Terms and Conditions

ScaleMatrix – Dynamic Density Control™ Cabinet Technology Sales Terms & Conditions 

These terms and conditions ("Terms and Conditions") are applicable to all Sales Orders (as defined below) for the purchase, access and use of ScaleMatrix Holdings, Inc. ("ScaleMatrix") Products (as defined below) and, if applicable, the Support (as defined below) provided by ScaleMatrix. By executing a Sales Order, Customer (as defined below) acknowledges that it has read and understands these Terms and Conditions and agrees to be bound by them. Further, Customer acknowledges and agrees that these Terms and Conditions together with the Sales Order(s) countersigned by ScaleMatrix (collectively, the “Agreement”) are the entire agreement of the parties regarding the subject matter hereof and supersede any previous communications, representations or agreements between the parties, whether oral or written, regarding the transactions hereunder. Customer's additional or different terms and conditions, whether contained on a purchase order or purchase agreement executed by ScaleMatrix, will not apply. These Terms and Conditions as well as any applicable Sales Order may not be changed except by an amendment signed by an authorized representative of each party. 

1. Definitions
"Customer" means the purchaser of Products and/or Support pursuant to a Sales Order. 

"Products" means Devices, Software, documentation, accessories, supplies, parts, and upgrades that are determined by ScaleMatrix to be available from ScaleMatrix upon receipt of Customer's order. "Custom Products" means Products modified, designed, or manufactured to meet Customer Requirements. 

"Intellectual Property Rights" will mean all patents, copyrights, moral rights, trademarks, trade secrets and any other form of intellectual property rights recognized in any jurisdiction, including applications and registrations for any of the foregoing. 

"License Fee" means the fee or fees designated by ScaleMatrix for Use of Software. Different License Fees may apply to particular Software if more than one Software License is available for that Software. 

"Sales Order" means that certain order form between ScaleMatrix and Customer setting forth the Products and/or Support being purchased by Customer. If there are any conflicts between the various documents, those of an Attachment prevail over those of this Agreement. Customer accepts and is bound by the terms of the Agreement and the applicable Attachments by accepting delivery of the Product or Service. 

"Software" means one or more programs capable of operating on a controller, processor or other hardware Product ("Device"), and related documentation. Software is either a separate Product, included with another Product ("Bundled Software"), or fixed in a Device and not removable in normal operation ("Firmware"). 

"Software License" means the Software license grant and general license terms set forth herein. Each Software License has a corresponding License Fee. 

"Specifications" means a document that provides information specific to a Product. 

"Support" means hardware maintenance and repair, Software updates, and maintenance; training and other standard support services provided by ScaleMatrix. "Custom Support" means any agreed non-standard Support, including consulting and custom project services. 

"Use" means storing, loading, installing, executing, or displaying Software on a Device, or powering up of purchased hardware. 

2. Prices/Charges
The amount payable for Product or Support will be based on one or more of the following types of charges: One-time and recurring, time and materials, or fixed price. Additional charges may apply (such as special handling or travel related expenses). ScaleMatrix will inform Customer in advance whenever additional charges apply. Prices are valid for the period quoted by ScaleMatrix for the applicable Sales Order ordering period, whichever expires first. 

Product prices for an order remain valid for ninety (90) days from the original order date unless otherwise quoted by ScaleMatrix. Change orders that extend delivery beyond those validity periods become new orders at prices in effect when ScaleMatrix receives the change orders. Support prices, except for Custom and prepaid Support, may be changed by ScaleMatrix upon sixty (60) days written notice. An increase applies on the first day of the invoice or charging period on or after the effective date ScaleMatrix specifies in the notice. 

Prices are exclusive of, and Customer will pay applicable sales, use, consumption, goods and service, value added or like taxes, unless Customer has provided ScaleMatrix with an appropriate exemption certificate for the delivery jurisdiction. 

3. Orders 
All orders are subject to acceptance by ScaleMatrix. Product orders must specify delivery within ninety (90) days from order date, unless otherwise agreed or quoted by ScaleMatrix. 

4. Delivery 
ScaleMatrix will make reasonable efforts to meet Customer's delivery requirements. If ScaleMatrix is unable to meet Customer's delivery requirements, alternative arrangements may be agreed. 

5. Shipping, Risk of Loss or Damage, and Title
ScaleMatrix will ship according to ScaleMatrix's standard commercial practice, and risk of loss or damage and title will pass from ScaleMatrix to Customer upon delivery to the ScaleMatrix designated carrier for shipment to Customer or its designated location. Thereafter, Customer assumes the risk of loss or damage and title will pass to Customer. Shipping and handling are additional unless otherwise expressly indicated at time of sale. If Customer requested special packing, or shipping instructions are agreed to by ScaleMatrix, charges will be billed separately to Customer. Customer must notify ScaleMatrix within ten (10) days of the date of the invoice if any part of the purchase is incorrect or damaged. 

6. Installation and Acceptance
Product installation information is available with Products, on quotations or upon request. Installation by ScaleMatrix, when included in the purchase price, is complete when the Product passes ScaleMatrix's standard installation and test procedures. 

For Products without installation included in the purchase price, acceptance by Customer occurs upon shipment from ScaleMatrix. For Products with installation included in the purchase price, acceptance by Customer occurs upon completion of installation by ScaleMatrix. If customer schedules or delays installation by ScaleMatrix more than thirty (30) days after delivery, Customer acceptance of the Product(s) will occur on the 31st day after delivery. 

7. Payment 
Payment terms are subject to credit approval by ScaleMatrix. Unless otherwise stated, payment is due based on the net terms issued with the sales order. ScaleMatrix may invoice parts of an order separately. Invoices for contractual support services and maintenance will be issued in advance of the Support period. ScaleMatrix may discontinue performance if Customer fails to pay any sum due, or fails to perform under this or any other ScaleMatrix agreement if, after ten (10) days written notice, the failure has not been cured. Amounts delinquent beyond the payment due date are subject to a 1.5% per month late fee prorated for the number of days past due. 

8. Warranty 
ScaleMatrix warrants that for five (5) years following the date of shipment, its Devices are free from defects in materials and workmanship. Within the five (5) year warranty period, ScaleMatrix will remedy any material defect in workmanship or materials. 

ScaleMatrix warrants that for ninety (90) days from the date of shipment of Software, that Software will not fail to execute its programming instructions when properly installed and used on the Devices designated by ScaleMatrix. ScaleMatrix further warrants that ScaleMatrix branded Software will reasonably conform to published specifications. 

ScaleMatrix does not warrant that Software will operate in hardware and software combinations selected by Customer, or meet requirements specified by Customer. ScaleMatrix does not warrant that the operation of Devices or Software products will be uninterrupted or error free. 

If ScaleMatrix receives notice of workmanship or materials defects or non-conformance to Device specifications, or substantial non-conformance to branded Software specifications during the warranty period, ScaleMatrix will, at its option, repair or replace the affected products. 

The warranties provided herein will apply only to branded Devices and Software products ("ScaleMatrix Branded"). ScaleMatrix does not warranty any third party products or components. The Original Equipment Manufacturers of third party products may provide their own specific warranties and support. 

The above warranties do not apply to defects resulting from:
1) Improper or inadequate maintenance by Customer;
2) Customer or third party supplied software;
3) Unauthorized modification;
4) Improper use or operation outside of the Specifications for the branded Product;
5) Abuse, negligence, accident, loss, or damage in transit;
6) Improper site preparation; or
7) Unauthorized maintenance or repair. 

THE ABOVE WARRANTIES ARE EXCLUSIVE AND NO OTHER WARRANTY, WHETHER WRITTEN OR ORAL, IS EXPRESSED OR IMPLIED. TO THE EXTENT PERMITTED BY LAW, SCALEMATRIX SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. CUSTOMER ACKNOWLEDGES AND AGREES THAT IT HAS RELIED ON NO WARRANTIES OTHER THAN THE EXPRESS WARRANTIES IN THE AGREEMENT. TO THE EXTENT AN IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE WARRANTY PERIOD. THIS DISCLAIMER AND EXCLUSION WILL APPLY EVEN IF THE EXPRESS WARRANTY SET FORTH ABOVE FAILS OF ITS ESSENTIAL PURPOSE. 

9. Support
Customer may order Support from ScaleMatrix's then current Support offering. Some Support (and related Products) may not be available in all countries. Orders for Support are subject to the terms of the Support Exhibit or quotation in effect on the date of order. To be eligible for Support, Products must be at current specified revision levels and, in ScaleMatrix's reasonable opinion, in good operating condition. 

Support does not cover any damage or failure caused by:
1) Use of non-ScaleMatrix media, supplies, and other products; or
2) Site conditions that do not conform to ScaleMatrix's site specifications; or
3) Neglect, improper use, fire or water damage, electrical disturbances, transportation by Customer, work or modification by people other than ScaleMatrix employees or subcontractors, or other causes beyond ScaleMatrix's control. 

Customer may delete cancel Support orders upon thirty (30) days written notice unless otherwise agreed in a Support agreement. ScaleMatrix may cancel Support orders or delete Products no longer included in ScaleMatrix's Support offering upon sixty (60) days written notice unless otherwise agreed in a Support agreement. 

10. Licenses
In return for the License Fee, ScaleMatrix grants Customer a non-exclusive license to Use the object code version of the Software listed in Customer's order in conformance with:
1) The terms set forth herein; and

2) Use restrictions and authorizations for the Software specified by ScaleMatrix in its quotation, invoice or terms that accompany the Software; and

3) ScaleMatrix's third party suppliers' terms that accompany the Software. 
Unless otherwise specified, in return for the applicable License Fee, ScaleMatrix grants Customer a license to Use one copy of the Software on one Device at any one time. Unless otherwise specified, all Software Licenses will be perpetual unless terminated. 

Software is owned and copyrighted by ScaleMatrix or by third party suppliers. Customer's Software License confers no title or ownership and is not a sale of any rights in the Software. Third party suppliers may protect their rights in the Software in the event of any infringement. 

Unless otherwise permitted by ScaleMatrix, Customer may only make copies or adaptations of the Software for archival purposes or when copying or adaptation is an essential step in the authorized Use of the Software on a backup Device, provided that copies and adaptations are used in no other manner and provided further that the Use on the backup Device is discontinued when the original or replacement Device becomes operable. 

Customer must reproduce all copyright notices in or on the original Software on all permitted copies or adaptations. Customer may not copy the Software onto any public or distributed network. 

Bundled Software or Firmware provided to Customer may only be used when operating the associated Device in configurations as sold or subsequently upgraded by ScaleMatrix. Customer may transfer Firmware only upon transfer of the associated Device. 

Updates, upgrades, or other enhancements are available under ScaleMatrix Support agreements. ScaleMatrix reserves the right to require additional licenses and fees for Use of the Software on upgraded Devices. 

Customer will not modify, disassemble, or decompile the Software without ScaleMatrix's prior written consent. 

Customer's Software License is transferable subject to ScaleMatrix's prior written authorization and payment to ScaleMatrix of any applicable fee(s). Upon transfer of the Software License, Customer will immediately deliver all copies of the Software to the transferee. The transferee must agree in writing to the terms of Customer's Software License. All Software License terms will be binding on involuntary transferees, notice of which is hereby given. Customer's Software License will automatically terminate upon transfer. 

ScaleMatrix may terminate Customer's or any transferee's or sublicensee's Software License upon notice for failure to comply with any applicable Software License terms. Immediately upon termination, the Software and all copies of the Software shall be destroyed or returned to ScaleMatrix. Copies of the Software that are merged into adaptations, except for individual pieces of data in Customer's or transferee's or sublicensee's database, shall be removed and destroyed or returned to ScaleMatrix. With ScaleMatrix's written consent, one copy of the Software may be retained subsequent to termination for archival purposes. 

11. Intellectual Property Rights; Ownership
As between ScaleMatrix and Customer, ScaleMatrix retains and shall own sole right, title and interest in and to all Intellectual Property Rights associated with the Products. ScaleMatrix will defend or settle any claim against Customer that ScaleMatrix Branded Products or Support (excluding Custom Products and Custom Support), delivered under Terms and Conditions, infringe a patent or copyright, trade secret or trademark in the country where Products are used, sold or receive Support, provided Customer: 1) promptly notifies ScaleMatrix in writing; and 2) cooperates with ScaleMatrix in, and grants ScaleMatrix sole control of the defense or settlement. 

If a claim is made or appears likely to be made, Customer agrees to permit ScaleMatrix to enable Customer to continue to use, modify or replace the Product with one that is functionally equivalent. If ScaleMatrix determines that none of these alternatives is reasonably available, ScaleMatrix will, upon return of the Products, refund Customer the Product's then net book value. 

ScaleMatrix has no obligation for any claim of infringement arising from:
1) ScaleMatrix's compliance with Customer's designs, specifications or instructions;
2) ScaleMatrix's use of technical information or technology provided by Customer;
3) Product modifications by Customer or a third party;
4) Product use prohibited by Specifications or related application notes; or
5) Product use with products that are not ScaleMatrix Branded. 

These terms state ScaleMatrix's entire liability for claims of intellectual property infringement. 

12. Limitations of Liability and Remedies
NEITHER SCALEMATRIX NOR ANY SCALEMATRIX AFFILIATE WILL BE LIABLE TO CUSTOMER OR ANY OTHER PARTY FOR ANY LOST PROFITS, LOSS OF USE, ANY BODILY OR MENTAL INJURY OR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, PHYSICAL LOSSES, MENTAL LOSSES OR ANY FINANCIAL LOSSES) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE PRODUCTS OR THE SUPPORT, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF SCALEMATRIX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUMULATIVE LIABILITY OF EITHER PARTY HEREUNDER WILL NOT EXCEED THE AMOUNT PAID BY CUSTOMER TO SCALEMATRIX UNDER THIS AGREEMENT. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION. THIS SECTION WILL BE GIVEN FULL EFFECT EVEN IF ANY REMEDY SPECIFIED IN THIS AGREEMENT IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. 

13. General
1) The Parties hereby agree that they may do business electronically, including contract formation, order placement and acceptance. Any orders placed by Customer and accepted by ScaleMatrix on any ScaleMatrix website or ScaleMatrix/Customer extranet site will create fully enforceable obligations that will be subject to the terms hereof. Such orders and acceptances will be deemed for all purposes to be:
a) Business records originated and maintained in documentary form,
b) A "writing" or "in writing,"
c) "Signed";
d) An "original" when printed from electronic files or records 

The Parties further agree not to contest the validity or enforceability of such transactions under the provisions of any applicable law relating to whether certain agreements are to be in writing or signed by the Party to be bound thereby and will be admissible if introduced as evidence on paper in any judicial, arbitration, mediation, or administrative proceeding to the same extent and under the same conditions as other business records originated and maintained in documentary form. In addition, the Parties agree that transactions may be conducted through Electronic Data Interchange or other electronic methods, as agreed by the Parties. Customer and ScaleMatrix will adopt commercially reasonable security measures to limit access to passwords and to limit access to unauthorized use of the sites or issuance of messages caused by the failure of its security measures. 

2) Neither party will be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, terrorist actions, acts of God, war, governmental action, labor conditions, earthquakes, material shortages or any other cause which is beyond the reasonable control of such party. 

3) If either party files for bankruptcy, is the subject of involuntary bankruptcy, has a receiver appointed, the other party may cancel any unfulfilled obligations. 

4) Customer may not transfer nor assign any rights or obligations hereunder without prior written consent from ScaleMatrix. 

5) Customer who exports, re-exports or imports Products, technology or technical data purchased hereunder, assumes responsibility for complying with applicable laws and regulations, and for obtaining required export and import authorizations. ScaleMatrix may suspend performance if Customer is in violation of applicable regulations. 

6) This Agreement will be governed by the laws of the State of California as they apply to contracts entered into and wholly to be performed within such State. Each party expressly consents to the nonexclusive personal jurisdiction and venue of the state and federal courts located in San Diego County, California for any lawsuit filed there by either party arising from or relating to this Agreement.

7) Any notice or communication required or permitted to be given hereunder must be in writing signed or authorized by the party giving notice, and may be delivered by hand, deposited with an overnight courier, sent by confirmed email, confirmed facsimile, or mailed by registered or certified mail, return receipt requested, postage prepaid, in each case to the address of the receiving party as identified on this Agreement or at such other address as may hereafter be furnished in writing by either party to the other party. Such notice will be deemed to have been given as of the date it is delivered 

8) Provisions herein which by their nature extend beyond the termination of any sale or license of Products or Support will remain in effect until fulfilled. 

9) If any term or provision herein is determined to be illegal or unenforceable, the validity or enforceability of the remainder of the terms or provisions herein will remain in full force and effect. 

10) The failure of either party to require performance by the other party of any provision hereof will not affect the full right to require such performance at any time thereafter; nor will the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself. 

11) If any provision of this Agreement is declared by any court of competent jurisdiction to be invalid or unenforceable, all other provisions of this Agreement will not be affected, will be legal, valid and enforceable to the fullest extent possible, and the invalid provision will be modified, or partially enforced, to the maximum extent permitted to effect the purpose of this Agreement.