PROTOMAX ORDER AGREEMENT
Please read all of these terms and conditions (“Terms”) carefully before submitting your order for an OMAX® ProtoMAX® abrasive-waterjet (the “Product” and including accessories thereto). By submitting your order, you agree to be legally bound by these Terms.
TERMS AND CONDITIONS
1. Order and Acceptance.
Each order you submit for a Product constitutes an offer to purchase that Product. Orders are only complete for OMAX processing and acceptance, when you a) provide your shipping address to us; b) have accepted the Terms and Conditions as contained herein; c) have accepted the Terms and Conditions for OMAX Terms of Service (for after-market transactions); d) have accepted the OMAX Software License Agreement), and e) have either completed your remittance, in full, for the transaction value, OR provided your Purchase Order, terms of which have been accepted by OMAX, OR obtained a financing commitment from a 3rd party lender, which financing commitment has been conveyed to and accepted by OMAX.
Acceptable means of remittance of amount due to OMAX include via credit card (VISA, MasterCard or American Express), ACH bank transfer, PayPal, or as otherwise designated on this website. As regards any 3rd party financing, you will remain responsible for and remit prior to the completion of this order entry, any difference between your order's transaction value and such 3rd party financing commitment, if less than your order's transaction value. Purchase Orders will be considered for review and acceptance only from educational and/or commercial entities, and not from non-commercial consumer entities. Acceptance of your order by OMAX will be conveyed to you pursuant to those means outlined at Section 24 herein. If OMAX rejects, rather than accepts your order, OMAX will, as your sole and exclusive remedy and OMAX's sole and exclusive liability, promptly refund the amount you paid, (notwithstanding Section 5).
Following acceptance of your order, OMAX will notify you via email, to the address provided by you, once your Product is ready for shipping, generally within two to four weeks in advance of the anticipated shipping date. All orders for which remittance has been completed in full, or for which Purchase Orders have been accepted or alternative 3rd party financing has been arranged will receive priority in shipping order, as such orders are accepted. If you have any questions, comments, or concerns regarding OMAX's order acceptance policy, or if you believe that your order was rejected in error, please contact OMAX at firstname.lastname@example.org. If you do not provide your shipping information within 30 days of OMAX's request, OMAX may provide you a refund of any funds remitted, (subject to a processing fee; see Section 5), or continue to attempt to contact you, at OMAX's sole discretion. If OMAX does not receive a response from you within 90 days of OMAX's initial request for your shipping address, or if OMAX is not able to process your refund after that 30 day period (for example, due to a cancelled credit card or closed PayPal account), then OMAX will treat the amount that you paid as unclaimed property in accordance with applicable law.
By agreeing to these Terms, you represent and warrant to us that you are at least 18 years old. If you are offering to purchase a Product on behalf of an entity, organization, or company, you represent and warrant that you have the legal authority to bind that organization to these Terms and you agree to be bound by these Terms on behalf of that organization.
In order for your offer to be eligible for OMAX's acceptance, you must either pay the entire transaction value of the Product, in full, as set forth on the OMAX website by credit card through PayPal, or any other acceptable payment method designated on our website, OR have submitted a Purchase Order or alternate financing transaction, the terms of which have been accepted by OMAX For certain types of buyers, whether commercial, industrial or consumer, OMAX may also, from time to time, be able to arrange third party financing of all or a portion of the purchase price, upon terms and conditions of approval which will be solely and exclusively determined by such 3rd party finance source(s). You will remain responsible for remittance to OMAX of any portion of the transaction which is not otherwise provided for in any such 3rd party financing transaction. You understand and agree that you are liable for any fines, interest, penalties, reasonable attorney fees, collection fees, taxes or other expenses incurred by OMAX as a result or failure to pay agreed upon terms, declined credit cards, credit card charge backs, NSF (Not Sufficient Funds) bank checks and any other forms of payment that are declined or refused in any way. You agree to pay interest on your outstanding balance due at a rate of 1.5% interest per month (18% annually) for every day where payment is past due.
Please be aware that the specifications for the Product may change prior to acceptance of your order and shipping, and you will be notified of any changes upon order acceptance.
Pursuant to any request for refund, OMAX will only refund the amount paid, less a processing cost of 10%, unless otherwise provided for herein.
6. Shipping and Delay.
Product is generally expected to ship within six to eight weeks from acceptance of your order. However, any shipping date is an estimate only, and the actual shipping date for any accepted order will depend on a variety of factors including, but not limited to, the manufacturing schedule, and the dates of your completed order, and when we accept your completed order. Commencement of shipping is subject to change without notice to you. Freight charges for shipments within the continental United States have been established at a flat rate and are included in the total cost for the Product to be shipped. Separate freight costs, if any, for any other accessories and other components, which may be shipped separately, will be invoiced for those separate shipments, as provided at the time of order. For shipments outside of continental United States, and internationally, OMAX has listed shipping charges for each country on our website, and you must pay all shipping charges for the location of the address you provide. You must also pay all tariff, import, customs, tax, and other charges applicable in your jurisdiction. If shipping costs to the address that you provide for an accepted order are higher than the shipping costs you paid at the time that you offered to purchase a Product, OMAX may, in its sole discretion, require you to pay additional shipping fees or provide a refund, (subject to a processing fee; see Section 5).
7. Transfer of Risk and Title.
For destinations within the continental United States, shipments by OMAX are made as FOB destination and title, ownership and risk of loss passes to you upon arrival of Product at your destination. For all other destinations outside of continental United States, including Alaska or Hawaii, shipping is arranged as FOB shipping point, will be charged separately, and title, ownership and risk of loss passes to you at shipping point. In all such FOB destination cases, you should arrange immediate inspection of the Product, upon arrival at your destination facility, as any claim for damage alleged from shipping must be received by OMAX within forty-eight (48) hours following arrival of Product at your destination facility.
The Product prices are exclusive of all taxes, including without limitation state and federal sales taxes, import and export duties, value added taxes, levies and charges. These tax charges are your responsibility and if you are tax exempt, you must provide appropriately executed documentation prior to shipment of Product. If you are purchasing the Products from a jurisdiction outside of the United States of America, please check with your provincial and country's customs office to determine what these additional costs or fees will be owed by you prior to completing your order.
9. Export Control.
You acknowledge that the Product(s) may be subject to export control laws and other laws and regulations of the United States and other countries, and that if OMAX ships a Product to you outside the United States of America, the Product may be impounded or otherwise confiscated by customs or other authorities. You are responsible for ensuring compliance with all applicable export control laws and regulations. You represent that you will not import, export, re-export, or transfer indirectly or directly any Product without obtaining proper authorization from the applicable government agencies. Without limiting the immediately preceding sentence, you will not import, export, reexport, or transfer directly or indirectly any Product to any destination for an end use that is prohibited by applicable law.
You may not use or otherwise export or re-export the Product, except as authorized by United States law and the laws of the jurisdiction in which the Product was obtained. In particular, but without limitation, the Product may not 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. Department of Commerce Denied Person's List or Entity List. By using the Product, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons.
The software and related documentation included with the Product (“Software”) are "Commercial Items", as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
OMAX is not liable to you in any way whatsoever for (i) the actions of any governmental authorities, including customs authorities; or (ii) your duty to confirm and comply with any export rules and regulations. You will defend and hold OMAX harmless against all claims, damages, or liability resulting from any breach of the foregoing.
10. Use of the Product; OMAX Service.
You represent that the Product is for your own use and not purchased for resale. Use of the Product may be subject to local laws, regulations, and ordinances in your jurisdiction, including air quality laws, noise control laws, criminal laws, health and safety laws, and any other applicable municipal, local, provincial, state, federal and international laws, rules and regulations. You are responsible for complying with all applicable laws. It is your responsibility to determine whether your use of the Product complies with any national, state/provincial and/or local laws, regulations, and ordinances and we do not endorse the Product for any particular use whatsoever. You may request information about the Product from OMAX to assist you in making your determination, but OMAX will not be liable for errors in that information, for your reliance on any information provided by OMAX or for any decision you make in respect of the Product and/or use of the Product. You hereby represent and warrant to OMAX that you will only use the Product in accordance with any and all applicable laws, rules and regulations in your applicable jurisdiction. You understand and agree that OMAX may terminate your after-market support, if any, if we discover or have a good faith reason to believe that you are using the Products in violation of such applicable laws, rules or regulations.
Nothing in these terms or any information that OMAX provides to you is intended to be or constitutes legal advice, and we strongly encourage you to consult a legal professional to determine whether your intended use of the Product complies with the laws and regulations applicable in the jurisdiction in which you intend to use the Product. If you do not have sufficient information to determine whether your use of the Product will comply with all applicable laws, regulations, and ordinances, then you should not offer to purchase the Product. If you rescind your offer prior to our acceptance of it, then in this case, we will refund to you the full amount you paid in connection with your offer. You must also use the Product in strict accordance with the user documentation provided together with the Product.
11. OMAX After-Market Terms of Service.
OMAX may provide access to future software developments, bug fixes, marketing materials, and spare parts and consumables through its OMAX Marketplace website. Use of the OMAX Marketplace website is subject to the OMAX Terms of Service, and by placing an order for the Product, you hereby acknowledge and agree that you have read the OMAX Terms of Service agreement and agree to be bound to its terms. If you violate the OMAX Terms of Service, you may not be able to use the Product, obtain after-market support, including spare parts and consumables, or certain features and/or improvements in the Product. OMAX will not be liable for your inability to use the Product. .
12. Intellectual Property/Software License.
OMAX and its licensors own all intellectual property rights in the Product, and to all components, the Software and other aspects of the Product. If OMAX accepts your order for a Product, you will acquire no interest or rights in OMAX's intellectual property, and your use of the Product will be subject to the OMAX Software License Agreement, which you are being separately asked to review and agree to, OMAX reserves all rights in and to the Product not granted expressly in these Terms or other additional license terms.
13. Limited Warranty and Disclaimer.
The OMAX Limited Warranty covering the Product is described at: www.protomax.com. By completing the steps to place your order, you acknowledge and agree that you have also reviewed and accepted the OMAX Limited Warranty. If you do not agree with the limited warranty terms, as stated, do not complete your order. EXCEPT AS MAY BE EXPRESSLY PROVIDED BY OMAX IN THE LIMITED WARRANTY, AT THE TIME THE ORDER FOR THE PRODUCT IS ACCEPTED, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PRODUCT IS PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT GUARANTEED WARRANTY OF ANY KIND, AND OMAX HEREBY DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THE PRODUCT, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO: (A) THE IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. OMAX DOES NOT WARRANT THAT USE OF ANY PRODUCT WILL BE UNINTERRUPTED OR FREE OF ERRORS OR OTHER HARMFUL COMPONENTS, AND DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. OMAX DOES NOT WARRANT THAT ANY PRODUCT COMPLIES WITH ALL APPLICABLE LAWS OR REGULATIONS IN ANY PARTICULAR JURISDICTION. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF THE PRODUCT. OMAX FURTHER DISCLAIMS ANY AND ALL RESPONSIBILITY, TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, FOR YOUR PREMISES IN WHICH THE PRODUCT WILL BE LOCATED, INCLUDING NO RESPONSIBILITY TO OMAX FOR THE AVAILABILITY OF APPROPRIATE UTILITIES (SUCH AS BUT NOT LIMITED TO, POWER OR WATER), OR FOR ANY OTHER PHYSICAL AND/OR ENVIRONMENTAL CHARACTERISTICS OF YOUR PREMISES.
Upon request, and also as otherwise may accompany the Product at shipment, OMAX will provide you a list of Product Certifications, regarding mechanical, electrical and safety aspects, eg.: Underwriter's Lab (“UL”), compliance with European “CE” requirements, that OMAX has obtained, as regards the Product. TO THE MAXIMUM EXTENT NOT OTHERWISE PROHIBITED BY LAW, OMAX OTHERWISE MAKES NO WARRANTY AND DISCLAIMS ANY AND ALL RESPONSIBILITY FOR COMPLIANCE WITH ANY FEDERAL, STATE, PROVINCIAL OR LOCAL LAWS, PRODUCT CODES, ORDINANCES AND THE LIKE, AS REGARDS MECHANICAL, ELECTRICAL, SAFETY, PRODUCT TESTING AND CERTIFICATION, FOR WHICH YOU WILL INSTEAD BE SOLELY AND COMPLETELY RESPONSIBLE FOR COMPLIANCE THERETO.
14. Limitation of Liability.
TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT WILL OMAX BE LIABLE FOR PERSONAL INJURY, OR ANY DIRECT, INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES WHATSOEVER, ARISING OUT OF OR RELATED TO THESE TERMS OR YOUR USE OF OR INABILITY TO USE ANY PRODUCT, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF OMAX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION WILL OTHERWISE THEN APPLY TO THE MAXIMUM EXTENT PERMITTED IN SUCH JURISDICTION. YOU AGREE THAT IF ANY LAWSUIT OR COURT PROCEEDING IS PERMITTED UNDER THESE TERMS, THE AGGREGATE LIABILITY OF OMAX AND ITS AFFILIATES AND SUPPLIERS TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THESE TERMS OR YOUR USE OR INABILITY TO USE A PRODUCT WILL NOT (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE AMOUNT YOU PAID TO OMAX FOR THAT PRODUCT. THESE LIMITATIONS WILL APPLY TO ANY THEORY OF LIABILITY, WHETHER BASED ON WARRANTY, CONTRACT, STATUTE, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES.
15. Governing Law.
This Agreement shall be subject to, construed by and enforced in accordance with the state laws of Washington state without regard for its conflicts of laws principles and, if applicable, the law of United States of America. The parties agree to attorn to the exclusive jurisdiction of the state and federal courts sitting at Seattle, Washington, USA, provided that nothing in this Agreement shall prevent OMAX from taking action in any court of competent jurisdiction to seek injunctive and equitable relief to restrain you from any breach of this Agreement. These Terms will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
If any term of this Agreement is found to be unenforceable or contrary to law, it will be modified to the least extent necessary to make it enforceable, and, if the foregoing modification is not possible, it shall be severed from this Agreement, and the remaining portions of this Agreement will remain in full force and effect.
17. Attorneys' Fees.
In addition to any other rights hereunder, the substantially prevailing party, as a court of competent jurisdiction as provided above) may determine, in any claim or other dispute which relates to this Agreement, regardless of whether such claim or other dispute arises from a breach of contract, tort, violation of a statute or other cause of action, shall have the right to recover and collect from the other party its reasonable costs and expenses incurred in connection therewith, including, without limitation, its reasonable attorneys' fees incurred in any litigation or appeal therefrom. If a party substantially prevails on some aspects of such claim or dispute but not others, the court may apportion any award of costs or attorneys' fees in such manner as it deems equitable. Attorney's fees and costs shall also be recoverable in any action to enforce the award.
18. Relation of Parties.
Nothing in this Agreement will create or imply an agency relationship between the parties, nor will this Agreement be deemed to constitute a joint venture or partnership between the parties.
The Software is owned by OMAX and is protected by United States copyright laws and international treaty provisions. You may not remove the copyright notice from any copy of the software or any copy of the written materials, if any, accompanying the Product.
20. Trade Secrecy and Intellectual Property Restrictions.
The Product, and particularly the Software, contains confidential trade secret information of OMAX. You may not use the Product or any element of the Product as a model or instructional aid to reverse engineer the Product or any element, component or aspect thereof. If you or any person using the Product works for a corporation, partnership, or any other type of entity, other than OMAX, that makes water jet or abrasive water jet cutters, you may not, under any circumstances use the Product or allow any third party under your affiliation or control to use the Product for any purpose. “OMAX” and “PROTOMAX” are the intellectual property of OMAX. Use of OMAX trademarks without prior written authorization from OMAX is a violation of OMAX's trademark protection. OMAX will pursue any persons which have used this intellectual property without written permission and will prosecute to the fullest extent of the law. Unless otherwise specified, all materials, including the text, instruction manuals, designs, logos, graphics, icons, and images, as well as the selection, assembly and arrangement are the intellectual property of OMAX. The use of any of trademarks or copyrights without the prior written consent of OMAX is strictly prohibited. All other trademarks, service marks or copyrights are property of their respective owners.
21. Force Majeure.
If OMAX accepts your offer to purchase a Product, OMAX will not be liable to you for any delay, including any delay due to an event beyond OMAX's reasonable control, such as an act of God, terrorism, war, political insurgence, insurrection, riot, civil unrest, act of civil or military authority, uprising, earthquake, flood or any other natural or man-made eventuality outside of OMAX's control.
23. Modification of these Terms.
We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time and OMAX will notify you of any such changes. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, you should determine to timely accept the modified Terms, or your order will be cancelled and refund provided pursuant to Section 5. Material modifications are effective upon your acceptance of the modified Terms. Immaterial modifications are effective upon publication. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
24. Consent to Electronic Communications.
25. Entire Agreement.
You may not assign or transfer this Agreement to any third person without OMAX's prior written consent. Notwithstanding the foregoing, OMAX's consent shall not be required in connection with (a) any transfer of equity interests, or (b) any assignment to (1) any affiliated entity under common control with you, (2) the surviving entity resulting from a merger or consolidation of you, (3) the acquirer of substantially all of your assets, or (4) the acquirer of the operating division of you then utilizing the Product. Any purported assignment by you other than in accordance with this Section 26 shall be null and void and of no effect. OMAX may assign these Terms at any time without notice or consent, so long as the assignee accepts all of the Terms hereto, without exception.
The waiver by any party of any breach of this Agreement will not be construed to be a waiver of any succeeding breach. All waivers must be in writing, and signed by the party waiving its rights.
28. Contact Information.
OMAX Corporation, 21409 72nd Ave. S., Kent Washington 98032 USA. You may contact us by sending correspondence to that address or by emailing us at email@example.com.