Terms of Sale
1. AGREEMENT. All sales by FirePower Technology, Inc. (“FirePower”) of any products (“Products”) to the purchaser (“Customer”) as specified in the associated quotation, order acknowledgement, or invoice from FirePower (“Order”) shall be governed exclusively by these terms and conditions (“Terms”). FIREPOWER OBJECTS TO AND HEREBY REJECTS ANY ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS PROPOSED BY CUSTOMER, INCLUDING THOSE CONTAINED ON ANY PURCHASE ORDER OR OTHER DOCUMENTATION PROVIDED BY CUSTOMER. Any changes to the Terms must specifically agreed to in a writing executed by FirePower and Customer before becoming binding on either party. To the extent a conflict or inconsistency exists between these Terms and any document submitted to FirePower by Customer, these Terms will control.
2. WARRANTY. Unless otherwise provided on the associated Order or agreed to in writing by authorized FirePower personnel, FirePower warrants that Products sold by FirePower will be free from defects in material and workmanship in accordance with the warranty terms and periods set forth at www.firepower-technology.com/support. FirePower’s warranty shall not apply to any Products that are not installed or operated in conformity with FirePower’s published instructions, or to any Products that have been subject to misuse, negligence, or accident, or altered or repaired by anyone other than FirePower or its duly authorized agent. FirePower has sole responsibility and discretion for determining the cause and nature of a Product defect, and FirePower’s determination with regard thereto shall be final. Customer must notify FirePower of any breach of warranty within the applicable warranty period. The exclusive remedy for any breach of warranty shall be, at FirePower’s option, repair of the Product, replacement with a Product of the same type, or refund of the purchase price. When notifying FirePower of or returning any Products that fail to meet an applicable warranty, Customer shall comply with FirePower’s then-current Return Material Authorization procedure. IN THE EVENT PRODUCTS ARE SPECIFIED AS USED OR RECONDITIONED, THE WARRANTIES OFFERED BY FIREPOWER MAY BE LESS PROTECTIVE THAN WARRANTIES OFFERED FOR NEW PRODUCTS OF THE SAME KIND.
3. DISCLAIMER OF OTHER WARRANTIES. THE EXPRESS WARRANTIES ABOVE ARE MADE IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. FIREPOWER DOES NOT MAKE, AND HEREBY DISCLAIMS, ALL WARRANTIES AND CONDITIONS INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. No agent, representative or employee of FirePower has any authority to make any representations or warranties on behalf of FirePower.
4. LIMITATION OF LIABILITY. FIREPOWER’S TOTAL LIABILITY ARISING FROM THE PRODUCTS, WHETHER FOR BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE OR OTHERWISE, IS LIMITED TO THE AMOUNT CUSTOMER PAID FOR THE PRODUCTS FOR WHICH LOSSES OR DAMAGES ARE CLAIMED. IN NO EVENT SHALL FIREPOWER BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT OR PUNITIVE DAMAGES, OR LOST PROFITS, ARISING OUT OF OR RELATED TO THE PRODUCTS, REGARDLESS OF WHETHER FIREPOWER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NO ACTION RELATING TO THE PRODUCTS MAY BE BROUGHT BY CUSTOMER MORE THAN ONE YEAR AFTER DELIVERY OF THE PRODUCTS.
5. DELIVERY OF PRODUCTS; TITLE. Delivery and completion dates are estimates; FirePower will use commercially reasonable efforts to meet desired delivery and completion dates, but will not be liable to Customer in any way for any late shipment or completion. Delivery requests not conforming to FirePower’s lead times are subject to expedite fees. FirePower shall not be responsible for any delays caused by strike, flood, fire, act of God, scarcity of the materials needed to produce the Products, governmental restrictions, or any other cause beyond the reasonable control of FirePower. Unless otherwise provided on the Order, the Products shall be delivered for domestic shipments in the continental U.S.A. FOB shipping point and international shipments will be EXW shipping point (Incoterms 2010) and title to Products shall pass to Customer in accordance therewith.
6. USE OF PRODUCTS. Unless Customer has entered into an authorized reseller agreement with FirePower, Customer shall use Products only for its own business purpose and not for resale or distribution. Customer shall indemnify FirePower against all claims, losses, damage, injury, or other liability arising out of or related to unauthorized or unintended use of the Products, whether separately or as incorporated into any of the Customer’s products or services.
7. PAYMENT TERMS. All Products are invoiced upon shipment. Terms of payment are net 30 days from the date of invoice, unless otherwise expressly provided for and confirmed in writing by FirePower. Overdue payments shall be subject to finance charges computed at a periodic rate of the lesser of the maximum allowed by applicable law or 1-1/2% per month. Unless otherwise provided on the Order, the purchase price is exclusive of, and Customer is responsible for, all sales, value added, use and like taxes and any applicable customs duties, import licenses, excise fees or tariffs. FirePower will invoice Customer for all applicable taxes unless Customer supplies an appropriate and valid tax exemption certificate.
8. INDEMNIFICATION. FirePower will defend, indemnify and hold harmless Customer from any third-party claim made against Customer for infringement of any United States patent, copyright, or trademark by the Products, provided that Customer (i) promptly notifies FirePower of any such claim; and (ii) gives FirePower all information, authority and assistance reasonably necessary to settle and/or defend any such claim. FirePower will have sole control of any such claim, including, in its sole discretion and at its own expense, the right to settle the claim. FirePower has no liability for any claim arising or alleged to arise from use of a Product as part of any equipment, software, assembly, combination, method or process not supplied by FirePower, or for any claim, suit or proceeding arising or alleged to arise from: (i) any marking or branding applied to a Product at the request of Customer or by a party other than FirePower; or (ii) modification or servicing of all or part of a Product at Customer’s request or by any party other than FirePower (except as expressly authorized by FirePower in writing). This Section 8 states the entire liability and obligations of FirePower, and the exclusive remedy of Customer, with respect to any actual or alleged infringement of any United States patent, copyright, trademark and/or other intellectual property right by Products or any part thereof.
9. EXPORT RESTRICTION. Customer will not export or re-export the Products or any related technical documentation in any form in violation of the export administration and control laws of the United States or any foreign jurisdiction.
10. GENERAL. These Terms will be governed by the laws of the State of Delaware without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Any action to enforce these Terms shall be brought in the federal or state courts in the jurisdiction of FirePower’s principal place of business. The United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms. Neither these Terms nor any rights under these Terms shall be assigned or otherwise transferred by Customer (by operation of law or otherwise) without the prior written consent of FirePower and any unauthorized transfer or assignment shall be void. These Terms shall bind and inure to the benefit of the successors and permitted assigns of the parties hereto. These Terms together with FirePower’s associated Orders (if applicable) constitute the entire understanding and agreement between the parties regarding the subject matter hereof and supersede all prior or contemporaneous understandings, written or oral. In the event the terms of a Order contain additional or different terms than these Terms, the terms of the Order will govern and control. These Terms may only be amended by a written document signed by both parties.
A charge for UPS freight, based on invoice value, will be added to your order during Checkout.
UPS Ground delivery usually takes from 3 to 5 business days, and is available within the Continental United States and Canada ONLY.
UPS 2nd Day delivery is available within the Continental United States, Alaska, Hawaii, and Canada.
UPS Overnight delivery is available within the Continental United States, Canada, but NOT available for orders to Alaska, Hawaii, or any other International shipping destination.
Shipping charges for International Orders are not calculated by this online ordering system. For a shipping quote, call Customer Service at 760-931-5700.
Please note that shipping charges for UPS freight are subject to change without notice.
Sales Tax will be added during Checkout for orders shipped within California.
The Federal Internet tax moratorium bars the imposition of new taxes on the Internet itself and things like Internet access services. It doesn’t change the applicability of state and local taxes to sales transactions. FirePower Technology must collect such taxes on the sale of merchandise online, based on tax laws applicable to the shipping address (note: these tax rates and rules may change at any time). Taxes are calculated on the price of items purchased.
Non-profit Organizations, Tax-exempt Entities, and Federal Agencies within California Tax-exempt organizations should call Customer Service for their orders, providing FirePower Technology, Inc. with a copy of their exemption certificate, resale certificate, or proof of exempt status for California. Non-profits should call Customer Service for their orders, providing proof of their 501(c)(3) status or other acceptable exemption certification.
Federal agencies should call Customer Service at 800-722-6555 or 760-931-5700 for their orders, and provide a federal tax ID certificate.
If you have further questions about this Agreement, you may contact our Site Representative.
Updated September 16, 2014