PLEASE READ THIS DOCUMENT CAREFULLY! IT CONTAINS VERY IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND EXCLUSIONS THAT MAY APPLY TO YOU.
These terms and conditions (“Agreement”) apply to your purchase of the Song Meter audio recorders, Song Scope software and/or related products (“Products” and/or services sold in the United States (“ProductServices”) by Wildlife Acoustics, Inc. (the “Company”). By accepting delivery of the Product(s), you accept and are bound to the terms and conditions of this Agreement. If you do not wish to be bound by this Agreement, you must notify the Company immediately and return your purchase pursuant to the Company’s Return Policy. (See: http://www.wildlifeacoustics.com/contact.php for our contact information.) If returned, the Product(s) must remain in the boxes in which they were shipped. THIS AGREEMENT SHALL APPLY UNLESS YOU HAVE A SEPARATE PURCHASE AGREEMENT WITH THE COMPANY, IN WHICH CASE THE SEPARATE AGREEMENT SHALL GOVERN.
- Payment Terms; Orders; Quotes; Interest. Payment must be made at the time of purchase. Payment for the Product(s) may be made by credit card, wire transfer, or other prearranged payment method. The Company may invoice parts of an order separately. Your order is subject to acceptance by the Company, at the Company’s sole discretion. Information contained in a quote or which is given to you by the Company’s agents or employees constitutes an invitation to treat but does not constitute an offer by the Company to supply Products and/or Services. By placing an order, you are making an offer to the Company to purchase the Products and/or Services. The Company is not responsible for pricing, typographical, or other errors, in any offer by the Company and reserves the right to cancel any orders resulting from such errors.
- Shipping Charges; Taxes; Risk of Loss. Shipping and handling are additional unless otherwise expressly indicated at the time of sale. Loss or damage that occurs during shipping by a carrier selected by the Company is the Company’s responsibility. Loss or damage that occurs during shipping by a carrier selected by you is your responsibility. You must notify the Company within 30 days of the date of your invoice or acknowledgement if you believe any part of your purchase is missing, wrong or damaged. Unless you provide the Company with a valid and correct tax exemption certificate applicable to your purchase of Product(s) and the Product(s) ship-to location, you are responsible for sales and other taxes associated with the order. Shipping dates are estimates only.
- Warranties. THE LIMITED WARRANTIES APPLICABLE TO THE PRODUCT CAN BE FOUND AT http://www.wildlifeacoustics.com/warranty.php OR IN THE DOCUMENTATION THE COMPANY PROVIDES WITH THE PRODUCTS. THE PRODUCTS ARE PROVIDED BY THE COMPANY “AS IS”. THE COMPANY MAKES NO EXPRESS WARRANTIES EXCEPT THOSE STATED IN THE COMPANY’S APPLICABLE WARRANTY STATEMENT IN EFFECT ON THE DATE OF THE INVOICE, PACKING SLIP OR ACKNOWLEDGEMENT. WARRANTIES AND SERVICE WILL BE EFFECTIVE, AND THE COMPANY WILL BE OBLIGATED TO HONOR ANY SUCH WARRANTIES AND SERVICES, ONLY UPON THE COMPANY’S RECEIPT OF PAYMENT IN FULL FOR THE ITEM TO BE WARRANTED OR SERVICED. THE COMPANY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ANY THIRD PARTY PRODUCTS, INCLUDING SOFTWARE, INCLUDED WITH THE COMPANY PRODUCTS ARE NOT COVERED BY THE COMPANY’S WARRANTY AND THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES ON BEHALF OF SUCH THIRD PARTIES. ANY WARRANTY ON SUCH PRODUCTS IS FROM THE SUPPLIER OR LICENSOR OF SUCH PRODUCTS.
- 4. Software. All software is provided subject to the license agreement that is part of the software package and you agree that you will be bound by such license agreement, and the applicable patent, trademark, copyright, and other intellectual property laws. Such software may be included in ROMs or other semiconductor chips embedded in hardware, or it may be contained separately on disks or on other media. Such software is proprietary, is copyrighted, and may also contain valuable trade secrets and be protected by patents. You shall not separate any end-user license from a software Product. Title to software will remain with the applicable licensor(s). In addition to any obligations or restrictions set forth in the accompanying license agreement, you shall not copy any software Product(s) except for back up or for archival purposes, and you shall promptly affix to any such copy the same proprietary and copyright notices as were affixed to the original. Except to the extent permitted by law, you shall not duplicate, disassemble, de-compile, reverse engineer, modify, create derivative works, or otherwise change any software Product(s) or its form. You may use software that is incorporated in or packaged with any hardware Product solely in connection with the authorized use of such hardware Product, and shall have no other rights with respect to the software.
- Return Policies; Exchanges Products that you purchase directly from the Company (and not a third party) you may return or exchange only in accordance with the Company’s return policy in effect on the date of the invoice or acknowledgement. Any returns or exchanges will be made in accordance with the Company’s exchange policies in effect on the date of the return or exchange. You must return Product(s) to us in their original or equivalent packaging. You are responsible for risk of loss, shipping and handling fees for returning or exchanging Products. Additional fees may apply. The Company’s return policy for the Products can be found at: http://www.wildlifeacoustics.com/warranty.php. If you fail to follow the return or exchange instructions and policies provided by the Company, the Company is not responsible whatsoever for a Product that is lost, damaged, modified or otherwise processed for disposal or resale. If you are returning all components in an order, you will be credited the full amount paid for the order. At the Company’s discretion, credit for partial returns may be less than invoice or individual component prices due to bundled or promotional pricing.
- Products; Changes. The Company’s policy is one of ongoing update and revision. The Company may revise and discontinue a Product at any time without notice to you. The Company will ship Products that have the functionality and performance of the Products ordered, but changes between what is shipped and what is described in a specification sheet or website are possible. Parts used in repairing or servicing Products may be new, equivalent-to-new, or reconditioned. Terms, pricing, availability, and product specifications are subject to change without notice.
- Limitation of Liability. (a) THE COMPANY DOES NOT ACCEPT LIABILITY BEYOND THE REMEDIES SET FORTH HEREIN. SUBJECT TO SECTION 8(b), NEITHER THE COMPANY NOR ITS SUPPLIERS SHALL BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, OR PUNITIVE DAMAGES OF ANY KIND, LOSS OF INFORMATION OR DATA, LOSS OF REVENUE, LOSS OF BUSINESS OR OTHER FINANCIAL LOSS ARISING OUT OF OR IN CONNECTION WITH THE SALE OR USE OF THE PRODUCT, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR ANY OTHER THEORY, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE COMPANY’S ENTIRE LIABILITY SHALL BE LIMITED TO REPLACEMENT, REPAIR, OR REFUND OF THE PURCHASE PRICE PAID, AT THE COMPANY’S OPTION. SUBJECT TO SECTION 8(b), YOU AGREE THAT FOR ANY LIABILITY RELATED TO THE PURCHASE OF PRODUCTS, THE COMPANY IS NOT LIABLE OR RESPONSIBLE FOR ANY AMOUNT OF DAMAGES ABOVE THE AMOUNT INVOICED PAID TO THE COMPANY FOR THE APPLICABLE PRODUCTS. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, THE REMEDIES SET FORTH IN THIS AGREEMENT SHALL APPLY EVEN IF SUCH REMEDIES FAIL THEIR ESSENTIAL PURPOSE. ANY WARRANTY, CONDITION OR OTHER TERM CONCERNING THE PRODUCTS OR SERVICES WHICH MIGHT OTHERWISE BE IMPLIED INTO OR INCORPORATED IN THE CONTRACT BY STATUTE, COMMON LAW, LAWS APPLICABLE IN THE COUNTRY WHERE YOU PURCHASE THE PRODUCTS OR SERVICES OR OTHERWISE (INCLUDING WITHOUT LIMITATION ANY IMPLIED TERM AS TO QUALITY, FITNESS FOR PURPOSE, REASONABLE CARE AND SKILL) ARE HEREBY EXPRESSLY EXCLUDED TO THE MAXIMUM EXTENT PERMITTED BY LAW. (b) Nothing in the Agreement shall limit or exclude the Company’s liability (i) for death or personal injury caused by the Company’s negligence, (ii) for fraud, (iii) for any breach of the obligations implied by applicable compulsory national laws or (iv) any liability which cannot be excluded by law. In particular, if this Agreement is held to constitute a supply of goods or services to a “consumer” by a competent judge in a customer’s jurisdiction by application of mandatory principles of consumer law in that jurisdiction (“Mandatory Consumer Law” nothing contained in this Agreement shall exclude or restrict Customer’s rights in relation to the Products and Services to be supplied under the Agreement where to do so is unlawful pursuant to Mandatory Consumer Law.
- Applicable Law; Not For Resale or Export. You shall comply with all laws, regulations and orders of the United States and the United Nation Organization applicable to the export, re-export, transfer or resale of products or the provision of services and related technical data (“Export Laws”). You shall not (i) make Products or Services available in any country in contravention of any Export Laws, or any other law, and (ii) not make Products or Services available in a country for which an export license or other governmental approval is required without first obtaining all necessary licenses or other approvals.You agree to comply with all applicable laws and regulations of the various states and of the United States. You agree and represent that you are buying only for your own internal use only, and not for resale or export. The Company has separate terms and conditions governing resale of Product(s) by third parties and transactions outside the United States, which are available upon request.
- Force Majeure. Other than for the requirements to make payment when due, neither party shall be liable for any delay or failure to meet its obligations under this Agreement due to unforeseen circumstances or to causes beyond such party’s control. In the event of any such delay, performance of the affected obligation shall be suspended for a period of time equal to the time of such delay save that in the event that the delay continues for more than two (2) months, the Company may elect to terminate this Agreement with immediate effect without incurring any liability.
- Governing Law. The laws of the Commonwealth of Massachusetts govern this Agreement, without regard to its conflicts of laws rules and excluding the United Nations Convention on the International Sale of Goods, and you agree to submit to the exclusive jurisdiction of the courts of the Commonwealth of Massachusetts. Notwithstanding the foregoing, the Company reserves the right to institute proceedings against the customer in the courts having jurisdiction in the place where the customer has its seat or in any jurisdiction where a harm to the Company is occurring.
- 12. Other Documents. This Agreement may NOT be altered, supplemented, or amended by the use of any other document(s) unless otherwise agreed to in a written agreement signed by both you and the Company. If you do not receive an invoice or acknowledgement in the mail, via e-mail, or with your Product(s), information about your purchase may be obtained by writing to or by contacting your sales representative.
- Miscellaneous. The section headings used herein are for convenience of reference only and do not form a part of these terms and conditions, and no construction or inference shall be derived therefrom. If any provision, either in part or in full, of this Agreement is void or unenforceable, such provision shall be enforced to the maximum extent possible or permissible and this Agreement will be adjusted, if possible, so as to give maximum effect to the original intent and economic effect of the parties with respect to the unenforceable provision and the remaining portions of this Agreement shall remain in full force and effect. the remainder of this Agreement will remain in full force and will not be terminated. Neither party will be liable for any delays resulting from circumstances or causes beyond the party’s reasonable control. The waiver by either party of any default by the other party shall not waive subsequent defaults by such other party of the same or different kind. Customer may not assign this Agreement nor any Order related thereto and Customer may not delegate its duties under the Agreement without the Company’s prior written consent which shall not be unreasonably withheld. The Company may assign the Agreement without Customer’s consent provided that such assignment is to an affiliate of the Company. No modification to this Agreement shall be binding unless in writing and signed by an authorized representative of each party.
DISCLAIMER: Some countries, states, or provinces do not allow the exclusion or limitation of implied warranties or the limitation of incidental or consequential damages so the above limitations and exclusions may be limited in their application to you. When implied warranties may not be excluded in their entirety, they will be limited to the duration of the applicable written warranty. This warranty gives you specific legal rights; you may have other rights that may vary depending on local law. Your statutory rights are not affected.