VIRTIUM LLC, TERMS AND CONDITIONS OF SALE
These Terms and Conditions of Sale (collectively referred to as this “Agreement”) govern all sales of goods by VIRTIUM LLC (herein referred to as VIRTIUM) to BUYER. Any offer to sell Products to BUYER, whether or not in response to a purchase order from BUYER, is expressly conditioned on BUYER’S acceptance of this Agreement and BUYER’S placing an order, accepting an offer for sale or taking of delivery of any part of a shipment of Products is evidence of such acceptance. If this Agreement is construed to be an offer, this offer expressly limits acceptance by VIRTIUM to the terms of this offer and notice of objection to any different or additional terms is hereby given. If this Agreement is construed to be an acceptance of an offer, this acceptance is expressly conditioned upon VIRTIUM’S assent to any different or additional terms contained in this Agreement. If VIRTIUM already has an executed purchase agreement currently in effect with BUYER or enters into the same in the future, then the terms of such signed purchase agreement (as the same may be amended from time to time) shall prevail in the event of any conflict between this Agreement and such purchase agreement. If VIRTIUM does not already have or enter into an executed purchase agreement with BUYER, then this Agreement shall constitute the complete agreement with respect to the products. Without limitation of the foregoing, by purchasing any products on VIRTIUM’S website or through other electronic means offered by VIRTIUM (collectively the “Site”), BUYER accepts, without limitation or qualification, this Agreement governing such purchase. If BUYER does not agree and accept, without limitation or qualification, this Agreement, BUYER may not purchase from the Site.
1. AGREEMENT TO PURCHASE AND SELL. A quotation by VIRTIUM is an estimate only and is subject to modification by either VIRTIUM or BUYER. The transmission of a written confirmation (“Order Confirmation”) by VIRTIUM signifies VIRTIUM’S acceptance to sell only the Products that are the subject of the Order Confirmation and only pursuant to specified conditions inclusive of description, unit quantities, applicable prices, and delivery dates, and thereafter each party shall be deemed to have agreed to the terms and conditions herein.
2. PRICE AND PAYMENTS.
(a) Prices are reflected in U.S. Dollars and are exclusive of any and all federal, state, and local sales, use, excise, and similar taxes and charges which shall be the responsibility of BUYER in addition to the purchase of Products. Prices are firm for the quantities specified in an applicable Order Confirmation. Notwithstanding the foregoing, VIRTIUM reserves the right to revise prices to reflect any or all of the following: (i) any variation in market price of components, parts, raw materials; or (ii) any changes to the specifications or volume previously agreed upon, including changes that increase the cost of testing. VIRTIUM shall provide reasonable prior notice before invoking any of these rights with respect to revised prices.
(b) Payment is due to VIRTIUM 30 days after date of invoice, unless such payment terms are modified and signed by both parties in a separate writing.
3. DELIVERY. VIRTIUM shall schedule delivery and undertake all reasonable efforts to meet BUYER’S requested delivery date. However, VIRTIUM reserves the right to adjust the delivery dates for the entire or parts of any order. If VIRTIUM cannot observe an agreed time for the delivery of the Products, or if delay by VIRTIUM appears probable, VIRTIUM shall give notice to BUYER listing the time when VIRTIUM expects to deliver. A reasonable delay by VIRTIUM shall not be grounds for BUYER to terminate the order as to the delayed Products, unless otherwise agreed to by VIRTIUM and BUYER. Unless otherwise expressly agreed upon in a separate writing signed by both parties, all product shipments shall be made F.O.B. ORIGIN FREIGHT COLLECT, title to and risk of loss or damage to Products shall pass to BUYER upon VIRTIUM’S tender of Products to carrier. Unless otherwise agreed upon in a separate writing signed by both parties, the Products will be shipped in standard commercial packaging and by a method determined by VIRTIUM in its sole discretion.
4. INSPECTION AND CURE. BUYER shall inform VIRTIUM of the lack of conformity of any Products with the Order Confirmation, specifying the nature of the lack of conformity within a reasonable time after BUYER discovers or should have discovered the non-conformity, but not more than 30 days after BUYER receives shipment of the Product. VIRTIUM shall have the right to cure any non-conformity upon notice from BUYER notwithstanding any expiration of the original time for performance.
5. QUALIFICATION SAMPLES. Any sample(s) provided to BUYER is provided on a rent-free, loan basis for periods of 30, 60 or 90 days, in each case as determined by VIRTIUM in its sole discretion. Title to any such sample(s) shall remain with VIRTIUM and BUYER shall be responsible for any loss or damage to the sample(s).
6. CHANGES. BUYER has the option to request, in writing, changes to any order, including changes to the specifications, up to 60 days prior to the previously agreed upon delivery date for the order. BUYER may reschedule a standard, non-custom order only once and only up to 30 days prior to the previously agreed upon delivery date, provided that, in any event the rescheduled delivery date must be within the same fiscal quarter as when the notice is received by VIRTIUM. VIRTIUM shall notify BUYER, in writing, as to the impact of each such change to price, delivery schedule and any other terms within five (5) business days after receipt of the notice from BUYER. Any such requested changes shall become effective only upon the signing by both parties of a separate writing that incorporates the agreed upon changes. If any such change causes either an increase or decrease in VIRTIUM’S costs or time required for performance, the prices and/or delivery schedules shall be adjusted in a manner that adequately compensates VIRTIUM for any such changes and BUYER shall bear any increased costs. In no event may changes to either specifications or delivery of Products be made less than 30 days before the originally scheduled delivery date for the Products.
7. CANCELLATION. BUYER shall have the right to cancel any standard, non-custom order without cause, provided BUYER provides VIRTIUM written notice of cancellation 60 or more days prior to the scheduled delivery date for the Products. All orders for custom products are non-cancelable by BUYER for any reason.
8. LIMITED WARRANTY. VIRTIUM warrants, for the applicable warranty period set forth in Section 9 of this Agreement (the “Warranty Period”), that the Products, when used and installed in conformity with VIRTIUM’S Published Specifications, will perform substantially in accordance with VIRTIUM’S Published Specifications. This limited warranty is non-transferrable. VIRTIUM does not guarantee that the Product will operate in an error-free or uninterrupted manner.
9. WARRANTY PERIODS.
|Memory Modules||Five years|
|StorFly® PE ClassSATA SSDs based on SLC NAND Flash||(i) Five years; or (ii) date when TBW limit reached (e.g. when SMART attribute A1/F9 or A8/F8 reaches 0%), whichever occurs first|
|StorFly® XE ClassSATA SSDs based on iMLC NAND Flash||(i) Five years; or (ii) date when TBW limit reached (e.g. when SMART attribute A1/F9 or A8/F8 reaches 0%), whichever occurs first|
|StorFly® CE ClassSATA SSDs based on MLC NAND Flash||(i) Three years; or (ii) date when TBW limit reached (e.g. when SMART attribute A1/F9 or A8/F8 reaches 0%), whichever occurs first|
|TuffDrive® storage modules based on SLC NAND flash||Five years|
|TuffDrive® storage modules based on MLC NAND flash||One year|
10. WARRANTY SERVICE INSTRUCTIONS. For Original Purchasers to request warranty service under this limited warranty, the Original Purchaser must first contact its VIRTIUM representative to obtain a RMA prior to and as a condition of return of any Product. For End Users to request warranty service under this limited warranty, the End User must contact the manufacturer from which the system incorporating the Product was purchased prior to and as a condition of the return of any Product.
11. REMEDIES. In the event of a breach of the limited warranty set forth in Section 8 of this Agreement, VIRTIUM, at its discretion, may (a) repair the non-conforming Product; (b) replace the non-conforming Product with a similar product; or (c) Credit BUYER for the value of the non-conforming Product determined by VIRTIUM at the time that the claim is made. The remedies set forth in this section are the sole and exclusive remedies available to BUYER and are not cumulative. VIRTIUM retains the right to replace a non-conforming Product with a reconditioned Product. Any repaired or replaced Product will be shipped at VIRTIUM’S expense within a reasonable time following receipt of the non-conforming Product by VIRTIUM. Upon receipt of the non-conforming Product by VIRTIUM, title in the Product shall vest in VIRTIUM and will no longer remain the property of BUYER. The replacement Product continues to be subject to the limited warranty set forth in Section 8 of this Agreement and is subject to the same terms and limitations as the original Product for a period of 90 days or the remainder of the original Warranty Period, whichever is longer.
12. PRODUCT RISKS.
(a) Solid state disks and memory products are subject to risks inherent in power failures and degradation over time which can result in bit and meta data corruption or loss and total device failure (“Data Loss”). Therefore, the user of the Products assumes all responsibility and risk for back-up, damage, loss, storage and use of all data on the Products and VIRTIUM and, where applicable, VIRTIUM’S third party licensors specifically disclaim any responsibility for any Data Loss associated with the Products.
(b) The Products are not designed, manufactured or intended for use or resale as on-line control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communications systems, life support systems or any other application where product failure could lead directly to death, personal injury, or severe physical or environmental damage (“High Risk Activities”). Accordingly VIRTIUM and, where applicable, VIRTIUM’S third party licensors specifically disclaim any express or implied warranty of fitness for High Risk Activities.
(c) BUYER will indemnify, defend and hold VIRTIUM harmless from any loss, cost or damage resulting from Data Loss and High Risk Activities associated with the Products, including without limitation attorneys’ fees and costs relating to any lawsuit or threatened lawsuit, arising out of such use, sale or export.
13. DISCLAIMER. EXCEPT FOR THE LIMITED WARRANTY EXPRESSLY SET FORTH IN SECTION 8, VIRTIUM MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS AND HEREBY DISCLAIMS AND EXCLUDES ALL OTHER WARRANTIES, INCLUDING ANY WARRANTY OF MERCHANTABILITY, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF TITLE OR WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
14. LIMITATION OF LIABILITY. BUYER HEREBY EXPRESSLY AGREES THAT NEITHER VIRTIUM NOR ITS SUPPLIERS WILL IN ANY EVENT UNDER ANY CIRCUMSTANCES BE LIABLE UNDER ANY THEORY OF RECOVERY, WHETHER BASED IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), UNDER WARRANTY OR OTHERWISE IN LAW OR EQUITY, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, FUTURE OR PUNITIVE DAMAGES WHATSOEVER; DAMAGE TO OR LOSS OF DATA OF ANY KIND; LOSS OF PROFITS OR REVENUE; LOSS OF USE OF BUYER’S DATA, PROPERTY, PLANT, EQUIPMENT OR SYSTEM; INCREASED COSTS OF ANY KIND; OR CLAIMS OF CUSTOMERS OF BUYER. BUYER HEREBY EXPRESSLY AGREES THAT THE REMEDIES PROVIDED HEREIN ARE EXCLUSIVE AND THAT UNDER NO CIRCUMSTANCE SHALL THE TOTAL AGGREGATE LIABILITY OF VIRTIUM AND ITS SUPPLIERS UNDER ANY THEORY OF RECOVERY, WHETHER BASED IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), UNDER WARRANTY OR OTHERWISE IN LAW OR EQUITY, EXCEED THE PURCHASE PRICE BUYER ACTUALLY PAID TO VIRTIUM FOR PRODUCTS UNDER THIS AGREEMENT.
15. INDEMNIFICATION. BUYER shall indemnify and hold harmless VIRTIUM and its affiliates and their respective officers, directors and employees for all costs and expenses arising out of: (a) any breach of any agreement made by BUYER in this Agreement; (b) any negligence or willful misconduct of BUYER in connection with its performance under this Agreement; and (c) any personal injury (including death) or any damage to or loss or destruction of data or property attributable to BUYER’S handling, storage, transportation, placement, or use of the Products or otherwise arising from BUYER’S performance under this Agreement.
16. FORCE MAJEURE. VIRTIUM shall be excused from fulfilling its obligations contained herein or from delays in delivery and shall not be liable for failure to fulfill its obligations contained herein or for delays in delivery due to causes beyond its reasonable control, including but not limited to, acts of God; acts or omissions of the other party; acts or omissions of civil or military authority; government priorities; shortages in materials, energy, labor or equipment; fire; strikes; floods; earthquakes; epidemics; quarantine restrictions; riots; war; labor difficulties; delay in delivery from VIRTIUM’S suppliers; commercial impracticability and delays in transportation. The time for performance of any such obligation shall be extended for the time period lost by reason of the delay; provided that if such delay exceeds 90 days BUYER may cancel the applicable order for Products upon written notice to VIRTIUM.
17. CONFIDENTIALITY. If either party hereto receives from the other party written information which is marked “Confidential” and or “Proprietary,” or other confidential or proprietary information transmitted orally or visually, the receiving party agrees not to use such information except in the performance hereof, nor disclose such information to any third party, excluding VIRTIUM’S employees, agents, subcontractors and OEMs, without mutual consent, and to treat such information in the same manner as it treats its own confidential information, but no less than reasonable care under the circumstances. VIRTIUM has a proprietary interest in the quotations it issues, and accordingly, quotations will not be disclosed in whole or in part to third parties without the prior written consent of VIRTIUM. The obligation to keep information confidential shall not apply to any such information that (a) is received from a third party without violation of a duty of confidentiality; (b) is or becomes generally available in publicly available sources; (c) at the time of entering into this Agreement, is already in the rightful possession of the party receiving the confidential information without an obligation of confidentiality; or (d) is required to be disclosed by operation of law, but only to the extent and for purposes of such required disclosure. Except as otherwise provided herein, or as otherwise mutually agreed by the parties in a separate writing, the obligation not to disclose or use confidential information shall survive for a period of three (3) years after the termination hereof.
18. LEGAL. In the purchase and use of the Products, BUYER shall comply with all applicable laws, rules and regulations, including without limitation all applicable export laws and regulations. BUYER shall not be considered an agent or representative of VIRTIUM and BUYER shall not be granted any rights in VIRTIUM’S trademarks or other intellectual property rights.
19. ADVICE AND TECHNICAL DOCUMENTS. If technical advice is offered or given in connection with the use of any Product it will be as an accommodation to BUYER and without charge and VIRTIUM shall have no responsibilities or liabilities whatsoever for the content or use of such advice. All drawings and technical documents delivered by either of the parties to the other party remain the property of the delivering party, and the receiving party may not improperly use, reproduce, or otherwise disclose such materials to third parties.
20. ASSIGNMENT. No rights, duties, agreements or obligations hereunder may be assigned or transferred by BUYER without the prior written consent of VIRTIUM. The obligations, rights, terms and conditions hereof shall be binding upon and inure to the benefit of the parties hereto and their successors and assigns.
21. WAIVER. The waiver of any breach of any term, condition or covenant hereof or default under any provision hereof shall not be deemed to constitute a waiver of any other term, condition, or covenant contained herein or of any subsequent breach of default of any kind or nature.
22. SEVERABILITY. This Agreement is intended for use by VIRTIUM wherever its products may be sold, and therefore, if any of the provisions of this Agreement contravene or are invalid under the laws of a particular state, country or jurisdiction where used, the contravention or invalidity shall not invalidate the whole Agreement, but it shall be construed as if not containing that particular provision or provisions held to be invalid in the particular state, country or jurisdiction, and the rights and obligations of the parties shall be construed and enforced accordingly.
23. ELECTRONIC COMMUNICATIONS. The parties agree that electronic communication is a practicable method of communication and where written communication is required by this Agreement, electronic means will be sufficient including with respect to orders, acknowledgements, and order confirmations or otherwise, unless either party expressly objects to the use of electronic communication.
24. APPLICABLE AGREEMENT. This agreement is the most current version which contains the complete expression and entire understanding of the parties with respect to the purchase of Products from VIRTIUM, superseding all previous agreements covering such purchases. The parties agree that such Agreement shall control, notwithstanding conflicting or additional terms on any purchase order, sales acknowledgement, confirmation or other document issued by either party. No terms of such Agreement may be amended, changed or modified except by a separate written document provided or signed by VIRTIUM modifying such specific terms.
25. GOVERNING LAW AND FORUM SELECTION. In the event that parties cannot resolve a dispute, the parties acknowledge and agree that the state courts of Orange County, California and the federal courts located in the Central District of the State of California shall have exclusive jurisdiction and venue to adjudicate any and all disputes arising out of or in connection with any part of this Agreement. Further, the parties consent to the exercise of personal jurisdiction over them by such courts, and each party waives any objection to venue, personal jurisdiction, forum non conveniens, and any similar or related doctrine. The parties agree that the substantive laws of the State of California, without regard to its provisions concerning conflicts or choice of law, shall apply to all questions, disputes or actions arising out of or in connection with any part of this Agreement. Except as expressly set forth in this Agreement, each party shall bear the cost of its own attorneys with respect to any dispute arising out of or in connection with this Agreement.
26. DEFINITIONS. In addition to the other defined terms set forth in this Agreement, the following terms will have the meanings set forth in this section as they are used and applied within this Agreement:
(a) “BUYER” refers to an individual or entity, inclusive of all officers, employees, subcontractors, agents and other representatives, which purchases one or more products directly from VIRTIUM (an “Original Purchaser”), or which purchases a system or device that incorporates one or more of VIRTIUM’S products (an “End User”).
(b) “Credit” means credit to purchase another VIRTIUM Product, but does not mean a full cash refund.
(c) “Product” refers only to the products sold by VIRTIUM at the time this Agreement is entered into.
(d) “Published Specifications” means the current product specification information VIRTIUM makes publicly available through its website, as such information may be amended from time to time by VIRTIUM in its sole discretion.
(e) “Return Merchandise Authorization Number” also referred to as “RMA”, means a number generated by VIRTIUM at the time a warranty service claim is made.
(f) “TBW” and “Terabyte Written Limit” is consistent with the industry-wide measurement (JEDEC standard definition) and means generally, the possible terabytes written over the life of the drive. The TBW for each Product is set forth in the applicable Published Specifications.
(g) “VIRTIUM” refers to Virtium LLC, located at 30052 Tomas, Rancho Santa Margarita, California 92688.
(h) “Warranty Period” means (a) in the case of an Original Purchaser, the period beginning on the date the Product was purchased in its original and sealed packaging and continuing for the term of years listed in the schedule in Section 9; or (b) in the case of an End User, the period beginning on the date of purchase of an applicable device or system under the terms of this Agreement and continuing for the term of years listed in Section 9.