1. SOFTWARE: CADsoft Consulting, Inc. (“Seller”) agrees to sell to Purchaser and Purchaser agrees to purchase from Seller the Software described in Seller’s Quote, subject to the terms and conditions contained herein, as modified from time to time.
2. END USER LICENSE AGREEMENT: All Software purchased is subject to the End User License Agreement (“EULA”) of the manufacturer of the Software that accompanies or is included with the Software.
3. PRICES AND TAXES: Pricing for the Software is set forth on Seller’s Quote. Prices are exclusive of taxes, duties, and fees (including shipping and handling) unless otherwise quoted. Any and all taxes, assessments, or duties, which may be imposed upon the sale, shipment, or installation of the Software shall be the sole responsibility of and shall be paid by Purchaser.
4. PAYMENTS: Purchaser shall pay for all Software within fifteen (15) days from (a) the date Software is shipped, or (b) the date of the invoice, whichever is sooner. Payment will be deemed to have been made when received at Seller’s facilities or when electronically deposited at Seller’s designated financial institution. Purchaser’s signator(s) hereby covenants and agrees to personally guarantee prompt payment of any amounts owed by Purchaser to Seller. This guaranty shall be enforceable against Purchaser’s signator(s) without the necessary of any suit or proceeding of Seller’s part whatsoever against Purchaser.
5. LATE CHARGES: Late charges of % per month will apply to all outstanding balances. Purchaser may also be responsible for all costs associated with Seller’s attempt to collect amounts due from Purchaser, including reasonable attorney’s fees and collection agency costs. If Purchaser fails to pay any amount when due, in addition to any remedies that Seller may have hereunder, Seller shall have the right to pursue any and all remedies available to it under law or in equity.
6. WARRANTY: Seller makes no warranty, either express or implied, with respect to any Software and specifically disclaims all other warranties, including warranties for merchantability, non-infringement, and suitability for any particular purpose. Software warranties are only as set forth in the manufacturer’s EULA; Seller assigns to Purchaser any applicable vendor or manufacturer warranties or remedies.
7. TITLE AND RISK OF LOSS: Title and risk of losses shall pass to Purchaser upon delivery of the Software. When permitted by law, Seller retains a security interest in Software sold until full payment is received. Seller will use all commercially reasonably efforts to deliver Software in a timely manner.
8. REBATES: Purchaser is solely responsible to apply for any vendor or manufacturer rebates available to Purchaser for the Software; Seller shall in no way be liable to Purchaser for Purchaser’s failure to apply for and/or obtain such rebates within the appropriate timeframe.
9. LIMITATION OF LIABILITY: In no event shall Seller be liable to Purchaser or to any third party for any indirect, incidental, special, consequential, punitive or exemplary damages, including, without limitation, lost profits, lost savings, or loss of business opportunity, arising out of any Software provided or to be provided by Seller, or the use or inability to use the same even if Seller has been advised of the possibility of such damages. Any liability for indirect, consequential or incidental damages is expressly disclaimed by Seller. Seller’s liability in all events for all damages, losses and causes of action (whether in contract, tort or otherwise) shall be limited in the aggregate to and, in any event, shall not exceed the purchase price paid for the Software.
10. FORCE MAJEURE: Seller shall not be liable for any damage, cost or loss of profit of Purchaser or any delay or failure in delivery or for any failure to perform caused by a force beyond its control, including, but not limited to, an act of God, action or failure to act of any government or governmental board, commission, department, bureau or authority, confiscation, war, blockade, insurrection, invasion, quarantine, restrictions, riot, sabotage, acts of the public enemy, flood, fire, explosion, epidemic, landslide, lightening, earthquake, storm, accident, strike, lockout, work slowdown, work stoppage, differences with workers, embargo, power failure or shortage and any delay or failure or supplies, equipment, labor or transportation.
11. NON-SOLICITATION. Purchaser agrees that for a period of one (1) year following Purchaser’s most recent purchase from Seller, Purchaser will not directly or indirectly in any capacity whatsoever, either as a member, partner, joint venture, consultant or otherwise, solicit, induce or attempt to influence any employee of Seller to terminate employment with Seller or to enter any employment or other business relationship with any other person (including Purchaser) or corporation. The parties agree that liquidated damages for breach of this non-solicitation covenant shall be fifty percent (50%) of the total first year compensation payable to Seller’s former employee.
12. CANCELLATION. Seller may, upon written notice to Purchaser, cancel any/all sales of Software, effective immediately if: (i) Purchaser makes an assignment for the benefit of creditors, is unable to pay its debts as they become due, files a voluntary petition in bankruptcy, is adjudicated to be a bankrupt or an insolvent debtor, files a petition seeking for itself any reorganization, or consents to or acquiesces in the appointment of a trustee, receiver or liquidator; (ii) any proceeding seeking involuntary reorganization, or similar relief is filed against Purchaser which is not dismissed within one (1) month after filing, or if any trustee, receiver, or liquidator of Purchaser or any substantial part of its business assets, or properties is appointed without Seller’s consent or acquiescence and such appointment is not vacated within one (1) month after such appointment; (iii) Purchaser ceases doing business as a going concern or it takes any action looking to its dissolution or liquidation; (iv) Purchaser fails to perform any material obligations and such failure is not remedied within fifteen (15) calendar days after notice has been given to Purchaser; or (v) Purchaser fails to pay for any payment owed to Seller in accordance with these terms and conditions.
13. CHOICE OF LAW: These terms and conditions will be governed by and interpreted according to the laws of the State of Arizona and both parties agree to submit to the jurisdiction of the State of Arizona and to venue in Maricopa County, Arizona.
14. SEVERABILITY. If any provision of these terms and conditions is held by a court, government agency or other legal authority of competent jurisdiction to be invalid, illegal or unenforceable, such invalidity, illegality or unenforceability shall not invalidate, void or render unenforceable any other provision of these terms and conditions.
15. MODIFICATION. Seller reserves the right to modify these terms and conditions at Seller’s sole and absolute discretion without prior notice to Purchaser. Purchaser shall be bound to the modified terms and conditions at such time as Seller publishes the modified terms and conditions on its website.