Terms of Use
Disclaimer
General disclaimer regarding use of the website
The material and information contained on this website is for general information purposes only. You should not rely upon the material or information on the website as a basis for making any business, legal or any other decisions. Whilst we endeavour to keep the information up to date and correct, Makin makes no representations or warranties of any kind, express or implied about the completeness, accuracy, reliability, suitability or availability with respect to the website or the information, products, services or related graphics contained on the website for any purpose. Any reliance you place on such material is therefore strictly at your own risk
Copyright disclaimer
Makin (or its affiliated companies, including holding companies, sister companies and subsidiaries) owns all rights, title and interest to all intellectual property and other proprietary rights to documents and materials, calculations, drawings, models, plans, sets of tools, technology, software, designs, engineering details, schematics and similar data relating to or incorporated in the Products and Software and any accompanying documentation or information derived from the foregoing. To the extent permitted by relevant law, you shall not, nor allow any third party to copy, decompile, disassemble or otherwise reverse engineer the Products or Software, or attempt to do so. You are prohibited from, and shall prevent any third party from, removing, covering or altering any of our patent, copyright or trademark notices placed upon, embedded in or displayed by the Products or Software or their packaging and related materials.
Rev. 2021 February
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT CAREFULLY BEFORE USING THIS SOFTWARE AND PRODUCT
This is an End User License Agreement (this “Agreement”) between you, the end purchaser/lessee (“you” or “Licensee”) and Makin AS (“Makin”). The definition “Makin” also covers Makin group companies (i.e. holding companies, sister companies and/or subsidiaries). This Agreement permits Licensee to use the Makin software (the “Software”) that accompanies this Agreement, i.e. any software, library, utility, tool, or other computer or program code, in object (binary) or source-code form, as well as the related documentation, provided by Makin to you, including Product firmware, software locally installed on your systems and software accessed by you through the Internet or other remote means (such as websites, portals, software-as-a-service (“SaaS”) and “cloud-based” solutions). This Software may be licensed on a standalone basis or may be embedded in a Product, downloaded or otherwise procured. Please read and ensure that you understand this Agreement before installing or using the Software Update or using the Product.
You, as Licensee, may be a legal entity that has purchased the Product(s) directly from Makin or from one of Makin’s distributors (or from one the distributor’s customers). Alternatively, you may have leased the Products from Makin, or from one of Makin’s distributors (or from one the distributor’s customers). All end users of the Product(s) including employees, representatives, directors, etc., of end users, whether or not the end users own or lease the Products, have acceded to and thereby accepted this Agreement and are considered as a “Licensee” under this Agreement. For the avoidance of doubt, Makin owns the Software, Documentation, Professional Services deliverables and any and all related and underlying technology and documentation, etc., and you as Licensee acknowledge that you are obtaining only a limited license right to the Software and that irrespective of any use of the words “purchase”, “sale” or like terms hereunder no ownership rights are being conveyed to you under this Agreement or otherwise.
In this Agreement, any product that has Software embedded in it at the time of sale to the Licensee shall be referred to as a “Product”. As well, in this Agreement, the use of a Product shall be deemed to make use of the Software which is embedded in the Product.
BY INSTALLING OR USING THE SOFTWARE UPDATE OR THE PRODUCT, LICENSEE THEREBY AGREES TO BE LEGALLY BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS, (1) DO NOT INSTALL OR USE THE SOFTWARE, AND (2) IF YOU ARE INSTALLING AN UPDATE TO THE SOFTWARE, DO NOT INSTALL THE UPDATE AND PROMPTLY DESTROY IT.
MAKIN PROVIDES LIMITED WARRANTIES IN RELATION TO THE SOFTWARE. AS WELL, THOSE WHO USE THE EMBEDDED SOFTWARE DO SO AT THEIR OWN RISK. YOU SHOULD UNDERSTAND THE IMPORTANCE OF THESE AND OTHER LIMITATIONS SET OUT IN THIS AGREEMENT BEFORE INSTALLING OR USING THE SOFTWARE OR THE PRODUCT.
License
Makin hereby grants to Licensee a non-transferable, non-sublicensable and non-exclusive license to use the Software as embedded in a Product and all Updates (collectively the “Software”), in binary executable form, but solely: (a) for your own internal business purposes; (b) in accordance with this Agreement and the Documentation; and (c) in accordance with the applicable Scope of Use and any Product-Specific Terms. Unless otherwise specified in the applicable Order Form, the License Term begins on your license purchase date (the “Effective Date”).
General
Makin, at its discretion, may make available future software updates. Such Makin Software updates, if any, may not necessarily include all existing software features or new features that Makin releases for newer or other models of Makin Products. The terms of this License will govern any Makin Software updates provided by Makin, unless such Makin Software update is accompanied by a separate license, in which case you agree that the terms of that license will govern. Your Product may periodically receive Software updates from Makin. If an update is available, the update may automatically download and install onto your Product, if applicable.
License Restrictions
As conditions on the license granted to you, you shall not (and shall not allow any third party to): (a) decompile, disassemble, or otherwise reverse engineer the Software or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the Software by any means whatsoever, or attempt to circumvent or disable any License Key or other mechanism that protects the Software against unauthorized use; (b) distribute, sell, sublicense, rent, or lease the Software (unless you have been give a prior written permission by Makin to do so), or use the Software (or any portion thereof) for time sharing, hosting, service provider, or like purposes; (c) remove any product identification, proprietary, copyright, or other notices contained in the Software; (d) modify or translate any part of the Software, create a derivative work of any part of the Software, or incorporate the Software into any other software; (e) publicly disseminate information regarding the performance of the Software; (f) use or attempt to use the Software for competitive analysis or benchmarking; or (g) use or host the Software in a virtual server environment.
Beta Releases and Free offerings
Free Offerings designated as “Free”, “pre-” or “beta” releases of the Software (“Beta Releases”) may be inoperable, incomplete, or contain more errors and bugs than generally available Software. Makin makes no promises that any Beta Releases will ever be made generally available. All information regarding the characteristics, features or performance of beta software constitutes Makin Confidential Information. You acknowledge that all beta software is provided “AS IS” and may not be functional on any machine or in any environment. MAKIN AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES RELATING TO BETA SOFTWARE, INCLUDING, BUT NOT LIMITED TO, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, MAKIN WILL HAVE NO WARRANTY, SUPPORT OR OTHER OBLIGATIONS WITH RESPECT TO FREE OFFERINGS UNLESS OTHERWISE SPECIFIED IN THE APPLICABLE ORDER FORM.ANY USE OF A BETA RELEASE IS AT YOUR SOLE DISCRETION AND RISK.
Consent to Use of Data
Makin may, directly or through third parties (including a Reseller), collect and use technical information, information about you, and/or data that you provide in relation to your use of the Software or receipt of support and maintenance for the Software. Makin may use such data to provide, maintain, support and improve the Software and Makin’s other products and services (including requesting your Feedback, providing critical updates to you and providing notifications to you regarding Beta Releases) and for any other business purpose. Makin will not disclose such information externally unless it has been (a) de-identified so that it does not individually identify you or any other person or entity and (b) aggregated with similar information across other Makin customers. You acknowledge that, to the extent permitted by law, Makin assumes no responsibility for storage of such data or information.
Ownership
Notwithstanding anything to the contrary contained herein, except for the limited license rights expressly provided herein, Makin and/or its suppliers, as applicable, have and will retain all rights, title and interest (including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Software, Documentation, Professional Services deliverables and any and all related and underlying technology and documentation, and any copies, modifications and derivative works thereof, including as may incorporate Feedback. You acknowledge that you are obtaining only a limited license right to the Software and that irrespective of any use of the words “purchase”, “sale” or like terms hereunder no ownership rights are being conveyed to you under this Agreement or otherwise.
Term of Agreement
This Agreement is effective as of the Effective Date and expires when all License Terms hereunder have expired or been terminated. Either party may terminate this Agreement (including all related License Terms and Order Forms) if the other party: (a) fails to cure any material breach of this Agreement within thirty (30) days after written notice of such breach; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within sixty (60) days). Except where an exclusive remedy may be specified in this Agreement, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
Limited Warranty and Disclaimers
Limited Warranty. Unless otherwise specified in Terms of sale, Makin warrants to you that the Software shall operate in substantial conformity with the Documentation (a) during the License Term for Software licensed, for a period of ninety (90) days from the Effective Date (in each case, the “Warranty Period”). Makin’s sole liability (and your exclusive remedy) for any breach of this warranty shall be, in Makin’s sole discretion, to use commercially reasonable efforts to provide you with an error-correction or work-around which corrects the reported non-conformity, or if Makin determines such remedy to be impracticable within a reasonable period of time, either party may terminate the applicable Order Form (and any associated License Terms) and you will receive as your sole remedy a refund of (i) any fees you have pre-paid for the Software for the terminated portion of the applicable License Term for any Software licensed, or (ii) the license fee paid for the Software. Makin shall have no obligation with respect to a warranty claim unless notified of such claim within (1) thirty (30) days after the date on which you first noticed the non-conformity and (2) the Warranty Period.
Under no circumstances shall Makin be liable for consequential expenses that are due to faulty work by Licensee’s equipment (e.g., earthmoving machinery on construction sites) or employees, even though the error may be related to errors in the Products. It is the Licensee’s responsibility to frequently check its levels, coordinates and slopes before, under and after the work is carried out; such check shall be performed by the Licensee with appropriate frequency, which depending on all circumstances of the use of the Product, may be on a daily basis. After initial installation, the Licensee shall similarly be responsible for regularly checking the system’s accuracy.
Exclusions
The above warranty shall not apply: (a) if the Software is used with hardware or software not specified in the Documentation; (b) if any modifications are made to the Software by you or any third party; (c) to defects in the Software due to accident, abuse or improper use by you; or (d) to Free Offerings or Beta Releases.
Disclaimer of Warranties
THE SOFTWARE HAS A LIMITED WARRANTY AND, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SOFTWARE AND ALL PROFESSIONAL SERVICES ARE PROVIDED “AS IS”. NEITHER MAKIN NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, CONDITIONS OR UNDERTAKINGS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. MAKIN DOES NOT WARRANT THAT YOUR USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ANY SECURITY MECHANISMS IMPLEMENTED BY THE SOFTWARE WILL NOT HAVE INHERENT LIMITATIONS.
Disclaimer for High Risk Activities
THE SOFTWARE IS NOT FAULT TOLERANT AND IS NOT DESIGNED, MANUFACTURED OR INTENDED FOR USE IN LIFE SUPPORT, MEDICAL, EMERGENCY, MISSION CRITICAL, CONTROL OR GUIDANCE OF VEHICLES, DRONES OR OTHER UNMANNED MACHINES, OR OTHER STRICT LIABILITY OR HAZARDOUS ACTIVITIES, OR IN ANY OTHER SYSTEM WHOSE FAILURE COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE (COLLECTIVELY, “HIGH RISK ACTIVITIES”). MAKIN SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES. YOU REPRESENT AND WARRANT THAT YOU WILL NOT USE THE SOFTWARE (OR PERMIT IT TO BE USED) FOR HIGH RISK ACTIVITIES, AND AGREE THAT MAKIN WILL HAVE NO LIABILITY FOR USE OF THE SOFTWARE IN HIGH RISK ACTIVITIES. YOU AGREE TO INDEMNIFY AND HOLD HARMLESS MAKIN FOR ANY DAMAGES, LIABILITIES OR OTHER LOSSES RESULTING FROM SUCH USE.
Limitation of Liability
NEITHER MAKIN AND ITS SUBSIDIARIES, HOLDING COMPANIES AND OTHER AFFILIATES NOR ITS SUPPLIERS SHALL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY THEORY OF LIABILITY (WHETHER CONTRACT, TORT INCLUDING NEGLIGENCE OR OTHERWISE) FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES THAT MAY BE INCURRED BY END-USER THROUGH END-USER’S USE OF THE SOFTWARE AND/OR PRODUCT, INCLUDING FOR ANY LOSS OF USE, LOST DATA, LOST PROFITS, LOST GOODWILL, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER OR NOT MAKIN OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
END-USER AGREES THAT MAKIN, ITS SUBSIDIARIES, HOLDING COMPANIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO END-USER FOR ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY END-USER, INCLUDING BUT NOT LIMITED TO LOSS OR DAMAGE AS A RESULT OF:
(I) ANY RELIANCE PLACED BY END-USER ON THE COMPLETENESS, ACCURACY OR EXISTENCE OF ANY ADVERTISING, OR AS A RESULT OF ANY RELATIONSHIP OR TRANSACTION BETWEEN END-USER AND MAKIN OR ANY, DEVELOPER, ADVERTISER OR SPONSOR WHOSE ADVERTISING APPEARS IN ANY OF THE SOFTWARE OR PRODUCTS;
(II) ANY CHANGES WHICH MAKIN OR ITS HOLDINGS COMPANIES MAY MAKE TO ANY SOFTWARE, OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF ANY SOFTWARE (OR ANY FEATURES WITHIN THE SOFTWARE);
(III) END-USER’S FAILURE TO PROVIDE MAKIN WITH ACCURATE INFORMATION;
NOTHING IN THIS AGREEMENT EXCLUDES THE LIABILITY FOR MAKIN, ITS SUBSIDIARIES OR AFFILIATES FOR: (A) DEATH AND PERSONAL INJURY CAUSED BY NEGLIGENCE; (B) FRAUDULENT MISREPRESENTATION; OR (C) ANY OTHER LIABILITY WHICH CANNOT BE LIMITED BY APPLICABLE LAW.
Liability Cap
MAKIN, ITS HOLDING COMPANIES’ AND ITS SUPPLIERS’ ENTIRE LIABILITY TO YOU ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED IN AGGREGATE THE AMOUNT ACTUALLY PAID BY YOU TO MAKIN DISTRIBUTOR DURING THE PRIOR TWELVE (12) MONTHS UNDER THIS AGREEMENT.
Confidential Information
Any Software, Documentation or other code or technical information provided by Makin (or its agents) shall be deemed “Makin Confidential Information” without any marking or further designation. Except as expressly authorized herein, you will hold in confidence and not use or disclose any Makin Confidential Information. You acknowledge that disclosure of Makin Confidential Information would cause substantial harm to Makin that could not be remedied by the payment of damages alone and therefore that upon any such disclosure by you, Makin shall be entitled to appropriate equitable relief in addition to whatever remedies it might have.
Export Control Compliance
You are responsible for complying with all applicable export and import regulations and obtaining all necessary export and import licenses or permits for the direct or indirect export or import of any Software. Without limiting the generality of the foregoing, you hereby acknowledge and agree that the Software and any associated Confidential Information are subject to EU and relevant Regional Export Administration Regulations and in accordance with those regulations. In the exercise of its rights, and the performance of its obligations under this Agreement, you shall comply strictly with all export control laws and regulations applicable to the Software, and shall not export, re-export, transfer, divert or disclose any such Software, or any direct product thereof, to any destination restricted or prohibited by the export control laws. Your obligations under this paragraph will survive the termination of this Agreement for any reason whatsoever. You will defend, indemnify and hold Makin harmless against any liability (including attorneys’ fees) arising out of your failure to comply with the terms of this paragraph. Your failure to comply with any term of this paragraph will constitute a material breach of this Agreement and entitle Makin to immediately terminate this Agreement in addition to any other remedy available at law or equity.
Force Majeure
Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events, which occur after the Effective Date and which are beyond the reasonable control of the parties, such as strikes, blockade, war, terrorism, riots, natural disasters, epidemics, pandemics, refusal of license or changes in law or regulations by the government or other governmental agencies, in so far as such an event prevents or delays the affected party from fulfilling its obligations and such party is not able to prevent or remove the force majeure event at reasonable cost
Open Source Software
The Software may contain or be provided with open source software. Open source software may be identified in the Documentation, or Makin shall provide a list of the open source software for a particular version of the Software to you upon written request. To the extent required by the license that accompanies the open source software, the terms of such license will apply in lieu of the terms of this Agreement with respect to such open source software itself, including, without limitation, any provisions governing access to source code, modification or reverse engineering.
Third party components
The Product and the Software contain third party components, which may be subject to additional terms and conditions. Such terms and conditions are to be found at [insert link]. Licensees are required to agree to, and are deemed to have agreed to, those terms and conditions in order to use the Product.
Applicable Law and Place of Jurisdiction
This Agreement shall be governed by the laws of Norway, excluding all conflicts of laws principles and excluding the United Nations Convention on Contracts for the International Sale of Goods. The ordinary courts at the headquarters of Makin AS in Ingelsrudvegen 350, 2324 Vang H., Norway, shall have exclusive jurisdiction. Makin shall, in its sole discretion, also have the right to invoke the courts of law having jurisdiction at the domicile or place of business of Licensee.
Rev. February 2021
Subject to the terms of any other applicable written agreement you (“you”) have with Makin, Makin’s sale of Products and provision of Software are governed by these terms and conditions of sale (“Terms”). These Terms include the Basic Order Terms (defined below) specified on an order accepted by us. “Makin”, “we” or “us” means Makin AS or its affiliated companies (i.e. companies in the Makin group, including holding companies, sister companies and/or subsidiaries). Every order you place with us is conditioned upon and confirms your acceptance of these Terms. Any contrary terms or conditions appearing on your orders or associated purchase documentation will be of no effect. No modification, or addition to these Terms, or any assignment of your rights or obligations under them is valid or binding on us unless in writing and signed by our authorized representative. These Terms and the other applicable agreements you enter into with Makin constitute the entire agreement between you and Makin for your purchase and use of Products and Software. Each accepted order will be interpreted as a single set of Terms, independent of other orders.
1. Definitions. “Products” means hardware products provided hereunder. “Software” means any software, library, utility, tool, or other computer or program code, in object (binary) or source-code form, as well as the related documentation, provided by Makin to you. Software includes Product firmware, software locally installed on your systems and software accessed by you through the Internet or other remote means (such as websites, portals, software-as-a-service (“SaaS”) and “cloud-based” solutions). “Services” means any services provided by approved distributors of Makin products and software and described in one or more separate local or regional Service Agreements. “Service Agreements” are service contracts such as for support & maintenance or professional services, these Terms do not apply to Service Agreements which have their own terms and conditions.
2. General.
2.1 Quotes, Validity of Orders. Our quotations are non-binding unless otherwise expressly stipulated in writing. Orders are accepted as valid and binding only when confirmed by us in writing. Orders cannot be canceled for any reason without our prior written consent.
2.2 Basic Order Terms. All orders must include the following information: (i) the Products and Software ordered and quantities, (ii) Makin part number(s), (iii) prices, and (iv) delivery instructions, (collectively, “Basic Order Terms”). All Basic Order Terms are fixed and final upon our acceptance of the order.
2.3 Software Licenses. All Software is licensed or provided as a service and is not sold. Software is subject to the separate agreements provided by Makin in connection with the Software, including but not limited to any software licenses, product guides, operating manuals or other documentation (including the Makin End User License Agreement (“EULA”), Terms of Use or Terms of Service) (each a “User Agreement” and collectively the “User Agreements”). You have received a copy of or a specific reference to the EULA and, by making an order for one of Makin’s Products, Software and/or Services, you have acceded to and accepted the EULA.
You agree that you will be bound by the User Agreements. If there is a conflict or inconsistency between these Terms and those of a User Agreement, the terms of the User Agreement will prevail. If a User Agreement or other license terms do not accompany Software included with a Product or Service, then Makin hereby grants you a personal, non-exclusive, revocable, non-assignable right to access and use such Software solely as necessary for you to enjoy the benefit of the Product or Service. Nothing in these Terms shall be construed to grant any rights or license to use any Software in any manner or for any purpose not expressly permitted by the applicable User Agreement.
3. Delivery.
3.1 Delivery time. Delivery times are established when Makin accepts your order in writing. We will use commercially reasonable efforts to meet your requested delivery dates, unless you are in default under these Terms or our performance is otherwise excused. We are not liable for late or delayed delivery. Late delivery is not a basis for your cancellation of any order.
3.2 Delivery terms. Title and risk of loss or damage to Products passes to you when we deliver the Products to the shipping carrier (“Delivery”). Unless otherwise agreed, we will deliver the Product freight prepaid, provided that you pay or reimburse us for all applicable costs of carriage, freight, insurance (if applicable), taxes, duty and other related shipping charges. We have the right to make partial deliveries. Software may be delivered electronically at Makin’s option. Title to the Software will remain with Makin or its licensors.
4. Acceptance, Inspection, Notice of Nonconformance.
4.1 Your acceptance of ordered Products is deemed to occur upon our Delivery of the Products to the shipping carrier. Your acceptance of ordered Software is deemed to occur when the Software is activated or otherwise made available for your access or use, whichever date is earlier. You are responsible for giving prompt written notice of identified damage or nonconformance of Products. You must inspect the condition of the packaging and the Products upon receipt and indicate any evident damage to the carrier on the delivery note, have the carrier’s agent sign the document and, within two (2) days of receipt of the damaged or non-conforming Products, send all documents by e-mail or fax to our facility from which shipment took place, together with the carrier’s references. Concealed Product damage claims must be made by you to the carrier directly and you must also provide us with written notice and a copy of any such claim within 10 days of receipt of the affected Products. Likewise you must notify us within 10 days of receipt of incorrect Products. If you retain the Product without giving notice within the designated notice period, you will be deemed to have waived your right to reject the Product.
4.2 If you cancel an accepted Product order within 10 days prior to shipment or reject conforming Products received under an accepted order, we are entitled to claim reasonable compensation for restocking and other expenses actually incurred.
5. Return of Product. All Product returns are subject to our prior written consent and must comply with our product return (RMA) procedures then in effect. Before returning or exchanging a Product, you must contact us directly to obtain an authorization number to include with your return. You must return Products to us in their original or equivalent packaging, and you are responsible for risk of loss, as well as shipping fees back to Makin. Products received but not eligible for return will be sent back to you freight collect. For approved returns you will receive credit equal to the lesser of the Product’s invoice price or its current replacement value, less any applicable charges or fees.
6. Pricing, Terms of Payment, Taxes.
6.1 Unless we state otherwise in writing, payment terms are net 30 days from our invoice date. You will make payment in the currency indicated on the invoice. We are entitled to offset payments against prior debt balances in your account.
6.2 We have the continuing right to review your credit and change your payment terms, and may at any time demand advance payment, satisfactory security (such as, but not limited to, a confirmed, irrevocable letter of credit acceptable to us), or a guarantee of prompt payment prior to shipment or service activation.
6.3 You are liable for any costs incurred by us if you change or cancel any order, and for all costs of collection of past due amounts (including attorneys fees).
6.4 Our stated prices for Products and Software do not include applicable sales taxes, Value Added Tax, export or import charges, transportation or insurance charges, customs and duty fees, personal property taxes or similar charges, all of which are your responsibility to pay. Unless you provide us with direct payment authority to which the Product will be delivered, you shall pay us all taxes and governmental fees we are required to collect or pay upon sale or Delivery of the Product.
7. Limited Warranty.
7.1 Products and Software. The Warranty Period is the period within which notice must be given of any claims for defects. Unless (i) the limited warranty included with a Product or (ii) the User Agreement accompanying any Software grants you different rights or disclaims all warranties, we warrant to you, and only to you, as applicable, (a) that our Products are designed and manufactured to conform to our specifications and will be free from defects in material and workmanship for a period of 24 months (the “Warranty Period”) from date of Delivery, and (b) that our Software will substantially conform to the functional specifications and current documentation provided by Makin for a period of 90 days from the date of Delivery. During the Warranty Period, our liability and your exclusive remedy is limited, at Makin’s option, to replacing, repairing, correcting, or issuing credit for any Product or Software subject to the warranty in this Section 7.1, which upon inspection we determine is non-conforming. When the Warranty Period has expired, you are no longer entitled to direct any claims for defects or the like against Makin.
7.2 Warranty Exclusions. The foregoing limited warranty only applies if and to the extent that (a) the Product or Software is properly and correctly installed, configured, interfaced, maintained, stored, repaired and operated in accordance with our applicable documentation and specifications, and (b) the Product or Software is not modified or misused. Further, the foregoing limited warranty does not apply to, and we are not responsible for defects or performance problems resulting from (i) the combination or use of the Product or Software with hardware or software products, information, data, systems, interfaces or devices not made, supplied or specified by us; (ii) damage caused by accident, lightning or other electrical discharge, fresh or salt water immersion or spray (outside Product specifications) or exposure to environmental conditions for which the Product or Software is not intended; (iii) normal wear and tear on consumable parts (e.g., batteries) or (iv) cosmetic damage. We do not warrant or guarantee the results obtained through the use of the Product or Software. WE MAKE NO WARRANTIES UNDER THESE TERMS WITH RESPECT TO SERVICES, WHICH IF PROVIDED HEREUNDER ARE PROVIDED “AS-IS”.
NOTICE REGARDING PRODUCTS EQUIPPED WITH SATELLITE OR WIRELESS TECHNOLOGY. Your use of certain Products and Software is dependent on the availability and coverage of wireless networks, telecommunications networks, satellite positioning systems and the Internet, which involve facilities owned and operated by third parties. WE ARE NOT RESPONSIBLE FOR THE OPERATION, AVAILABILITY OR FAILURE OF SUCH THIRD PARTY SYSTEMS OR FACILITIES.
7.3 WARRANTY DISCLAIMER. THE FOREGOING LIMITED WARRANTY TERMS ARE IN LIEU OF ALL OBLIGATIONS OR LIABILITIES ON OUR PART ARISING OUT OF, OR IN CONNECTION WITH, OUR PRODUCTS AND SOFTWARE AND STATE OUR ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDIES RELATING TO THEM. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THESE TERMS, THE PRODUCTS AND SOFTWARE AND ANY ACCOMPANYING DOCUMENTATION ARE PROVIDED “AS-IS” AND WITHOUT EXPRESS OR IMPLIED WARRANTY OR CONDITION OF ANY KIND, EITHER BY US OR ANYONE WHO HAS BEEN INVOLVED IN ITS CREATION, PRODUCTION, INSTALLATION, OR DISTRIBUTION, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE, AND NON-INFRINGEMENT. ADDITIONALLY, WE MAKE NO EXPRESS OR IMPLIED WARRANTY THAT SOFTWARE PROVIDED TO YOU IN CONNECTION WITH THESE TERMS, IS OR WILL BE SECURE, ACCURATE, COMPLETE, UNINTERRUPTED, FREE OF ERRORS, OR FREE OF VIRUSES, OR OTHER MALWARE OR PROGRAM LIMITATIONS. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON DURATION OR THE EXCLUSION OF AN IMPLIED WARRANTY, SO THE ABOVE LIMITATION MAY NOT APPLY OR FULLY APPLY TO YOU. IF YOU ARE A RESELLER OF THE PRODUCTS OR SOFTWARE YOU SHALL NOT MAKE OR PASS ON TO YOUR OWN CUSTOMERS ANY WARRANTY, CONDITION OR REPRESENTATION ON BEHALF OF US OTHER THAN, OR INCONSISTENT WITH, THE APPLICABLE LIMITED WARRANTY IN THE PRODUCTS AND SOFTWARE PROVIDED TO YOU.
PLEASE NOTE. THE ABOVE LIMITED WARRANTY PROVISIONS WILL NOT APPLY TO PRODUCTS YOU PURCHASE IN THOSE REGIONS IN WHICH PRODUCT WARRANTIES ARE THE RESPONSIBILITY OF THE LOCAL DISTRIBUTOR FROM WHOM THE PRODUCTS ARE ACQUIRED. IN SUCH CASE, PLEASE CONTACT YOUR MAKIN PRODUCT DEALER FOR APPLICABLE WARRANTY INFORMATION.
8. Warranty Procedures.
8.1 Warranty Repair Procedure. If any Product fails during the Warranty Period for reasons covered by our limited warranty and you notify us of such failure during the Warranty Period, we will at our option repair or replace a nonconforming Product with new, equivalent to new, or reconditioned parts or Product or, if either of the foregoing is commercially impractical in Makin’s determination, refund the Product purchase price you paid (excluding separate costs of installation, if any) upon your return of the Product in accordance with our product return procedures as referenced in Section 5 above. Any repaired or replaced Product will be warranted for a period of 30 days or the remainder of the original Warranty Period, whichever is longer. We may, in our sole discretion, arrange for fulfillment of our warranty obligations through a Makin affiliate, authorized distributor or an authorized warranty service center.
8.2 Determination of Warranty Applicability. We reserve the right to refuse warranty services if the Product or Software date of purchase cannot be proven, if a claim is made outside the Warranty Period or if a claim is excluded under Section 7.2 above. Following our examination of your claim, we will notify you of warranty status and the repair cost of any out-of-warranty Product. At such time you must issue a valid purchase order to cover cost of the non-warranted Product repair and return freight, or authorize return shipment of the Product at your expense as-is.
8.3 Not Responsible for Lost Data. We are not responsible for any modification or damage to, or loss of any programs, data, or other information stored on any media or any part of any Product serviced by us, or stored or hosted by us in connection with a Software service we provide, or for the consequence of such damage or loss, (such as business loss in the event of system, program or data failure.) You are solely responsible for backing up data and removing all features, parts, alterations, and attachments not covered by warranty prior to releasing the Product to Makin for service or seeking Software support. Any Product or Software sent to Makin for support may be returned to you configured as originally provided to you by Makin.
9. LIMITATION OF LIABILITY AND INDEMNIFICATION. OUR ENTIRE LIABILITY FOR ANY AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS IS LIMITED TO THE AMOUNTS YOU ACTUALLY PAID TO US UNDER THE TERMS. FURTHER, NEITHER WE NOR OUR SUPPLIERS ARE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, PUNITIVE DAMAGES OR OTHER DAMAGES, OR LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF DATA, LOSS OF USE OF THE PRODUCTS OR SOFTWARE OR ANY ASSOCIATED EQUIPMENT, COSTS OF COVER, DOWNTIME AND USER TIME OR FOR BREACH OF ANY EXPRESS OR IMPLIED WARRANTY OR CONDITIONS, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL THEORY RELATED TO THE PRODUCTS OR SOFTWARE. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, ANY IMPLIED WARRANTY OF SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE APPLYING TO THE PRODUCTS OR SOFTWARE IS LIMITED IN DURATION TO THE DURATION OF THE WARRANTY SPECIFIED IN SECTION 7, ABOVE. YOU AND WE AGREE THAT THESE LIMITATIONS OF LIABILITY ARE AGREED ALLOCATIONS OF RISK CONSTITUTING IN PART THE CONSIDERATION FOR MAKIN’S SALE OF PRODUCTS TO YOU, AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
IN CASE A THIRD PARTY (DEFINED AS ANY PHYSICAL OR LEGAL PERSON/ENTITY THAT ARE NOT A PARTY TO THESE TERMS) DIRECTS ANY CLAIM (E.G. FOR LOSS, LIABILITY, COST, ETC.) DIRECTLY AGAINST MAKIN, AS A RESULT OF CIRCUMSTANCES CAUSED, IN WHOLE OR IN PART, BY YOUR FAULT OR NEGLIGENCE, YOU SHALL, WITHOUT LIMITATION AND REGARDLESS OF THE CAUSE AND ANY POTENTIAL DEGREE OF NEGLIGENCE, INDEMNIFY AND HOLD HARMLESS MAKIN FOR SUCH A CLAIM AND ALL RELATED COSTS IN THAT REGARD.
10. Intellectual Property Ownership. You agree that Makin (or its affiliated companies, including holding companies, sister companies and subsidiaries) owns all right, title and interest to all intellectual property and other proprietary rights to documents and materials, calculations, drawings, models, plans, sets of tools, technology, software, designs, engineering details, schematics and similar data relating to or incorporated in the Products and Software and any accompanying documentation or information derived from the foregoing. You shall take reasonable precautions to prevent unauthorized access and use of the Software and documentation by third parties. To the extent permitted by relevant law, you shall not, nor allow any third party to copy, decompile, disassemble or otherwise reverse engineer the Products or Software, or attempt to do so. You are prohibited from, and shall prevent any third party from, removing, covering or altering any of our patent, copyright or trademark notices placed upon, embedded in or displayed by the Products or Software or their packaging and related materials. We reserve all rights in the Products and Software not specifically granted to you under these Terms.
11. Export Control. You may not use or otherwise export or re-export the Products or Software except as authorized by the laws of the jurisdiction in which they were obtained. In particular, but without limitation, the Products and Software may not be exported or re-exported in violation of export laws, including if applicable export or re-export into any by EU or regional embargoed countries. You represent that you are not located in any country or on any list where the provision of Products or Software to you would violate applicable law. You also agree not to use or enable use of them for any purposes prohibited by applicable law or export or re-export any Product or Software with knowledge that it will be used in the design, development, production or use of chemical, biological, nuclear or ballistic weapons. Laws and regulations change frequently. It is your responsibility to know the law pertaining to export/import procedures in the country of destination of the Product and Software. You shall defend, indemnify and hold us harmless against any liability (including attorneys’ fees) arising out of your failure to comply with the terms of this paragraph.
12. Default. We reserve the right by written notice of default to cancel or indefinitely suspend an accepted order and to refuse additional orders if: (i) you default in performing your obligations under these Terms, (ii) you cease business operations or enter into any bankruptcy, insolvency, receivership or like proceeding not dismissed within 30 days, or assign your assets for the benefit of creditors, or (iii) when obtaining third-party financing in connection with your Product purchase(s) you fail to do so in a timely manner on terms satisfactory to us.
13. Applicable law – Settlement of Disputes. These Terms and any dispute, claim or controversy arising therefrom shall be governed by the laws of Norway, excluding all conflicts of laws principles and excluding the United Nations Convention on Contracts for the International Sale of Goods. The ordinary courts at the headquarters of Makin in Ingelsrudvegen 350, 2324 Vang H., Norway, shall have exclusive jurisdiction. Makin shall, in its sole discretion, also have the right to invoke the courts of law having jurisdiction at your domicile or place of business..
No dispute or legal action arising under these Terms, may be brought by either party more than one (1) year after such cause of action accrued, except that an action for nonpayment may be brought within two (2) years of the date of the last payment.
14. Severability. These Terms may be severable and the invalidity, illegality or unenforceability in whole or in part of any provision does not affect the validity of other provisions.
15. Force Majeure. Neither party will be liable for non-performance (except for payment obligations) due to causes beyond its reasonable control, provided that such party promptly notifies the other in writing of such occurrence and makes its best efforts to promptly eliminate the effect thereof.
16. Waste Electrical & Electronic Equipment (WEEE). If the Products are furnished to you as component products on an OEM basis, or for import, resale or distribution to third parties, then you agree that you qualify as, and are deemed the “producer” of all such Products under any laws, regulations or other statutory scheme providing for the marking, collection, recycling, take-back, and/or disposal of electrical and electronic equipment (“WEEE Regulations”) in any jurisdiction whatsoever, (e.g., national laws implementing EU Directive 2012/19 on waste electrical and electronic equipment, recast), and are solely responsible for complying with all such applicable WEEE Regulations in connection with those Products and for all associated costs.
17. Official Language. The official language of these Terms is English. If there is a conflict between versions of these Terms in any other language, the English language version controls.
