Warranty Terms and conditions

1. ACKNOWLEDGMENT/MODIFICATION/CANCELLATION OF ORDERS. All orders placed with Marport are concluded via written acknowledgment by Marport and are subject to the terms and conditions stated herein. In the case of a conflict between the terms and conditions stated herein and those appearing on the face of such acknowledgment, the latter shall control. Orders acknowledged by Marport may not be modified, rescinded, rescheduled or cancelled unless authorized and acknowledged in writing by Marport. Orders may not be rescheduled after delivery by Marport to the carrier. If all or part of an order is cancelled by such writing (the “Cancelled Order”), in the absence of a contrary written agreement between Marport and Buyer, Buyer shall be required to pay Marport all costs committed or incurred by Marport as a consequence of such cancellation, including the cost of materials and labour, plus a cancellation fee of 25% of the total purchase price as a restocking charge for the Cancelled Order.
2. PRICES. All prices are in the currency stated in the corresponding invoice, either European Union currency (€) or United States Dollars (US$). Prices for Products shall be the then current price for such Products in effect at the time of Marport’s written acknowledgment of an order. Prices are exclusive ofall charges or levies of any nature, including all federal, state, municipal or other governmental excise, sales, use, value added, occupational, import duties, or similar taxes or tariffs now in force or enacted in the future (collectively, the “Additional Charges”) and, therefore, are subject to an increase in an amount equal to any such Additional Charges that Marport may be required to collect or pay upon sale or delivery of Products purchased. When applicable, Additional Charges shall appear as separate items on Marport’s invoices. All prices are subject to adjustment on account of changes requested by Buyer in specifications, quantities, shipment arrangements and configurations and the like.
3. PAYMENT TERMS; REVOCATION OF CREDIT. Except as otherwise agreed in writing by the parties, payment of the price and any Additional Charges shall be 1% ten (10) days, net thirty (30) days, and shall be made in accordance with the applicable Airmar written acknowledgment. All payments shall be made in U. S. currency. Payments not received within the payment terms shall be assessed a finance charge at the rate of one and one-half percent (1.5%) per month or the maximum rate permitted by law, whichever is less, starting from the invoice date. Buyer shall be liable for any costs or expenses incurred by Airmar in collecting any late payment, including, but not limited to, administrative and personnel costs, collection agency fees and expenses, court costs, and attorney’s fees and expenses.
1. All Dealers and distributors , as well as all other refereed as BUYER’s including prospective buyers and dealers will be subject to a credit check by Marport before becoming an authorized dealer ,a distributor or a buyer with credit terms , All applications completed and submitted to Marport , which reserves the right to refuse any application without explanations .
2. All price quotations, unless otherwise stated in writing by an authorized Marport representative, shall automatically expire thirty (30) calendar days from the date issued and may be cancelled or amended within that period upon notice to the Buyer. Marport reserves the right to change prices and pricing structures, any time, without advance notice.
   Marport reserves the right in its sole discretion to revoke, change or suspend any credit or payment terms already extended to Buyer or require full or partial payments in advance of any shipment or other performance, or otherwise defer, decline to make shipments and/or terminate the subject order without liability to Marport. If Marport believes in good faith that Buyer’s ability to make payments called forby an order is impaired for any reason, Marport may cancel the order or any remaining balance thereof, and Buyer remaining liable to pay for any Products already shipped.
4. SHIPMENT. All Products shall be shipped as EX Works Marport Sales and Support offices worldwide facilities including from manufacturing facility located in Milford, New Hampshire, and in accordanceto stated location in the corresponding invoice. All risk of loss of, or damage to, the Products and responsibility for all transportation expenses shall pass to Buyer upon delivery to the carrier, except that title and ownership shall remain with Marport until Buyer makes payment in full in accordance with the applicable order. Until such time as Buyer has fully performed, Marport shall have the unlimited right, without liability, to take possession of the Products, with or without notice, and to have all remedies ofa secured party under the applicable provisions of the Uniform Commercial Code. Products invoiced and held by Marport for any reason shall be at Buyer’s risk and expense. Delivery route shall be at the election of Marport, unless specifically designated by Buyer and acknowledged in writing by Marport. In no event shall the carrier be deemed an agent of Marport. Should delivery of any or all of the Products (or any other obligation of Marport) be delayed by events beyond Marport’s control, whether or not foreseeable, Marport’s time for performance shall be extended by the period of delay, or Marport may, at its option, cancel the order(s) without liability, Buyer remaining liable to pay for shipment(s) already completed.
5. LIMITED WARRANTY. Marport warrants to Buyer that all of the Products’ electrical and mechanical parts are free from defects in workmanship and materials and shall conform to and perform in accordance with applicable Product specifications issued by Marport for a period of two (2) years from the date of shipment to Buyer. If the Buyer has provided to Marport supplemental specifications in writing prior to, or at time of order entry, and Marport has acknowledged in writing the supplemental specifications, then Marport warrants to Buyer that the Products’ electrical and mechanical parts are free from defects in workmanship and materials and shall conform to and perform in accordance with applicable supplemental specifications for a period of two (2) years from the date of shipment to Buyer. Components supplied to Marport by Buyer for incorporation into the Products are not warranted by Marport.
   This limited warranty does not apply to expendable parts and does not cover normal wear and tear. This limited warranty does not extend to any Products from which the serial number or other identifying markings has been removed or tampered with or any Products that have been damaged or rendered defective (a) as a result of accident, misuse, abuse, negligence, installation, act of God, disaster, impact, vessel grounding, pinched, cut or abraded cables, contact with strong solvents, or other external cause, (b) by the use of parts not manufactured or sold by Marport , or (c) by modification or service by anyone other than Marport or by a fully authorized dealer or distributor . Marport is not responsible for damage that occurs during installation or as a result of Buyer’s failure to follow the instructions that come with the Products or by operation outside the usage parameters stated in the user and technical documentation that is supplied with the Products. Marport will repair or replace, at its sole discretion, equipment determined by Marport to be defective in material or workmanship. This warranty applies to parts and labor for new equipment only and is applicable for up to a twenty four (24) month period starting the date the product is shipped to buyer. Replacement parts and products do not extend this original warranty period.
   This warranty will not cover, nor will Marport be liable for costs associated with the removal and installation of sensor equipment, shipping, lost productivity costs, launching or removing the vessel from the water, business interruption costs, re-procurement costs, loss of profit or revenue, loss of data, promotional or manufacturing costs, overhead, injury to reputation or loss of customers or other incidental or consequential costs. In no event shall the maximum liability for Marport exceed the original purchase price of the goods determined to be defective.
   Costs associated with replacement of sensors, including but not limited to mileage, custom duties, boat hauling and reinstallation labor, are specifically excluded from this limited warranty.
   Buyer shall notify Marport in writing of any non-conformance or defects during the warranty period, obtain from Marport a return material authorization (“RMA”) for the defective Product, and return the non-conforming Products to Marport , freight prepaid, within fifteen (15) days of receipt of the RMA, with a statement describing in reasonable specificity the non-conformity. Marport’s exclusive obligation with respect to the non-conforming Products shall be, at Marport’s option, to repair or replace the Products, if they are determined to be defective, or to issue a credit to Buyer, within thirty (30) days after receipt by Marport of the returned Products. Transportation charges on warranty must be prepaid by Buyer. Return surface transportation charges will be prepaid by Marport.
   Buyer shall notify Marport of any non-conformance and submit a warranty claim with regard to Products that are damaged in transit within fifteen (15) days from the date of receipt.
   NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE FOREGOING IS BUYER’S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF WARRANTY BY MARPORT WITH RESPECT TO THE PRODUCTS. MARPORT MAKES NO OTHER WARRANTIES, ARISING FROM OPERATION OF LAW OR OTHERWISE, EXPRESS OR IMPLIED, INCLUDIN ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND ALL OTHER WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE ARE HEREBY EXCLUDED. IMPLIED WARRANTIES THAT MAY BE IMPOSED BY LAW ARE LIMITED IN DURATION TO THE LIMITED WARRANTY PERIOD SET FORTH HEREIN. BUYER PURCHASES AND ACCEPTS THE PRODUCTS SOLELY ON THE BASIS OF THE LIMITED WARRANTY EXPRESSED HEREIN. UNDER NO CIRCUMSTANCES SHALL MARPORT BE LIABLE BY VIRTUE OF THIS LIMITED WARRANTY OR OTHERWISE FOR ANY SPECIAL,INDIRECT, SECONDARY, PUNITIVE, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF PRODUCTION TIME OR OF ANTICIPATED REVENUE OR PROFITS TO ANY PERSON OR PROPERTY ARISING OUT OF THE USE OR INABILITY TO USE THE PRODUCTS), EVEN IF MARPORT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
   Any components or products not manufactured by Marport, including but not limited to any computer hardware or software, are not covered under the foregoing limited warranty. Any such components or products will only be covered by the warranties, if any, that accompany such components or products when shipped to Buyer. Under no circumstances shall Marport be liable for any losses or damages of any kind that arise as a consequence of any defect in any such components or products.
6. INSTALLATION. Buyer acknowledges that no installation, training or education shall be included in an order, unless specifically acknowledged in writing by Marport. In the event that Buyer receives any training from Marport with respect to the Products, such training shall be deemed personal to the person(s) receiving such training, and Buyer acknowledges that any person(s) receiving such training may not be capable of installing or operating the Products.
7. INSPECTION AND ACCEPTANCE. Buyer shall examine the Products as soon as possible after their arrival at Buyer’s facility, and in any event not more than ten (10) days following the Products’ arrival at Buyer’s facility. Buyer shall notify Marport in writing (i) with respect to missing Products, immediately upon receipt by reference to the accompanying bill of lading, and (ii) with respect to Products that are damaged in transit, within fifteen (15) days from the date of receipt. The Products shall be deemed to conform to the applicable specifications despite minor discrepancies that are usual in the trade, and Buyer shall not be entitled to abatement of the price for such minor discrepancies. Where the Products are materially non-conforming, the remedies provided in the limited warranty set forth herein shall serve as Buyer’s exclusive remedy. All Products shall be deemed accepted unless Marport is notified in writing of any defects within fifteen (15) days from the date of receipt.
8. PATENT, TRADEMARK AND COPYRIGHT INDEMNIFICATION. Marport agrees to and shall, at its option, either negotiate and/or defend all claims, suits or proceedings brought against Buyer if the manufacturing or design of the Products supplied hereunder infringes any patent, copyright or trademark of any third party, provided that Marport is notified promptly in writing and is given complete authorityAnd information required for the defense or settlement of same. Marport shall pay all judgments, decrees, compromises, costs and expenses arising from any charge or infringement against Buyer, but Marport and its corporate shareholders (Airmar Technology Corporation) shall not be liable for compromises incurred or made by Buyer without Marport’s prior written consent. The foregoing states the entire liability of Marport for any loss or damage whatsoever to Buyer arising from infringement of patents, trademarksor copyrights.Notwithstanding the foregoing, Marport shall have no obligation with respect to claims of infringement based upon the use of the Products in combination with other Products supplied either by Marport or others. Further, Marport shall have no obligation with respect to claims of infringement in the event that the manufacture or design of the Products is in accordance with specifications, designs or drawings furnished by customer or the claimed infringement is of any patent, trademark or copyright in which Buyer or any of its affiliates has an interest. Buyer hereby warrants and represents that any specifications, designs or drawings furnished by it or its representatives to Marport do not infringe upon any third-party patent, copyright, trademark or other intellectual property right of any third party, and agrees to indemnify and hold harmless Marport and its affiliates, successors and assigns from and against any costs, damages or liabilities that may arise due to any such infringement.
9. DEFAULT. Any of the following shall constitute an act of default hereunder: (1) a material breach of the Buyer, which breach has not been cured within thirty (30) days of the date of written notice of such failure given by Marport; or (2) the failure of Buyer to pay an invoice issued hereunder within the due date thereof; or (3) Buyer (i) admits in writing its inability to pay its debts generally as they become due, (ii) files a petition or has a petition filed against it in bankruptcy or any similar action under relevant bankruptcy or insolvency proceedings, (iii) makes an assignment for the benefit of its creditors, (iv) commences a proceeding for the appointment of a receiver, trustee, liquidator or conservator of itself or of the whole or any substantial part of its property, or (v) files a petition seeking reorganization, composition, liquidation, dissolution or similar arrangement under the federal bankruptcy laws or any other similar applicable law, statute or regulation of the United States or any country, state, county, province or other jurisdiction to which Buyer is subject. In the event of a default, Marport shall have the right to, in addition to any other remedies it may have at law or in equity, terminate all applicable orders, recover any and all monies that may be due, and repossess any Products sold hereunder.
10. LIMITATION OF LIABILITY. IN NO EVENT SHALL THE LIABILITY OF MARPORT FOR ANY AND ALL CLAIMS ARISING HEREUNDER EXCEED THE SUM OF BUYER’S PAYMENTS FOR THE PRODUCTS THAT ARE THE SUBJECT OF DISPUTE.
11. LICENSED SOFTWARE. Computer software or other licensed programs which may be required in connection with the use of Products, are provided by Marport to Buyer pursuant to a single user license, the royalty, terms and conditions of which are set forth on or in the container in which the software is packaged.
12. SUBSTITUTIONS AND MODIFICATIONS OF PRODUCTS. Marport may modify the specifications of Products designed by Marport and/or substitute substantially conforming Products, provided the modifications and/or substitutions do not adversely affect the performance of such Products.
13. GOVERNING LAW. These Terms and Conditions, although designed to comply with general terms of law from various countries where Marport’s facilities are located , to the best of Marport’s knowledge, shall be governed by the laws of the State of New Hampshire without reference to its principles of conflicts of law rules, including Article 2 of the Uniform Commercial Code as enacted in New Hampshire, and shall not be governed by the provisions of the United Nations Convention on Contracts for the International Sale of Goods.
    
    Any legal or equitable actions or proceedings arising out of or relating to the transactions contemplated hereby shall be brought in the State of New Hampshire, and both parties hereby irrevocably submit to the jurisdiction and venue of said courts.
14. ASSIGNMENT. Buyer shall not delegate any duties or assign any rights or claims hereunder without Marport’s prior written consent, and any such attempt at delegation or assignment without Marport’s prior written consent shall be void.
15. INTELLECTUAL PROPERTY. Marport intends to utilize proprietary information and manufacturing process (“Proprietary Information”) in manufacturing the Products and in discharging its other responsibilities hereunder. Buyer acknowledges and agrees that, as between the parties hereto; the Proprietary Information is proprietary to Marport and its corporate shareholders (Airmar Technology Corporation) and constitutes a trade secret under the Uniform Trade Secrets Act as adopted in the State of New Hampshire. Buyer will acquire no rights to use and/or disclose the Proprietary Information by virtue of the utilization of Proprietary Information in the Products manufactured or sold to Buyer hereunder.
    All designs, drawings, manuals, instructions, software, process programs and text in any format (the “Written Materials”) provided to Buyer by Marport are the sole property of Marport or its licensors, are protected by copyrights and international laws regarding copyrights, and may not be mechanically or electronically duplicated, reverse engineered or reproduced without Marport’s express written consent.
16. CONFIDENTIALITY. Buyer shall maintain in confidence all information and know-how disclosed by Marport, whether oral or in writing, that is either designated as proprietary and/or confidential or, by the nature of the circumstances surrounding disclosure, should in good faith be treated as proprietary and/ or confidential (“Confidential Information”), provided that Buyer may disclose Confidential Information on a need-to-know basis to its employees and representatives who have been apprised of these non- disclosure obligations and agreed to be bound by them. Buyer shall use at least the same degree of care in safeguarding the Confidential Information as it uses in safeguarding its own information of a similar nature, subject to a minimum standard of reasonable diligence and protection. Buyer’s obligation of non-disclosure hereunder shall not apply to Confidential Information that it can demonstrate by clear and convincing evidence: (a) is or becomes a matter of public knowledge through no fault of Buyer, (b) was or becomes available to Buyer on a non-confidential basis from a third party, provided that such third party is not, to Buyer’s knowledge, bound by an obligation of confidentiality to the disclosing party with respect to such Confidential Information, (c) was independently developed by Buyer without reference to Confidential Information, or (d) is required to be disclosed by law, provided that Marport is promptly notified by Buyerin order to provide Marport an opportunity to seek a protective order. This provision is in addition to and not in limitation of any other agreement entered into by Marport and Buyer relating to the protection or nondisclosure of Confidential Information.
17. COMPLIANCE WITH EU ROHS DIRECTIVE 2002/95/EC. Marport declares that to the best of its actual knowledge, the Products will be in compliance with the provisions of the EU ROHS Directive 2002/95/EC This declaration is provided to facilitate Buyer’s compliance with that Directive, and does not in any way expand upon or modify Marport’s obligations under these Terms and Conditions of Sale.
18. COMPLIANCE WITH LAWS. The Buyer agrees to comply strictly with all export and/or import control laws and regulations of various countries, specifically those where Marport has Sales and Support offices and assumes sole responsibility for obtaining licenses to import, export or re-export Marport products. Dealers shall not directly or indirectly export any Marport product to any country to which such export or transmission is restricted or prohibited. The dealer shall also be responsible for any fees arising from; licensing fees, import/export fees or duties or similar taxes and fees charged by different jurisdictions and countries.
    Buyer acknowledges that the Products are subject to regulation by United States government agencies that prohibit export or diversion of the Products, information about the Products, and derivatives of the Products to certain countries and certain persons (collectively, “U.S. Export Control Laws”). Buyer hereby represents, warrants and agrees that Buyer shall abide by, be bound by and strictly comply with all U.S. Export Control Laws as currently in effect and promulgated from time to time hereafter, including but not limited to the provisions of the Export Administration Act of 1979, 50 U.S.C. Appx. §§ 2401 et seq., the Trading with the Enemy Act, 50 U.S.C. § 1 et seq., the Arms Export Control Act, 22 U.S.C. §§ 2778(a) and 2794(7), the International Emergency Economic Powers Act, 50 U.S.C. § 1701 et seq., and the Foreign Corrupt Practices Act, 15 U.S.C. §§ 78dd-1 et seq., and all regulations promulgated from time to time thereunder.
    Marport reserves the right to immediately terminate the transactions contemplated hereby (without liability to Marport of any kind) if, in the opinion of Marport, any action taken by Buyer constitutes a violation of U.S. Export Control Laws or may subject Marport , its shareholders or any affiliated company of Marport to legal liability or loss of benefits under such law.
19. MISCELLANEOUS. The provisions of these Terms and Conditions shall be deemed severable, and the invalidity or unenforceability of any one or more of the provisions shall not affect the validity and enforceability of the remainder provisions of these Terms and Conditions, which shall remain in full force and effect. No provision hereof shall be deemed waived, amended or modified by either party unless such waiver, amendment or modification is in writing and signed by both parties. If the Products covered by these Terms and Conditions are to be supplied under a contract with a department or agency of the United States, Marport shall comply with any provisions of such contract that are construed as mandatory flow downs, but reserve the right to limit inspection or proprietary processes in areas that Marport may deem necessary. Any provisions which either expressly or by their nature is to continue after termination hereunder, on account of Buyer’s default or otherwise, shall survive and remain in full force and effect. The captions or headings are for convenience only and are not intended to limit or define the scope or effect of any provision of these Terms and Conditions.