Terms and Conditions
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DEFINITIONS
In these terms and conditions:
“SharpeSoft” refers to the seller, SharpeSoft, Inc. of Yuba City, California. “Buyer” refers to the entity (person, organization, or otherwise) willfully entering into a purchase agreement, written or verbal, with SharpeSoft. “Terms” refers to these terms and conditions. “Order” refers to any written or verbal order to purchase software, goods, or services from SharpeSoft. "Software" refers to any computer software and related documentation available from SharpeSoft – this includes computer software owned by SharpeSoft, third party computer software that has been provided for use in association with SharpeSoft's software, and computer software that has been custom designed, developed, or modified for Buyer. "Goods" refers to all hardware and other tangible products, but does not include Software or the media on which Software is stored. "Services" refers to any services provided by SharpeSoft to Buyer. Services include custom engineering and development, consulting, support, and training services. "Products" refers to any or all Software, Goods, and Services. “Custom Product” refers to any Software, Goods, or Services specifically designed, developed, and/or modified for the Buyer, including, but not limited to, electronic data. “Database” refers to any electronic database provided by SharpeSoft to the buyer for explicit use with SharpeSoft Software, including, but not limited to, Custom Product databases created from the Buyer’s raw data.
SCOPE
The terms and conditions of sale contained herein shall apply to all of Buyer’s Orders, in whatever format and however received, that are accepted by SharpeSoft. By accepting SharpeSoft’s proposal or by providing an Order for Products, Buyer shall be deemed to have accepted these terms and conditions. This acceptance by Buyer of these terms and conditions shall revoke any provision in the Order that purported to limit or restrict any terms or conditions contained herein. All of the terms and conditions contained herein shall supersede any additional or inconsistent provision in any Order. Provisions, terms, and conditions within any Order or other document submitted by Buyer to SharpeSoft that are inconsistent with the terms contained herein are hereby expressly rejected and shall not be binding upon SharpeSoft without its specific written consent. Buyer agrees that SharpeSoft's failure to specifically object to any such provisions, terms or conditions submitted by the Buyer shall not constitute an acceptance by SharpeSoft thereof, nor shall it constitute an acceptance by SharpeSoft of any waiver of, or modification to, the provisions hereof.
The acceptance by Buyer of the Terms, including the different terms and conditions contained herein, shall also indicate that the Buyer accepts and agrees to abide by the Agreements that are provided to the Buyer with the Products, including, but not limited to, End-User License Agreements. The Agreements shall supercede any inconsistent provisions in these Terms in respect of the specific Products to which they relate, and while the Agreements are subsisting. No modification hereof shall be valid unless in writing and duly signed by a person authorized by SharpeSoft.
SOFTWARE
All Software, including Custom Products, is provided to Buyer under license - it is not sold. SharpeSoft retains ownership of all Software provided to Buyer, including Custom Products. All Buyers must use Software strictly in accordance with the terms and conditions in the applicable Software license agreements entered into with SharpeSoft. Until such Software license agreements are in place, and the terms therein accepted by the Buyer, the Buyer cannot use, copy, distribute, or otherwise deal with any Software. Buyers must accept the terms of the End User License Agreement which accompanies the Software, copies of which can be obtained from SharpeSoft. These Terms shall not be construed to imply a license to use the Software in the absence of a license. By these Terms, SharpeSoft expressly rejects any implied license to use the Software. Software installation shall be performed by the Buyer. Installation by SharpeSoft is not available and is not included in any purchase of any Software.
ORDERS
All Orders are subject to acceptance by SharpeSoft. SharpeSoft reserves the right to accept or reject any Order in whole or in part, to submit counteroffers to the Buyer and, without prejudice to any other remedy, to cancel any unfilled Order. SharpeSoft may suspend Services under, or shipment of, any unfilled Order in the event any act or omission on the part of the Buyer is in breach of the Buyer's obligations hereunder or delays SharpeSoft’s performance hereunder.
PRICES, DELIVERY, & PAYMENT
All prices are subject to change without notice, except prices in a written proposal from SharpeSoft, which shall be honored as stated therein. All amounts are stated, and payments are to be made, in United States currency unless otherwise agreed by the parties in writing. Unless otherwise specified, the prices shown do not include any taxes. Buyer shall pay all taxes, levies, and duties of any nature whatsoever applicable to the Products supplied hereunder. Delivery dates are approximate. SharpeSoft shall use reasonable efforts to fill all Orders according to the shipment schedule provided, but in no event shall SharpeSoft guarantee shipment according to such schedule or be liable for damages due to delays in the delivery. Goods shipped or delivered are F.O.B. Yuba City, California, and Buyer shall pay all applicable shipping costs. Risk of loss passes to Buyer upon the earlier of delivery or
placement with a carrier. Claims relating to Product shipments must be made by the Buyer directly to the carrier. SharpeSoft is not liable for any incidental, consequential or special damages, interest, costs or expenses, or for damages for loss of use, loss of data, or loss of profits or wages, whether or not SharpeSoft knew such damages might be incurred. SharpeSoft’s liability is, in all cases, limited to replacement of defective media. All Orders are subject to credit approval before shipment. If, in SharpeSoft's judgment, Buyer's financial condition does not at any time justify payment terms as previously specified, SharpeSoft may cancel or suspend any unfilled Order. Buyer will be invoiced at time of shipment of Product for actual quantity of Product shipped. Where Buyer has established credit, payment shall be due within thirty (30) days from the date of invoice. Overdue accounts shall bear interest at a rate of one-and-one-half (1.5) percent per month or portion thereof, compounded monthly. Payment due date shall not be dependent upon dates of Software or Data installation by Buyer. SharpeSoft will not refund or credit amounts paid for Products actually rendered. SharpeSoft’s remedies for non-payment shall include, in addition to all other remedies provided by law, the right to repossess any Software or Goods in the possession of Buyer, purchased from SharpeSoft, the title for which has not passed to Buyer. Buyer shall surrender such goods upon demand to SharpeSoft or SharpeSoft’s agent. In the event it becomes necessary for SharpeSoft to incur any collection costs or suits to collect payment, the Buyer will be responsible for all such costs as the courts may adjudge reasonable for attorney fees on said suit. If, despite any default by Buyer, SharpeSoft elects to continue to make shipments or provide Products, SharpeSoft 's action in so doing shall not constitute a waiver of any default by Buyer or in any way prejudice SharpeSoft 's legal remedies for such default.
CUSTOM PRODUCTS
SharpeSoft provides no representation, guarantee, condition, or warranty, expressed or implied, with respect to the success, timeliness, or successful result of the Custom Product, including, but not limited to:
(i) the correctness or applicability of Buyer's designs, specifications, or instructions for any Custom Product, or (ii) the design, functionality, or performance of the Custom Product or any products derived from or using any of the Custom Products supplied hereunder, or (iii) the amount of time required for developing, producing, and/or implementing any Custom Product. Design changes may be necessary to correct unanticipated deficiencies resulting from manufacturing processes, software bugs, functional/operational issues, or other anomalies. Development times and milestones provided by SharpeSoft for any Custom Product are estimates only. SharpeSoft retains sole discretion to assign and control its staff in the production of Custom Products or in the performance of any work associated with the development of Custom Products. Other than specified herein, all Custom
Products are licensed to Buyer "AS IS, WITH ANY AND ALL DEFECTS.” Revisions, modifications, or testing requested by the Buyer that are beyond the original scope of any Custom Product Order accepted by SharpeSoft may result in additional charges to Buyer. Should Buyer cancel any Order for Custom Products, Buyer shall pay to SharpeSoft that portion of the purchase price equal to the portion of the Custom Products completed or the Services performed prior to and including the date of receipt of notice of cancellation. Custom Product Software, as with all Software provided by SharpeSoft, is provided to the Buyer under license – it is not sold. SharpeSoft retains ownership and distribution rights of all Software produced by SharpeSoft or under the control of SharpeSoft. Buyer’s raw data for conversion into a Database shall be provided to SharpeSoft in one of the following electronic file formats: Excel, Lotus 1-2-3, delimited text, Access, or Microsoft SQL. Raw data provided in a database format must also include the corresponding Entity Relationship Diagram (ERD). All raw data intended for inclusion in a Database must be provided prior to commencement of data conversion activities by SharpeSoft – any subsequent data will be omitted from the Database.
DISPUTE RESOLUTION
If Buyer fails to perform any of its obligations, monetary or otherwise, pursuant to an accepted Order, Buyer shall pay SharpeSoft for any and all costs and expenses incurred, including, but not limited to, legal fees, in enforcing SharpeSoft's rights relating to said Order, whether by formal proceedings or otherwise, in addition to any other remedy available to SharpeSoft.
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Effective October 25, 2023.