THE SALE OF PRODUCTS AND SERVICES ("PRODUCT(S)") BY CODEMAGIC, INC. AND ITS DIVISIONS AND SUBSIDIARIES ("CODEMAGIC", "US") ARE SUBJECT TO THESE TERMS AND CONDITIONS ("AGREEMENT"), REGARDLESS OF OTHER ADDITIONAL TERMS OR CONDITIONS THAT CONFLICT OR CONTRADICT THIS AGREEMENT IN ANY PURCHASE ORDER, DOCUMENT, OTHER COMMUNICATION ("ORDER"), OR PREPRINTED TERMS AND CONDITIONS ON ANY CUSTOMER ("CUSTOMER", "YOU") DOCUMENT (I.E. PURCHASE ORDERS OR CONFIRMATIONS). CODEMAGIC'S FAILURE TO OBJECT TO CONFLICTING OR ADDITIONAL TERMS WILL NOT CHANGE OR ADD TO THE TERMS OF THIS AGREEMENT.
All orders are subject to acceptance by CodeMagic. We reserve the right to allocate the sale of products among our customers. Orders for special, custom, value-added and products identified by us as non-standard are non-cancelable and non-returnable ("NCNR"). You may not cancel or reschedule orders without reasonable cause (i.e. item not available, impacted production delays).
Our quoted prices apply for up to 30 calendar days. We typically increase prices only if our costs increase or other circumstances exist beyond our reasonable control, however, prices are subject to change at any time. Prices are for products and services only, and do not include taxes, impositions, or any other charges, fees, shipping charges, and duties imposed by any government agency. You are wholly responsible for any additional fees and taxes.
If we have issued you credit, payment of the full invoice amount, without offset or deduction, is due within the period negotiated starting from the invoice date; otherwise, payment is due prior to delivery. On any past due invoice, we may charge you interest for every day after the payment is due (up to 1.29% per month or as permitted by law), plus reasonable attorney fees and collection costs. We may change the terms of your credit at any time. We may apply payments received to any of your outstanding accounts.
You are responsible for all shipping costs, taxes, and any applicable surcharges. Title and risk of loss pass to you upon delivery to your carrier of choice (F.O.B. Origin). Delivery dates are estimates only and we are not liable for delays in delivery. We reserve the right to make partial shipments, and you must accept delivery and pay for any products delivered. A delayed delivery of any part of your order does not entitle you to cancel your order.
We cannot accept returns without first issuing a Return Material Authorization ("RMA") number. RMAs will be issued without restocking fee only for damage, shortage, or other discrepancy created solely by CodeMagic, and only if you notify us in writing of any damage, shortage, or other discrepancy within 30 days after your order shipped. RMAs will not be granted for damage, shortage, or other discrepancy created by you, the carrier, or any other third party. Returned products must be unused in original shipping cartons. If you make a return, you must return all products, freight prepaid, as specified in the RMA and pay any restocking charges (up to 15%). At our discretion, we will return any products not eligible for refund to you, freight collect, or hold the products for your account at your expense.
Conditions for Accepting Returns:
| CONDITION | RETURN WINDOW | REFUND | FREIGHT |
| Unopened | 30 Calendar Days | 100% | Prepaid by customer |
| Opened | 30 Calendar Days | 85% | Prepaid by customer |
| Missing Items | 30 Calendar Days | 85% | Prepaid by customer |
| Factory DOA | 30 Calendar Days | 100% | Prepaid by customer |
| Customer Damage / Operating Error | 0 Calendar Days | None | None |
| Warehouse Error | 30 Calendar Days | 100% | Prepaid by customer |
We will transfer to you any warranties and indemnities authorized by the manufacturer, including any transferable warranties and indemnities for intellectual property infringement. We warrant that the products will conform to the manufacturer's specifications. Value-added work that we perform for you on any products will conform to your specifications. WE MAKE NO OTHER WARRANTY, EXPRESS OR IMPLIED, WHETHER IT BE FOR WARRANTY OF MERCHANTABILITY, FITNESS FOR PURPOSE OR NON-INFRINGEMENT. If any products do not meet the manufacturer's specifications or if value-added work we perform for you does not meet your specifications, the products will be, at our discretion: (1) repaired, (2) replaced at no cost to you, or (3) we will refund your purchase price. You must return all defective products to us, along with acceptable proof of purchase, within the warranty period specified by the manufacturer, freight charges prepaid.
WE ARE NOT LIABLE FOR AND YOU ARE NOT ENTITLED TO ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, I.E. LOSS OF PROFITS OR REVENUE, LOSS OF DATA, LOSS OF USE, REWORK, MANUFACTURING EXPENSE, INJURY TO REPUTATION, OR LOSS OF CUSTOMERS. YOUR RECOVERY FROM US FOR ANY DIRECT DAMAGES WILL NOT EXCEED THE PURCHASE PRICE OF THE PRODUCTS AT ISSUE. YOU FURTHER AGREE TO INDEMNIFY, DEFEND, AND HOLD US HARMLESS FROM ANY CLAIMS BASED ON (i) OUR COMPLIANCE WITH YOUR DESIGNS, SPECIFICATIONS, OR INSTRUCTIONS, (ii) MODIFICATION OF ANY PRODUCTS BY ANYONE OTHER THAN US, OR (iii) USE IN COMBINATION WITH OTHER PRODUCTS.
We are not liable for failure to fulfill our obligations for any accepted order or for delays in delivery due to causes beyond our reasonable control (i.e. acts of God, negligent acts or omissions made by you, man-made or natural disasters, epidemic medical crises, materials shortages, strikes, acts of terrorism, delays in transportation, or inability to obtain labor or materials through our regular sources).
Products that we sell are not authorized nor designated for use in critical safety or other applications where a failure may reasonably be expected to result in personal injury, loss of life, or catastrophic property damage. If you use or sell any product for use in any such application, you acknowledge that such use or sale is at your sole risk. You agree to indemnify, defend, and hold us and the product manufacturer (whether it be CodeMagic or one of our partners) harmless from and against any and all liabilities and costs arising out of or in connection with such use or sale.
Certain products and services sold by us and other related technology and documentation are subject to export control laws, regulations, and orders of the United States of America and the export or import control laws and regulations of other countries. You agree that you will not directly or indirectly export or divert any products and other related technology or documentation to any third party or country where such export or transmission is restricted or prohibited. You agree to be completely responsible for obtaining any license to export, re-export, or import as may be required.
Product information, including information related to product specifications, export / import control classifications, use or conformance with legal or other requirements, may be obtained from our suppliers or other sources. Such information is provided on an "AS IS" basis. We make no representation as to the accuracy or completeness of the product information, and DISCLAIM ALL REPRESENTATIONS, WARRANTIES AND LIABILITIES UNDER ANY THEORY WITH RESPECT TO THE PRODUCT INFORMATION, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. We recommend that you validate any product information before using or acting on such information. All product information is subject to change without notice. We are not responsible for typographical or other errors or omissions in the product information.
We are a distributor of "Commercial Items" as defined in FAR 2.101.
a. We hereby advise that we will only operate under FAR 52.244-6 when fulfilling a subcontract for a government prime contractor. Therefore, the following FAR clauses are incorporated by reference and made a part of any such subcontract or order to the extent that these clauses are applicable.
52. 219-8 Utilization of Small Business Concerns
52.222-26 Equal Opportunity
52.222-36 Affirmative Action for Workers with Disabilities
52.222-39 Notification of Employee Rights Concerning Payment of Union Dues
52.247-64 Preference for Privately Owned U.S. Flag Commercial Vessels
b. If the subcontract is issued in support of a DOD prime contract, the following additional clauses are incorporated by reference and made a part of any such subcontract or order to the extent that these clauses are applicable:
DFARS 252.247-7023 Transportation of Supplies by Sea
DFARS 252.247-7024 Notification of Transportation of Supplies by Sea
c. In accordance with FAR 12.211 you will receive only those rights in technical data customarily provided by us or our suppliers. By no means will this be interpreted as providing to you unlimited rights in data, software, or intellectual property rights provided by us, our suppliers, or any other third party.
d. We hereby reject the flow down of requirements of the: (i) Trade Agreements Act, FAR 52.225-5 or DFARS 252.225-7021; and (ii) the Buy American Act, FAR 52.225-1 or DFARS 252.225-7001. There is an exception to the Buy American Act for "Information Technology" that applies to many of the products we sell, however, you are solely responsible for determining if an exception exists.
e. We cannot comply with the "Preference for Domestic Specialty Metals," DFARS 252.225-7014, Alt. 1, unless one of the following conditions is met: 1) the product manufacturers indicate they can comply; 2) an existing Domestic Non-Availability Determination (DNAD) applies; or 3) there is an applicable exception. However, you are solely responsible for determining if a DNAD or an exception exists.
In the event that any part of the purchase and sale of products or services utilizes electronic data interchange, internal or third party portal, or any other electronic means ("Electronic Purchase Order"), this agreement, or any other validly executed agreement between CodeMagic and you, will continue to apply to the purchase and sale of products between CodeMagic and you.
a. The laws of the State of Nevada will exclusively govern any dispute between you and CodeMagic without reference to Nevada's conflict of laws principles. The United Nations Convention for the International Sale of Goods shall not apply.
b. You may not assign this agreement without our prior written consent. We or our affiliates may perform the obligations under this agreement. This agreement is binding on our successors and assignees.
c. This agreement can only be modified in writing by an authorized representative of CodeMagic.
d. You and CodeMagic are independent contractors and agree that this agreement does not establish a joint venture or partnership.
e. Statements or advice (technical or otherwise), if given without charge, are an accommodation to you and CodeMagic has no responsibility or liability for the content or use of such statements or advice.
f. Our failure to object to any document, communication, or your actions will not be deemed a waiver of any of these terms and conditions.
g. The unenforceability of any of these terms or conditions will not effect the enforceability of the remainder of the terms or conditions.
h. Products, including software or other intellectual property, are subject to any applicable rights of third parties, such as patents, copyrights and user licenses.
i. You and CodeMagic will comply with applicable laws and regulations.
©Copyright 2008 - 2009 CodeMagic, Inc. All rights reserved. If you have questions regarding our policies, please call, fax, email, or write:
CodeMagic, Inc.
101 Convention Center Drive, Suite 700
Las Vegas, NV 89107-2001