Terms and Conditions
1.0 PURCHASE AND SALE OF PRODUCTS.
1.1 Terms. These terms and conditions (“Terms”) shall apply to any purchase by purchaser (“Purchaser”) from Blue Mango Technology Inc., 2243 Calle Opalo, San Clemente, CA 92673 (“BLUE MANGO”), and any sale by BLUE MANGO to Purchaser, of BLUE MANGO products, goods or services
(“Products”), including pursuant to this purchase order (“Agreement”). Any terms of any purchase order, form or correspondence additional to, different from, contrary to or inconsistent with the terms of this Agreement shall be deemed to be deleted and shall be of no effect, except to the extent that Purchaser and BLUE MANGO have specifically agreed in writing to such additional, different, contrary or inconsistent terms. Unless BLUE MANGO separately and specifically agrees in writing, no terms on any Purchaser purchase order or other form shall be applicable to an accepted offer.
1.2 Purchase Orders. All purchases by Purchaser shall be transmitted using purchase order forms specified by or satisfactory to BLUE MANGO. All orders are subject to acceptance and confirmation by BLUE MANGO at its Itasca office.
1.3 Pricing. Purchaser will purchase products from BLUE MANGO at list prices less any applicable discounts and on such terms as set forth in any appendix hereto. BLUE MANGO may at any time modify such prices, discounts or terms as BLUE MANGO may in its discretion charge for increased costs or expenses to BLUE MANGO resulting from Purchaser’s requests, actions, errors, omissions or delays after acceptance of an order.
1.4 Expenses; Taxes. Each party shall be responsible for its own expenses, except as otherwise set forth in this Agreement. Purchaser shall be responsible for all taxes, tariffs, fees or charges applicable to its purchases from BLUE MANGO.
1.5 Payment Arrangements; Interest. Purchaser shall pay all invoiced amounts within the due date on the sales order confirmation. All payments in connection with the Products or this Agreement shall be in U.S. dollars. Interest shall accrue, without further notice, on overdue amounts at the rate of 1.5 percent per month. BLUE MANGO reserves the right to require prepayment for orders, revoke or reduce any credit it extends to Purchaser, require Purchaser to enter into reasonable purchase money security interest arrangements and agreements or enter into alternative arrangements for direct sales by BLUE MANGO with customers or prospects of Purchaser. BLUE MANGO shall have the right to set off any amounts owed by Purchaser against any amounts owed by BLUE MANGO. Purchaser shall pay all reasonable attorneys’ fees, court costs and other expenses incurred by BLUE MANGO to collect any amounts Purchaser owes BLUE MANGO.
1.6 Cancellation. Except as expressly provided in this Agreement, BLUE MANGO may at anytime cancel all or any portion of any order, by giving notice five (5) working days in advance. Orders for non-standard, specially manufactured or customized Products, shall not be cancelled by
Purchaser except if BLUE MANGO agrees in writing. If BLUE MANGO accepts cancellation of an order, Purchaser shall pay BLUE MANGO for all reasonable work or services performed and expenses and commitments incurred through the time of cancellation.
1.7 Scope. Except as expressly set forth in this Agreement, BLUE MANGO shall have no other responsibility, obligation, definition, specification, standard, methodology, design, development, customization, integration, installation, implementation, testing, demonstration, documentation,
migration, training, support, maintenance, schedule, milestone or deliverable with respect to the Products or this Agreement.
1.8 Cooperation and Resources. Purchaser shall provide such cooperation, services, materials and resources, including access to Purchaser personnel, facilities, equipment, hardware, software and data, as may be reasonably necessary to produce or deliver the Products.
2.0 DELIVERY AND SHIPMENT OF PRODUCTS.
2.1 Delivery. BLUE MANGO shall use commercially reasonable efforts to notify Purchaser of, and fulfill, estimated delivery times, quantities or delays. Except as expressly set forth in this Agreement, any such estimates are not guaranteed by BLUE MANGO and BLUE MANGO shall not be liable for any consequential or other damages in connection with delivery times, quantities or delays. BLUE MANGO in its discretion and with prior notice to Purchaser, may deliver Products in partial shipments and Purchaser shall pay for any such delivery as if it were a separate purchase and sale.
2.2 Preparation. Except as expressly set forth herein, all documentation, packing, labeling, marking, inspection and testing of Products shall occur pursuant to applicable BLUE MANGO standard practices in effect at the time of production or delivery.
2.3 Delivery Point; Shipping; Risk of Loss; Title. Except as expressly provided in this Agreement, delivery shall be EX WORKS BLUE MANGO California warehouse shipping dock and is exclusive of all taxes, freight, insurance or special documentation, labeling, marking inspection or testing or
related costs. Purchaser shall be responsible for the risk of loss and all storage, handling, transportation or other expenses from such delivery point. Upon request of Purchaser, BLUE MANGO will arrange for transportation of Products at the risk and expense of Purchaser. BLUE
MANGO shall retain title to each shipment of Products until it has received full payment for such shipment.
2.4 Inspection, Notification Upon Delivery. Purchaser shall inspect each shipment of Products within five (5) working days of delivery to its facilities and shall within 5 working days thereafter notify BLUE MANGO of any Products that as of such delivery are damaged, defective, missing or included erroneously. All deliveries shall be deemed acceptable and conforming to the extent Purchaser does not provide any such notice to BLUE MANGO.
2.5 Returns. Purchaser shall not return any Product to BLUE MANGO without first obtaining written authorization (RMA) and instructions from BLUE MANGO. Unless otherwise expressly set forth in this Agreement or in writing from BLUE MANGO, Purchaser shall be responsible for all costs of packing and shipping any returned Product. BLUE MANGO at, its discretion, may charge Purchaser a restocking fee of 25 percent of the purchase price of any returned Product.
3.0 PROPRIETARY MATTERS.
3.1 Ownership and Use of Products, Documentation and Marks. BLUE MANGO shall retain all right, title and interest in all Products, documentation, marks of BLUE MANGO, work of authorship and any derivative works. Purchaser shall only be entitled to a non-exclusive license and to grant a non-exclusive sublicense to use the Products. Purchaser shall immediately cease any use of the marks, confidential information, trade secrets or protected works of BLUE MANGO upon termination of this Agreement. Purchaser shall not engage in or allow the licensing, use, leasing, loaning,
translation, reproduction, display, transmission, copying or modification of any Product, documentation, mark or protected work of BLUE MANGO, except to the extent authorized by this Agreement. Purchaser shall not operate any business or any Internet domain name using, market any
Product of BLUE MANGO with or seek to register in any jurisdiction, either the mark or name of “BLUE MANGO” or a confusingly similar mark or name, or any other mark of BLUE MANGO or any confusingly similar mark or name, without first obtaining the written consent of BLUE MANGO. Purchaser has no right to obtain the source code of any software Product. Purchaser shall not engage in or allow reverse engineering, reverse compiling or copying of the “look and feel” of any Product.
3.2 Preservation of Marks and Packaging. Purchaser shall sell Products only with the documentation, packaging and materials supplied by BLUE MANGO. Purchaser shall not remove, hide or modify any marks of BLUE MANGO on Products, documentation, packaging or
other materials, or attempt to import any other product, documentation or packaging from which others have removed, hidden or modified marks of BLUE MANGO.
3.3 Confidentiality; Security Measures. Purchaser shall not disclose to any other party the terms of this Agreement, customer or prospect information and data, BLUE MANGO marketing and sales plans or other proprietary BLUE MANGO information or trade secrets, except with the prior written consent of BLUE MANGO. Purchaser shall use its best efforts, and implement reasonable security measures, to prevent any unauthorized use, reproduction or disclosure of Products, confidential or proprietary information or trade secrets of BLUE MANGO. Purchaser shall not provide or allow access to Products, documentation or related information, except to employees or other persons who have a need to know and are subject to commercially reasonable non-disclosure obligations.
3.4 Work Product and Improvements. Purchaser agrees that BLUE MANGO shall own all right, title and interest in any work product, improvement, enhancement and invention created, invented, prepared or developed by BLUE MANGO or Purchaser in connection with the Products or the performance of this Agreement and, upon request, Purchaser shall execute an assignment to BLUE MANGO of all right, title and interest in such intellectual property.
3.5 Purchaser Property. BLUE MANGO shall make commercially reasonable efforts to prevent damage to any specifications, plans, drawings, supplies or other tangible Purchaser property delivered to BLUE MANGO in connection with this Agreement. Purchaser shall procure all insurance necessary to compensate Purchaser in the even of any damage to or loss of such property.
4. WARRANTY AND CLAIM MATTERS.
4.1 Limited Warranty; Disclaimer. Subject to the terms and conditions of this Agreement, BLUE MANGO warrants to Purchaser that new and unused Products (1) upon delivery to Purchaser shall not be defective in materials or workmanship and (2) shall comply for one year from the date of
delivery to Purchaser with their respective technical specifications set forth in their respective documentation. THE FOREGOING WARRANTY IS THE EXCLUSIVE WARRANTY OF BLUE MANGO REGARDING PRODUCTS AND BLUE MANGO DISCLAIMS ANY OTHER WARRANTY REGARDING PRODUCTS, EXPRESS, IMPLIED OR STATUTORY, INCLUDING AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, TITLE, NON- INFRINGEMENT, THIRD-PARTY RIGHTS, RESULTS, COMPATABILITY, SECURITY AND FREEDOM FROM COMPUTER VIRUS. IN NO EVENT SHALL BLUE MANGO BE LIABLE FOR DAMAGES, INCLUDING INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES SUFFERED BY PURCHASER OR ANY THIRD-PARTY ARISING FROM BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE OR RELATED
ACTIONS. THE FOREGOING WARRANTY SHALL NOT BE EXTENDED OR MODIFIED BY THE FURNISHING OF ANY
SERVICE, REPAIR OR REPLACEMENT OF PRODUCTS.
4.2 Warranty Exclusion. THE FOREGOING WARRANTY SHALL NOT APPLY WITH RESPECT TO A BREACH OF WARRANTY ARISING FROM: (1) ABUSE, MISUSE, UNINTENDED USE OR ABNORMAL USE OF A PRODUCT; (2) IMPROPER INSTALLATION, OPERATION, MAINTENANCE, SERVICE, REPAIR OR MODIFICATION OF A PRODUCT OR TAMPERING WITH A PRODUCT; (3) FAILURE TO COMPLY WITH WRITTEN OR ELECTRONIC INSTRUCTIONS OR DOCUMENTATION FOR A PRODUCT; (4) FORCE MAJEURE; (5) USE BY UNQUALIFIED PERSONS; OR (6) ALTERATION, MODIFICATION, REPAIR OR REWORKING BY ANY PERSON NOT APPROVED BY BLUE MANGO.
4.3 Remedy Selection; Liability Limitations. THE ONLY REMEDY AVAILABLE FROM BLUE MANGO IN CONNECTION WITH ANY PRODUCT IS, IN ITS DISCRETION, REPAIR OR REPLACEMENT OF A DEFECTIVE PORTION OF A PRODUCT. THE TOTAL MAXIMUM LIABILITY OF BLUE MANGO WITH RESPECT TO ANY PRODUCT SHALL NOT EXCEED THE MONIES, IF ANY, ACTUALLY RECEIVED BY BLUE MANGO FOR SUCH PRODUCT. BLUE MANGO SHALL NOT BE
LIABLE FOR ANY LOSS OR DAMAGE TO REVENUES, PROFITS, GOODWILL, REPUTATION, DATA, INFORMATION SYSTEMS OR OTHER SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND ARISING IN CONNECTION WITH PRODUCTS, PERFORMANCE OR BREACH OF THIS AGREEMENT OR THE DEALINGS OF THE PARTIES, WHETHER BASED IN CONTRACT, TORT OR OTHER CAUSE OF ACTION. THE FOREGOING REMEDY AND LIABILITY LIMITATIONS SHALL SURVIVE EVEN IF ANY REMEDY IS CLAIMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
4.4 Condition to Performance of Warranty; Limitation on Actions. As a condition precedent to any warranty claim, Purchaser shall deliver to BLUE MANGO notice by registered mail of any actual or suspected breach of the foregoing warranty no later than 30 days after learning of such actual or
suspected breach. BLUE MANGO shall provide any required warranty services at its offices. Purchaser shall be responsible for shipping costs to and from such offices for any affected Products. Any lawsuit or legal proceeding must be initiated within three months after the delivery of such notice.
4.5 Indemnification. Purchaser shall indemnify, defend and hold harmless BLUE MANGO and its affiliates, agents and representatives against any actual or alleged claim, lawsuit, damage, injury, prejudice, expense or harm, including attorneys’ fees, which arise in connection with Purchaser’s performance or breach of this Agreement, acts, errors, omissions or dealings with BLUE MANGO.
5.1 Force Majeure. BLUE MANGO shall be excused for delay or failure to perform its obligations pursuant to this Agreement, to the extent and for so long as delay or non-performance is caused by force majeure, including acts of God, governmental acts, severe weather, natural disasters, fires,
storms, floods, wars, riots, strikes, shortages and other circumstances beyond the reasonable control of BLUE MANGO.
5.2 Legal Compliance. Purchaser shall comply with all laws applicable in connection with the Products or this Agreement, including import, customs, export control, government procurement, environmental, health and safety matters.
5.3 Product Use; Safety. Purchaser shall use Products only in compliance with all applicable instructions and warnings and safety practices, procedures and precautions.
5.4 Relationship of Parties. Purchaser and BLUE MANGO are independent contractors. Neither party is the partner or agent of the other. Neither party is authorized to bind or commit the other. Any dealings or arrangements of the parties in connection with this Agreement shall not constitute
a franchise and Purchaser disclaims that it is a franchisee. This Agreement does not create and is not intended to create any dealership or distributorship under the laws of any state and both parties hereby explicitly disclaim such remedies.
5.5 Reservation; No Waiver. Except as expressly provided herein, BLUE MANGO reserves all rights in connection with this Agreement, including pursuant to the Uniform Commercial Code. Any non-enforcement by BLUE MANGO of its rights pursuant to this Agreement shall not be construed as a waiver of such rights or affect the validity of this Agreement.
5.6 Headings. Section headings are for convenience only and shall not affect interpretation of the provisions of this Agreement.
5.7 Choice of Law. THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN MADE IN THE STATE OF CALIFORNIA. THE CONSTRUCTION AND PERFORMANCE OF THIS AGREEMENT AND THE DEALINGS BETWEEN THE PARTIES HERETO SHALL BE CONSTRUED UNDER THE LAWS OF THE STATE OF CALIFORNIA WITHOUT REGARD TO CHOICE OF LAW PRINCIPLES AND EXCLUDING THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS.
5.8 Choice of Forum. Purchaser shall commence and prosecute any lawsuit or legal proceeding arising in connection with this Agreement or the dealings between the parties only in the federal and state courts with jurisdiction for Orange County, California. Purchaser hereby consents and
submits to the jurisdiction of such courts and agrees that the mailing to its last known address by registered mail of any process shall constitute legal and valid service of process on Purchaser. PURCHASER WAIVES TRIAL BY JURY.
5.9 Severability. The invalidity or enforceability of any portion of this Agreement in any particular circumstance shall not affect either the validity or enforceability of the rest of this Agreement or of such portion in other circumstances.
5.10 Assignment; Successors. Purchaser shall not assign (including by a change of control of Purchaser) this Agreement without the prior written consent of BLUE MANGO. This Agreement will be binding upon and inure to the benefit of successors and permitted assigns.