Terms and Conditions

Terms and Conditions for the Sale of Goods

1. Applicability.  
   • These terms and conditions of sale (these “Terms”) are the only terms that govern the sale of the goods (“Goods”) by the Gravity Systems, Inc. (“Gravity”) to any customer that places any order for Goods from Gravity (“Buyer”). Notwithstanding anything herein to the contrary, if a written Master Agreement signed by both parties is in existence covering the sale of the Goods covered hereby, the terms and conditions of Master Agreement shall prevail instead of these Terms.
   • The invoice linking these terms (the “Sales Confirmation”) and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless of whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms.
2. Delivery.  
   • The goods will be delivered within a reasonable time after the receipt of Buyer’s purchase order. Gravity shall not be liable for any delays, loss, or damage in transit.
   • Unless otherwise agreed in writing by the parties, Gravity shall deliver the Goods to Buyer’s location (the “Delivery Point”) using Gravity’s standard methods for packaging and shipping such Goods, including as relevant by drop shipment. Buyer shall be responsible for all delivery charges.
   • Gravity may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order.
3. Title and Risk of Loss. Title and risk of loss pass to Buyer upon delivery of the Goods at the Delivery Point. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Gravity a lien on and security interest in and to all of the right, title, and interest of Buyer in, to, and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Texas Uniform Commercial Code.
4. Amendment and Modification. These Terms may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each party.
5. Inspection and Rejection of Nonconforming Goods.  
   • Buyer shall inspect the Goods within three (3) days of receipt (“Inspection Period”). Buyer will be deemed to have accepted the Goods unless it notifies Gravity in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as required by Gravity. “Nonconforming Goods” means only the following: (i) product shipped is different than identified in Buyer’s purchase order; or (ii) product’s label or packaging incorrectly identifies its contents.
   • If Buyer timely notifies Gravity of any Nonconforming Goods, Gravity shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to Gravity’s facility located in Austin, Texas. If Gravity exercises its option to replace Nonconforming Goods, Gravity shall, after receiving Buyer’s shipment of Nonconforming Goods, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Goods to the Delivery Point.
   • Buyer acknowledges and agrees that the remedies set forth in Section 5(b) are Buyer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 5(b), all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Gravity.
6. Price.
   • Buyer shall purchase the Goods from Gravity at Gravity’s then current price. If the Price should be increased by Gravity after any quote and before delivery of the Goods to a carrier for shipment to Buyer, then these Terms shall be construed as if the increased price was originally inserted herein, and Buyer shall be billed by Gravity on the basis of such increased price.
   • Buyer shall be solely responsible for all sales, use and excise taxes, and any other similar taxes, fees, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Buyer hereunder, regardless of whether or not such taxes were separately listed on any invoice. If Buyer is required under the laws of any jurisdiction to withhold taxes from any payment made by Buyer pursuant to this Agreement, Buyer shall deduct and withhold the amount of such taxes for the account of Gravity to the extent required by law, and such amounts payable to Gravity shall be reduced by the amount of taxes so deducted, withheld, and paid over to the relevant taxing authority. Buyer shall transmit to Gravity an official tax certificate or other evidence of payment in full of such tax obligations. To the extent Gravity is required to pay any such sales, use, excise, or other taxes or other duties or charges, Buyer shall reimburse Gravity in connection with its payment of fees and expenses. Notwithstanding the foregoing, in no event shall Buyer pay or be responsible for any taxes imposed on, or regarding, Gravity’s income, revenues, non-Buyer gross receipts, personnel, or real or personal property or other assets. The Parties will cooperate with each other in connection with any audit, inquiry, trial, or appeal regarding taxes in connection with the Agreement, including with regard to any tax determination or exemption documentation.
7. Payment Terms.  
   • Buyer shall pay all invoiced amounts due to Gravity by the payment due date set forth on such invoice. If the invoice does not list a payment due, such payment shall be made within fifteen (15) days from the date of Gravity’s invoice. Buyer shall make all payments hereunder in US dollars.
   • Buyer shall pay interest on all late payments at the lesser of the rate of one percent (1%) per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Gravity for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law (which Gravity does not waive by the exercise of any rights hereunder), Gravity shall be entitled to suspend the delivery of any Goods if Buyer fails to pay any amounts when due hereunder and such failure continues for fifteen (15) days following written notice thereof.
   • Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Gravity, whether relating to Gravity’s breach, bankruptcy, or otherwise.
8. No Warranty.  
   • Gravity provides no warranty to Buyer on purchased Goods. Buyer agrees to exclusively hold manufacturer liable for any claims arising from or related to the Goods.
   • GRAVITY MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.          
   • Products manufactured by a third party (“Third Party Product”) may constitute, contain, be contained in, incorporated into, attached to, or packaged together with, the Goods. Third-Party Products are not covered by any Gravity warranty. For the avoidance of doubt, GRAVITY MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
9. Limitation of Liability.  
   • IN NO EVENT SHALL GRAVITY BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, PROFIT, GOODWILL, LOSS OF DATA, DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, LIQUIDATED OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), AND INCLUDING WITHOUT LIMITATION ANY LOSS OR DAMAGES ARISING FROM A SECURITY BREACH, SECURITY INCIDENT, RANSOMWARE ATTACK, VIRUS, SOFTWARE OR HARDWARE FAILURE, PRODUCT DEFECT, CUSTOMER MODIFICATION OF HARDWARE OR SOFTWARE, FAILED BACKUP OR OTHER ELECTRONIC DATA LOSS OR LOSS OF USE, OR OTHERWISE, REGARDLESS OF THE FORM OF ACTION AND WHETHER OR NOT SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT GRAVITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
   • IN NO EVENT SHALL GRAVITY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED ONE (1) TIMES GRAVITY’S NET PROFIT ON THE RELEVANT INVOICED GOOD AFTER SUBTRACTING ALL COSTS AND APPLICABLE TAXES UPON SALE OF THE GOOD.
10. Compliance with Law. Buyer shall comply with all applicable laws, regulations, and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement.
11. Termination. In addition to any remedies that may be provided under these Terms, Gravity may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement and such failure continues for fifteen (15) days after Buyer’s receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
12. Waiver. No waiver by Gravity of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Gravity. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement operates or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
13. Confidential Information. All non-public, confidential or proprietary information of Gravity, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Gravity to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Gravity in writing. Upon Gravity’s request, Buyer shall promptly return all documents and other materials received from Gravity. Gravity shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
14. Force Majeure. No Party shall be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of the Buyer to make payments to Gravity hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, other potential disaster(s) or catastrophe(s), such as epidemics, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; and (h) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; and (i) other similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within five (5) days of the Force Majeure Event to the other Party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of thirty (30) consecutive days following written notice given by it under this Section 14, the other Party may thereafter terminate this Agreement upon thirty (30) days’ written notice. Gravity’s delay or non-performance under this Agreement shall be excused to the extent caused by, related to, or arising from Buyer’s failure to perform its obligations under this Agreement including any exhibits, Statements of Work, schedules, Invoices for Goods, attachments or appendices, or the transactions contemplated hereby. Buyer shall continue to pay Gravity for Goods invoiced and delivered.
15. Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Gravity. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
16. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
17. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.
18. Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule (whether of the State of Texas or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Texas.
19. Statute of Limitations. Notwithstanding any statute of limitations otherwise applicable, no action, whether based on any written contract claim, product liability claim, or tort claim, including any action based on negligence, or any other legal theory arising out of the performance of this Agreement, may be brought by either party more than two (2) years after the party knew or should have known of the breach or damage (whichever comes first), except that an action for non-payment may be brought within two (2) years of the date of the last payment.
20. Submission to Jurisdiction. Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Texas in each case located in the City of Austin and County of Harris, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Gravity and Buyer agree that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
21. WAIVER OF JURY TRIAL. BUYER AND SELLER AGREE THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ITS EXHIBITS, STATEMENTS OF WORK, INVOICES FOR GOODS, SCHEDULES, ATTACHMENTS, AND APPENDICES ATTACHED TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY EXHIBITS, STATEMENTS OF WORK, INVOICES FOR GOODS, SCHEDULES, ATTACHMENTS OR APPENDICES ATTACHED TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
22. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Sales Confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
23. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
24. Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following Sections: Section 3 through Section 25, including this Section 24.
25. Attorneys Fees. If any legal proceeding is brought to enforce the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys fees in addition to any other relief to which that party is awarded.