1. GENERAL
Chill Wizard Games LLC. ("CWG")
hereby offers for sale to the buyer named on the face hereof ("Buyer")
the products listed on the face hereof (the "Products") on the express condition that
Buyer agrees to accept and be bound by the terms and conditions set forth herein.
Any provisions contained in any document issued by Buyer are expressly rejected
and if the terms and conditions in this Agreement differ from the terms of Buyer's offer,
this document shall be construed as a counter offer and shall not be effective as an acceptance of Buyer's document.
Buyer's receipt of Products or CWG's commencement of the services provided hereunder will constitute Buyer's acceptance of this Agreement.
This is the complete and exclusive statement of the contract between CWG and Buyer with respect to Buyer's purchase of the Products.
No waiver, consent, modification, amendment or change of the terms
contained herein shall be binding unless in writing and signed by CWG and Buyer.
CWG's failure to object to terms contained in any subsequent communication
from Buyer will not be a waiver or modification of the terms set forth herein.
All orders are subject to acceptance by CWG.
2. PRICE
All prices published by CWG or quoted by CWG's
representatives may be changed at any time without notice.
All prices quoted by CWG or CWG's representatives
can vary from day to day, unless otherwise stated in writing.
All prices for the Products will be as specified by CWG or, if no
price has been specified or quoted, will be CWG's price in effect at the time of shipment.
All prices are subject to adjustment on account of specifications,
quantities, raw materials, special packaging, cost of production,
shipment arrangements or other terms or conditions which
are not part of CWG's original price quotation.
3. TAXES AND OTHER CHARGES
Prices for the Products exclude all sales, value added and
other taxes and duties imposed with respect to the sale, delivery,
or use of any Products covered hereby, all of which taxes and duties must by paid by Buyer.
If Buyer claims any exemption, Buyer must provide
a valid, signed certificate or letter of exemption for each respective jurisdiction.
4. TERMS OF PAYMENT
CWG may invoice Buyer upon shipment for the price and all other
charges payable by Buyer in accordance with the terms on the face hereof.
If no payment terms are stated on the face hereof, payment shall be net thirty (30) days from the date of invoice.
If Buyer fails to pay any amounts when due, Buyer shall pay CWG
interest thereon at a periodic rate of one and one-half percent (1.5%) per month
(or, if lower, the highest rate permitted by law), together with all costs and expenses
(including without limitation reasonable attorneys' fees and disbursements and court costs)
incurred by CWG in collecting such overdue amounts or otherwise enforcing CWG's rights hereunder.
CWG reserves the right to require from Buyer a complete or partial payment in
advance, or other security that is satisfactory to CWG, at any time that CWG believes
in good faith that Buyer's financial condition does not justify the terms of payment specified.
All payments shall be made in the local currency of the CWG.
5. DELIVERY; CANCELLATION OR CHANGES BY BUYER
CWG shall arrange shipment of Products to Customer's nominated
delivery address and at Customer's expense unless otherwise agreed.
The Products will be delivered from CWG's facility unless stated otherwise on CWG's invoice.
CWG reserves the right to stop delivery of Products in transit and to withhold shipments in whole or in part
if Buyer fails to make any payment to CWG when due or otherwise fails to perform its obligations hereunder.
CWG will have the right, at its election, to make partial shipments of the Products and to invoice each shipment separately.
All shipping dates are approximate only, and CWG will not be liable for any loss or damage
resulting from any delay in delivery or failure to deliver which is due to any cause beyond CWG's reasonable control.
In the event of a delay due to any cause beyond CWG's reasonable control,
CWG reserves the right to terminate the order or to reschedule the shipment within
a reasonable period of time, and Buyer will not be entitled to refuse delivery
or otherwise be relieved of any obligations as the result of such delay.
Products as to which delivery is delayed due to any cause within Buyer's control
may be placed in storage by CWG at Buyer's risk and expense and for Buyer's account.
Orders in process may be canceled only with CWG's written consent and upon payment of CWG's cancellation charges.
Orders in process may not be changed except with CWG's written consent and upon agreement
by the parties as to an appropriate adjustment in the purchase price therefor.
Credit will not be allowed for Products returned without the prior written consent of CWG.
6. TITLE AND RISK OF LOSS
Subject to CWG's right to stop delivery of Products in transit, title to and
risk of loss of the Products will pass to Buyer upon delivery in accordance with clause 5 above.
Title to any software incorporated within or forming a part of the Products
shall at all times remain with CWG or the licensor(s) thereof, as the case may be.
7. WARRANTY
CWG warrants that the Products will operate or perform substantially
in conformance with CWG's published specifications and be free from defects in material and workmanship,
when subjected to normal, proper and intended usage by players, or users, for the period of time
set forth in the product documentation, published specifications or package inserts.
If a period of time is not specified in CWG's product documentation, published specifications or package inserts,
the warranty period shall be ninety (90) days for all products (the "Warranty Period").
Unless supplied with a specific warranty or shelf life, consumable products are warranted at delivery only.
CWG agrees during the Warranty Period, to repair or replace, at CWG's option, defective Products
so as to cause the same to operate in substantial conformance with said published specifications;
provided that Buyer shall promptly notify CWG in writing upon the discovery of any defect,
which notice shall include the product model and serial number (if applicable) and details of the warranty claim;
Buyer may return the defective Products to CWG with all costs prepaid by Buyer.
Replacement parts may be new or refurbished, at the election of CWG.
All replaced parts shall become the property of CWG.
Shipment to Buyer of repaired or replacement Products shall be made in accordance
with the Delivery provisions of the CWG's Terms and Conditions of Sale.
Products supplied by CWG that are obtained by CWG from an original
manufacturer or third party supplier are not warranted by CWG,
but CWG agrees to assign to Buyer any warranty rights
in such Product that CWG may have
from the original manufacturer or third party supplier,
to the extent such assignment is allowed by such original manufacturer or third party supplier.
In no event shall CWG have any obligation to make
repairs, replacements or corrections required, in whole or in part, as the result of
- Normal wear and tear
- Misuse, fault or negligence of or by Buyer
- Accident, disaster or event of force majeure
- Improper storage and handling of the Products
- Use of the Products in a manner for which they were not designed
- Use of the Products in combination with equipment or software not supplied by CWG.
-
Causes external to the Products such as, but not limited to,
- Power failure
- Electrical power surges
- fires
- Spilled milk etc...
has requested warranty services that are not covered by the warranty hereunder,
Buyer shall pay or reimburse CWG for all costs of investigating
and responding to such request at CWG's then prevailing time and materials rates.
If CWG provides repair services or replacement parts that are not covered by
this warranty, Buyer shall pay CWG therefor at CWG's then prevailing time and materials rates.
ANY INSTALLATION, MAINTENANCE, MOD, REPAIR, SERVICE, RELOCATION OR ALTERATION TO OR OF, OR
OTHER TAMPERING WITH, THE PRODUCTS PERFORMED BY ANY PERSON OR ENTITY OTHER
THAN CWG WITHOUT CWG'S PRIOR WRITTEN APPROVAL, OR ANY USE OF
REPLACEMENT PARTS NOT SUPPLIED BY CWG, SHALL IMMEDIATELY VOID
AND CANCEL ALL WARRANTIES WITH RESPECT TO THE AFFECTED PRODUCTS.
THE OBLIGATIONS CREATED BY THIS WARRANTY STATEMENT TO REPAIR OR REPLACE A
DEFECTIVE PRODUCT SHALL BE THE SOLE REMEDY OF BUYER IN THE EVENT OF A DEFECTIVE PRODUCT.
EXCEPT AS EXPRESSLY PROVIDED IN THIS WARRANTY STATEMENT,
CWG DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN,
WITH RESPECT TO THE PRODUCTS, INCLUDING WITHOUT LIMITATION ALL IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
CHILL WIZARD GAMES DOES NOT WARRANT THAT THE PRODUCTS ARE ERROR-FREE OR WILL ACCOMPLISH ANY PARTICULAR RESULT.
8. SOFTWARE
With respect to any software products incorporated in or forming a part of the
Products hereunder, CWG and Buyer intend and agree that such software products are being licensed
and not sold, and that the words "purchase", "sell" or similar or derivative words are understood and
agreed to mean "license", and that the word "Buyer" or similar or derivative words are understood and
agreed to mean "licensee". Notwithstanding anything to the contrary contained herein,
CWG or its licensor, as the case may be, retains all rights and
interest in software products provided hereunder.
CWG hereby grants to Buyer a royalty-free, non-exclusive, nontransferable license, without
power to sublicense, to use software provided hereunder solely for Buyer's own internal entertainment
purposes and to use the related documentation solely for
Buyer's own internal entertainment purposes.
software products provided hereunder ceases, unless earlier terminated as provided herein.
Buyer agrees to hold in confidence and not to sell, transfer, license, loan or otherwise
make available in any form to third parties the software products and related documentation provided hereunder.
Buyer may not disassemble, decompile or reverse engineer, copy, modify, enhance or otherwise change or
supplement the software products provided hereunder without CWG's prior written consent.
Just email us - we are pretty flexible!
CWG will be entitled to terminate this license if Buyer fails to comply with any term or condition herein.
Buyer agrees, upon termination of this license, immediately to return to CWG all software
product and related documentation provided hereunder and all copies and portions thereof.
Certain parts of the software products provided by CWG
may be owned by one or more third parties and licensed to CWG.
Accordingly, CWG and Buyer agree that such third parties
retain ownership of and title to such software products.
The warranty and indemnification provisions set forth herein shall not
apply to software products owned by third parties and provided hereunder.
9. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN,
THE LIABILITY OF CWG UNDER THESE TERMS AND CONDITIONS *1)
SHALL NOT EXCEED AN AMOUNT EQUAL TO THE LESSER OF
- THE TOTAL PURCHASE PRICE THERETOFORE PAID BY BUYER TO CWG WITH RESPECT TO THE PRODUCT(S) GIVING RISE TO SUCH LIABILITY OR
- ONE THOUSAND US DOLLARS (US$1,000) (OR EQUIVALENT IN LOCAL CURRENCY).
CWG BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES
(INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF USE OF FACILITIES OR
EQUIPMENT, LOSS OF REVENUE, LOSS OF DATA, LOSS OF PROFITS OR LOSS OF GOODWILL),
REGARDLESS OF WHETHER CWG
- HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES OR
- IS NEGLIGENT.
TORT, INDEMNIFICATION, OR OTHERWISE,
BUT EXCLUDING LIABILITY OF CWG FOR BREACH OF WARRANTY.
THE SOLE REMEDY FOR WHICH SHALL BE AS PROVIDED UNDER SECTION 7 ABOVE.
10. EXPORT RESTRICTIONS
Buyer acknowledges that each Product and any related software and technology,
including technical information supplied by CWG or contained
in documents (collectively 'Items'),
is subject to applicable export controls,
including those of the U.S. government.
The export controls may include,
but are not limited to,
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.
Buyer shall comply with all the EAR
and all other applicable laws,
regulations, laws, treaties, and
agreements relating to the export,
re-export, and import of any Item.
Buyer shall not, without first obtaining the required
license to do so from the appropriate government agency;
export, distribute or supply any Item to 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.
Buyer shall cooperate fully with CWG in any official or unofficial audit or inspection related
to applicable export or import control laws or regulations,
and shall indemnify and hold CWG harmless from,
or in connection with, any violation of this Section
by Buyer or its employees, consultants, agents, or customers.
11. MISCELLANEOUS
-
Buyer may not delegate any duties nor assign any rights or claims hereunder without
CWG's prior written consent, and any such attempted delegation or assignment shall be void. -
The rights and obligations of the parties hereunder
shall be governed by and construed in accordance with the laws
of the country or state of CWG's registered location,
without reference to its choice of law provisions.
Each party hereby irrevocably consents to the exclusive jurisdiction
of the state and federal courts located in the county and state of CWG's manufacturing location,
in any action arising out of or relating to this Agreement and waives any other venue
to which it may be entitled by domicile or otherwise. -
In the event of any legal proceeding between the CWG and Buyer relating to this
Agreement, neither party may claim the right to a trial by jury, and both parties waive any right they may
have under applicable law or otherwise to a right to a trial by jury.
Any action arising under this Agreement must be brought within one
(1) year from the date that the cause of action arose. -
The application to this Agreement of the U.N. Convention on Contracts
for the International Sale of Goods is hereby expressly excluded. -
In the event that any one or more provisions contained herein shall be
held by a court of competent jurisdiction to be invalid, illegal
or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein
shall remain in full force and effect, unless
the revision materially changes the bargain. -
CWG's failure to enforce, or CWG's waiver of a breach of, any provision
contained herein shall not constitute a waiver of any other breach or of such provision. -
Buyer agrees that all pricing, discounts and technical information that CWG provides to
Buyer are the confidential and proprietary information of CWG.
Buyer agrees to (1) keep such information confidential and not disclose such information to any third party,
and (2) use such information solely for Buyer's internal purposes and in connection with the Products supplied hereunder.
Nothing herein shall restrict the use of information available to the general public. -
Any notice or communication required or permitted hereunder shall be in writing
and shall be deemed received when personally delivered
or three (3) business days after being sent by email.