Waveform Solutions Terms and Conditions
For purposes of these Terms and Conditions, the following are defined terms:
(a) “Equipment” means hardware (except for batteries) and related documentation provided for by Waveform Solutions Ltd. (“Waveform”) to Customer in accordance with these Terms and Conditions;
(b) “Licensed Software” means the object code form of computer programs or firmware (embedded software) licensed to Customer in accordance with these Terms and Conditions and the Terms and Conditions of the applicable in-product or other product-specific licenses and related manuals and documentation proprietary to Waveform or its Manufacturers or Suppliers which may be provided to Customer in hard copy subject to Section 9 herein or licensed to Customer in soft copy in accordance with these Terms and Conditions and the Terms and Conditions of the applicable in-product or other product-specific licenses;
(c) “Product(s)” means Licensed Software, Equipment, and/or third-party products sold by Waveform;
(d) “Services” means Customer-related services, including but not limited to installation, facility analysis, as well as Warranty
Period, as defined herein, and post-warranty period maintenance services;
(e) "T&M" means time-and-material as a cost basis for providing
Services or Products that are not otherwise provided to Customer;
(f) “Warranty Start Date” means the date of shipment of the Products acquired hereunder.
1. Governing Terms. Waveform’s agreement to sell Products and provide Services is conditioned upon Customer’s agreement to these
Terms and Conditions and to the Terms and Conditions of any applicable Licensed Software license agreement included with any shipment of Licensed Software to Customer (the Manufacturer’s Equipment Software License Agreement is incorporated herein by this reference and is available for inspection upon request). If these Terms and Conditions are part of or delivered with a sales order acknowledgment or other document delivered in response to Customer’s purchase order for or other offer to purchase Products and/or Services, Waveform’s agreement to sell such Products and/or Services is expressly made conditioned on assent by Customer to any Terms and Conditions set forth herein and in any sales order acknowledgment or other document delivered in response to Customer’s purchase order or other offer that are different from or additional to the terms and conditions of such Customer’s purchase order or other offer; unless Customer shall notify Waveform in writing to the contrary within 10 days after receipt hereof by Customer of any such Waveform acknowledgment or other document delivered in response to Customer’s purchase order or other offer (and if any such notice is received no agreement of sale shall be in effect and Waveform shall be under no obligation to ship the subject Products or provide such Services), Customer’s assent to any such different or additional terms and conditions shall be conclusively presumed;
Customer’s assent to the different or additional terms and conditions hereof shall also be conclusively presumed upon acceptance of delivery by Customer or Customer’s agent of such Products or Services.
2. Payment and Charges. Invoices shall be downloaded by the Customer via the One Posting System upon shipment of the Products or completion of Services and, unless otherwise agreed, shall be due and payable in EURO (€) unless your account with us is held in the UK, therefore UK Pound Sterling (£), 30 days from the date thereof. If Customer fails to pay any such invoice when due, Customer shall be subject to a late payment charge of 1½% per month until paid. Further, in the event Customer fails to pay any invoice when due,
Waveform may decline to make further Product or Service deliveries, or provide support, except upon receipt of cash or satisfactory security. Customer is responsible for all sales, use, and similar taxes, and agrees to reimburse Waveform for any such charges paid on Customer’s behalf.
3. Shipment. Following Waveform’s sales order acknowledgment of each order by Customer, Waveform shall use its best efforts to effect shipment of the Products or delivery of the Services within the time stated on such acknowledgment, but in no event shall Waveform be liable for a failure to ship within the time stated. Waveform will ship Products F.O.B (free on board) point of shipment. Shipping costs will be prepaid by Waveform and added to Customer’s invoice. In the absence of explicit shipping directions, Waveform will use its own discretion as to mode of shipment. Title to the Equipment sold shall pass to Customer upon full payment by Customer to Waveform and risk of loss and damage to the Products sold shall pass to Customer immediately upon delivery of the Products to a common carrier, or to an employee or other agent of Customer, at Waveform’s facility.
4. Cancellation and Rescheduling. At any time prior to the scheduled date of shipment, Customer may cancel any or all products on order upon payment to Waveform of a cancellation fee for each unit of Product cancelled. Such cancellation fee shall be computed as follows:
Number of Days Prior to Scheduled Date of Cancellation Charges Expressed
Shipment that Cancellation Notice is received as a Percentage of List Price
61 Days or More 0 (zero)
31 - 60 Days 10 percent
0 - 30 Days 15 percent
However, please note, there shall be no cancellation of custom software ordered by a customer. In such an instance Waveform
Solutions Ltd will consider the Purchase Order Number given by the customer as confirmation that they wish the project to commence.
Waveform will allow Customer to delay shipments for a maximum of 60 days upon written notice of the new shipping date received by Waveform at least 30 days in advance of the scheduled date of shipment. Any rescheduling to a date more than 60 days after the original scheduled date of shipment, or received by Waveform less than 30 days in advance of the scheduled date of shipment, will be subject to a reschedule charge of 10% of the list price of the Products purchased. After the first rescheduling, Customer will be subject to a reschedule charge of 10% of the list price of the Products purchased for each subsequent rescheduling regardless of the length of the rescheduling or period of notice. Failure by Customer to schedule shipment to occur within 12 months after an order placement date will be considered as a cancellation subject to a 15% cancellation fee.
5. Services. In the event Waveform provides Services at Customer’s location, Customer shall provide a safe and suitable place for Waveform to perform Services. Post-warranty contract Services provided hereunder shall be subject to the terms and conditions of Waveform’s Services Agreement, if Customer elects to purchase such Agreement (Services Agreement is incorporated herein by this reference and is available for inspection upon request). If Customer declines to purchase Services Agreement, Waveform’s response will be provided on a T&M basis, plus related travel expenses, in accordance with Waveform’s then current T&M rates. In the event
Waveform installs Products, installation will be deemed complete and accepted upon successful conclusion of Waveform’s standard test procedures.
6. Licensed Software. With respect to Licensed Software, the word “purchase” or similar or derivative words as used herein is understood to mean “ a non-exclusive, non-transferable, site specific, single user license,” and “Customer” or similar or derivative words as used herein is understood to mean “Licensee.” Customer may transfer the license for the Licensed Software or relocate the Licensed Software to an alternate site only upon the prior written consent of Waveform. Title to Licensed Software shall remain with Waveform its
Manufacturer’s or its supplier,notwithstanding anything to the contrary herein, and Waveform shall have the right to terminate the license granted to Customer for the Licensed Software hereunder and under the applicable in-product or other product-specific license agreement included with any shipment of Licensed Software to Customer automatically and without notice to Customer upon the
Customer’s breach of its obligations under this Agreement or under such other applicable in-product or other product-specific license agreement.
7. Waveform Warranties / Manufacturer’s / Suppliers Warranties
(a) Warranty. Waveform warrants, for a period commencing upon the Warranty Start Date and continuing for one year thereafter (the
“Warranty Period”) that, except as indicated on an Waveform sales order acknowledgment as warranted by the original manufacturer, all Products sold to Customer hereunder shall be free from defects in materials and workmanship and shall perform substantially in accordance with the applicable specifications in the applicable documentation. For standard catalogue Products, applicable specifications are those published by Waveform in its current catalogue or data sheet at the time of Product purchase.
For Products manufactured to Customer’s specifications, applicable specifications are those that have been made a part of these Terms and Conditions by mutual written consent of the parties. Waveform’s obligation to perform pursuant to the warranties provided in this Section 7 is limited to undertaking all reasonable efforts to identify and correct any such defects and non-conformities with the specifications in any warranted Product returned to Waveform’s designated service location within the
Warranty Period.
(b) Notification and Warranty Procedure. If, in Customer’s estimation, the Product is defective, Customer shall promptly notify Waveform in writing of the nature of the defect. The address is Waveform Solutions Ltd, Unit 2 Block D, M4 Interchange Park, Celbridge, Co Kildare, Ireland. If the Product appears to be covered under the warranties provided in this Section 7, Waveform will promptly provide a return materials authorisation (RMA) number and communicate shipping instructions to Customer. Products will be returned to Waveform at Customer’s expense. Collect shipments will not be accepted. Upon receipt, the Product will be examined and repaired without charge, provided such examination discloses, in Waveform‘s reasonable judgment, that it is in fact defective. Should examination reveal that the Product is not defective, Waveform will notify Customer and request shipping instructions. In this event, Waveform will be due all shipping expenses it has incurred, as well as a reasonable charge for the examination. In the event that the examination reveals that the Product is defective, but for any reason is not covered under the warranties provided in this Section 7, Waveform will prepare a failure analysis report and a quotation of the cost to repair, and communicate this information to Customer. Customer may then either authorise repair of the Product or direct that the defective Product to be returned to Customer. In the latter event, Waveform will be due all shipping charges it has incurred, as well as a reasonable charge for the examination of the Product and the preparation of the failure analysis report. Waveform may, at its option, elect to correct any warranty defects by sending its supervisory or technical representatives, at Waveform’s expense, to Customer’s site within Ireland to make on-site corrections. The repair of Products damaged in transit to Waveform’s designated service location will be billed on a time and material basis. For Product that proves to be defective and covered under the warranties provided in this Section 7, Waveform will repair or replace such Product within 10 days of its receipt. Services provided here under on a time and materials basis are warranted by Waveform for a period of 30 days from the date such Services are provided.
(c) Remedy. In the event Waveform fails to correct any warranted Product defects or non-conformities, Customer’s sole remedy is to receive a refund of the purchase price paid for the defective or non-conforming Product.
(d) Third Party Warranties. For those Products identified on an Waveform sales order acknowledgment as warranted by the original manufacturer, such original manufacturer’s warranty applies solely.
(e) Limited Warranty. Waveform has no obligation under the warranties provided in this Section 7 to correct any Licensed Software programming error(s) that do not significantly affect the use of the Products; however, such programming error corrections shall be made available from time to time to those Customers electing applicable Waveform’s contract maintenance services. Further not covered under the warranties provided in this Section 7 are services that are required due to (i) abuse, misuse, or abnormal conditions of operation, (ii) damage to the Products that is a result of the use of unapproved, non-manufacturer mounting devices,
(iii) Any damage to Customer’s equipment or Products as a result of Customer connecting components that have not been purchased from Waveform and/or inspected and approved by Waveform for connection to the Products, (iv) unauthorised attempts by other than Waveform personnel to install, repair, maintain or modify the Products or system, or (v) causes external to the Products, such as power surges or force majeure events such as accidents, acts of God, acts of nature, fire, flood or other similar causes beyond a person’s control. Except for the express warranties stated in this section 7, which are exclusive, Waveform disclaims all warranties on products sold hereunder, including all implied warranties of satisfactory quality and fitness for a particular purpose and all warranties on services including the implied warranty of the exercise of reasonable skill and care.
(f) Batteries. In accordance with the provisions of this Section 7, Waveform warrants the batteries it sells hereunder for twelve months from the Warranty Start Date.
8. Limitation of Liability. Waveform assumes no liability except as expressly provided in these terms and conditions, and in no event shall Waveform be liable whether in contract or tort (including negligence) for damages relating to loss of magnetically stored computer programs or data, or for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by customer of an indirect or consequential nature including without limitation any economic loss or other loss of turnover, profits, business or goodwill. In respect of property damage resulting from Waveform’s negligence, Waveform limits its liability. Nothing in these terms and conditions limits or excludes liability for death or personal injury. Except as provided in this section, no liability of any kind, whether as to products or services delivered, or for non-delivery of products or services with respect to which such damages are claimed shall be greater in amount than the purchase price of the products or services with respect to which such damages are claimed. No charges or expenses incident to any claim shall be allowed unless approved by an authorised representative of Waveform.
9. Non-Disclosure. In connection with the sale of the Products or Services to Customer, Waveform may disclose to Customer non-public trade secrets (including computer programs recorded in firmware or on some other medium) and other non-public proprietary information concerning the Products and the business and affairs of Waveform (such non-public trade secrets and other proprietary information are hereinafter collectively called “Information”). Waveform has a legitimate business interest in restricting the disclosure and use of the Information, and Customer agrees that these provisions are reasonable and necessary to protect the legitimate business interests of Waveform. Waveform will retain all right, title, and interest in and to all Information, including but not limited to any intellectual property rights embodied therein. Customer agrees to
(a) keep in strictest confidence and trust all Information and not use or disclose any Information without the express prior written consent of Waveform, and
(b) diligently protect all of the Information against loss by inadvertent or unauthorised disclosure or use.
10. Patent and Copyright Infringement. Waveform with their suppliers shall defend, at its expense, any claim or suit brought against
Customer alleging that any Products furnished hereunder infringe any global patent or copyright, and shall pay all costs and damages based on any such claim awarded following appeal, if any, provided that Customer gives Waveform prompt written notice of such claim and gives Waveform information, reasonable assistance, and sole authority to defend or settle the claim. In the defence or settlement of the claim, Waveform may obtain for Customer the right to continue using the Products, replace or modify the Products so that they become non-infringing or, if such remedies are not reasonably available, grant Customer a credit for the Products as depreciated and accept their return. Waveform shall not have any liability if the alleged infringement is based upon
(a) the use or sale of the Products in combination with other products or devices not furnished by Waveform,
(b) the use of the Products in a manner for which they were not designed, or
(c) any unauthorised modification of the Products.
11. General Provisions
(a) Export. Customer will not export, either directly or indirectly, any Product or system incorporating the Products.
(b) Governing Law. These terms and conditions shall be governed by and construed in accordance with the laws of Ireland and the EU and each party agrees to submit to the exclusive jurisdiction of the courts of each
(c) Force Majeure. In the event of national emergency, war, prohibitive governmental regulation or any other cause beyond the control of the parties (‘force majeure event’) the obligations of the parties shall be suspended for so long as the force majeure event renders performance of the agreement impossible and upon the occurrence of a force majeure event all money then due to Waveform shall be paid immediately.
(d) Errors. Stenographic, typographic, and clerical errors in this Agreement or the Product specifications are subject to correction.
(e) Assignment. Neither party may assign or otherwise transfer any of the rights, duties, or obligations herein, without the prior written consent of the other.
(f) Modifications. No modification of waiver of any of these Terms and Conditions shall be effective unless expressed in writing and executed by each of the parties.
(g) Entire Agreement. These Terms and Conditions (other than in respect of any fraudulent misrepresentation) are the complete and exclusive statement of the agreement between the parties, which supersedes and merges all prior proposals, understandings, and other agreements, oral and written, between the parties with respect to the subject matter hereof.
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