Atheer Sales Terms and Conditions

This agreement is between you, the party accepting this agreement (“Buyer”) and us, Atheer, Inc. (“we,” “us”, “ours,” “Atheer”) and governs your purchase and use of the Atheer Smart Glass (“Product”). This agreement consists of the terms below, terms incorporated by reference, and the Privacy Policy (“Agreement)).  Do not submit an order or use the Product if you do not agree with the terms of the Agreement.

 

1.             PRODUCTS, QUANTITIES AND PRICING

Buyer shall pay for the Products in the quantities and at the prices specified in the Buyer’s order.  Buyer’s credit card will be charged upon shipment of the items ordered. Prices quoted are in U.S. dollars and do not include any taxes, duties or similar levies, now or hereafter enacted, applicable to the Products offered herein.  Taxes, duties and similar levies will be added by Atheer to the sales price where Atheer is required by law to pay or collect them and will be paid by Buyer unless Buyer supplies Atheer with the proper tax exempting certificate or resale number.

 

2.             REGISTRATION

Buyer must complete the registration process by providing us with current, complete and accurate information in order to activate the Product. Buyer is responsible for any and all activities that occur under Buyer’s account; maintaining the confidentiality of any non-public authentication credentials associated with your account; and promptly notifying our customer support team about any possible misuse of your accounts or authentication credentials, or any security incident related to the Services.  Any bug fixes or new version made generally available by Atheer can be accessed and downloaded via Buyer’s account.

 

3.             INTELLECTUAL PROPERTY

The Product includes software and/or documentation, all ownership rights in and to such software and/or documentation shall remain solely and exclusively with Atheer, or its third party supplier.  No rights are granted to any intellectual property residing in the Products (including without limitation, software and/or documentation or any data furnished hereunder) except the grant of a non-exclusive, non-transferable copyright license under Atheer’s copyrights to Buyer, to use the Software as incorporated in the Product and only as intended.  Buyer shall not copy, reproduce or distribute software and/or documentation.  Buyer shall not have the right to any software source code. Buyer shall not: (a) modify, adapt, alter, translate, or create derivative works from, the software; (b) assign, sublicense, lease, rent, loan, transfer, disclose, or otherwise make available the software; (c) merge the software with any other software; or (d) reverse assemble, decompile, disassemble, or otherwise attempt to derive the source code for the Software without written authorization from Atheer, except to the extent permitted by law. Buyer shall not obfuscate any proprietary rights legends of Atheer in the Product or documentation provided by Atheer. 

 

4.             DELIVERY

Your order will be shipped within and the time frame set forth in our order confirmation, and subject to credit card verification).

 

5.             CANCELLATION AND RETURN

Buyer and Atheer may cancel any order prior to shipping.  No order may be cancelled or rescheduled by Buyer after the item has been shipped.  Buyer may return new, unopened items sold and fulfilled by Atheer within 30 days of delivery for a full refund. Buyer is responsible for shipping fees and credit card charges. 

 

6.             FORCE MAJEURE

Atheer shall not be liable for any failure or delay in performance due to any cause (including an act of God) beyond Atheer’s control (collectively "delaying cause").  In the event of a delaying cause, the date of the delivery or performance hereunder shall be extended by a period equal to the time lost by reason of such delay.  In the event that the delay extends for a period of four consecutive months (or in the event that the delay is reasonably expected by Atheer to extend for a period of four consecutive months), Atheer shall be entitled to cancel all or any part of the order, without liability to Atheer.  In the event Atheer’s production is curtailed, for any reason, Atheer shall have the right to allocate its available production, in its sole discretion, among its various customers.

 

7.             LIMITED WARRANTY

(a)           Atheer warrants that the Products (excluding any software) shall, at the time of delivery and for a period of twelve (12) months from the shipping date, be free from defects in material or workmanship and shall substantially conform to Atheer’s specifications or product documentation, as applicable, under normal use. ANY SOFTWARE INCLUDED WITH, OR COMPRISING, THE PRODUCTS IS PROVIDED “AS IS” AND WITHOUT WARRANTY OR SUPPORT OF ANY KIND.  Atheer’s sole and exclusive obligation, and Buyer’s sole and exclusive right, with respect to claims under this warranty shall be limited, at Atheer’s option, to the replacement or repair of defective or non-conforming product or to an appropriate credit for the purchase price thereof.  Replacements may be made with refurbished products.

 

(b)           Buyer may ship Products returned under warranty claims to Atheer’s designated facility only so long as the returns are in conformance with Atheer’s then-current Return Material Authorization policy. Where warranty adjustment is made, Atheer will pay for freight expenses. Buyer shall pay for returned Products which are not defective or non-conforming together with the freight, testing and handling costs associated therewith.

 

(c)           Atheer shall have no obligations for breach of warranty if the alleged defect or non-conformance is found to have occurred as a result of misuse, neglect, improper installation or accident, or as a result of improper repair, alteration, storage, shipping or handling.

 

(d)           THE EXPRESS WARRANTY GRANTED ABOVE SHALL EXTEND DIRECTLY TO BUYER ONLY.  EXCEPT FOR WARRANTY OF TITLE, THE EXPRESS WARRANTY GRANTED ABOVE IS IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY, ALL OTHER WARRANTIES BEING SPECIFICALLY DISCLAIMED BY ATHEER.

 

8.             LIMITATION OF LIABILITY

(a)           ATHEER IS NOT LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS OR LOST SAVINGS) ARISING OUT OF THIS AGREEMENT WHETHER OR NOT SUCH DAMAGES ARE BASED ON TORT, WARRANTY, CONTRACT OR ANY OTHER LEGAL THEORY – EVEN IF SUCH PARTY HAS BEEN ADVISED, OR IS AWARE, OF THE POSSIBILITY OF SUCH DAMAGES.  ATHEER’S AGGREGATE LIABILITY UNDER ANY AGREEMENT ARISING OUT OF THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY RECEIVED BY ATHEER FROM BUYER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY.  NOTWITHSTANDING THE FOREGOING, IN THE EVENT OF LIABILITY FOR DELAY OR NON-DELIVERY, ATHEER’S AGGREGATE LIABILITY SHALL NOT EXCEED THE PRICE OF THE SPECIFIC PRODUCTS SUBJECT TO THE DELAY. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY IN CERTAIN CIRCUMSTANCES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

 

(b)           Atheer’s Products are not designed for use in life support equipment or other applications where malfunction of a Atheer’s product can reasonably be expected to result in a personal injury. Atheer’s customers using or selling Atheer’s Products for such use do so at their own risk and agree to fully indemnify Atheer for any damages resulting from such use or sale.

 

(c)           Any claim for damages must be brought by Buyer within ninety (90) days of the date of the event giving rise to any such claim, and any lawsuit relative to any such claim must be filed within one (1) year of the date of the claim.

 

9.             COMPLIANCE WITH LAWS

Buyer agrees that it will not deal with the Products and/or documentation related thereto in violation of any applicable laws and regulations, including export or import control laws and regulations.

 

10.          GENERAL

These Terms and Conditions and, upon acceptance by Buyer, the resulting agreement are governed by and construed in accordance with the internal laws of the State of California, without reference to the conflicts of laws principles thereof.  Should a dispute arise from the subject matter of any agreement arising out of these Terms and Conditions, the prevailing party in any resulting litigation shall be reimbursed by the other party for any and all reasonable attorneys’ fees and expenses incurred.  If any provision of any agreement arising out of these Terms and Conditions  is invalid under any applicable statute or rule of law, it shall be, to that extent, deemed omitted.

The failure of any party, at any time, to enforce any of provision of any agreement arising out of these Terms and Conditions, or any right with respect thereto, shall not be construed as a waiver of such provision or right or a waiver of any other provision or right.  The waiver of any right with respect to any provision of such an agreement shall not be construed as a continuing waiver of any such right or provision or a waiver of any other provision or right.  These Terms and Conditions constitute the entire agreement of Atheer and Buyer relative to the Products and supersede and replace all prior or contemporaneous agreements, written and verbal, between the parties regarding such Products, including but not limited pre-printed terms on purchase orders, pull documents and the like. Any such agreement may only be changed, modified or amended by the written agreement of the parties.