TERMS AND CONDITIONS OF SALE
PLEASE READ THIS LEGAL DOCUMENT CAREFULLY. THESE TERMS CONTAIN A BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER (SECTION 14). READ CAREFULLY, INCLUDING YOUR RIGHT, IF APPLICABLE, TO OPT OUT OF ARBITRATION. EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN SECTION 14 BELOW, OR WHERE PROHIBITED BY LAW, BY ENTERING INTO THESE TERMS YOU EXPRESSLY AGREE THAT DISPUTES BETWEEN YOU AND UNEEKOR WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND YOU HEREBY WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
Unless otherwise expressly agreed in writing, your purchase of products is subject to the following terms and conditions.
1. Agreement Terms
1.1 General Terms. These terms and conditions (“Terms”), our quotation (if any) and Supplementary Terms, if any, comprise the agreement (“Agreement”) between you (“you”) and Uneekor, Inc (“Uneekor”, “we” or “us”). Unless your order is subject to a valid, written, executed agreement between you and Uneekor or any of the Uneekor group companies, in which case such agreement applies, you agree to accept and be bound by the Agreement by ordering products on uneekor.com or if you receive ordering or sales documents that reference these Terms. This Agreement is the complete and exclusive contract between us with respect to your purchase of the products.
1.2 Supplementary Terms. Some of our products are subject to additional software licenses, specific use licenses or other written contract terms that you will not find here (“Supplementary Terms”). You will find any Supplementary Terms that apply to your purchase in our quotation to you, on uneekor.com, or in literature that accompanies the product. You can also obtain copies from Customer Service.
1.3 Commercial Applications. All commercial applications of our products, software or services (e.g. coaching, entertainment centers, fitting, etc.) whether for a fee or not, could be subject to Supplementary Terms. While we currently allow commercial applications broadly, we cannot guarantee that any future product, software or service will have the same broad rights. We reserve the right, in the future with respect to new or upgraded products, software or services, to require additional fees and an agreement to new Supplementary Terms or Additional Rights for certain commercial applications.
1.4 Terms Conflict. If any conditions within the Agreement documents conflict with each other, we will give them the following priority: (a) the quotation; (b) any applicable Supplementary Terms; and (c) finally these Terms. We expressly reject any different terms or provisions contained in any document you provide, and if the terms and conditions in this Agreement differ from the terms of your offer, this Agreement will serve as the governing terms for our contract.
1.5 When Agreement takes Effect. The Agreement between us is created when you receive email confirmation that we have accepted your order.
2.1 Determining Price. We may change our prices at any time without notice. Any prices quoted in a quotation are valid for the time period set forth therein. If no price has been specified or quoted to you, the price will be the product price on uneekor.com in effect at the time we accept your order.
2.2 Taxes and Fees. Our product prices do not include any taxes (including VAT), duties, levies or other government fees that may apply to your order. If they apply, it will be your responsibility to pay them. If we pay them, we will add them to your invoice. If you claim any exemption, then prior to placing your order, you must provide a valid, signed certificate or letter of exemption for each respective jurisdiction.
2.3 Shipping and Delivery Fees; Freight Policy. You are also responsible for shipping, delivery and handling charges, if applicable, and our product prices do not include such charges unless expressly stated. If we pay such charges, we will also add these to your invoice.
3. Cancellation and Changes
Once you have placed your order, you cannot cancel or change it without our written consent.
4.1 Payment Terms. Payments must be prepaid unless we have granted you credit approval, in which case payment terms are as stated in your quotation. We reserve the right to terminate or modify any credit terms granted when we believe that such action is warranted. All payments will be made in the currency indicated on our website or in your quotation.
4.2 Late Payment. If you are late in making payment then, without affecting our other rights, you will make payment to us, upon our demand, of a late-payment charge. The late payment charge will be calculated as interest on the sums due from the payment due date until you make payment in full, at the rate of 1.5% per month, or, if less, the maximum amount allowed by law and will also include our reasonable costs of collection (including collection agency fees and attorneys’ fees). We also reserve the right to cancel or stop delivery of products in transit, withhold shipments in whole or in part, or suspend or terminate subscription services, if you do not pay us when due, or if you otherwise do not perform your obligations in this Agreement.
4.3 Resellers. If you purchased our products through a reseller authorized by us (“Reseller”), your obligation for payment to, and your relationship with, any Reseller is between you and such Reseller. Applicable pricing, refunds, taxes, shipping and other terms are also between you and such Reseller. In addition, you may be instructed to follow Reseller’s procedures, including without limitation with respect to refunds and support.
5. Shipment; Delivery
5.1 Shipment; Delivery. We may, in our discretion, make partial shipments and invoice each shipment separately. Our shipping dates are approximate only, and we will not be liable for any loss or damages resulting from any delay in delivery. You may not refuse delivery or otherwise be relieved of any obligations to accept the remaining deliveries as the result of such delay. If our delivery of a product to you is delayed due to any cause within your control, we will place the delayed products in storage at your risk and expense.
6. Risk of Loss and Title
6.1 Products Generally. Excluding software incorporated within or forming part of a product, title to and risk of loss or damage to the products will pass to you upon delivery to the “ship to” address or, if special shipping arrangements are agreed to, upon our delivery to your carrier or designee.
6.2 Software. Title to any software incorporated within or forming a part of the products shall at all times remain with us or the licensor(s) thereof, as the case may be.
7.1 General Support. Only buyers who purchase products directly from Uneekor or a Uneekor authorized reseller are entitled to support services for a product. Support services generally include remote technical support during office hours M-F 8am-5pm PST, excluding holidays observed by us. We will use commercially reasonable efforts to respond to support requests as soon as possible and may not respond in the same day a request is received. You agree to let us access your computer for the provision of support using remote access protocols.
7.2 Software Support. Both during and after your warranty period, we may distribute periodic “as available” firmware and software updates, corrections, modifications, and patches, in our sole discretion (the “Updates”). We reserve the right to stop supporting any software (or version thereof) at any time, and we are under no obligation to provide Updates for your software (or version thereof) if it is no longer generally supported by us. You acknowledge that certain functionality in current and previous software versions may not be available in future new software versions. You may, at your option, continue to use software without Updates or support. However, if you do not conform to the most recent Update level, we may not be able to support your product effectively or at all. You are solely responsible for all hardware required to use any Update.
We warrant the products and services in accordance with our Standard Warranty Policy, available at https://uneekor.com/pages/warranty-policy, and incorporated herein by this reference. THESE WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. No employee or agent of Uneekor, other than an officer of Uneekor by way of a signed writing, is authorized to make any warranty in addition to the foregoing.
9.1 Our Indemnity.
(A) Our Infringement Indemnity. We will defend and indemnify you against infringement damages finally awarded in any legal action brought by a third party against you alleging infringement of any intellectual property rights owned by third parties arising directly and solely from a product, as manufactured and provided by us to you, but always excluding use and/or combination of such product with other products or components. This infringement indemnity does not apply to (a) claims that arose based on your failure to comply with the Agreement; (b) claims that arose based on your failure to acquire any applicable additional intellectual property rights related to your use of the products (“Additional Rights”); (c) your use or resale of products; (d) modifications made by you or any third party; or (e) products originating from third parties.
THIS INDEMNITY IS OUR ONLY LIABILITY TO YOU, AND, SUBJECT TO SECTION 11.2 OF THESE TERMS, YOUR ONLY REMEDY, FOR ANY INFRINGEMENT OR CLAIMED INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS BY OR IN CONNECTION WITH ANY PRODUCT.
(B) Conditions to Our Indemnity. As a condition to our indemnification obligations you must (a) notify us in writing, as soon as you become aware of any claim; (b) not admit any liability or take any other action in connection with the claim that could affect the defense; (c) allow us to solely control the defense or settlement of the claim; (d) give us your reasonable information, co-operation and assistance; and (e) take all reasonable steps to mitigate losses incurred, including allowing us to exercise any and all of options set out in Section 11.2 of these Terms.
9.2 Your Indemnity of Us. If a third party makes a claim against us for infringement of its intellectual property rights based on (a) your failure to comply with the Agreement, (b) your failure to acquire any applicable Additional Rights, or (c) your modification, use or resale of a product, then you will indemnify and hold us harmless from and against any and all claims, losses, damages, liabilities and expenses (including reasonable attorneys’ fees and other costs of defending and/or settling any action) that we may have to pay as a result of the claim.
10.1 Firmware. We grant to you a non-transferable, non-sublicenseable, and non-exclusive license to use software contained, pre-loaded, pre-installed, or embedded in the products (“Firmware”), only as necessary to operate the products in compliance with accompanying documentation. Nothing contained herein will be construed to grant you any right to use or exploit our software in its stand-alone form separate and apart from the products.
10.2 Other Software. All other software (for example, that you download and install on your computer, or access online through a browser) is provided to you pursuant to the applicable Software Licensing Agreement or Software as a Service Agreement, depending on whether the software is provided on a license or subscription basis. Both documents are available here and incorporated herein by reference.
10.3 Third Party Software. The warranty and indemnification provisions set forth in this Agreement will not apply to third party owned software products we provide you. We agree, however, to assign to you any warranty rights we may receive from the original developer or third party supplier, to the extent the original developer or third party supplier allows.
11. Intellectual Property
11.1 Ownership; Use Limitations. We and our licensors will retain all intellectual property rights to our products and services, including without limitation, designs, drawings, patterns, plans, specifications, technology, technical data, software and information, technical processes and business methods, whether patentable or not, arising from the sale or other provision of products and/or services to you.
No right to transfer, distribute or resell our products or any of their components is conveyed expressly, by implication, or by estoppel. Unless expressly permitted by us in writing, you will not modify, change, remove, cover or otherwise obscure any of our brands, trade or service marks on the products. Nothing in the Agreement limits our ability to enforce our intellectual property rights.
11.2 Intellectual Property Infringement. We want to avoid claims of intellectual property infringement. If we believe a product we have sold to you may be subject to a claim for intellectual property infringement, you must allow us (at our option) to either (a) secure for you the right to continue using the product; (b) substitute the product with another suitable product with similar functionality; or (c) tell you to return the product to us and we will refund to you the price you paid, minus a reasonable amount for the instrument’s use, damage or because it is now out of date or out of use.
11.3 Feedback. You hereby grant us a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into our products any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you relating to the features, functionality or operation of our products.
11.4 Data. We and our affiliates or suppliers shall be permitted to use the data generated in connection with your use of our products as follows. If such data is in a form that personally identifies you, we and our affiliates or suppliers will use it only to the extent necessary to provide our services to you. Otherwise, we may de-identify and aggregate such data so that it cannot be linked specifically to you or any user (“Aggregated Anonymous Data”), and we and our affiliates or suppliers may use Aggregated Anonymous Data without restriction for any purpose, Aggregated Anonymous Data shall be deemed to be owned by Uneekor for all purposes.
12. Limitations and Exclusions of Liability
(A) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE WILL NOT BE LIABLE UNDER ANY LEGAL THEORY (INCLUDING BUT NOT LIMITED TO CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR WARRANTY OF ANY KIND) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, MULTIPLE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO ALL COSTS OF COVER, LOST PROFITS, LOST DATA, LOSS OF BUSINESS, LOSS OF GOODWILL OR LOSS OF REVENUE) THAT YOU MIGHT INCUR UNDER THE AGREEMENT, OR THAT MAY ARISE FROM OR IN CONNECTION WITH OUR PRODUCTS OR SERVICES, EVEN IF WE HAD NOTICE OF THE POSSIBILITY OF SUCH DAMAGES.
(B) IN ADDITION, OUR MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT, OR ANY PRODUCT UNIT OR SERVICE, IS LIMITED TO AMOUNT YOU PAID TO US FOR THE SPECIFIC PRODUCT PURCHASED THAT GAVE RISE TO THE LIABILITY.
(C) THE PROVISIONS ABOVE IN THIS SECTION 12 DO NOT LIMIT OUR LIABILITY THAT CANNOT BE LIMITED BY LAW, INCLUDING BUT NOT LIMITED TO LIABILITY FOR FRAUD AND DEATH OR PERSONAL INJURY CAUSED BY OUR NEGLIGENCE.
13. Export Restrictions
13.1 Items. You acknowledge that each product and any related software and technology, including technical information we supply you, including those contained in product documents (collectively “Items”), is subject to U.S., EU and local government export controls.
13.2 Export Controls. The export controls may include, among others, those of the Export Administration Regulations of the U.S. Department of Commerce (the “EAR”), which may restrict or require licenses for the export of Items from the United States and their re-export from other countries.
13.3 Compliance Requirements. You must comply with the EAR, and all other applicable laws, regulations, treaties, and agreements relating to the export, re-export, and import of any Item. You must not, directly or indirectly, without first obtaining the required license to do so from the appropriate U.S. government agency; (a) export, re-export, distribute or supply any Item to (a) any restricted or embargoed country or to a person or entity whose privilege to participate in exports has been denied or restricted by the U.S. government; (b) any person or entity who is involved in improper development or use of nuclear weapons or of chemicals/biological weapons, or missiles, or in terrorist activities. You will, if we request, provide information on the end user and end use of any Item you export or plan to export.
13.4 Audit Cooperation. You will cooperate fully with us in any official or unofficial audit or inspection related to applicable export or import control laws or regulations, and will indemnify and hold us harmless from, or in connection with, your or your consultants’, agents’ or employees’ violation of this Section 13.
14. ARBITRATION REQUIREMENT & CLASS ACTION WAIVER – IMPORTANT – PLEASE REVIEW AS THIS MAY AFFECT YOU LEGAL RIGHTS. APPLICABLE TO THE FULLEST EXTENT PERMITTED BY LAW.
14.1 Mandatory Arbitration of Disputes. You and Uneekor each agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of our products or services (collectively, “Disputes”) will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and Uneekor agree that the U.S. Federal Arbitration Act (or equivalent laws in the jurisdiction in which the Uneekor entity that you have contracted with is incorporated) governs the interpretation and enforcement of these Terms and that you and Uneekor are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms.
14.2 Exceptions and Opt-out. As limited exceptions to Section 14.1 above:
(a) you may seek to resolve a Dispute in small claims court if it qualifies; and
(b) you and Uneekor each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of respective intellectual property rights.
(c) you will retain the right to opt out of arbitration entirely and litigate any Dispute if you provide Uneekor with written notice of your desire to do so by regular mail sent to the attention of Uneekor’s Legal Department at the Uneekor address set out in Section 15.8 below within 30 days following the date you first agree to these Terms.
14.3 Initial Dispute Resolution and Notification. You agree that before initiating any Dispute or arbitration proceeding, you will attempt to negotiate an informal resolution of any dispute. To begin this process, before initiating any arbitration proceeding, you must send a Notice of Dispute (“Notice”) by certified mail to the attention of Uneekor’s Legal Department at the Uneekor address set out in Section 15.8 below. In the Notice, you must describe the nature and basis of the Dispute and the relief you are seeking. If you and Uneekor are unable to resolve the Dispute within 45 days after Uneekor’s receipt of the Notice, then you or Uneekor may initiate arbitration proceedings as set out below.
14.4 Conducting Arbitration and Arbitration Rules. Any arbitration will be conducted by JAMS pursuant to its Streamlined Arbitration Rules and Procedures (the “JAMS Rules”) then in effect, except as modified by these Terms. The JAMS Rules are available at www.jamsadr.com or by calling 1-800-352-5267. A party who wishes to start arbitration must submit a written Demand for Arbitration to JAMS and give notice to the other party as specified in the JAMS Rules. JAMS provides a form Demand for Arbitration at www.jamsadr.com. JAMS will appoint an arbitrator that is either a retired federal or state court judge, or an attorney who has been licensed to practice law in the state of California for at least 10 years. The arbitration will be conducted by an in-person hearing, unless you and Uneekor both agree otherwise.
14.5 If JAMS fails or declines to conduct the arbitration for any reason, you and Uneekor will mutually select a different arbitration administrator. If you and Uneekor cannot agree, a court will appoint a different arbitration administrator.
14.6 Any arbitration hearings will take place in the county (or other municipality) where you live, unless we both agree to a different location. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement. During the arbitration, both you and Uneekor may take one deposition of the opposing party, limited to 4 hours. If you and Uneekor cannot agree on a time and location for a deposition, the arbitrator will resolve any scheduling disputes.
15.1 No Assignment. You may not delegate any duties nor assign any rights or claims hereunder without our prior written consent, and any such attempted delegation or assignment will be void.
15.2 Governing Law. The Agreement and performance under it will be governed by the laws of (a) the state of California, if you are located in the USA or Canada; or (b) the laws of the country where the selling entity (as specified on your order confirmation from us) is located, if you are not located in the USA or Canada. In the event of any legal proceeding between you and us relating to the Agreement, neither party may claim the right to a trial by jury. Any action arising under the Agreement must be brought within one year from the date that the cause of action arose. The U.N. Convention on Contracts for the International Sale of Goods is hereby expressly excluded.
15.3 Regulatory Restrictions. In addition to the restrictions set out in Section 11 of these Terms: (a) you must use our products in accordance with our instructions; (b) you are solely responsible for making sure that the way you use our products complies with applicable laws, regulations and governmental policies; (c) you must obtain all necessary approvals and permissions you may need; and (d) it is solely your responsibility to make sure the products are suitable for your particular use.
15.4 Uncontrollable Circumstances. We will not be responsible or liable for failing to perform our obligations under the Agreement to the extent caused by circumstances beyond our reasonable control. In certain situations, we may use our reasonable judgment and apportion products then available for delivery fairly among our customers.
15.5 No Waiver; Invalidity. Our failure to exercise any rights under the Agreement is not a waiver of our rights to damages for your breach of contract and is not a waiver of any subsequent breach. If any provision or part of the Agreement is found by any court of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability will not affect the other provisions of the Agreement. No person other than you or us will have any rights under the Agreement.
15.6 Headings. Headings are for convenience only and shall not be used in the interpretation of these Terms.
15.7 Confidentiality. You agree to keep confidential any non-public technical information, commercial information (including prices, without limitation) or instructions (including any gene sequences, oligo types or sequences) received from us as a result of discussions, negotiations and other communications between us in relation to our products or services.
15.8 Notices. Any notice or communication required or permitted under these Terms must be in writing and will be deemed received when personally delivered, or 3 business days after being sent by certified mail, postage prepaid, to a party’s specified address. Uneekor’s address for notices is Uneekor, Inc., Attn: Legal Department, 15770 Laguna Canyon Rd, Unit 100, Irvine, CA 92618.
15.9 Requirement to Reduce to Writing. No waiver, consent, modification, amendment or changes to the terms of the Agreement will be binding unless in writing and signed by both of us. Our failure to object to terms contained in any subsequent communication from you will not be a waiver or modification of our Agreement.
15.10 Severability. Any provision of the Agreement which is prohibited or which is held to be void or unenforceable shall be ineffective only to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof.