Terms and Conditions
1.1. Zyvex Technologies (“Zyvex”) agrees to use commercially reasonable efforts in the delivery of its products (“Products”) and/or the providing of its services (“Services”) or its research (“Research”) described in the product offering identified for purchase on the website or quotation (“Quotation”).
1.2. The sale of Products, Services and/or Research by Zyvex shall be governed by the Quotation and these terms and conditions (collectively, the "Terms and Conditions”). In the event of a conflict between these terms and conditions and the Quotation, these terms and conditions will control.
2. DELIVERY OF PRODUCTS. Zyvex shall deliver Products (i) within the United States, "F.O.B. origin," and (ii) outside the United States, "Ex Works." Customer shall be responsible for all freight charges for delivery of Products. Risk of loss shall pass to Customer once Products are in transit and Customer shall be responsible for filing any damage claims with respect to the Products.
3. PRICE AND PAYMENT
3.1. The prices for the Products, Services and/or Research are set forth on the Quotation. In the event the Quotation does not reference any specific pricing, the Products, Services and/or Research shall be performed at Zyvex's then current standard time and material rates and charges.
3.2. For all deliveries of Products in the United States or abroad, payment shall be made at time of shipment from Zyvex Technologies via credit card provided by the customer unless other arrangements have been made and agreed to by Zyvex Technologies.
3.3. The prices and charges hereunder do not include any amount for taxes or duties. If any duty, sales, use, excise, property, withholding or other tax, penalty or interest is, or should ultimately be, assessed against, or is required to be collected by Zyvex or by any taxing authority in connection with its performance required hereunder, Customer agrees to pay any and all such charges.
4.1. Nothing in this Agreement shall preclude Zyvex from using in any manner, or for any purpose it deems necessary, the know-how, techniques, or procedures acquired or used by Zyvex in the performance of any of its obligations hereunder.
4.2. Customer shall not analyze the composition of, or reverse engineer or decompile any tangible materials constituting confidential information provided by Zyvex hereunder.
5.1. Customer agrees to maintain at all times the confidentiality of any business, operational or technical information provided by Zyvex that is marked or otherwise identified by Zyvex as confidential or proprietary, or, if the disclosure by Zyvex is oral, that is orally identified as confidential or proprietary at the time of disclosure (the “Confidential Information”). For purposes herein, all information revealed by Zyvex with respect to the Products, Services and/or Research shall be deemed to be Confidential Information unless that information is provided in the public domain.
5.2. Customer agrees to restrict access to the Confidential Information only to employees who (i) require access in the course of their assigned duties and responsibilities, and (ii) have agreed in writing to be bound by provisions no less restrictive than those set forth in this Section 5.
5.3. Customer acknowledges that Zyvex shall at all times have the right to take all steps to protect its Confidential Information, including, but not limited to, seeking injunctive relief and any other remedies as may be available at law or in equity in the event Customer does not fulfill its obligations under these Terms and Conditions.
6. LIMITED WARRANTIES
6.1. For a period of ninety (90) days from the original date of manufacture, Zyvex warrants that the Products will be free of defects before processing.
6.2. If a Product fails to meet the warranty set forth in section 6.1, Customer must notify Zyvex and obtain a Return Material Authorization Number (RMA#) within the warranty period by calling Zyvex’s Returns Department at 614-481-2222. Return the product to Zyvex in proper packaging, freight prepaid, and clearly marked with the RMA#, and Zyvex will either repair or replace the Product, at Zyvex’s option.
6.3. The above warranty does not apply to Products that have been repaired or modified without Zyvex’s prior written approval, or Products subjected to unusual physical, thermal or electrical stress, improper processing, misuse, abuse, accident or negligence in use, storage, transportation or handling. ZYVEX’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF WARRANTY IS LIMITED TO ZYVEX’S REPAIR OR REPLACEMENT OF THE PRODUCT (AT ZYVEX’S SOLE OPTION). THE FOREGOING WARRANTY IN SECTION 6.1 IS EXCLUSIVE, AND ZYVEX DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WRITTEN OR ORAL, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OR REPRESENTATION AS TO ANY USE OF ANY PRODUCT AND THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. EXCEPT FOR THE LIMITED WARRANTY PROVIDED IN SECTION 6.1 THE PRODUCTS ARE DELIVERED “AS IS” AND WITHOUT ANY WARRANTY OR REPRESENTATION.
7. LIMITATION OF LIABILITY
7.1. IN NO EVENT SHALL ZYVEX'S LIABILITY FOR ANY CLAIM ARISING OUT OF OR RELATED TO THE PRODUCTS, SERVICES AND/OR RESEARCH, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE CHARGES ACTUALLY PAID BY CUSTOMER HEREUNDER FOR THE PRODUCTS, SERVICES AND/OR RESEARCH WHICH GIVE RISE TO SUCH CLAIM.
7.2. IN NO EVENT SHALL ZYVEX BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THE ZYVEX PRODUCTS, SERVICES AND/OR RESEARCH (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, USE, DATA, OR OTHER ECONOMIC ADVANTAGE), WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EVEN IF ZYVEX HAS BEEN PREVIOUSLY ADVISED OR WAS ACTUALLY AWARE OF THE POSSIBILITY OF SUCH DAMAGES. ALL SUCH DAMAGES ARE EXPRESSLY DISCLAIMED, WAIVED AND RELEASED AS A MATERIAL CONDITION OF AND AS CONSIDERATION FOR ZYVEX PROVIDING TO CUSTOMERS ITS PRODUCTS, SERVICES AND/OR RESEARCH.
7.3. Zyvex shall not be liable to Customer for damages or for any delay or failure to perform its obligations hereunder if such damages, delay or failure arises from any cause or causes beyond Zyvex's reasonable control. Such causes shall include, but are not limited to fire, lightning, explosion, power surge or failure, water, acts of God, terrorism, war, revolution, civil commotion or acts of civil or military authorities or public enemies; any law, order, regulation, ordinance, or requirement of any governmental or legal body or any representative of any such government or legal body; or labor unrest, including strikes, slowdowns, picketing or boycotts, inability to secure raw materials, transportation facilities, fuel or energy shortages, or acts or omissions of other common carriers. Zyvex shall not be liable to Customer for any damages, delay or failure to perform due to Customer’s failure to comply in a timely manner with any of the Terms and Conditions herein.
8. CUSTOMER’S PREMISES. To the extent required by Zyvex, Customer will make available to Zyvex certain of its facilities, personnel, and other relevant information as required by Zyvex in order to provide the Products, Services and/or Research.
9.1. Customer may not assign or transfer (by operation of law or otherwise) all or any part of its rights herein without Zyvex's prior written consent.
9.2. All notices required to be given shall be given in writing at the addresses given on the Quotation.
9.3. If any of the Terms and Conditions shall be found to be illegal or unenforceable, then, notwithstanding such illegality or unenforceability, all other provisions shall remain in full force and effect and only such illegal or unenforceable provision shall be deemed to be deleted.
9.4. The sole and exclusive statement of the agreement between the Customer and Zyvex regarding the Products, Services and/or Research is set forth on the Quotation and in these Terms and Conditions, which supersedes any prior discussions, writings, and negotiations with respect thereto.
9.5. No amendment to these Terms and Conditions shall be valid unless in writing and duly signed by both parties. Only an officer of Zyvex may sign on behalf of Zyvex.
9.6. No waiver of any provisions herein by Zyvex shall be effective unless made in writing by an officer of Zyvex. Any waiver made by Zyvex of any of the provisions herein shall not be deemed or construed to be a waiver of such term or condition for the future or any subsequent breach thereof.
9.7. Any of the provisions herein which by its sense and context is intended to survive the expiration or termination of the Customer's relation with Zyvex shall survive the expiration or termination thereof.
9.8. These Terms and Conditions shall be interpreted and enforced in accordance with the laws of the State of Ohio without regard to its conflict of law provisions. Venue for any lawsuit or claim shall lie exclusively in Franklin County, Ohio.
9.9. Customer warrants and represents to Zyvex that: (i) Customer’s use of the Products in any manner, including, without limitation, combining the Products with any other property or material, shall not violate the intellectual property rights of any third party, including, without, limitation, patent rights; (ii) Customer shall undertake all reasonable and/or necessary testing, research and precautions relating to its use of the Products; (iii) Customer shall comply at all times with all applicable laws, orders, regulations, ordinances and requirements of any governmental or legal body in regard to its use of the Products, including, without limitation, obtaining all required approvals, permits, and licenses. Customer shall be solely responsible for any use Customer may make of the Products and all recalls and health and safety risks associated with Customer’s use of the Products.
9.10. Customer agrees to indemnify, defend, and hold harmless Zyvex and Zyvex’s directors, officers, employees, agents, successors, and assigns from and against all lawsuits, damages, losses, claims, and expenses, including, without limitation, attorneys’ fees and expenses and expenses relating to any recall, relating to and/or arising from any use of the Products by Customer, any breach of any of these Terms and Conditions and/or the Quotation, and/or any negligent act or omission by Customer.
9.11. Any products or technical information provided by Zyvex may be subject to U.S. export controls and the trade laws of other countries. Customer agrees to comply with all export control regulations and to obtain any required licenses or classification to export, re-export or import deliverables. Customer agrees not to export or re-export to entities on the current U.S. export exclusion lists or to any embargoed or terrorist countries as specified in the U.S. export laws. Customer will not use deliverables for prohibited nuclear, missile, chemical, or biological weaponry end uses. In addition, some products or services are subject to specific regulations such as the International Traffic in Arms Regulations (ITAR) and thus specific language should be included that references ITAR compliance or other specifically applicable regulations.