by any party to exercise or delay in exercising any right or power conferred upon it in this Agreement shall not operate as a waiver of any such right or power.
14. Governing Law. This Agreement shall be governed by the laws of the State of California without giving effect to the conflict of law principles thereof and excluding the Convention on Contracts for International Sale of Goods. Each party hereby irrevocably and unconditionally submits for itself and its property in any legal action or proceeding relating to this Agreement or for recognition and enforcement of any judgment in respect thereof is to the exclusive general jurisdiction of the courts of the State of California in the County of Santa Cruz, CA and to the United States District Court for Northern California, and to the respective appellate courts thereof in connection with any appeal there from.
15. Miscellaneous.: The Section headings used herein are for descriptive purposes only and shall not be used in construing the provisions of this agreement.
16. Retail Pricing Guidelines: Due to the complexity and technical construction of the product, WORTH DATA products must be sold by a full service dealer that can install and service our products with onsite support and service. To ensure that WORTH DATA resellers and retailers will be able to afford to maintain full service facilities for installation and service, WORTH DATA believes that the manufacturer suggested retail pricing (MSRP) should be maintained. To encourage WORTH DATA retailers, resellers, and developers to develop demand through advertising and other marketing initiatives as a premium product, WORTH DATA requires that all advertisements (including on-line auctions) for its products that include any reference to a retail price be confined to the MSRP prices listed on the Worth Data website. WORTH DATA expects that the MSRP will be followed to efficiently maintain the reseller and support network that WORTH DATA believes is necessary for the proper marketing and servicing of its products. WORTH DATA may unilaterally terminate any distributor, reseller, retailer, or sales to any party that WORTH DATA believes does not support WORTH DATA’s marketing and sales guidelines. Any such terminations may be without prior notice and/or warning.