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Terms and Conditions

Standard Terms and Conditions for Goods and Services

Delivery of the Goods and/or Services specified, and the prices provided are based on and subject to the following terms and conditions. By accepting a quotation or a proposal from Seller or ordering the Goods and/or Services specified, Buyer agrees to be bound by the following terms and conditions of sale.

1. Acceptance and Governing Provisions.

Cyviz (‘Seller’) agrees to sell Seller’s goods and services to Buyer. They are hereinafter referred to as (‘Goods’) and (‘Services’), according to these Terms and Conditions of Sale (‘Terms’).

The earliest of any of the following events shall be considered Buyer’s consent to these Terms:

(a) Failure to object to the Terms within ten days after the date of Seller’s quotation or acknowledgement:

(b) Receipt of the first shipment of Goods to which these Terms have been attached, or in which a reference is made to them; or

(c) Issuance of the first payment for Goods or Services to which these Terms have been attached, or in which a reference is made to them.

Seller’s Order Acknowledgement, Seller’s quotation, if any, and these Terms comprise the complete and exclusive contract for the sale of the Goods and Services (the ‘Contract’). If conflict arises between any terms and conditions of those documents, the foregoing shall be their order of precedence; provided that a written agreement executed between Seller and Buyer shall supersede any different or inconsistent term of the Contract. The terms provided on or with Buyer’s purchase order shall not be construed as part of this Contract. Supplier expressly rejects all inconsistent or additional terms provided on or with Buyer’s order(s) for Goods or Services.

2. Price and Payment.

Seller’s quoted price includes packing costs but excludes all charges and expenses connected with carriage of the Goods to Buyer and all taxes and customs duties relating to the sale of Goods. If Buyer is required to pay any withholding tax in respect of any payments due to Seller, Buyer agrees to gross up payments actually made such that Seller shall receive sums due hereunder in full and free of any deduction for any such withholding tax.

The Seller reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as, without limitation, additional duties, increases imposed by the manufacturers of the goods), any change in delivery dates, quantities or specifications for the goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.

Unless otherwise agreed and subject to credit approval by Seller, Buyer shall pay Seller in the invoiced currency within 30 days of the date of Seller’s invoice. Seller may invoice Buyer 50 % at the time of issuance of purchase order, 40 % at the time of shipment of Goods and 10% at the time when delivery is accepted by Buyer.

If Buyer does not pay Seller on the agreed dates of payment, Buyer shall pay Seller 1½ % of the unpaid balance monthly as interest on overdue payments. In addition to charging such interest, Seller may cancel or reschedule delivery of Goods if Buyer is in default of payments or breaches any other material term of this Contract.

Buyer warrants and represents that it is purchasing the Goods or Services and incurring the debt in the ordinary course of business. Services will be invoiced at the end of the period when Services are rendered. For projects with duration exceeding one-month Services will be invoiced at the end of each month and Buyer shall pay Seller in the invoiced currency within 30 days of the date of Seller’s invoice.

3. Acceptance of Goods.

No acceptance conditions apply to Buyer’s purchase of Goods or Services, except when a Site Acceptance Test is expressly agreed between the parties. Any defects in material or workmanship shall be provided for under the warranty in Paragraph 6.

4. Title and Risk of Loss.

Unless otherwise agreed, delivery shall be EXW Seller’s plant, (Ex-Works Incoterms 2020).

Any loss or damage to the Goods that occurs while the risk of such loss or damage is Buyer’s, does not relieve Buyer of its obligation to pay Seller for the Goods.

5. Delivery.

Seller will substantially meet quoted delivery dates, which are estimated based on conditions known at the time of quotation. Final delivery schedule will be provided when Buyer has approved the final system design and implementation plan, and component lead times have been confirmed by Seller.

Seller shall not be liable for any delay in delivery. If Seller experiences supply and material shortages or other manufacturing delays, Seller may ship partial shipments of Buyer’s orders and invoice Buyer for those partial shipments. Buyer may cancel, without either party incurring liability to the other, an order that remains undelivered 60 days after an agreed delivery date proposed by Buyer and accepted by Seller.

6. Limited Warranty.

6.1 Hardware

Seller warrants that the Goods (hardware) will conform to published specifications and be free from defects in material for a period of 3 (three) years from date of delivery. Warranty repairs shall only be warranted for the remainder of the original 3-year warranty period. Buyer shall report defect claims in writing to Seller immediately upon discovery, and in any event, within the warranty period. In such instance, Buyer must return Goods to Seller at Buyer’s risk and expense. Seller shall, at its sole option, repair or replace the Goods. If Goods are repaired, altered, or modified by persons other than Seller, this warranty is void. Conditions resulting from normal wear and tear and Buyer’s failure to properly store, install, operate, handle, or maintain the Goods are excluded from this warranty.

Repair or replacement of Goods is Seller’s sole obligation and Buyer’s exclusive remedy for all claims of defects. If that remedy is adjudicated to be insufficient, Seller shall refund the price paid by Buyer for the Goods upon return of the Goods and shall have no other liability to Buyer.

All warranty repairs must be performed at Sellers authorized service center using parts approved by Seller. Buyer shall pay costs of sending Goods to Seller on a warranty claim and Seller shall pay costs of returning such Goods to Buyer.

6.2 Software

Seller warrants that a given version of Software will operate substantially in accordance with the associated software documentation, provided that the Software is used in an operating environment which is in compliance with Sellers’ specifications. The Software is provided “as is” without any expressed or implied warranties, including, without limitation, warranties of merchantability or fitness for a particular purpose.

6.3 Services

Services are provided without any expressed or implied warranties and Sellers’s responsibilities are limited to re-performance of the work.

7. Confidentiality and Intellectual Property.

All intellectual property, including but not limited to technical and commercial information, data, schematics, designs, production techniques, and ideas (IP) Seller has supplied or shall supply Buyer, excluding public domain information or information that Buyer lawfully possessed in tangible form before receiving such information from Seller, is proprietary to Seller and is disclosed to Buyer in confidence only to assist Buyer to evaluate and use the Goods and Services. Buyer shall not disclose or make such IP available to any other person or use such IP except for such limited purpose.

Any sketches, models or samples submitted by Seller shall remain Seller’s property. Sale of Goods to Buyer does not convey a license, implied or otherwise, under any patent, copyright, trademark, or trade secret in which Seller has an interest, nor does it convey rights to any descriptive data, including but not limited to, Seller’s drawings, schematics, software, secrets, processes, or tooling.

8. Patent Indemnity.

If the Goods are manufactured according to Buyer’s specifications, Buyer shall indemnify Seller and hold Seller harmless from any claims or liability for patent or trademark infringement on account of the sale of Goods. Seller shall fully cooperate with Buyer in the defense against such claims and the negotiation for their settlement

9. General Indemnification.

The Parties shall indemnify, save, and hold harmless each other from and against any claims, demands or losses related to bodily injury or death of any person or damage to real and/or tangible personal property in connection with or resulting from this Contract.

10.  Limitation of Liability.

Seller shall in no event be liable for any consequential, incidental, indirect, special, exemplary or punitive damages arising out of or relating in any way to the Contract, or any defect in or failure of the Goods, the software or the performance of Services, including but not limited to claims based upon loss of use, lost profits or revenue, interest, lost goodwill, environmental damage, increased expenses of operation, cost of replacement Goods, or claims of Buyer’s customers, whether or not based on contract, tort (including negligence and strict liability) or otherwise. Sellers maximum liability under this Contract shall not exceed the price paid for the Goods or Services upon which such liability is based, and all such liability shall terminate no later than one year from the date of delivery of the Goods or Services.

11.  Applicable Law.

This Contract shall be governed by and construed in accordance with the laws of (Applicable jurisdiction to be inserted)

The parties shall attempt to settle any dispute, controversy or claim arising out of this Contract through consultation and negotiation in good faith and in the spirit of mutual co-operation. Any dispute, controversy or claim arising out of or in connection with the Contract that cannot be resolved through negotiations, must be brought before the courts of (Applicable jurisdiction to be inserted).

12.  Termination.

Except as expressly provided in Paragraph 5, Buyer may cancel its order, reduce quantities, revise specifications, or extend scheduled delivery only upon terms accepted in writing signed by Seller.

Buyer either shall compensate Seller for damages resulting from cancellation or pay a restocking and cancellation fee of 25% of the purchase price, whichever is greater. Seller may, at its option and without either incurring liability to Buyer or prejudicing Seller’s rights to other available remedies, either cancel or reschedule Buyer’s order if Buyer either is in default of payment obligations to Seller under this or any other agreement, or becomes insolvent, is the subject of bankruptcy proceedings, or ceases to do business. Buyer’s obligations under Paragraphs 2, 7, 9,10,

11,14, 18, 19 and 21 shall survive termination of this Contract.

13.  Changes.

Seller may make process and design changes in Goods that do not adversely affect form, fit, and function without notice to and approval from Buyer. Seller also may furnish suitable substitutes for materials unobtainable or economically or otherwise impractical or otherwise in short supply. Buyer may not change any terms of the Contract, without advance written approval signed by Seller.

14.  Software License.

Use of Seller’s software products and associated documentation requires a license. This license (‘License’) is a digital document issued to Buyer which grants the buyer the right to use the software on a specific Server or a specific System. Where a ‘Server’ is defined as a physical or virtual instance of a computer server hosting an instance of seller’s software (‘Software) and the ‘System’ is defined as a specific installation of AV equipment which is controlled, managed and/or monitored by the Software.

14.1 Grant of License/Transfer of rights

The granted License gives the Buyer an indefinite, limited, non-exclusive and non-transferable right to install and use for the Buyer’s internal business purpose the Software for which the Buyer has paid the required license fees.

14.2 Ownership

The Software License does not grant the Buyer any rights of ownership in the Software. All rights, title, and interest in the Software and in any ideas, know-how, and programs which are developed by Seller, including any updates or modifications made to the Software, shall always remain the property of Seller. The Buyer shall not remove, modify or alter any notice of Seller’s copyright, trademark or proprietary rights from any part of the Software, including but not limited to the physical and/or electronic media or Software documentation. Nor shall Buyer take any other action which will in any way negatively impact

Seller’s copyright, trademark, or proprietary rights

14.3 Description of other rights and limitations

The Buyer shall not use the Software contrary to the provisions set forth in the Purchase Order. The Buyer shall not modify, sell, sublicense, or transfer any part of the Software and shall not reverse engineer, decompile or dissemble the Software except as agreed with Seller or permitted by applicable law.

14.4 Software License types

A License shall be issued for a specific System or for a specific Server.

14.5 System license

A License for a System uniquely identifies the System using an identifier created by Seller. The same System License cannot be used on multiple Systems without formal acceptance by Seller.

14.6 Server license

A License for a Server uniquely identifies the Server using an identifier created by Seller. The same Server License cannot be used on multiple Servers without formal written acceptance by Seller.

14.7 Installation and use

Software which is not pre-installed on delivered hardware shall be submitted electronically, by arrangement for the Buyer’s download from a designated site or other appropriate means.

Unless otherwise agreed, the Buyer shall be responsible for the installation of the system or systems. If installation services are ordered from Seller, such services shall be subject to separate remuneration.

By installing, copying, and/or using the Software, the Buyer agrees to be bound by the terms of this Agreement.

14.8 Updates and maintenance

The Buyer may enter into a Software Maintenance Agreement with Seller. Under the terms of such Software Maintenance Agreement, and upon payment of the applicable maintenance and support fee, the Buyer is entitled to receive software maintenance and support services, including corrections, fixes and enhancements to the Software as described in the Software Maintenance Agreement from Seller. To use a Software upgrade, the Buyer must be licensed for the original Software identified by Seller as eligible for the upgrade. After upgrading, the Buyer may no longer use the original Software that formed the basis for the upgrade. The Buyer’s license to updated Software shall be governed by the terms of this Agreement.

14.9 Disclaimer

Seller warrants that it has all necessary rights to grant the license to the Software as described in this Agreement. Seller does not warrant that the Software is free of errors and will operate without any interruptions

15.  Waiver.

Failure by a party to insist on performance of any provision shall not be a waiver of the rights or remedies available in the event of a subsequent default by the other party.

16.  Assignment.

Seller may assign its rights or delegate its duties under this Contract to an affiliated company without the prior written consent of Buyer. The contract may not otherwise be assigned by either party.

17.  Force Majeure.

Seller shall not be liable in any manner for failure to perform caused by war, riot, fire, flood, earthquake, or any act of God or failure by any third-party hardware, software, wiring, electrical system or utilities, acts of the Buyer or its customer, delays in transportation, inability to obtain necessary labor or materials from usual sources, or other causes beyond the reasonable control of Seller.

18.  Trademarks.

Buyer agrees that it will not use Seller’s names or trademarks without Seller’s prior written permission.

19.  Limitation on Time.

All claims of action by Buyer against Seller must be filed against Seller within one year from the date of the event(s) that gave rise to the claim(s) or be discharged and barred forever.

20.  Severability.

If any provision of this Contract or part thereof is rendered void, illegal, or unenforceable in any respect under any law the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby

21.  Final Agreement.

This Contract supersedes all prior representations, warranties, demonstrations, discussions, advertisements, understandings, writings, and agreements between the parties, including without limitation, requests for quotations, printed purchase order terms and conditions and releases, with respect to the Goods and Services.

 

Last updated: 09 August 2023