Application: These Standard Terms and Conditions of Sale govern all transactions between Atheral and Customer, including but not limited to Goods and Services, including the ordering, sale, shipment, delivery, receipt, payment for, allocation of liabilities, and use of Goods or Services.
Modification: These Terms and Conditions may be modified only in the following ways:
Other Agreements between Customer and Atheral supersede these Terms and Conditions.
The express Terms and Conditions of an Atheral Sales Order and a Customer Purchase Order.
An amendment signed by an Officer of Atheral and an Authorized Representative of Customer that explicitly modifies these Terms and Conditions
If all or any portion of any provision of this Agreement becomes, or is declared by an arbitrator or arbitrators of competent jurisdiction (“Arbitrators”), or by the Parties, or if permissible under this Agreement a court of competent jurisdiction, to be unenforceable for any reason, the offending provision(s), to the extent necessary to restore the enforceability of the Agreement, will be severed from this Agreement, and the Parties will replace the offending provision with a valid, enforceable, and fair provision that will achieve, to the extent reasonably possible, the same economic, business, and other purposes of the offending provision. If within fourteen (14) days from the date on which the offending provision is deemed or agreed to be unenforceable, the Parties fail to agree to a replacement provision, each Party will present the Arbitrators with one (1) proposed replacement wording. The Arbitrators will select, without modification, the submitted wording that best conforms to the terms and intent of this paragraph.
Shipments of Goods: Should physical goods be purchased from Atheral by Customer, the following Terms apply:
Atheral will provide the Goods Free on Board (FOB) from the Shipping Point to the Customer.
Goods are determined delivered to the Customer at the Shipping Point when the shipping Carrier takes control of the Goods, regardless who pays or arranges for shipping.
Customer is obligated to insure all shipments. Atheral as a course of business will not insure shipments, regardless of whom contracts the Carrier to ship the Goods.
Customer is solely responsible for paying all Shipping Costs, including taxes, insurance, administrative fees, customs fees, loading fees, or any additional costs charged by the Shipping Carrier
Atheral will make commercially reasonable efforts to comply with Customers timely written shipping instructions. Should no specific instructions be provided, Atheral will provide the method Atheral determines to be the most commercially reasonable. Atheral assumes no liability for selecting a method if timely written instructions are not provided by Customer.
Return Merchandise Authorization: Customer will open a Support Ticket thru their Administrative Portal should Goods be delivered to Customer that are required to be returned either due to defect or failure during the warranty period. Customer shall agree to inspect all items delivered within three (3) business days to confirm the shipment is complete and undamaged. Atheral will issue a Return Merchandise Authorization with instructions on where to ship items and marking requirements – nothing will be accepted without clear Return Merchandise Authorization number on the package. Customer bears all responsibility for costs associated with returning merchandise to Atheral.
Invoicing of Goods: Goods will be invoiced on the date they are shipped to Customer. Services shall be invoiced per the Agreement for Services.
Acceptance of Invoice: The Parties will work in good faith to resolve any disputes regarding invoicing, and Customer may withhold the portion of any invoice disputed in good faith. Any invoice not disputed within 15 days after issuance of the invoice in question shall be deemed correct and irrevocably accepted by Customer. Atheral and Customer will make every commercially reasonable effort to resolve the dispute within fifteen (15) days, and funds withheld shall be paid in five (5) business days after a resolution is reached. In no case may funds be withheld from Atheral longer than thirty (30) calendar days.
Refund Policy: Refunds are handled on a case-by-case basis. For questions or to notify Atheral of a dispute of an invoice please call Atheral at +1 (702) 470-2770 or e-mail firstname.lastname@example.org
Payment: Payment of all invoices shall be made to prior agreed-upon conditions. Late payments will accrue interest charges of one and one-half percent (1.5%) per month compounded or the highest rate permitted by law, whichever is lower.
Sales and Marketing Efforts: Customer shall maintain a sales office which shall be opened and staffed during normal business hours and shall use its best efforts to promote, sell and support Services to a standard comparable to other similar Services sold by Customer. Customer shall devote sufficient resources, including support and competent and informed sales staff, to fulfill its obligation under this Agreement. Customer shall make commercially reasonable efforts to include the Services in marketing and promotional programs that Customer designs and manages.
Intellectual Property: Customer shall not assist or permit any third party to: (i) disassemble or otherwise reverse engineer any Product or Service, (ii) copy, modify or make derivative works of any Products or Services, (iii) alter, obscure or remove any trademark, copyright or other proprietary designation or notice from any Product or Service, (iv) export or re-export any part of the Product in violation of any applicable restrictions, laws or regulations of the U.S. Department of Commerce or any other U.S. or foreign agency or authority, (v) authorize, allow, or assist others (including, without limitation any customer) to do any of the foregoing. This Agreement does not transfer or convey to Customer or any third party any right, title, or interest in the Software, Services, or Documentation or any other associated intellectual property rights, but only a limited right of use revocable in accordance with the Agreement. Upon termination of this Agreement, each party will, at the request of the other party and to the extent practicable, return, or upon the other party’s request, destroy, all copies of the other party’s intellectual property in such party’s possession, custody or control.
Warranty: Customer has no authority to and shall not make any commitment or warranty on behalf of Atheral including without limitation warranties with respect to Products or Services characteristics, features, quality performance, timelines, delivery, quantities, modification, or suitability in specific applications. Customer shall indemnify Atheral from liability for any commitment or warranty made by Customer not authorized by Atheral in writing.
Use of Atheral Trademarks: Atheral does not grant to Customer the right to use of any tradenames, trademarks, or logos related to Goods or Services. These items shall be jointly referred to as “Marks”. Atheral maintains all rights titles, and interests in these Marks and Customer does not acquire any interest in them except if explicitly provided for in writing and executed by joint agreement by an Officer of Atheral and an Authorized Representative of Customer. Customer further agrees to refrain from registering or applying to register the Marks in its own name or on behalf of any third party and will take no action to disparage or diminish the value of Atheral’s Marks.
“Force Majeure” shall mean any event beyond the reasonable control of Atheral or Customer, as the case may be, and which is unavoidable notwithstanding the reasonable care of the party affected, and shall include, without limitation, war, hostilities or warlike operations (whether a state of war be declared or not), invasion, act of foreign enemy, civil war, rebellion, revolution, insurrection, mutiny, usurpation of civil or military government, conspiracy, riot, civil commotion, terrorist acts, confiscation, nationalization, mobilization, commandeering or requisition by or under the order of any government or de jure or de facto authority or ruler or any other act or failure to act of any local state or national government authority, strike, sabotage, lock‑out, embargo, port congestion, lack of usual means of public transportation and communication, industrial dispute, shipwreck, shortage or restriction of power supply, epidemics, quarantine, earthquake, landslide, volcanic activity, fire, flood or inundation, tidal wave, typhoon or cyclone, hurricane, storm, lightning, or other inclement weather condition, nuclear and pressure waves, or other natural or physical disaster.
If either Party is prevented, hindered or delayed from or in performing any of its obligations under the Agreement by an event of Force Majeure, then it shall notify the other in writing of the occurrence of such event and the circumstances thereof within fourteen (14) days after the occurrence of such event.
The Party who has given such notice shall be excused from the performance or punctual performance of its obligations under the Agreement for so long as the relevant event of Force Majeure continues and to the extent that such Party’s performance is prevented, hindered or delayed.
The Party or Parties affected by the event of Force Majeure shall use reasonable efforts to mitigate the effect thereof upon its or their performance of the Agreement and to fulfill its or their obligations under the Agreement, but without prejudice to either Party’s right to terminate the Agreement.
Delay or non‑performance by either Party hereto caused by the occurrence of any event of Force Majeure shall not (to the extent that such delay or non‑performance is caused by the occurrence of an event of Force Majeure):
Constitute a default or breach of the Agreement; or
Give rise to any claim for damages or additional cost or expense occasioned thereby.
If the performance of the Agreement is substantially prevented, hindered or delayed for a single period of more than sixty (60) days or an aggregate period of more than one hundred and twenty (120) days on account of one or more events of Force Majeure during the term of the Agreement, the Parties will attempt to develop a mutually satisfactory solution, failing which either Party may terminate the Agreement immediately without penalty.
Compliance With Law: This Agreement is subject to all applicable federal, state and local laws and to all regulations, rulings, orders and other actions of governmental agencies. It is agreed that each party shall obtain, file and maintain any tariffs, permits, certifications, authorizations, licenses or similar documentation as may be required by any governmental body or agency having jurisdiction over its business. Customer represents, warrants, and covenants that it will comply in all material respects with all applicable local, state, and federal laws and all applicable governmental rules, regulations and ordinances, and that Customer will not cause Atheral to be in material violation of any applicable laws. Atheral may modify this Agreement to comply with any change in the law, or any order, directive, rule or regulation related to its practices. In accordance with Customers indemnity obligations herein, Customer will defend, indemnify and hold Atheral harmless from any third-party claims, End User claims, or government actions relating to Customers failure to comply with this Section. Customer acknowledges and agrees that the Services may include a VoIP service that may have certain e911 limitations, and further acknowledges and agrees that it will make its End Users aware of such potential limitations and continue to comply with all applicable E911 rules and regulations.
NO WARRANTIES AND CUSTOMER ASSUMPTION OF RISK: ATHERAL MAKES NO WARRANTIES, EXPRESS OR IMPLIED, FOR THE ATHERAL SERVICES OR GOODS (INCLUDING CUSTOMER PREMISE EQUIPMENT) PROVIDED UNDER THIS AGREEMENT AND SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ATHERAL DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT THE SERVICES WILL MEET CUSTOMERS REQUIREMENTS OR THAT THE SERVICES WILL PREVENT UNAUTHORIZED ACCESS BY THIRD PARTIES. ATHERAL EXERCISES NO CONTROL OVER, AND HEREBY DISCLAIMS ANY RESPONSIBILITY FOR, THE ACCURACY AND QUALITY OF ANY INFORMATION TRANSMITTED WITH THE USE OF THE SERVICES. CUSTOMER HEREBY EXPRESSLY ASSUMES THE RISK OF ITS OR ITS AUTHORIZED USERS USE OF ANY INFORMATION TRANSMITTED VIA THE SERVICES.
LIMITATIONS OF LIABILITY: TO THE FULLEST EXTENT ALLOWED BY LAW, ATHERAL SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT OR THE SERVICES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOST PROFITS, LOSS OF USE, LOST DATA OR ANY DAMAGES OR SUMS PAID BY MARKETING AGENT TO THIRD PARTIES, EVEN IF ATHERAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ATHERAL’s TOTAL LIABILITY FOR ALL DAMAGES, ALLEGED DAMAGES, AND LOSSES HEREUNDER, (WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) SHALL NOT EXCEED THE LESSER OF AMOUNTS RECEIVED BY ATHERAL UNDER THIS AGREEMENT OR FIVE THOUSAND ($5,000) DOLLARS.
INDEMNIFICATION AND LIMITATION OF LIABILITY. This section shall survive the termination of Services and the Term of this Agreement:
Each party (“Indemnitor”) shall hold the other party (“Indemnitee”) harmless from and against any and all alleged or actual losses, costs, claims, liability of any kind, damages, or expenses or fees (including reasonable attorneys’ fees) arising from claims of third parties for damages to any tangible property or bodily injury to or death of any person arising out of or caused by any act or omission of Indemnitor (except to the extent contributorily caused by any act or omission of Indemnitee).
In the event Atheral grants Customer access, either by online access, by application programming interface (API), or access by any other means, to a service ordering/management system and other related electronic tools (collectively, the “Electronic Tools”), Customer agrees that it is fully and exclusively responsible for all information accuracy, charges, costs, transactions, and activities conducted through such Electronic Tools. Customer agrees that it is fully and exclusively responsible to safeguard, monitor, manage, and maintain access to the Electronic Tools, and to only allow authorized use of the Electronic Tools to persons that Customer designates. Customer therefore agrees that it shall indemnify and hold harmless Atheral from and against any actual or alleged losses, costs, claims, liability of any kind, damages, or expenses or fees (including reasonable attorneys’ fees) on the part of or which may be incurred by Customer, or a third-party, relating to or arising from the use or operation of the Electronic Tools. Customer’s indemnification in this subsection includes any alleged or actual losses or claims in connection with unauthorized access to, use, transactions, or activity conducted through the Electronic Tools, regardless if such unauthorized access is unintentional, accidental, intentional or by fraud, and regardless of whether Customer had knowledge of such unauthorized access. In all such cases of unauthorized access, Customer agrees that it retains full and sole responsibility for any and all charges for the Services provided by Atheral.
Customer has the sole and exclusive responsibility for the installation, configuration, security, and integrity of all Authorized Users systems, equipment, software, and networks used in conjunction with or related to the Services provided by Atheral. Customer therefore shall indemnify and hold harmless Atheral from and against any actual or alleged losses, costs, claims, liability of any kind, damages, or expenses or fees (including reasonable attorneys’ fees) on the part of or which may be incurred by Customer or a third party relating to or arising from the use or operation of the Customer Equipment. In all such cases of unauthorized access, Customer agrees that it retain full and sole responsibility for any and all charges for the Services provided by Atheral.
Except in connection with breaches of confidentiality obligations, neither party shall be liable to the other party for any amounts greater than the fees incurred by Customer under this Agreement, and in no event shall either party be liable for any indirect, consequential, special, incidental, reliance or punitive damages of any kind or nature, including but not limited to any lost profits, lost revenues, lost savings or harm to business. Each party hereby releases the other party, its subsidiaries and affiliates and their respective officers, directors, managers, employees, and agents from any such claim to the extent excluded by the foregoing exclusion of non-direct damages.
Atheral shall defend, indemnify and hold Customer harmless from and against any and all claims, actions, damages, liabilities, payments made in settlement, costs and expenses, including reasonable attorneys’ fees and expenses, arising out of or in connection with any claim of infringement of any letters patent, trade secret, copyright, trade name, trademark, service mark or similar proprietary right of a third party related to any supplies or Services provided by Atheral (“Infringement Claim”). In the event of such an Infringement Claim, Customer shall promptly notify Atheral of such claim, and Atheral shall control the response thereto and the defense thereof, including, without limitation, any agreement relating to the settlement thereof. If an injunction or order is obtained against Customers continued use of the supplies and/or Services due to the Infringement Claim, Atheral shall, at its expense, either procure for Customer the right to continue using the infringing supplies and/or Services or replace or modify the infringing supplies and/or Services so that they become non-infringing, provided that any such modification or replacement does not adversely affect the functional performance or Customers use of the supplies and/or Services.
Relationship of the Parties: The relationship between the parties shall be that of independent contractors and not of principal and agent, employer and employee, franchiser and franchisee, partners or joint ventures, and Customer will not represent itself as Atheral’s agent, partner, franchisee or joint venture. This Agreement does not establish Customer as a dealer, distributor or franchisee of Atheral, and no fee is being paid to Atheral to enter into this Agreement. No provision of this Agreement shall be construed as vesting in Customer any control or ownership whatsoever in the network or operations of Atheral.
Representations and Warranties of the Parties: Atheral represents and warrants to Customer that it has the right to provide the Services and Goods specified herein, is duly organized and validly exists in good standing under the laws of its origin, with the ability to enter into and perform its obligations under this Agreement in accordance with its terms and conditions, including any documents incorporated into the Agreement by reference. The Customer represents and warrants to Atheral that it is duly organized and validly exists in good standing under the laws of its origin, with the ability to enter into and perform its obligations under this Agreement in accordance with its terms and conditions, including any documents incorporated into the Agreement by reference.
Notices: All Notices shall be in writing and sufficient and received if delivered in person, or when sent via, pre-paid overnight courier, electronic mail) or sent by U.S. Postal Service (or First Class International Post (as applicable)), addressed to the person identified on the Cover Sheet of the Agreement for Notice. Either party may change its notice address upon notice to the other party. All notices shall be deemed to have been given on (i) the date delivered if delivered personally or by e-mail, (ii) the business day after dispatch if sent by overnight courier, or (iii) the third business day after posting if sent by U.S. Postal Service (or other applicable postal delivery service). Facsimile shall not constitute written notification under this Agreement.
Non-Waiver: The failure of a party to enforce any right under this Agreement at any particular point in time shall not constitute a continuing waiver of any such right with respect to the remaining term of this Agreement, or the waiver of any other right under this Agreement.
Choice of Law: The domestic law of the State of Nevada, except its conflict-of-laws rules, shall govern the construction, interpretation, and performance of this Agreement, except to the extent superseded by federal law. Notwithstanding any other provision of this Agreement, the United Nations Convention on Contracts for the International Sale of Goods and other international treaties that are inconsistent or in conflict with this Agreement do not apply.
Execution in Counterparts: This Agreement may be executed in counterparts, each of which will be deemed to be an original and may be conveyed electronically.
Headings for Convenience: The headings used in this Agreement are for convenience and do not in any way limit or otherwise affect the provisions of this Agreement.
Contra Proferentem Waived: Each Party acknowledges that it has carefully read this Agreement and has reviewed, or had the opportunity to review, this Agreement with counsel and raise questions regarding and seek changes in any provision that the Party believes to be vague or ambiguous. The parties waive and agree not to raise any argument that any claimed ambiguity in this Agreement should be construed against Atheral.
Successors and Assigns: This Agreement is binding on the Parties’ respective successors, assigns, heirs, and administrators.