ADAEXPERIENCE Terms and Conditions of Sale govern the purchase of all products and services purchased by you from ADAEXPERIENCE INDIA PVT. LTD. in INDIA, unless you have a separate agreement signed by ADAEXPERIENCE INDIA PVT. LTD. applicable to such purchases. By placing an order with ADAEXPERIENCE, you agree to be bound by the applicable Terms and Conditions of Sale. Please select the applicable Terms and Conditions of Sale below to review the terms applicable to your purchase. If you are not sure which of the Terms and Conditions below apply to your particular order, please contact your sales representative or your local office.
The terms and conditions detailed herein (“Agreement”) apply to your (“Customer”) purchase from ADAEXPERIENCE of ADAEXPERIENCE hardware (“Hardware”), licenses to use ADAEXPERIENCE software (“Software”), and Non- ADAEXPERIENCE Branded Products (collectively the “Product(s)"), as well as training, services, and support related to Hardware and Software ("Services"). ADAEXPERIENCE means the ADAEXPERIENCE INDIA PVT. LTD. in INDIA affiliate identified on the Quote, order acknowledgement, or invoice, or in the absence of an identified ADAEXPERIENCE affiliate, then ADAEXPERIENCE INDIA PVT. LTD. THIS AGREEMENT SHALL APPLY UNLESS CUSTOMER AND ADAEXPERIENCE HAVE ENTERED INTO A SEPARATE SIGNED AGREEMENT APPLICABLE TO THE PURCHASE OF THE PRODUCTS OR SERVICES. By placing an order with ADAEXPERIENCE, Customer agrees to be bound by the terms of this Agreement. ADAEXPERIENCE EXPRESSLY OBJECTS TO AND REJECTS ANY TERMS AND CONDITIONS IN CUSTOMER’S PURCHASE ORDER OR OTHER SIMILAR DOCUMENT. IF CUSTOMER DOES NOT AGREE WITH THESE TERMS, IT SHALL PROMPTLY NOTIFY ADAEXPERIENCE AND RETURN THE PRODUCT UNUSED IN ITS ORIGINAL PACKAGING TO ADAEXPERIENCE.
- PRICES AND ORDERS
Prices are set forth in the quotation issued by ADAEXPERIENCE to Customer (“Quote”). All Quotes expire thirty (30) days from date of issuance, unless otherwise stated in the Quote. All orders are subject to acceptance at the sole discretion of ADAEXPERIENCE. Orders will be considered accepted once ADAEXPERIENCE books an order and sends Customer a sales order acknowledgement. ADAEXPERIENCE shall not be bound by changes to an order unless agreed by ADAEXPERIENCE in writing. ADAEXPERIENCE reserves the right to cancel any order without any liability to Customer if any information provided by Customer to ADAEXPERIENCE is inaccurate. ADAEXPERIENCE reserves the right to suspend or cancel any order without any liability to Customer if Customer has any outstanding payments due to ADAEXPERIENCE or is not in good standing.
- PAYMENT AND INVOICING
Payment is due at the time the order is placed. If Customer is approved for credit, payment shall be due as per the term mentioned in the agreement, quote or invoice. Payment shall be in the currency listed on the ADAEXPERIENCE invoice. All sums not paid when due shall accrue interest daily at a monthly rate of the lesser of 1.5% or the highest rate permissible by applicable law. If there are multiple units in an order, each unit will be invoiced when shipped. Invoice processes requested by Customer that are non-standard for ADAEXPERIENCE may be subject to the payment of a five percent (5%) processing fee and any amounts ADAEXPERIENCE is required to pay to government authorities on behalf of customers (if applicable).
- DELIVERY, TITLE and RISK OF LOSS
Title and risk of loss to Products (for Software, the media) shall pass to Customer upon shipment from ADAEXPERIENCE, its warehouses, or its affiliated companies; provided however, ADAEXPERIENCE retains a security interest and right of possession in the Products until Customer makes payment to ADAEXPERIENCE in full. For orders to be delivered within the same country as the ADAEXPERIENCE entity accepting the order, ADAEXPERIENCE will arrange the shipping; however, Customer is responsible for all shipping and handling fees set forth in the invoice, if any. If Customer chooses to arrange for shipping or if the order is placed with an ADAEXPERIENCE entity outside the country of the applicable shipping destination, Customer is responsible for all shipping and handling, including fees, customs, formalities and clearance. Shipment dates provided by ADAEXPERIENCE are estimates only, and ADAEXPERIENCE shall have no liability for losses or claims resulting from late delivery of Products. Claims for shipment shortage shall be deemed waived unless presented to ADAEXPERIENCE in writing within Twenty Four (24) hours of product received by the customer.
Prices exclude, and Customer is responsible for, all sales, use, service, value added, and like taxes, including but not limited to the Goods and Services Tax (GST) (collectively: “Taxes”) arising from the purchase of the Products and Services. Under Goods and Services Tax provisions, input credits will be available based on the matching concept between ADAEXPERIENCE and Customer. Customer shall without request provide all information, including but not limited to GSTIN (Goods and Services Tax Taxpayer Identification Number) and billing location, necessary for ADAEXPERIENCE to comply with all applicable tax requirements, including but not limited to those related to returns and invoices. In the event of any discrepancy in the information provided by Customer or delay in furnishing the correct information by Customer before the supply is effected, the eventual loss of credit or tax liability or interest or penalty, if any, shall be borne by Customer and not by ADAEXPERIENCE.
If Customer is exempt from any Taxes, e.g. for being a Special Economic Zone (SEZ) unit or developer or otherwise, it must comply with all applicable conditions, safeguards and procedures, and must provide ADAEXPERIENCE with the appropriate tax exemption documentation at the time the order is placed. In the event of failure on the part of Customer in complying with such requirements, the applicable taxes or duties along with interest and penalty, if any, imposed on ADAEXPERIENCE shall be reimbursed to ADAEXPERIENCE by Customer.
- NON- ADAEXPERIENCE BRANDED PRODUCTS
Non-ADAEXPERIENCE Branded Products that ADAEXPERIENCE resells may not be testable or repairable by ADAEXPERIENCE, and it may be necessary for Customer to contact the manufacturer or the publisher for service or any warranty claims. ADAEXPERIENCE does not warrant, has no obligation to support, and shall have no liability for Non- ADAEXPERIENCE Branded Products. The Limited Warranty and ADAEXPERIENCE Intellectual Property Liability sections of this Agreement do not apply to the sale and purchase of Non- ADAEXPERIENCE Branded Products. “Non- ADAEXPERIENCE Branded Products" means any third-party products, hardware, software, or service that ADAEXPERIENCE sells, but does not carry an ADAEXPERIENCE mark.
In addition to the terms and conditions of this Agreement, Services provided by ADAEXPERIENCE are also subject to any service agreements or statements of work agreed upon in writing by the parties or, as applicable, to the ADAEXPERIENCE service terms and conditions.
- LIMITED WARRANTY
For a period of one (1) year from the invoice date, ADAEXPERIENCE warrants that its Hardware will be free of defects in materials and workmanship that cause the Hardware to fail to substantially conform to the then applicable ADAEXPERIENCE published specifications. For a period of ninety (90) days from the invoice date, ADAEXPERIENCE warrants that the Software (i) will perform substantially in accordance with the applicable documentation provided with the Software and (ii) the Software media will be in the form received from ADAEXPERIENCE, free from defects in materials and workmanship. ADAEXPERIENCE warrants that the Services will be performed in a good and workmanlike manner. If ADAEXPERIENCE receives notice of a defect or non-conformance during the applicable warranty period, ADAEXPERIENCE will, in its sole discretion: (i) repair or replace
the affected Hardware or Software, (ii) re-perform the affected Services, or (iii) refund the fees paid for the affected Hardware, Software or Services. Repaired or replaced Hardware or Software will be warranted for the remainder of the original warranty period or ninety (90) days, whichever is longer. If ADAEXPERIENCE elects to repair or replace Hardware, ADAEXPERIENCE may use new or refurbished parts or products that are equivalent to new in performance and reliability and are at least functionally equivalent to the original part or Hardware. Customer must obtain an RMA number from ADAEXPERIENCE before returning any Hardware under warranty to ADAEXPERIENCE. Customer will pay shipping expenses to send the affected Hardware to ADAEXPERIENCE, and ADAEXPERIENCE will pay shipping expenses to return the Hardware to the Customer. If, however ADAEXPERIENCE concludes, after examining and testing returned Hardware, that it is not covered by the Limited Warranty, ADAEXPERIENCE will notify Customer and return the Hardware at Customer's expense. ADAEXPERIENCE reserves the right to charge a fee for examining and testing Hardware not covered by the Limited Warranty. This Limited Warranty does not apply if the defect of the Hardware or Software resulted from improper or inadequate maintenance, installation, repair, or calibration (performed by a party other than ADAEXPERIENCE); unauthorized modification; improper environment; use of an improper hardware or software key; improper use or operation outside of the specifications for the Hardware or Software; improper voltages; accident, abuse, or neglect; or a hazard such as lightning, flood, or other act of nature. THE REMEDIES SET FORTH IN THIS SECTION ARE EXCLUSIVE AND THE CUSTOMER’S SOLE REMEDIES, AND SHALL APPLY EVEN IF SUCH REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- NO OTHER WARRANTIES
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, PRODUCTS AND SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND AND ADAEXPERIENCE DISCLAIMS ALL WARRANTIES, EXPRESSED OR IMPLIED, WITH RESPECT TO ALL PRODUCTS AND SERVICES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANT ABILITY , FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, AND ANY WARRANTIES THAT MAY ARISE FROM USAGE OF TRADE OR COURSE OF DEALING. ADAEXPERIENCE DOES NOT WARRANT , GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE OF OR THE RESULTS OF THE USE OF THE PRODUCTS OR SERVICES IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. ADAEXPERIENCE DOES NOT WARRANT THAT THE OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE.
- WARNING AND CUSTOMER INDEMNITY
CUSTOMER UNDERSTANDS AND ACKNOWLEDGES THAT PRODUCTS AND SERVICES ARE NOT DESIGNED, MANUFACTURED, OR TESTED FOR USE IN LIFE OR SAFETY CRITICAL SYSTEMS, HAZARDOUS ENVIRONMENTS OR ANY OTHER ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, INCLUDING IN THE OPERATION OF NUCLEAR FACILITIES; AIRCRAFT NAVIGATION; AIR TRAFFIC CONTROL SYSTEMS; LIFE SAVING OR LIFE SUSTAINING SYSTEMS OR SUCH OTHER MEDICAL DEVICES; OR ANY OTHER APPLICATION IN WHICH THE FAILURE OF THE PRODUCT OR SERVICE COULD LEAD TO DEATH, PERSONAL INJURY, SEVERE PROPERTY DAMAGE OR ENVIRONMENTAL HARM (COLLECTIVELY, "HIGH-RISK USES"). FURTHER, CUSTOMER MUST TAKE PRUDENT STEPS TO PROTECT AGAINST PRODUCT AND SERVICE FAILURES, INCLUDING PROVIDING BACK-UP AND SHUT-DOWN MECHANISMS. ADAEXPERIENCE EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS OF THE PRODUCTS OR SERVICES FOR HIGH-RISK USES. CUSTOMER SHALL DEFEND, INDEMNIFY, RELEASE AND HOLD ADAEXPERIENCE HARMLESS FROM ANY AND ALL CLAIMS, LOSSES, DAMAGES, ACTIONS, INCLUDING, LAWSUITS, ARBITRATIONS, AND/OR ADMINISTRATIVE ACTIONS, AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES) ARISING OUT OF CUSTOMER’S USE OF THE PRODUCTS AND SERVICES FOR ANY HIGH-RISK USES, INCLUDING ARISING FROM CLAIMS FOR PRODUCT LIABILITY, PERSONAL INJURY (INCLUDING DEATH) OR DAMAGE TO PROPERTY, REGARDLESS OF WHETHER SUCH CLAIMS ARE FOUNDED IN WHOLE OR IN PART UPON ALLEGED OR ACTUAL NEGLIGENCE OF ADAEXPERIENCE.
- SYSTEM AND APPLICATION AND ADDITIONAL INDEMNITY
CUSTOMER ACKNOWLEDGES THAT IT IS ULTIMATELY RESPONSIBLE FOR VERIFYING AND VALIDATING THE SUITABILITY AND RELIABILITY OF THE PRODUCTS OR SERVICES WHENEVER THE PRODUCTS OR SERVICES ARE INCORPORATED IN CUSTOMER’S SYSTEM OR APPLICATION, INCLUDING THE APPROPRIATE DESIGN, PROCESS, AND SAFETY LEVEL OF SUCH SYSTEM OR APPLICATION. FURTHER, CUSTOMER MUST TAKE PRUDENT STEPS TO PROTECT AGAINST PRODUCT AND SERVICE FAILURES WHEN PRODUCTS AND SERVICES ARE INCORPORATED IN A SYSTEM OR APPLICATION, INCLUDING PROVIDING BACK-UP AND SHUT-DOWN MECHANISMS. CUSTOMER SHALL DEFEND, INDEMNIFY, RELEASE AND HOLD ADAEXPERIENCE HARMLESS FROM ANY AND ALL CLAIMS, LOSSES, DAMAGES, ACTIONS, INCLUDING LAWSUITS, ARBITRATIONS, AND/OR ADMINISTRATIVE ACTIONS, AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES) ARISING OUT OF CUSTOMER’S INCORPORATION OF THE PRODUCTS OR SERVICES INTO CUSTOMER’S SYSTEM OR APPLICATION, REGARDLESS OF WHETHER SUCH CLAIMS ARE FOUNDED IN WHOLE OR IN PART UPON ALLEGED OR ACTUAL NEGLIGENCE OF ADAEXPERIENCE.
- INTELLECTUAL PROPERTY LIABILITY
ADAEXPERIENCE agrees to defend any third-party claim that alleges the Hardware, Software or Services infringe any INDIA patent, copyright, or trademark (“Claim”), provided that Customer notifies ADAEXPERIENCE immediately upon learning of any Claim, or any allegation that the grounds for a Claim may exist, grants ADAEXPERIENCE sole control over the defence and settlement of the Claim, and cooperates fully with ADAEXPERIENCE in preparing a defence for any Claim. ADAEXPERIENCE agrees to pay any final judgment or settlement resulting from any Claim, provided that the settlement is entered into in accordance with this Section. ADAEXPERIENCE shall not be liable for a settlement made without its prior written consent. Notwithstanding the foregoing, ADAEXPERIENCE shall have no obligation under this Section for any claim relating to or arising from (a) Customer’s modifications of Hardware, Software or Services; (b) failure to use Hardware, Software or Services in accordance with the applicable documentation provided by ADAEXPERIENCE; (c) the combination, operation, or use of Hardware, Software or Services with any hardware, software or service not provided by ADAEXPERIENCE; (d) the compliance of ADAEXPERIENCE with Customer’s specifications or directions, including the incorporation of any software or other materials provided by or requested by Customer; or (e) Non- ADAEXPERIENCE Branded Products.
The foregoing states the Customer's sole remedy for, and the entire liability and responsibility of ADAEXPERIENCE for, infringement of any patent, trademark, or copyright or other intellectual property rights. THIS LIMITED INDEMNITY IS IN LIEU OF ANY OTHER STATUTORY OR IMPLIED WARRANTY AGAINST INFRINGEMENT.
In any event, if ADAEXPERIENCE believes in its reasonable opinion the Hardware, Software, or Services may be alleged to be infringing, for the purposes of mitigating any potential damages, ADAEXPERIENCE may, at its sole discretion, (i) procure for the Customer the right to continue to use the Hardware, Software, or Services; (ii) replace them with comparable Hardware, Software or Services that are free of such infringement; or (iii) refund the fees paid by Customer, and in the event of either (ii) or (iii) Customer shall promptly return the Hardware to ADAEXPERIENCE and/or terminate the use of the Software or Services.
- PROPRIETARY RIGHTS
ADAEXPERIENCE reserves all right, title, and interest in any intellectual property rights contained or embodied in Products, or resulting from the Services, including any custom developments created or provided by ADAEXPERIENCE under this Agreement. Nothing in this Agreement will be deemed to grant to Customer any ownership rights in or license rights to such intellectual property.
- LIMITATION OF LIABILITY
ADAEXPERIENCE SHALL NOT BE LIABLE FOR (I) SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE PRODUCTS OR SERVICES; OR (II) ANY DAMAGES ARISING OUT OF OR IN CONNECTION WITH: (A) PRODUCTS OR SERVICES NOT BEING AVAILABLE FOR USE, INCLUDING ANY COSTS OF OBTAINING SUBSTITUTE PRODUCTS OR SERVICES; (B) LOSS OF, CORRUPTION OF, OR LOSS OF USE OF ANY PRODUCTS, HARDWARE, SOFTWARE OR DATA;
(C) LOSS OF REVENUE, PROFIT, OR BUSINESS OPPORTUNITY; (D) BUSINESS INTERRUPTION OR DOWNTIME; OR (E) INABILITY TO ACHIEVE A PARTICULAR RESULT, EVEN IF IT IS AT SUGGESTION MADE BY ADAEXPERIENCE. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL LIABILITY OF ADAEXPERIENCE ARISING OUT OF, OR IN CONNECTION WITH THIS AGREEMENT OR THE PRODUCTS OR SERVICES, SHALL NOT EXCEED THE AMOUNT OF THE FEES PAID BY CUSTOMER FOR THE SPECIFIC PRODUCT OR SERVICE GIVING RISE TO SUCH CLAIM. THIS SECTION: (1) APPLIES TO ADAEXPERIENCE AND ITS LICENSORS, DISTRIBUTORS, AND SUPPLIERS (INCLUDING ITS AND THEIR DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS), (2) REFLECTS AN ALLOCATION OF RISK BETWEEN ADAEXPERIENCE AND CUSTOMER IN VIEW OF THE PURCHASE PRICE OF THE PRODUCTS AND SERVICES, (3) APPLIES EVEN IF ADAEXPERIENCE HAS BEEN ADVISED OF THE POSSIBILITY OF THE DAMAGES AND REGARDLESS OF WHETHER SUCH CLAIMS ARE FOUNDED IN WHOLE OR IN PART UPON ALLEGED OR ACTUAL NEGLIGENCE OF ADAEXPERIENCE.
- FORCE MAJEURE
ADAEXPERIENCE shall not be responsible for any delay or failure to perform due to any cause beyond its reasonable control, including but not limited to acts of terrorism, nature or governments; interruptions of telecommunications, power or transportation; failure of contractors or suppliers; or inability to obtain necessary labour or materials (“Force Majeure Event”). In the event of a Force Majeure Event, ADAEXPERIENCE reserves the right to cancel the applicable order without any liability to Customer.
- GOVERNING LAW AND FORUM
This Agreement shall be construed under the laws of India. Any dispute or claim arising out of or in connection herewith, or the breach, termination or invalidity thereof, shall be referred to and settled by Arbitration & Conciliation Centre in New Delhi, in accordance with the provisions of the Arbitration and Conciliation Act, 1996. The place of arbitration shall be in New Delhi and the arbitration proceedings shall take place in English language. The arbitration award is final and binding upon the parties and the parties undertake to carry out any arbitration award without delay and shall be deemed to have waived their right to any form of recourse insofar as such waiver can validly be made.
- LIMITATION PERIOD
ADAEXPERIENCE SHALL NOT BE LIABLE FOR ANY CLAIM ARISING FROM AND/OR CONCERNING THIS AGREEMENT AND/OR ITS SUBJECT MATTER BROUGHT MORE THAN TWO YEARS AFTER THE OCCURRENCE CAUSING THE LOSS AND/OR DAMAGE GIVING RISE TO SUCH CLAIM (REGARDLESS OF WHETHER SUCH OCCURRENCE WAS DISCOVERABLE AT THE TIME).
ADAEXPERIENCE reserves the right to update this Agreement at any time, effective upon posting an updated version at adaexperience.com/ Terms and Conditions of Sale; however, the terms and conditions in effect at the time of purchase shall apply to that purchase of Products or Services.
- COMPLIANCE WITH E-WASTE LAWS
Customer warrants that Customer shall comply with all applicable state and local laws, rules, orders, and regulations, as applicable, relating to waste electrical and electronic equipment or components, including the “E-waste (Management) Rules 2016” effective as of 1st October, 2016 and any of its amendments or updates (collectively, “E-waste Laws”) and that Customer is solely responsible to properly handle, use, store, treat, transport and dispose of any equipment/waste pursuant to the E-waste Laws, which may be used or generated by Customer. Customer further warrants that any waste electrical and electronic equipment or components generated from the Products should be deposited by Customer with ADAEXPERIENCE or any authorized and registered collection center, refurbisher, dismantler or recycler in India.
- GENERAL TERMS
This Agreement, and any terms incorporated herein by reference, constitutes the entire Agreement between the parties with respect to the subject matter hereof and supersedes all prior understandings or agreements, whether written or oral, with respect to that subject matter. Customer acknowledges reading this Agreement, understands these terms, and agrees to be bound by them. This Agreement may not be altered, supplemented, or amended by the use of any other document unless otherwise agreed in writing by ADAEXPERIENCE. No delay or failure by ADAEXPERIENCE to exercise any right it has under this Agreement shall impair or be construed as a waiver of such right. A waiver of any provision of this Agreement by ADAEXPERIENCE must be in writing and shall not be construed as a waiver or modification of any other term hereof, or as a continuing waiver of any provision. The term ‘including’ as used in the Agreement should be construed as ‘including without limitation’. For the avoidance of doubt, whenever the term “purchase” is used herein with respect to Software, it shall mean the purchase of a license for Customer to use the applicable Software. If any part, term, or provision of this Agreement is held illegal, unenforceable, or in conflict with any applicable and enforceable law, the validity of the remaining portions or provisions of this Agreement shall not be affected and the illegal, unenforceable, or conflicting part, term, or provision shall be reformed by a court of law with binding authority to the maximum extent possible to reflect the intent of this Agreement. The doctrine that any ambiguity contained in a contract shall be construed against the party whose counsel has drafted the contract is expressly waived by each of the parties with respect to this Agreement.