1. SCOPE AND APPLICATION
1.1. THESE TERMS (“TERMS”) APPLY TO ALL OFFERS, SALES AND PURCHASES OF SERVICES (INCLUDING, WITHOUT LIMITATION, TRAINING CLASSES AND FIELD SERVICES SUCH AS INSTALLATION, MIGRATION, ON-SITE TRAINING) (“SERVICES”) PROVIDED BY: (A) US, OSISOFT, LLC OR ANY OF ITS SUBSIDIARIES (REFERENCES TO “US”, “WE” OR “OUR” BEING CONSTRUED ACCORDINGLY) (“OSIsoft”) THE SELLER, TO (B) YOU AND YOUR COMPANY, THE PURCHASER (REFERENCES TO “YOU” OR “YOUR” BEING CONSTRUED ACCORDINGLY).
1.2. ALL PURCHASES ARE FINAL, NON-CANCELABLE AND NON-REFUNDABLE, EXCEPT AS SPECIFIED BY OUR PROPOSAL OR OTHER AGREEMENTS EXECUTED BY OSISOFT AND THE PURCHASER.
1.3. THE TERMS HEREIN ARE TERMS OF SERVICES ONLY. THE TERMS AND CONDITIONS OF THE OSISOFT SOFTWARE LICENSE AGREEMENT OR OTHER AGREEMENTS EXECUTED BY OSISOFT AND THE PURCHASER WILL BE THE SOLE AND EXCLUSIVE TERMS AND CONDITIONS GOVERNING THE LICENSE OF SOFTWARE FROM OSISOFT.
2. OFFER, ACKNOWLEDGMENT AND ACCEPTANCE
2.1. An order submitted by you constitutes an offer by you to us to purchase Services on these Terms and is subject to our subsequent acceptance. OSIsoft will not accept any additional or different terms and conditions submitted by you, whether on your purchase order (“PO”) or otherwise, and shall be deemed objected to by us and shall be of no effect nor in any circumstance binding upon us unless accepted by us in writing. If you provide a PO number, references to such PO number may be printed on our acceptance, sales, and invoice documents and are for your reference only.
2.2. Prior to such acceptance, an acknowledgement of your order may be generated. Please note that any such acknowledgement does not constitute a formal acceptance of your order.
2.3. Our acceptance of your order takes effect and the contract concluded at the point where such offer is expressly accepted by us dispatching your order/commencing Services and accepting your payment ("Acceptance").
3. YOUR REPRESENTATIONS
3.1. You represent that information provided by you when placing your order is up-to-date, materially accurate and is sufficient for us to fulfill your order.
3.2. You are responsible for maintaining and promptly updating your account information with us for accuracy and completeness and keeping such information (and any passwords given to you for the purposes of accessing OSIsoft’s website and/or purchasing Services) secure against unauthorized access.
4. PRICE AND TERMS OF PAYMENT
4.1. Unless otherwise specified, prices quoted are exclusive of VAT and any other service tax (where applicable) which must be added to the price payable.
4.2. Unless otherwise specified in our proposal, payment shall be made prior to commencement of Services and by such methods as are communicated by us (and not by any other means unless we have given our prior agreement).
4.3. Payment shall be taken in full.
4.4. Where payment is made by credit card or debit cards, we will charge on commencement of Services. We reserve the right to verify credit or debit card payments prior to Acceptance.
4.5. Where payment is invoiced, provided that you meet OSIsoft's then-current credit standards and policies, payment of all fees and expenses pursuant to OSIsoft's invoices will be due and payable within thirty (30) days of the date of invoice, otherwise invoices will be due upon receipt. You will pay all amounts due under OSIsoft's invoices in U.S. currency, or the local currency where applicable, free of any and all currency controls or other restrictions.
4.6. All past due amounts under OSIsoft's invoices will incur interest at a rate equal to the lower of 1.5% per month or the highest rate permitted by law, beginning as of forty (40) days after the applicable due date.
4.7. No counterclaim or set-off may be deducted from any payment due without our written consent.
If you commit an act of bankruptcy or enter into a deed of arrangement with creditors or a court order for winding-up is made against you or you take or suffer any similar action in consequence of debt or we have cause to believe that you are unable to pay your debts as they fall due; or you fail to pay any amount by the due date or breach any of these Terms then, without prejudice to any of our other rights, we may stop or suspend provision of Services.
6. SERVICE SCHEDULES
Service schedules specified on OSIsoft’s website, in any order acknowledgement, acceptance or elsewhere are estimates only. While we endeavor to meet such schedules, we do not undertake to commence or complete Services by a particular date or dates and shall not be liable to you in respect of delays or failure to do so.
7. EXPORT CONTROL LAWS AND REGULATIONS
Technical data acquired by you during the provision of Services may be subject to U.S. export control laws and regulations, including but not limited to the U.S. Export Administration Act of 1979, as amended, and the regulations promulgated thereunder and regulations in other relevant jurisdictions where you use them. You shall be responsible for complying with those laws and regulations and will not do anything to breach them.
8. LIMITATION OF LIABILITY
REGARDLESS OF WHETHER A CLAIM ARISES UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF WARRANTY, STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT OSISOFT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES, IN NO EVENT SHALL OSISOFT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGES OF ANY KIND (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) NOR SHALL OSISOFT’S TOTAL CUMULATIVE LIABILITY HEREUNDER EXCEED THE TOTAL FEES PAID BY YOU FOR SERVICES. The parties expressly agree that the allocation of risk contained herein is an essential basis of these Terms.
9. PERSONAL INFORMATION AND YOUR PRIVACY
9.1. We will observe applicable data protection laws and will not use information that does or can be used to personally identify you ("Personal Data") you other than as set out in our Privacy Statement ("Privacy Statement"). By submitting your Personal Data in relation to your order, you consent to such Personal Data being processed to fulfill your order and in accordance with such Privacy Statement.
9.2. In relation to security of orders that you submit to us through our online site, our secure-server software encrypts all your Personal Data including credit or debit card number and name and address. This means that the characters that you enter are converted into pieces of code that are then securely transmitted over the Internet.
10.1. You shall not assign, transfer, charge or make over or purport to assign transfer charge to make over your rights under these Terms.
10.2. We shall not be liable to you nor held in breach of contract for any loss or damage which may be suffered as a direct or indirect result of us being prevented, hindered or delayed in the performance by reason of any circumstances beyond our reasonable control including (but not limited to) any act of God, war, riot, civil commotion, government action, explosion, fire, flood, storm, accident, strike, lockout, trade dispute or labor disturbance, breakdown of plant or machinery, interruption in the supply of power or materials and in such event we may elect to cancel your order and refund any payments made.
10.3. No relaxation, forbearance, delay or indulgence by either you or us in enforcing any of these Terms or the granting of time by either party to the other shall prejudice or restrict such rights and powers.
10.4. No waiver of any term or condition of these Terms shall be effective unless made in writing and signed by us. The waiver of any breach of any Term shall not be construed as a waiver of any subsequent breach or condition.
10.5. If for any reason we determine or a court of competent jurisdiction finds that any provision or portion of these Terms to be illegal, unenforceable, or invalid under applicable law in a particular jurisdiction:
10.5.1. these Terms will not be affected in other jurisdictions to the extent that such determination or finding has no application; and
10.5.2. in the relevant jurisdiction, the remainder of these Terms (to the fullest extent permitted by law) will continue in full force and effect.