VirtualiZen LLC Terms and Conditions
1. Definitions:
a. Virtualizen: means VirtualiZen LLC
b. Goods: applies to New original equipment manufacturer (“OEM”) branded equipment acquired inside of authorized channels, pre-owned and refurbished OEM branded equipment, OEM branded equipment acquired outside of authorized channels (i.e. “factory sealed”, or “new in box”), and new VirtualiZen branded equipment.
c. Customer: means the person who accepts a quotation from VirtualiZen for the sale or hire of the Goods and/or Services or whose order for the Goods and/or Services is accepted by VirtualiZen.
d. Services: means any service carried out by VirtualiZen in accordance with these Conditions.
e. Agreement: means these Terms and Conditions, together with any quotes, purchase orders, and invoices.
2. Applicability: The provisions contained in these General Terms and Conditions set forth the terms and conditions applicable to all sales of Goods and/or Services by VirtualiZen to its Customer. In the event of any inconsistencies between these Terms and Conditions and the terms of a written quote provided by VirtualiZen, the terms of the written quote shall be controlling. In the event of any inconsistencies between these Terms and Conditions and the terms and conditions of any purchase order provided by the Customer, the terms of these Terms and Conditions shall be controlling. In the event VirtualiZen and Customer have entered into a separate written master agreement applicable to the Goods, the terms of the master agreement shall be controlling.
3. Purchase and Sale: VirtualiZen shall sell to the Customer and the Customer shall purchase the Goods in accordance with any written quotation of VirtualiZen which is accepted by the Customer, or any written order of the Customer which is accepted by VirtualiZen.
4. Prices: Customer shall purchase Goods and/or Services from VirtualiZen at the prices offered by VirtualiZen in a valid quote as of date of the applicable Order Confirmation. VirtualiZen reserves the right, by giving notice to the Customer at any time before delivery, to increase the price of the Goods and/or Services to reflect any increase in the cost to VirtualiZen which is due to any factor beyond the control of VirtualiZen (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labor), any change in delivery dates, quantities or specifications for the Goods and/or Services which is requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give the Company adequate information or instructions.
5. Payment: Customer shall pay all invoiced amounts within thirty (30) days from date of invoice to the specified bank account or as otherwise specified. All invoices shall be paid in U.S. Dollars unless otherwise specified in the invoice. Amounts not paid when due shall bear interest at the rate of (18) percent per annum or the highest rate allowed under applicable law, whichever is lower.
6. Taxes: Customer shall be responsible for all shipping charges, and any applicable taxes (e.g. sales tax, VAT, GST), fees, duties, levies, or similar charges imposed by any governmental authority relating to the purchase of the Goods.
7. Shipping and Delivery: VirtualiZen shall deliver all Goods to Customer at Customer’s expense and risk of loss unless otherwise specified on the quote.
8. Acceptance: Customer shall inspect the goods upon delivery and has seven (7) days to provide written rejection of the Goods to VirtualiZen due to material non-conformance or shortages. Failure to reject the Goods constitutes acceptance of the Goods by Customer.
9. Services: VirtualiZen shall endeavor to perform the Services in accordance with any timescales agreed between VirtualiZen and Customer but time of performance of the Services shall not be of the essence of the Agreement unless previously agreed by VirtualiZen in writing.
10. Limitation of Liabilities, Warranty and Remedies: VIRTUALIZEN IS NOT LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, OR FOR LOSS OF PRODUCTS, REVENUE OR DATA, WHETHER IN CONTRACT, TORT, OR OTHERWISE EVEN IF ADVISED OF THE POSSIBILITY OF THOSE DAMAGES AND EVEN IF THE DAMAGES OR LOSS ARE CAUSED IN WHOLE OR IN PART BY VIRTUALIZEN’S NEGLIGENCE. VIRTUALIZEN WILL NOT BE LIABLE FOR DIRECT OR INDIRECT DAMAGES CAUSED BY ANY DEFAULTS OR FAULTS OF THE CUSTOMER’S SYSTEM IN CONJUNTION WITH THE GOODS PROVIDED BY VIRTUALIZEN. FURTHERMORE, VIRTUALIZEN SHALL NOT BE LIABLE FOR DIRECT OR INDIRECT DAMAGES CAUSED BY LATE DELIVERY. IN RESPECT OF ANY TRANSACTION, VIRTUALIZEN LIABILITY SHALL NOT BE ANY AMOUNT GREATER THAN THE TOTAL AMOUNT CUSTOMER HAS PAID VIRTUALIZEN FOR THE GOODS AND/OR SERVICES PROVIDED.
THE BELOW LIMITED WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED, IMPLIED, STATUTORY OR OTHERWISE, WITH REGARD TO THE EQUIPMENT, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, SUITABILITY, OR NON-INFRINGEMENT.
The warranty applies to pre-owned and refurbished OEM branded equipment, OEM branded equipment acquired outside of authorized channels (i.e. “factory sealed”, or “new in box”), and new VirtualiZen branded equipment. This warranty is nontransferable and only valid for the original purchaser of the Goods. Some states do not allow the exclusion or limitation of implied warranties or incidental or consequential damages, thus the above limitation or exclusion may not apply to Customer.
VirtualiZen warrants that the Goods sold to Customer will be free from defects in material and workmanship for the life of the Goods provided that the Goods is properly used and maintained. If Customer notifies VirtualiZen in writing during the warranty period that the Goods do not comply with this warranty, VirtualiZen will, at VirtualiZen’s sole discretion, replace or issue a credit for the purchase price of defective Goods at no charge. VirtualiZen reserves the right to replace defective Goods with the same model or a model with comparable functionality.
Any changes to the original configuration will invalidate the warranty. VirtualiZen has no warranty obligations for third party products. The warranty does not cover batteries, licenses, or software.
This warranty does not apply to any failure of the Goods due to misuse, abuse, mishandling, environmental factors, improper installation or configuration, acts of God, electrical issues such as lightning, power surges or incorrect electrical voltages, improper modifications, war, terrorism, sabotage, insurrection, civil disturbance or requisition.
This warranty does not apply to any new OEM Goods for which VirtualiZen is an authorized reseller or any authorized OEM Branded Goods acquired for resale by VirtualiZen by an authorized reseller. Warranties for such Goods provided solely by the OEM.
Customer is solely responsible for determining the product is suitable for the contemplated purpose at the Customer’s own expense.
VirtualiZen will pay for the costs to ship replacement Goods to the Customer if shipped within the Continental United States. Replacement Goods will be shipped on VirtualiZen’s preferred carrier.
Customer must ship the defective Goods back to VirtualiZen unless otherwise agreed upon within fourteen (14) days of receipt of replacement Goods or refund, whichever is applicable. If the Customer fails to return the defective Goods, the Customer shall be liable for the cost of such replacement Goods, and VirtualiZen shall invoice the Customer in full including any applicable taxes and shipping fees. If VirtualiZen authorized a credit for the defective Goods, and the Customer fails to return the defective Goods, VirtualiZen may cancel the credit.
VirtualiZen shall cover the shipping costs of the defective Goods back to VirtualiZen if shipped from within the Continental United States. Customer must obtain a valid return material authorization (RMA) number from VirtualiZen prior to returning defective Goods. Customer must ship the defective goods utilizing the provided shipping label from the RMA. Failure to do so will remove VirtualiZen’s liability of the shipping costs.
11. Force Majeure: In no event shall VirtualiZen be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, epidemics, acts of God, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services.
12. Notices: Any communication to the other party under this Agreement must be submitted in person by the party, a representative of the party, registered or certified mail, or overnight express mail, return receipt requested, postage prepaid, and properly addressed.
13. Assignment: Neither party shall assign, sublicense or otherwise transfer its rights and/or obligations under this Agreement, or any portion thereof, to any person or entity without the other party’s prior written authorization.
14. Governing Law: This Agreement shall be governed by and construed in accordance with the internal laws of the State of California. Any legal suit, action or proceeding arising out of or based upon this Agreement or transactions will be located in the state and federal courts located in Santa Barbara, California, regardless of their place of residence.
15. Agreement and Modifications: The Agreement shall constitute the entire agreement between the parties and any prior understanding or representation of any kind preceding the date of the Agreement shall not be binding upon either party except to the extent incorporated in the Agreement. Any modification to this Agreement must be made in writing and signed by authorized members of each party. The Agreement may be signed in counterparts, and faxed or emailed, and will have the same binding effect as if the parties had signed the original document.