Terms & Conditions of Sale
1. These Terms and Conditions govern the sale of any and all products from BLACKHAWK IMAGING, LLC (“Blackhawk”) to any Buyer.
All published prices are subject to change without notice. Written quotations shall expire thirty (30) calendar days from the date of quotation unless withdrawn in writing sooner. Oral quotations are provided for budgetary guidance only. Unless otherwise stated, prices are in U.S. Dollars.
3. PAYMENT TERMS
A. DEPOSITS. On orders requiring a deposit, Buyer must make a deposit equal to the amount specified by Blackhawk at the time of the order, typically 30 percent of the total order value (excluding sales tax, freight, duties, import tax and delivery charges). Product reservation numbers and delivery estimates are provided at Blackhawk’s sole discretion.
B. STANDARD PAYMENT TERMS. Blackhawk has the right to refuse any order, even after accepting payment or partial payment. If Blackhawk rejects an order, Blackhawk will credit or refund Buyer’s payment(s) for such order.
4. DELIVERY AND ACCEPTANCE
A. DELIVERY. (a) Subject to availability, products will be delivered within a reasonable time after Blackhawk receives Buyer’s purchase order. Blackhawk shall not be liable for delay, loss, or damage in transit. (b) After collecting transportation charges, Blackhawk shall deliver the goods to Buyer (or Buyer’s carrier) at Blackhawk’s premises at 700 SE 5th Street, Suite #2 Bentonville, Arkansas 72712, using Blackhawk’s standard methods for packaging and shipment. When special packaging or export instructions are requested by the Buyer, any additional costs will be Buyer’s responsibility. Blackhawk reserves the right to reject certain shipping or packing methods. Buyer shall take delivery of the goods within 10 days of Blackhawk’s written notice that they have been delivered. Buyer shall be responsible for all loading costs and shall provide equipment and labor reasonably suited to receipt of the products. (c) Blackhawk may make partial shipments of products to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order. (d) If for any reason Buyer fails to accept delivery of any of the products on the date fixed pursuant to Blackhawk’s notice of delivery, or if Blackhawk is unable to deliver the products on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss of the products shall pass to Buyer; (ii) the products shall be deemed to have been delivered; and (iii) Blackhawk may store the products until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
B. NON-DELIVERY. (a) The quantity of any installment of products as recorded by Blackhawk on dispatch from Blackhawk’s place of business is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive proof to the contrary. (b) Blackhawk shall not be liable for any non-delivery of goods (even if caused by Blackhawk’s negligence) unless Buyer gives written notice to Blackhawk of the non-delivery within 10 days of the date the products would have been received in the ordinary course of events. (c) Any liability of Blackhawk for non-delivery of products shall be limited to replacing the products within a reasonable time or adjusting the invoice respecting such products to reflect the actual quantity delivered.
C. QUANTITY. If Blackhawk delivers to Buyer a quantity of products of up to 10 percent more or less than the quantity set forth in the Sales Confirmation, Buyer shall not be entitled to object to or reject the goods or any portion of them by reason of the surplus or shortfall and shall pay the price set forth in the Sales Confirmation adjusted pro rata.
D. SHIPPING TERMS. Unless otherwise provided by Blackhawk in writing, delivery shall be made FOB at Blackhawk’s premises at 700 SE 5th Street, Suite #2 Bentonville, Arkansas 72712.
E. TITLE AND RISK OF LOSS; PMSI. Title (except to the extent Blackhawk products contain proprietary Blackhawk software) and risk of loss pass to Buyer upon delivery by Blackhawk to the carrier, freight forwarder, or Buyer, whichever occurs first. As collateral for payment of the purchase price of the goods, Buyer grants Blackhawk a lien on products, wherever located, whether now existing or hereafter arising, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds). The security interest granted under this provision constitutes a purchase money security interest under the Arkansas Uniform Commercial Code.
F. NONCONFORMING PRODUCTS. (a) Buyer shall inspect the products within 15 days of receipt (“Inspection Period”). Buyer will be deemed to have accepted the products unless it notifies Blackhawk in writing of any Nonconforming Products during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Blackhawk. “Nonconforming Products” means only the following: (i) product shipped is different than identified in Buyer’s purchase order, or (ii) product’s label or packaging incorrectly identifies its contents. Buyer cannot reject product based on criteria that were unknown to Blackhawk or based on test procedures Blackhawk does not conduct. (b) If Buyer timely notifies Blackhawk of any Nonconforming Products, Blackhawk shall (i) replace such Nonconforming Products with conforming products, or (ii) credit or refund the Price for such Nonconforming Products, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship the Nonconforming Products to Blackhawk’s facility at 700 SE 5th Street, Suite #2 Bentonville, Arkansas 72712. If Blackhawk exercises its option to replace Nonconforming Products, Blackhawk shall, after receiving Buyer’s shipment of Nonconforming Products, ship Buyer the replacement products. (c) Buyer acknowledges and agrees that the remedies set forth in Section 4.F (b) are Buyer’s exclusive remedies for the delivery of Nonconforming Goods.
G. IMPORTATION. Buyer shall be the importer of record for all purchased products. Licensing requirements for importation to non-U.S. countries are Buyer’s sole obligation.
5. RESTRICTIONS ON USE.
Buyer will not cause or permit the modification or reverse engineering of file formats, components or parts, tools, or image processing of Blackhawk products without express written consent from Blackhawk. Buyer will not develop tools from Blackhawk products or use non-Blackhawk approved tools, products, or software with Blackhawk products without express written consent from Blackhawk. Buyer will not cause or permit any reverse engineering of Blackhawk products. Buyer will not provide repair services for Blackhawk products without the express written consent from Blackhawk. Buyer will not use Blackhawk’s trademarks, including as part of a domain or company name or in keywords or online search optimizations, without express written consent from Blackhawk.
A. STANDARD LIMITED WARRANTY. Blackhawk has developed a line of digital cameras/vision systems, including the A7-180, D7-180, D7-180XR and M6-200 (any of the same, a “Camera”), which consists of equipment components from Blackhawk and third parties (“Hardware”), software developed by Blackhawk (“Software”), and third-party open-source software (“OS Software”). Blackhawk undertakes different commitments for each of these items, as described below.
B. CONDITIONS. A copy of a valid bill of sale, receipt or other proof of purchase from an authorized reseller or distributor containing the date of original purchase must be presented to obtain warranty service. In addition, each Camera must be protected from exposure to direct sunlight and halogen light (which may damage sensors), electric power and current other than as specified by Blackhawk and must be suitably protected when used outdoors or in dusty, humid, or otherwise hostile environments. There is no warranty coverage if these rules are broken.
a. LIMITED. Blackhawk warrants that Hardware shall be free of defects in design, material, and workmanship for one year from the purchase date, provided the Hardware is operated under the normal operating conditions for which it was designed. Blackhawk’s sole liability, and Buyer’s exclusive remedy under this warranty, shall be the following: Provided Blackhawk receives written notice during the one-year warranty period that a Hardware component does not conform to this warranty and the Camera or component is returned to Blackhawk within 30 days thereafter (accompanied by proof of purchase), Blackhawk shall, in its sole discretion, either repair the defective Hardware or replace the defective component (or entire Camera) with new or refurbished Hardware. All repaired or replaced Hardware carries a warranty equal to the greater of the remainder of the original warranty or 90 days. Any replaced components shall become Blackhawk’s property.
b. RETURNS. Hardware may be returned only with Blackhawk’s prior approval. All approvals shall reference a Return Material Authorization (RMA) number issued by authorized Blackhawk service personnel. Cameras returned to Blackhawk without a valid RMA number may be refused and returned to the shipper’s address. Cameras or components returned for warranty service must contain dated proof of purchase, be properly packaged to prevent damage, and be delivered to Blackhawk’s facility in Bentonville, Arkansas 72712.
c. TRANSPORTATION COSTS, if any, incurred in returning defective Hardware to Blackhawk shall be paid by Blackhawk. Blackhawk reserves the right to designate shipping method. However, if Blackhawk determines that the item is not defective, or if the dysfunction results from an Uncovered Condition (see below) or not in compliance with Section 6.B, Blackhawk may charge Buyer for transportation costs. Any shipping costs incurred for Hardware returned after the Warranty Period has expired shall be Buyer’s responsibility.
The embedded Blackhawk Software incorporated in or accompanying the Camera and any
separate magnetic media on which it may be contained are warranted to perform in substantial
compliance with the specifications contained in the User’s Documentation for 90 days from the purchase date. Blackhawk’s sole liability, and customer’s exclusive remedy, for any breach of this warranty is that, if the problem is described in writing during the 90-day warranty period, Blackhawk will repair or replace the item, or at its election provide a full refund in exchange for return of the Camera.
E. OPEN SOURCE SOFTWARE.
The OS Software incorporated in or accompanying the Camera, and any separate magnetic media on which it may be contained, ARE PROVIDED AS-IS AND WITHOUT ANY WARRANTY, REPRESENTATION, OR CONDITION (WHETHER BY BLACKHAWK OR A THIRD PARTY).
F. LIMITED WARRANTY; EXCLUSIVE REMEDY.
THE LIMITED WARRANTIES FOR THE HARDWARE AND SOFTWARE DESCRIBED IN THIS DOCUMENT ARE THE ONLY WARRANTIES MADE FOR ANY BLACKHAWK PRODUCT, INCLUDING ALL COMPONENTS, SOFTWARE AND ACCOMPANYING MATERIALS. TO THE EXTENT ALLOWED BY LAW, NO OTHER WARRANTY, REPRESENTATION OR CONDITION APPLIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, OR OF NON-INFRINGEMENT.
IN NO EVENT SHALL BLACKHAWK BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND, OR FOR DAMAGE TO ANY EQUIPMENT, LOSS OF REVENUE, LOSS OF BUSINESS, COST OF COVER, REPLACEMENT GOODS, OR FOR ANY OTHER LOSS RESULTING FROM THE SALE, INSTALLATION, MAINTENANCE, USE, PERFORMANCE, FAILURE, OR INTERRUPTION OF THE CAMERA (HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY), EVEN IF BLACKHAWK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL BLACKHAWK’S LIABILITY FOR ANY BLACKHAWK PRODUCT (WHETHER ASSERTED AS A TORT CLAIM, A CONTRACT CLAIM, OR OTHERWISE) EXCEED THE AMOUNTS PAID TO BLACKHAWK FOR SUCH PRODUCT.
THE REMEDIES OF REPAIR OR REPLACEMENT FOR WARRANTIED COMPONENTS AND SOFTWARE, AS STATED HEREIN, ARE THE EXCLUSIVE REMEDIES, AND BLACKHAWK’S SOLE LIABILITY, FOR ANY BREACH OF WARRANTY.
G. UNCOVERED CONDITIONS.
In no event shall the limited warranty cover, or shall Blackhawk be liable to repair or replace, Hardware, Software or components that fail to function properly due to (i) accident, act of God, neglect or misuse, or deterioration due to ordinary wear and tear; (ii) use with items, including third party software or other equipment not provided by Blackhawk; (iii) unauthorized modifications, adjustments, repairs or servicing; (iv) cosmetic damages; (v) operation under other abnormal conditions; or (vi) failure to observe the above Conditions.
H. LAW. This Limited Warranty is governed by the laws of the Benton County, Arkansas, USA.
7. Export and Re-Export Restrictions and Regulations.
Buyer agrees to comply with all export and re-export restrictions and regulations of the Department of Commerce and any other U.S. or foreign agencies and authorities in connection with Buyer’s use of Blackhawk products. Buyer agrees to not violate any local, state, federal or foreign laws. Buyer agrees not to transfer or authorize the transfer of any products to a prohibited country in violation of any laws. In particular, but without limitation, the products may not, in violation of any laws, be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders or U.S. Department of Commerce Entity List of proliferation concern, or the U.S. State Department Debarred Parties List. By using any products subject to any such restrictions and regulations, Buyer represents and warrants that Buyer is not located in, under the control of, or a national or resident of any such country or on any such list.
Buyer shall indemnify, defend, and hold Blackhawk and Blackhawk’s officers, agents other representatives and licensors harmless from all demands, claims, actions, causes of actions, proceedings, suits, assessments, losses, damages, liabilities, settlements, judgments, fines, penalties, interest, costs and expenses incurred (including fees and disbursements of legal counsel) of every kind (i) based upon personal injury or death or injury to property to the extent any of the foregoing is proximately caused Buyer’s misuse of any Blackhawk product or by the negligent or willful acts or omissions by the Buyer, or (ii) based on any breach of this Agreement by Buyer.
9. PROPRIETARY INFORMATION.
Blackhawk retains for itself and its licensors all proprietary rights, including without limitation all patent, trademark, trade secret, copyright and other intellectual property rights in and to all Blackhawk designs, manufacturing processes, engineering details, and other data pertaining to any product sold except where the rights have been assigned pursuant to a written agreement with a corporate officer of Blackhawk. The products are offered for sale and sold by Blackhawk on the condition that such sale does not convey any right, express or implied, stated or otherwise, under any intellectual property or manufacturing process. Blackhawk and its licensors expressly reserves all intellectual property rights in the product. Without limited the foregoing, all software included in the products (including any updates to such software provided to Buyer, if applicable) is licensed to Buyer, not sold, and Buyer shall not transfer any such software apart from the product, or modify, decompile, disassemble or reverse engineer or otherwise attempt to derive the source code of such software.
Failure by Blackhawk to exercise or delay by Blackhawk in exercising any right or remedy hereunder shall not constitute a waiver of such right or remedy.
All notices, request, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the applicable Purchase Order or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
12. GOVERNING LAW.
This agreement and the rights and obligations of the parties hereunder will be governed by, and construed and interpreted according to, the laws of the Arkansas, without regard to any choice of law rules thereunder. The sale of any Blackhawk product is considered to have taken place in Benton County, Arkansas. This Agreement will not be governed by the conflict of law rules or the United Nations Convention on Contracts for the International Sale of Goods. Exclusive jurisdiction for any dispute arising from the terms and conditions of this Agreement shall be Benton County, Arkansas, and both Buyer and Blackhawk waive all rights to bring a dispute elsewhere.
If any of the Terms and Conditions stated herein are held invalid or unenforceable, the other provisions shall remain valid and enforceable.
14. Force Majeure.
Blackhawk shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Blackhawk including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of 45 days, Buyer shall be entitled to give notice in writing to Blackhawk to terminate this Agreement.