1. Prices and Taxes
Unless otherwise stated in writing by Forcepoint™, (a) all quoted prices expire in accordance with the quote provided by Forcepoint, and (b) all quoted prices are exclusive of transportation, insurance, federal, state, local, excise, value-added, use, sales, property (ad valorem) and similar taxes or duties now in force or hereafter enacted. Buyer agrees to pay the invoice for all Hardware purchased pursuant to the quote. Buyer will pay all taxes, fees or charges of any nature whatsoever imposed by any governmental authority on, or measured by, the transaction between Buyer and Forcepoint. If Forcepoint is required to collect the foregoing, such amounts will be separately stated on the invoice, and must be paid by Buyer unless Buyer provides Forcepoint with a valid tax exemption certificate authorized by the appropriate taxing authority. Buyer agrees to provide Forcepoint with a valid resale certificate for the Hardware purchased for resale.
At the time Hardware is picked up by the common carrier from a Forcepoint location, it is delivered and title and risk of loss passes to Buyer.
In the absence of specific shipping instructions, Forcepoint will ship by the method it deems most advantageous using standard commercial packaging. Buyer agrees to pay all transportation charges and costs associated with shipment of the Hardware, including any special or export packaging requested or required under the circumstances, as determined by Forcepoint. Buyer is responsible for obtaining insurance against damage to the Hardware during shipment.
4. Terms of Payment
All payments are due net thirty (n/30) days from the date of invoice. Past-due invoices are subject to a monthly charge equal to the lesser of one and one-half percent (1.5%) per month, or the highest rate of interest permitted by law. If any invoice remains unpaid after sixty (60) days from the invoice date, notwithstanding any agreement or course of dealing between Forcepoint and Buyer, (i) all subsequent orders will be accepted only on a C.O.D. or cash-with-order basis until satisfactory credit is re-established at Forcepoint’s sole discretion, and (ii) Forcepoint may suspend shipment of any Hardware ordered until all outstanding invoices are paid.
5. Software and Proprietary Rights
All software supplied is proprietary to Forcepoint and/or its licensors. Use of the software is subject to the terms of the applicable end user agreement. Forcepoint, its licensors or suppliers retain all proprietary rights in and to any Hardware sold.
6. Sales Convey No License
Hardware is sold by Forcepoint subject to the condition that the sale does not convey any license, under any patent claim covering complete equipment, or any assembly, circuit combination, method or process in which any such Hardware are used as components. Forcepoint and its suppliers reserve all rights under such patent claims.
7. Limited Warranty
The Hardware limited warranty is provided only to an end-user customer for the period set forth in an order that has been accepted by Forcepoint. The end user customer must be: (a) a Buyer purchasing Hardware directly from Forcepoint; or (b) an entity purchasing Hardware from a reseller that (i) is a Buyer of Hardware via the Forcepoint Channel Partner program, or (ii) a reseller that has purchased Hardware from a Buyer who is a distributor. The hardware limited warranty covers defects in materials and workmanship in the Forcepoint-branded Hardware. The limited warranty does not cover: (a) software, including the operating system and software added to the Hardware, or the reloading of software; (b) non-Forcepoint branded products and accessories; (c) problems resulting from (i) external causes such as accident, abuse, misuse, or problems with electrical power, (ii) servicing not authorized by Forcepoint, (iii) usage that is not in accordance with product instructions, (iv) failure to follow the product instructions or failure to perform preventive maintenance, (v) problems caused by using accessories, parts, or components not supplied by Forcepoint; (d) normal wear and tear; and (e) products with missing or altered service tags or serial numbers. FORCEPOINT’S RESPONSIBILITY FOR MALFUNCTIONS AND DEFECTS IN HARDWARE IS LIMITED TO REPAIR AND REPLACEMENT OF THE HARDWARE AS SET FORTH IN THIS WARRANTY STATEMENT. EXCEPT AS PROVIDED ABOVE, FORCEPOINT AND ITS SUPPLIERS MAKE NO, AND HEREBY DISCLAIM ALL OTHER, WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8. Limitation of Liability
Neither Forcepoint nor its suppliers will be liable for any loss, damages or penalty resulting from delay in delivery when such delay is due to causes beyond the reasonable control of Forcepoint, including but not limited to supplier delay, force majeure, act of God, labor unrest, fire, explosion or earthquake. In any such event, the delivery date will be deemed extended for a period equal to the delay. FORCEPOINT'S AND ITS SUPPLIERS’ LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT AND/OR SALE WILL BE LIMITED TO THE REFUND OF THE HARDWARE PURCHASE PRICE. IN NO EVENT WILL FORCEPOINT OR ITS SUPPLIERS BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE HARDWARE BY BUYER OR FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFIT) WHETHER OR NOT FORCEPOINT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY ARISING OUT OF THIS AGREEMENT. THIS EXCLUSION INCLUDES ANY LIABILITY THAT MAY ARISE OUT OF THIRD-PARTY CLAIMS AGAINST BUYER. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
9. Substitutions and Modifications
Forcepoint has the right to make substitutions and modifications in the specifications of the Hardware sold, provided that such substitutions or modifications will not materially affect overall product performance.
10. Entire Agreement
This Agreement constitutes the entire agreement between Forcepoint and Buyer and supersedes any other agreements or offers, including any purchase order of Buyer. This Agreement may not be modified, supplemented, qualified or interpreted by any trade usage or prior course of dealing not made a part of this Agreement by its express terms. Buyer hereby acknowledges that it has not entered into this Agreement in reliance upon any warranty or representation by any person or entity except for the warranties or representations specifically set forth herein. No modification of this Agreement shall be effective unless in writing signed by both Buyer and Forcepoint.
The failure by Forcepoint to enforce at any time any of the provisions of this Agreement, to exercise any election or option provided herein, or to require at any time the performance by Buyer of any of the provisions herein, will not in any way be construed as a waiver of such provisions.
12. Applicable Law
Any dispute arising out of or relating to this Agreement or the breach thereof shall be governed by the federal laws of the United States and the laws of the State of Delaware, USA for all claims arising in or related to the United States, Canada, or Mexico; and Dublin, Ireland for all other claims without regard to or application of choice of laws, rules or principles. Both parties hereby consent to the exclusive jurisdiction of (1) the state and federal courts in Austin, Texas, USA, for all claims arising in or related to the United States, Canada or Mexico, or (2) the competent courts in Dublin, Ireland for all other claims. Both parties expressly waive any objections or defense based upon lack of personal jurisdiction or venue. The United Nations Convention on the International Sale of Goods shall not apply to this Agreement or the Hardware. Any Buyer-initiated action for a dispute hereunder must be brought within one (1) year of the accrual of such dispute.
13. Attorneys' Fees
The prevailing party in any litigation involving the enforcement or interpretation of this Agreement is entitled to recovery of reasonable attorneys' fees and costs.
14. Import and Export Requirements
Buyer shall, at its own expense, pay all import and export licenses and permits, pay customs charges and duty fees, and take all other actions required to accomplish the export and import of the Hardware purchased by Buyer. Buyer understands that Forcepoint is subject to regulation by agencies of the U.S. government, including the U.S. Department of Commerce, which prohibits export or diversion of certain technical products to certain countries and to certain parties as designated by the U.S. government, and when applicable, European Union export laws (including without limitation Council Regulation (EC) No. 428/2009 (as amended)), applicable UN resolutions/EU regulations imposing restrictive measures/trade sanctions/embargoes or other restrictions on exporting goods or services. Buyer warrants that it will comply in all respects with the export and re-export restrictions including but not limited to those set forth in the export license for every product shipped to Buyer.