Terms & Conditions of Sale
PLEASE READ THE FOLLOWING TERMS CAREFULLY, AS PURCHASING, LICENSING AND/OR USING THE RELATED PRODUCTS, SOFTWARE, OR SERVICES INDICATES AGREEMENT WITH, AND ACCEPTANCE, OF THESE TERMS.
THESE ARE THE CURRENT TERMS AND CONDITIONS OF SALE (“TERMS”) OF PURPLE PLATYPUS (A RESELLER OF PRODUCTS) AND/OR ITS AFFILIATES (COLLECTIVELY, “PURPLE PLATYPUS”), WHICH APPLY TO ANY SALE OF PRODUCTS SOLD BY PURPLE PLATYPUS, MANUFACTURER’S LICENSING OF ACCOMPANYING SOFTWARE, AND/OR THE PROVISION OF SERVICES (THE TERMS “PRODUCTS”, SOFTWARE” AND “SERVICES”, AS DEFINED BELOW). YOU, ON BEHALF OF YOURSELF AS AN INDIVIDUAL, YOUR EMPLOYER, OR ANOTHER ENTITY WHICH HAS NOT PREVIOUSLY ACCEPTED THESE TERMS (YOU AND SUCH ENTITIES, COLLECTIVELY, “CUSTOMER”), REPRESENT AND WARRANT THAT CUSTOMER HAS AUTHORITY TO ACCEPT, AND HAS READ, UNDERSTOOD AND AGREED TO, THESE TERMS. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, ANY DOWNLOAD, ACCEPTANCE OR USE BY CUSTOMER OF ANY PRODUCTS SOLD BY PURPLE PLATYPUS, MANUFACTURER’S SOFTWARE, AND/OR SERVICES SHALL CONSTITUTE AN IRREVOCABLE ACCEPTANCE OF THESE TERMS. IF CUSTOMER DOES NOT AGREE TO BE BOUND BY THESE TERMS, THEN CUSTOMER SHALL PROMPTLY RETURN PRODUCTS, DELETE OR RETURN LICENSED SOFTWARE AND NOT USE ANY RELATED SERVICES.
Purple Platypus is not a manufacturer. Purple Platypus performs the functions of a reseller. The terms and conditions below may reference one or more manufacturer’s terms and conditions depending on the items being purchased.
1. SALE AND PURCHASE; LICENSE.
1.1. Products. Purple Platypus agrees to sell to Customer, and Customer agrees to purchase, the system(s) (“System”), System parts (“Parts”), proprietary components such as resins and thermoplastics and/or other consumables (collectively, “Consumables”), and/or other ancillary products (collectively, the “Products”) and/or Services (as defined in Section 1.3 (Services) below) that are set forth in any purchase order or any other Purple Platypus-approved written purchase agreement tendered to Purple Platypus (each a “Purchase Order”), any and all of which shall be governed by these Terms, notwithstanding any conflicting or additional provisions in any such Purchase Order or other Customer communication. No purported waiver or other modification of these Terms will be effective unless, and only to the extent, specified by an express waiver or modification signed by an executive officer of Purple Platypus. All other proposed modifications or waivers (whether whole or partial) of these Terms are hereby objected to and rejected in all respects.
1.2. Software and Documentation. Customer agrees to the manufacturer’s terms and conditions related to software licensing.
1.3. Services. Customer agrees to the manufacturer’s Service terms.
1.4. Restrictions on Use. Customer agrees the manufacturer’s conditions of use.
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.
Purple Platypus will attempt to cooperate with Customer’s requested delivery dates or other related delivery requests, but cannot and does not warrant quoted shipment or delivery dates or time frames, and may fulfill ordered items by partial and incremental shipments, in its sole discretion. Customer acknowledges and agrees that all costs and obligations associated with shipment and delivery of Products shall be borne solely by Customer; that any insurance desired therefore shall be Customer’s sole obligation and expense; and that in no event shall Purple Platypus be liable for any direct or indirect damage or loss that the Customer may incur resulting from any delivery failure or delay. Customer will notify Purple Platypus in writing within ten (10) calendar days following the date of delivery of any alleged Product defect or other Purchase Order discrepancies, and the Products and licensed Software shall be deemed to be accepted in the quantity specified on the bill of lading or commercial invoice and in good condition, and such acceptance will operate as a bar to claims against Purple Platypus, if no such notice is received.
4. Transfer of Risk and Title.
Shipments by PURPLE PLATYPUS are made as FOB Origin and title, ownership and risk of loss passes to you upon time Product is shipped.
5. Payment and Taxes.
5.1. Cancellation Rights and Procedures. Customer may cancel or modify a pending Purchase Order only by giving written notice thereof to Purple Platypus within three (3) business days after submission of the Purchase Order to Purple Platypus. Thereafter, Customer may not cancel or change any Purchase Order without Purple Platypus’ prior written consent.
5.2. Payments and Credit. Customer shall pay for the Products, Software and/or Services as and within the time frames or on or before the date(s) specified in the Purchase Order, and is not entitled to and shall not suspend payments, set off or otherwise deduct from any amounts invoiced by Purple Platypus. No rights to purchase Products on credit are conferred herein, and any extension, modification or withdrawal of credit and credit terms are reserved solely to Purple Platypus in its discretion. Except as otherwise agreed in the Purchase order, all payments are due in U.S. dollars.
5.3. Remedies. In the event Customer is in default in the payment of any sum invoiced by Purple Platypus, then, without prejudice to Purple Platypus’ other rights and remedies:
- All outstanding sums shall immediately become due and payable to Purple Platypus, notwithstanding any credit terms previously granted by Purple Platypus to the Customer;
- Purple Platypus may delay or suspend delivery of Products, Software and/or Services hereunder, or cancel any existing, pending or new orders and/or agreements with the Customer;
- Purple Platypus may retain up to 5% of total Purchase Order from any amount already paid to it by Customer; and
- Purple Platypus may recover its reasonable attorney’s fees and other expenses incurred in enforcing its rights and remedies hereunder. Any amounts not paid by Customer when due shall bear interest at the rate of one and one-half percent (1.5%) per month or the highest legal rate of interest (whichever is lower).
5.4. Taxes. All prices are exclusive of, and Customer shall pay, all applicable sales, use and other taxes or duties imposed, or otherwise due, on the sale, purchase or license of the Products, Software and/or Services, except for those taxes imposed upon Purple Platypus’ net income.
6. 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 PURPLE PLATYPUS 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.
PURPLE PLATYPUS 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 PURPLE PLATYPUS harmless against all claims, damages, or liability resulting from any breach of the foregoing.
7. Use of the Product; PURPLE PLATYPUS 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 PURPLE PLATYPUS to assist you in making your determination, but PURPLE PLATYPUS will not be liable for errors in that information, for your reliance on any information provided by PURPLE PLATYPUS or for any decision you make in respect of the Product and/or use of the Product. You hereby represent and warrant to PURPLE PLATYPUS 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 PURPLE PLATYPUS 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 PURPLE PLATYPUS 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.
8. Intellectual Property/Software License.
The Manufacturer and its licensors own all intellectual property rights in the Product, and to all components, the Software and other aspects of the Product. If PURPLE PLATYPUS accepts your order for a Product, you will acquire no interest or rights in the manufacturer’s intellectual property, and your use of the Product will be subject to the manufacturer’s Software License Agreement, which you are being separately asked to review and agree to, the manufacturer reserves all rights in and to the Product not granted expressly in these Terms or other additional license terms.
9. Limited Warranty and Disclaimer
The manufacturer’s Limited Warranty covering the Product is described on the manufacturer’s website. By completing the steps to place your order, you acknowledge and agree that you have also reviewed and accepted the manufacturer’s 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 THE MANUFACTURER 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 PURPLE PLATYPUS 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. PURPLE PLATYPUS 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. PURPLE PLATYPUS 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. PURPLE PLATYPUS 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 PURPLE PLATYPUS 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, PURPLE PLATYPUS 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 PURPLE PLATYPUS has obtained, as regards the Product. TO THE MAXIMUM EXTENT NOT OTHERWISE PROHIBITED BY LAW, PURPLE PLATYPUS 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.
10. Limitation of Liability.
TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT WILL PURPLE PLATYPUS 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 PURPLE PLATYPUS 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 PURPLE PLATYPUS 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 PURPLE PLATYPUS 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.
11. Governing Law.
- This Agreement shall be subject to, construed by and enforced in accordance with the state laws of California state without regard for its conflicts of laws principles and, if applicable, the law of United States of America.
- If legal action is commenced by either party, the validity, construction, and performance of this Agreement, and the legal relations between the parties shall be governed by the State of California, and the venue for such legal action shall be Orange County, California.
- Excluding provisions in Section 5.3, for any legal action, both parties will be responsible for their own respective attorneys’ fees.
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.
13. 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 Product and Software are owned by the respective manufacturers 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.
15. Trade Secrecy and Intellectual Property Restrictions.
The Product, and particularly the Software, contains confidential trade secret information of the Manufacturer. 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 PURPLE PLATYPUS, that makes similar equipment, 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. The name of the Manufacturer and its products are the intellectual property of the Manufacturer. Use of the Manufacturer’s trademarks without prior written authorization from the Manufacturer is a violation of the Manufacturer’s trademark protection. The manufacturer may pursue any persons which have used this intellectual property without written permission and may 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 the manufacturer. The use of any trademarks or copyrights without the prior written consent of the manufacturer is strictly prohibited. All other trademarks, service marks or copyrights are property of their respective owners.
16. Force Majeure.
If PURPLE PLATYPUS accepts your offer to purchase a Product, PURPLE PLATYPUS will not be liable to you for any delay, including any delay due to an event beyond PURPLE PLATYPUS’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 PURPLE PLATYPUS’ control.
17. Modification of These Terms.
We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time and PURPLE PLATYPUS 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 5.1. 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.
18. Entire Agreement.
These Terms, together with the manufacturer’s Limited Warranty, manufacturer’s Software License, and any other agreements expressly incorporated by reference into these Terms, are the entire and exclusive understanding and agreement between you and PURPLE PLATYPUS regarding your offer to purchase a Product and the other matters described in these Terms. These Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms. The provisions set forth in these Terms shall control over the terms of any purchase order, sales acknowledgement, invoice or other documents issued to PURPLE PLATYPUS by you. You may use your standard business forms or other communications to administer transactions under this Agreement, but use of such forms is for your convenience only and does not alter the provisions of these Terms. Any terms or conditions that are preprinted in such forms or that are included in an order acknowledgement that conflict with the provisions of these Terms are null, void, and of no effect. PURPLE PLATYPUS will not be bound by, and specifically objects to, any provision that is different from or in addition to the provisions of these Terms (whether proffered by you verbally or in any quotation, invoice, software license, shipping document, acceptance, confirmation, correspondence, or otherwise), unless such provision is specifically agreed to in a writing signed by both you and PURPLE PLATYPUS. Use of section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. Upon termination of these Terms, any provision that by its nature or express terms should survive, will survive. Both parties acknowledge that they have not been induced to enter into this Agreement by any representations or promises not specifically stated herein.
You may not assign or transfer this Agreement to any third person without PURPLE PLATYPUS’ prior written consent. Notwithstanding the foregoing, PURPLE PLATYPUS’ 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 19 shall be null and void and of no effect. PURPLE PLATYPUS 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.
21. Contact Information.
16842 Hale Ave, Irvine CA. 92606