Legal
The sale of products and services ("Products") by MetroSys, Inc. ("MetroSys") is governed exclusively by these Terms and Conditions of Sale ("Agreement"). These terms apply to all sales regardless of any additional, conflicting, or inconsistent terms in any purchase order, acknowledgment, or other communication issued by the customer ("Customer"). MetroSys expressly rejects any Customer-proposed terms that conflict with this Agreement. MetroSys's failure to object to Customer terms in any document shall not constitute acceptance of or waiver of any provision of this Agreement.
Quotes issued by MetroSys are non-binding offers subject to change or withdrawal at any time without notice, and do not constitute an offer capable of acceptance. Unless otherwise stated in a quote, all quotes expire 30 days from issuance. A binding contract is formed only upon MetroSys's written acceptance of Customer's purchase order. Customer's issuance of a purchase order constitutes Customer's unconditional agreement to this Agreement. MetroSys reserves the right to reject any order for any reason.
All prices are in U.S. dollars and do not include federal, state, or local taxes, duties, fees, or other governmental charges ("Taxes"). Customer is responsible for all Taxes imposed on or with respect to the sale, unless Customer provides MetroSys with a valid, signed tax exemption certificate. MetroSys may adjust pricing to reflect any Taxes it is required to collect. All prices are subject to change prior to MetroSys's written acceptance of an order.
Customer agrees to hold in strict confidence and not disclose to any third party MetroSys's non-published pricing or purchasing terms. Customer acknowledges that breach of this obligation may cause irreparable harm to MetroSys entitling MetroSys to seek injunctive or other equitable relief without bond or proof of actual damages, in addition to all other remedies available at law.
Payment of the total invoice amount, without offset, deduction, or withholding, is due net 30 days from the invoice date unless otherwise agreed in writing by MetroSys. Time is of the essence with respect to all payment obligations.
On any past-due invoice, MetroSys may charge interest from the payment due date at the lesser of (a) 18% per annum, or (b) the maximum rate permitted under applicable law. Customer shall reimburse MetroSys for all reasonable attorneys' fees, court costs, and collection costs incurred in the collection of any past-due amount.
MetroSys reserves the right at any time to: (a) require advance payment or a letter of credit; (b) require Customer to provide current financial statements for creditworthiness review; (c) change or revoke credit terms; (d) suspend shipment on outstanding orders if Customer is in default; or (e) apply payments received to any outstanding balance on any Customer account. If Customer defaults on any payment obligation, all outstanding invoices shall become immediately due and payable.
MetroSys retains a purchase money security interest in all Products sold to Customer until full payment is received. Customer authorizes MetroSys to file UCC financing statements or take other steps necessary to perfect this security interest. Customer shall not encumber, transfer, or dispose of unpaid Products without MetroSys's prior written consent.
Any credit issued by MetroSys expires if unused within 12 months from the date of issuance.
All Products are sold FOB Origin (MetroSys's shipping location or distributor's facility). Title to and risk of loss of Products passes to Customer upon delivery of Products to the carrier. MetroSys's delivery dates are estimates only. MetroSys is not liable for delays in delivery caused by carrier, manufacturer, distributor, or any other cause beyond MetroSys's reasonable control.
MetroSys may make partial deliveries and invoice each partial shipment separately. A delay in any partial delivery does not entitle Customer to cancel remaining deliveries or withhold payment on accepted deliveries. Customer is responsible for inspecting Products promptly upon receipt and must notify MetroSys in writing of any visible damage or shortage within 5 business days of delivery; failure to do so constitutes acceptance.
MetroSys will use commercially reasonable efforts to pass through to Customer any transferable Product warranties and indemnities provided by the manufacturer or distributor, to the extent such warranties are transferable. MetroSys makes no independent warranty regarding Products manufactured by third parties beyond what is expressly passed through.
Where required by applicable law, MetroSys warrants that, at the time of delivery, Products will conform to the manufacturer's published specifications for a period of 12 months from delivery. For any value-added work performed by MetroSys on Products, MetroSys warrants for 30 days from delivery that such work will conform to Customer's written specifications as accepted by MetroSys.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THESE ARE METROSYS'S SOLE WARRANTIES. METROSYS EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ANY WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. CUSTOMER'S SOLE REMEDY FOR BREACH OF METROSYS'S WARRANTY IS, AT METROSYS'S ELECTION: (A) REPAIR OF THE PRODUCT; (B) REPLACEMENT OF THE PRODUCT AT NO CHARGE; OR (C) REFUND OF THE PURCHASE PRICE PAID FOR THE DEFECTIVE PRODUCT.
Customer may not return Products without MetroSys's prior written authorization ("RMA"). Requests for returns must be submitted to MetroSys in writing within 30 days of delivery. Authorized returns must: (a) be accompanied by a valid RMA number issued by MetroSys; (b) be returned in original, undamaged packaging with all accessories; (c) be shipped prepaid by Customer to the address designated by MetroSys. Products returned without authorization or not in conforming condition will be refused or returned to Customer at Customer's expense.
Authorized returns of non-defective Products are subject to a restocking fee of up to 20% of the original invoice price, plus any applicable manufacturer restocking fees. Defective Products are subject to the manufacturer's return and warranty procedures. MetroSys will use commercially reasonable efforts to assist Customer in pursuing warranty claims against manufacturers.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL METROSYS OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, OR LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION LOSS OF PROFITS OR REVENUE, LOSS OF DATA, LOSS OF BUSINESS, BUSINESS INTERRUPTION, LOSS OF GOODWILL, INJURY TO REPUTATION, LOSS OF CUSTOMERS, COST OF SUBSTITUTE GOODS OR SERVICES, OR REWORK OR MANUFACTURING EXPENSE, EVEN IF METROSYS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
METROSYS'S TOTAL CUMULATIVE LIABILITY TO CUSTOMER FOR ANY AND ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY ORDER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, SHALL NOT EXCEED THE GREATER OF: (A) THE TOTAL FEES ACTUALLY PAID BY CUSTOMER TO METROSYS IN THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM; OR (B) USD $25,000.
The parties acknowledge that the limitations of liability in this Section 7 reflect a reasonable allocation of risk and are a fundamental element of the basis of the bargain between the parties. MetroSys would not have entered into this Agreement or offered the pricing contained herein without these limitations.
Customer shall indemnify, defend, and hold harmless MetroSys and its officers, directors, employees, and agents from and against any and all claims, damages, losses, costs, and expenses (including reasonable attorneys' fees) arising out of or related to: (a) MetroSys's compliance with Customer's designs, specifications, or instructions; (b) modification of any Product by any party other than MetroSys; (c) use of Products in combination with any other product, software, or service not supplied by MetroSys; or (d) Customer's violation of any provision of this Agreement.
MetroSys is not liable for any delay or failure to perform its obligations under this Agreement to the extent caused by circumstances beyond its reasonable control, including without limitation acts of God, natural disasters, epidemic or pandemic events, acts of government, war, terrorism, labor disputes or strikes, material shortages, supply chain disruptions, carrier delays, or inability to obtain materials or services through its regular sources (each, a "Force Majeure Event").
MetroSys shall notify Customer in writing within 10 business days of the occurrence of a Force Majeure Event describing the event and its expected duration. MetroSys shall use commercially reasonable efforts to resume performance. If a Force Majeure Event continues for more than 60 consecutive days, either party may terminate the affected order upon written notice, without liability to the other party, provided MetroSys refunds any amounts paid for undelivered Products.
Customer shall comply with all applicable laws, regulations, and manufacturer specifications in connection with the use and resale of Products. Products are not designed, authorized, or warranted for use in applications where failure could reasonably be expected to result in personal injury, loss of life, or significant property damage, including without limitation: nuclear facilities or weapons, aircraft navigation, communication, or control systems, air traffic control systems, life support or life safety systems, medical devices, or weapons or military systems (collectively, "High-Risk Applications").
Customer agrees not to use, configure, or permit the use of Products in any High-Risk Application. If Customer uses or sells Products for use in any High-Risk Application or in violation of applicable law or manufacturer specifications, such use is at Customer's sole risk and Customer shall indemnify MetroSys against any resulting claims, losses, or liabilities.
Products and related technology, documentation, and software sold by MetroSys may be subject to the export control laws and regulations of the United States and other applicable jurisdictions, including the Export Administration Regulations ("EAR"), the International Traffic in Arms Regulations ("ITAR"), and regulations administered by the U.S. Office of Foreign Assets Control ("OFAC") (collectively, "Export Laws").
Customer shall, at its own expense: (a) comply with all applicable Export Laws; (b) obtain all required licenses, permits, and authorizations before transferring, exporting, re-exporting, or importing any Product; (c) not export or re-export any Product to any country, entity, or individual prohibited under Export Laws, including those subject to sanctions or embargoes administered by the U.S. Treasury, Commerce, or State Departments, the United Nations, or the European Union; and (d) maintain records of all exports and make such records available to MetroSys or government authorities upon request.
Customer shall indemnify, defend, and hold MetroSys harmless from any fines, penalties, losses, or liabilities (including attorneys' fees) arising from Customer's failure to comply with Export Laws.
Nothing in this Agreement transfers ownership of any intellectual property rights. Each party retains all pre-existing intellectual property rights. To the extent MetroSys performs any configuration, integration, or other professional services for Customer, MetroSys retains ownership of all tools, methodologies, know-how, and pre-existing materials used in such services. Any deliverables created specifically for Customer under a separately executed Statement of Work shall be addressed in that Statement of Work.
MetroSys will pass through to Customer any transferable intellectual property indemnities provided by Product manufacturers. Beyond such pass-through, MetroSys makes no representation and provides no warranty with respect to the non-infringement of third-party intellectual property rights in any Product.
MetroSys collects and processes Customer's business contact information (such as names, email addresses, phone numbers, and business addresses) for the purpose of fulfilling orders, managing the customer relationship, and communicating about Products and services. MetroSys processes such information in accordance with its Privacy Policy available at www.metro-sys.com/privacy.
To the extent any order involves MetroSys accessing, storing, or processing personal data subject to the California Consumer Privacy Act ("CCPA"), the EU General Data Protection Regulation ("GDPR"), or other applicable privacy laws on behalf of Customer, the parties agree to execute a Data Processing Agreement before such processing begins.
Product information provided by MetroSys — including specifications, features, export/import classifications, compatibility information, and regulatory compliance data — is provided "AS IS" based on information from manufacturers and distributors. MetroSys makes no representation as to its accuracy or completeness and expressly disclaims all liability with respect to product information. Customer is responsible for independently verifying all product information before purchase, deployment, or reliance. Product information is subject to change without notice.
The parties agree that orders, acceptances, and communications transmitted by email, electronic data interchange, web portal, or other electronic means have the same legal effect as written documents bearing original signatures. Customer's submission of an electronic purchase order or use of MetroSys's online ordering portal constitutes Customer's acceptance of and agreement to be bound by this Agreement. The parties agree to use and accept electronic signatures, which shall be legally valid, effective, and enforceable to the same extent as original ink signatures.
The parties agree to attempt to resolve any dispute arising out of or relating to this Agreement through good-faith negotiation between senior representatives of both parties for a period of 30 days following written notice of the dispute ("Negotiation Period"). If the dispute is not resolved within the Negotiation Period, either party may pursue the remedies available under this Section.
If you have questions about these terms, the security interest, warranty pass-through, or how a specific clause applies to your engagement, we’d rather have the conversation up front than at dispute time.
Contact MetroSys