Terms and Conditions of Sales
Version Date: May 5, 2023
THE TERMS AND CONDITIONS OF SALES ARE LIMITED TO THOSE CONTAINED HEREIN. ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS IN ANY FORM DELIVERED BY CUSTOMER (“CUSTOMER”) ARE HEREBY DEEMED TO BE MATERIAL ALTERATIONS AND NOTICE OF OBJECTION TO THEM AND REJECTION OF THEM IS HEREBY GIVEN UNLESS AGREED TO IN WRITING ON BEHALF OF CARAFLOW LLC (“CARAFLOW”) BY A DULY AUTHORIZED REPRESENTATIVE OF THE COMPANY.
CUSTOMER AGREES TO BE BOUND BY AND ACCEPTS THESE TERMS AND CONDITIONS UNLESS CUSTOMER AND CARAFLOW HAVE SIGNED A SEPARATE AGREEMENT, IN WHICH CASE THE SEPARATE AGREEMENT WILL GOVERN.
These Terms and Conditions constitute a binding contract between Customer and CaraFlow and are referred to herein as either “Terms and Conditions” or “Agreement”. Customer accepts these Terms and Conditions by making a purchase from or placing an order with CaraFlow or otherwise requesting products (“Products”). These Terms and Conditions are subject to change without prior notice, except that the Terms and Conditions posted on the Site at the time Customer places an order will govern the order in question, unless otherwise agreed to in writing by CaraFlow and Customer.
Customer consents to receiving electronic records, such as sales order confirmations and invoices, which may be provided via a web browser or e-mail application connected to the Internet. Customer may withdraw consent to receiving electronic records or have the record provided in non-electronic form by contacting CaraFlow. Electronic signatures (or copies of signatures sent via electronic means) are equivalent to handwritten signatures and are equally binding upon the signer.
Customer may issue a purchase order for administrative purposes only. Additional or different terms and conditions contained in any such purchase order will be null and void. No course of prior dealings between the parties and no usage of trade will be relevant to determine the meaning of these Terms and Conditions or any purchase order or invoice. This Agreement contains the entire understanding of the parties with respect to the matters contained herein and supersedes and replaces in its entirety any and all prior communications and contemporaneous agreements and understandings, whether oral, written, electronic or implied, if any, between the parties with respect to the subject matter hereof.
Governing Law
THESE TERMS AND CONDITIONS, ANY SALE OF PRODUCTS HEREUNDER WILL BE GOVERNED BY THE LAWS OF THE STATE OF WISCONSIN, WITHOUT REGARD TO CONFLICTS OF LAWS RULES. ANY ARBITRATION, ENFORCEMENT OF AN ARBITRATION OR LITIGATION WILL BE BROUGHT EXCLUSIVELY IN MILWAUKEE COUNTY, WISCONSIN, AND CUSTOMER CONSENTS TO THE JURISDICTION OF THE FEDERAL AND STATE COURTS LOCATED THEREIN, SUBMITS TO THE JURISDICTION THERE OF AND WAIVES THE RIGHT TO CHANGE VENUE. CUSTOMER FURTHER CONSENTS TO THE EXERCISE OF PERSONAL JURISDICTION BY ANY SUCH COURT WITH RESPECT TO ANY SUCH PROCEEDING. Except in the case of nonpayment, neither party may institute any action in any form arising out of these Terms and Conditions more than one (1) year after the cause of action has arisen. The rights and remedies provided CaraFlow under these Terms and Conditions are cumulative, are in addition to, and do not limit or prejudice any other right or remedy available at law or inequity.
Risk of Loss
If Customer provides CaraFlow with Customer’s carrier account number or selects a carrier other than a carrier that regularly ships for CaraFlow, title to Products and risk of loss or damage during shipment pass from CaraFlow to Customer upon delivery to the carrier (F.O.B. Origin, freight collect). For all other shipments, title to Products and risk of loss or damage during shipment pass from CaraFlow to Customer upon delivery to the specified destination (F.O.B. Destination, freight prepaid and added). Notwithstanding the foregoing, title to software will remain with the applicable licensor(s), and Customer’s rights therein are contained in the license agreement between such licensor(s) and Customer. CaraFlow retains a purchase money security interest in the Products to secure payment in full. Customer authorizes CaraFlow to file a financing statement reflecting such security interest, and, if requested, Customer will record such purchase money security interest on its books.
Payment
Customer agrees to pay the total purchase price for the Products plus shipping (to the extent shipping is not prepaid by Customer), including shipping charges that are billed to CaraFlow as a result of using Customer’s carrier account number. Terms of payment are within CaraFlow’s sole discretion. Invoices are due and payable within the time period specified on the invoice, measured from the date of invoice, subject to continuing credit approval by CaraFlow. CaraFlow may invoice Customer separately for partial shipments. Customer agrees to pay interest on all past-due sums at the lower of one and one-half percent (1.5%) per month or the highest rate allowed by law. Customer will pay for, and will indemnify and hold CaraFlow harmless from, any applicable sales, use, transaction, excise or similar taxes and any federal, state or local fees or charges (including, but not limited to, environmental or similar fees), imposed on, in respect of or otherwise associated with the Products. Customer must claim any exemption from such taxes, fees or charges at the time of purchase and provide CaraFlow with the necessary supporting documentation. In the event of a payment default, Customer will be responsible for all of CaraFlow’s costs of collection, including, but not limited to, court costs, filing fees and attorneys’ fees.
Export Sales
If this transaction involves an export of items (including, but not limited to, commodities, software or technology) subject to the Export Administration Regulations, such items were exported from the United States by CaraFlow in accordance with the Export Administration Regulations. Customer agrees that it will not divert, use, export or re-export such items contrary to United States law. Customer expressly acknowledges and agrees that it will not export, re-export, or provide such items to any entity or person within any country that is subject to United States economic sanctions imposing comprehensive embargoes without obtaining prior authorization from the United States Government. The list of such countries subject to United States economic sanctions or embargoes may change from time to time but currently includes Cuba, Iran, Sudan, and Syria. Customer also expressly acknowledges and agrees that it will not export, re-export, or provide such items to entities and persons that are ineligible under United States law to receive such items, including but not limited to, any person or entity on the United States Treasury Department’s list of Specially Designated Nationals or on the United States Commerce Department’s Denied Persons List, Entity List, or Unverified List. In addition, manufacturers’ warranties for exported Products may vary or may be null and void for Products exported outside the United States.
Warranties
CaraFlow warrants that all Products shall be free from software viruses and defects in material and workmanship, and shall operate in accordance with CaraFlow’s specifications and CaraFlow’s marketing materials under normal use for a period of one (1) year from date of shipment to Customer, save that CaraFlow does not warrant that operation of the software will be completely uninterrupted or error-free. Customer shall be responsible for determining that the Products are suitable for Customer’s use. Provided that Customer notifies CaraFlow in writing of any claimed defect in the Products immediately upon discovery and any such Products are returned to the original shipping point, transportation charges prepaid, within one year from date of shipment to Customer and upon examination CaraFlow determines to its satisfaction that such Products are defective in material or workmanship, CaraFlow shall replace such Products, shipment to Customer prepaid by CaraFlow. CaraFlow shall have thirty days to replace such Products. This warranty is limited to a period of one (1) year, without regard to whether any claimed defects were discoverable or latent on the date of shipment.
If Customer shall fail to pay when due any portion of the purchase price or any other payment required from Customer to CaraFlow under this contract, this contract may, at CaraFlow’s option, be terminated.
CARAFLOW HEREBY EXPRESSLY DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, RELATED TO THE PRODUCTS, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF TITLE, ACCURACY, MERCHANT ABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF NONINFRINGEMENT, OR ANY WARRANTY RELATING TO THIRD PARTY SERVICES. THE DISCLAIMER CONTAINED IN THIS PARAGRAPH DOES NOT AFFECT THE TERMS OF ANY MANUFACTURER’S WARRANTY.
Customer expressly waives any claim that it may have against CaraFlow based on any product liability or infringement or alleged infringement of any patent, copyright, trade secret or other intellectual property rights (each a “Claim”) with respect to any Product and also waives any right to indemnification from CaraFlow against any such Claim made against Customer by a third party. Customer acknowledges that no employee of CaraFlow is authorized to make any representation or warranty on behalf of CaraFlow that is not in this Agreement.
Customer shall be solely responsible for daily back-up and other protection of its data and software against loss, damage or corruption. Customer shall be solely responsible for reconstructing data (including but not limited to data located on disk files and memories) and software that may be lost, damaged or corrupted. CARAFLOW AND ITS SUPPLIERS, SUBCONTRACTORS AND AGENTS ARE HEREBY RELEASED AND SHALL CONTINUE TO BE RELEASED FROM ALL LIABILITY IN CONNECTION WITH THE LOSS, DAMAGE OR CORRUPTION OF DATA AND SOFTWARE, AND CUSTOMER ASSUMES ALL RISK OF LOSS, DAMAGE OR CORRUPTION OF DATA AND SOFTWARE.
CaraFlow will not be responsible for and no liability shall result to CaraFlow for any delays in delivery or in performance which result from any circumstances beyond CaraFlow’s reasonable control, including, but not limited to, Product unavailability, carrier delays, delays due to fire, severe weather conditions, failure of power, labor problems, acts of war, terrorism, embargo, acts of God or acts or laws of any government or agency. Any shipping dates or completion dates provided by CaraFlow or any purported deadlines contained in any document are estimates only.
Pricing Information and Availability Disclaimer
CaraFlow reserves the right to make adjustments to pricing of Products offerings for reasons including, but not limited to, changing market conditions, discontinuation of Product, unavailability of Product, manufacturer price changes, supplier price changes and/or errors in advertisements. All orders are subject to Product availability. Therefore, CaraFlow cannot guarantee that it will be able to fulfill Customer’s orders.
Limitation of Liability
UNDER NO CIRCUMSTANCES AND NOT WITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY SET FORTH HEREIN, WILL CARAFLOW OR ITS SUPPLIERS, SUBCONTRACTORS OR AGENTS BE LIABLE FOR: (A) ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, BUSINESS, REVENUES OR SAVINGS , EVEN IF CARAFLOW HAS BEEN ADVISED OF THE POSSIBILITIES OF SUCH DAMAGES OR IF SUCH DAMAGES ARE OTHERWISE FORESEEABLE, IN EACH CASE, WHETHER A CLAIM FOR ANY SUCH LIABILITY IS PREMISED UPON BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY OF LIABILITY; (B) ANY CLAIMS, DEMANDS OR ACTIONS AGAINST CUSTOMER BY ANY THIRD PARTY; (C) ANY LOSS OR CLAIM ARISING OUT OF OR IN CONNECTION WITH CUSTOMER’S IMPLEMENTATION OF ANY CONCLUSIONS OR RECOMMENDATIONS BY CARAFLOW BASED ON, RESULTING FROM, ARISING OUT OF OR OTHERWISE RELATED TO THE PRODUCTS; OR (D) ANY UNAVAILABILITY OF THE PRODUCT FOR USE OR ANY LOST, DAMAGED OR CORRUPTED DATA OR SOFTWARE. IN THE EVENT OF ANY LIABILITY INCURRED BY CARAFLOW THE ENTIRE LIABILITY OF CARAFLOW FOR DAMAGES FROM ANY CAUSE WHATSOEVER WILL NOT EXCEED THE DOLLAR AMOUNT PAID BY CUSTOMER FOR THE PRODUCTS AND SERVICES GIVING RISE TO THE CLAIM.
Limited Software License of Products
CaraFlow shall at all times have and retain title and full ownership of all software, database, firmware programming routines and documentation thereof supplied by CaraFlow, its Products, and all subsequent copies, regardless of the form or media, in or on which the copies may exist (collectively “software”). Subject to the terms of this Agreement and Customer’s obligations of payment, CaraFlow grants to Customer a non-exclusive and non-transferable license to use the software on only as many computers, processors, scanners, or other computing devices as Customer has paid for software seats. Customer may not (i) reverse engineer, disassemble, decompile, or otherwise attempt to derive the source code of the software into any human perceivable form; (ii) copy, modify, adapt, transfer, translate, disclose, rent, lease, grant a security interest in, or loan the software, database, firmware programming routines or any portion thereof; (iii) create derivative works based upon the software, database, firmware programming routines, and any corresponding documentation; (iv) use or copy the software, database, firmware programming routines, or any corresponding documentation in any manner that is inconsistent with the terms of this Agreement; or (v) remove any copyright or proprietary notices or labels in or on the software, database, firmware programming routines, or any corresponding documentation. The software, database, firmware programming routines and any corresponding documentation are the intellectual property of CaraFlow and are protected by United States copyright and intellectual property laws, international treaty provisions, and applicable laws of the country in which it is being used. Customer agrees to take reasonable steps to protect proprietary interests of CaraFlow in the software, database, firmware and any corresponding documentation supplied under this Agreement.
Confidential Information
Each party anticipates that it may be necessary to provide access to information of a confidential nature of either party or a third party (hereinafter referred to as “Confidential Information”) to the other party in the performance of this Agreement. “Confidential Information” means any information or data in oral, electronic or written form which the receiving party knows or has reason to know is proprietary or confidential and which is disclosed by a party in connection with this Agreement or which the receiving party may have access to in connection with this Agreement. Confidential Information will not include information which: (a) becomes known to the public through no act of the receiving party; (b) was known to the receiving party, or becomes known to the receiving party from a third party having the right to disclose it and having no obligation of confidentiality to the disclosing party with respect to the applicable information; or (c) is independently developed by agents, employees or subcontractors of the receiving party who have not had access to such information. To the extent practicable, Confidential Information should be clearly identified or labeled as such by the disclosing party at the time of disclosure or as promptly thereafter as possible, however, failure to so identify or label such Confidential Information will not be evidence that such information is not confidential or protectable.
Each party agrees to hold the other party’s Confidential Information confidential for a period of three (3) years following the date of disclosure and to do so in a manner at least as protective as it holds its own Confidential Information of like kind but to use no less than a reasonable degree of care. Disclosures of the other party’s Confidential Information will be restricted (i) to those individuals who are participating in the performance of this Agreement and need to know such Confidential Information for purposes of providing or utilizing the Products, or (ii) to its business, legal and financial advisors, each on a confidential basis. Each party agrees not to use any Confidential Information of the other party for any purpose other than the business purposes contemplated by this Agreement. Upon the written request of a party, the other party will either return or certify the destruction of the Confidential Information of the other party.
If a receiving party is required by law, rule or regulation, or requested in any judicial or administrative proceeding or by any governmental or regulatory authority, to disclose Confidential Information of the other party, the receiving party will give the disclosing party prompt notice of such request so that the disclosing party may seek an appropriate protective order or similar protective measure and will use reasonable efforts to obtain confidential treatment of the Confidential Information so disclosed.
Product Return Policy
CaraFlow offers a thirty (30) day return policy on most products sold. Customer may obtain additional details and any applicable updates from the dedicated CaraFlow account manager or may obtain manufacturer contact information by contacting CaraFlow Customer Relations at 414-906-9170 or by emailing info@caraflow.com.
Return Restrictions
Defective Product Returns – Customer may return defective Products directly to CaraFlow within thirty (30) days of invoice date and receive, at CaraFlow’s option, replacement, exchange, or repair. After thirty (30) days, only the product warranty applies.
Non-Defective Product Returns – Customer may return most non-defective Products directly to CaraFlow within thirty (30) days of invoice date and receive, at Customer’s option, refund or exchange. A 25% restocking fee is required on allowable non-defective product returns up to 30 days from date of purchase.
Customer Shipment of Returned Merchandise
Return Merchandise Authorization (RMA) – No returns of any type will be accepted by CaraFlow unless accompanied by a unique RMA number, which Customer may obtain by providing the following information to CaraFlow: customer name, applicable invoice number, product serial number, and details of Customer’s issue with the product being returned. Customer has ten (10) days to return a Product after the applicable RMA is issued. CaraFlow reserves the right to refuse any unauthorized returns including those that occur after the ten (10) day period or of Products that are unaccompanied by a valid RMA number issued by CaraFlow.
Returned Products Must Be Complete – All Products must be returned one hundred percent (100%) complete, including all original boxes, packing materials, manuals, blank warranty cards, and other accessories provided by the manufacturer. CaraFlow reserves the right to refuse the return of incomplete Products.
Shipping Costs
Customer is responsible for the cost of shipping returned items to CaraFlow. CaraFlow is responsible for the return cost of shipping replacements or exchanges of returned items and will match Customer’s shipping method or use an equivalent shipping method.
Software Subscriptions & Renewal
The fee charged to the Customer for renewal of software subscription Products is based upon continuous, uninterrupted purchase of this option by the Customer starting one (1) year after the initial date of purchase of the Product. If the Customer institutes the purchase of the extended software subscription beyond one (1) year past the date of initial purchase of the software subscription Product, or after an interruption in the continuous purchase of the software subscription Product, the Customer shall pay CaraFlow a fee equivalent to that amount which would have accrued from the date software subscription expired: either one (1) year after the date of the initial software subscription Product purchase or beginning with expiration date of Customer’s software subscription for the Product, through the date that software subscription is initiated or reinstated.
Technical Support & Enhancements
CaraFlow will provide technical support and enhancements for Product when technical support and enhancements are provided with the original Product purchase, when Customer purchases technical support & enhancements for a Product, or with a Software Subscription. CaraFlow will provide the following:
Technical Support – CaraFlow will provide the Customer with email and telephone technical support during normal business hours (weekdays, 8am – 5pm CST). Technical Support includes:
Enhancements – CaraFlow will distribute to the Customer all developed or current enhancements to Product, when enhancements are generally released by CaraFlow. Enhancements include:
Technical Support Fees & Renewal
All purchased Products include one-year of technical support & maintenance. Subject to CaraFlow’s sole discretion, Customer may extend the technical support and maintenance by purchasing an extended technical support and maintenance option from CaraFlow. CaraFlow reserves the right to no longer offer any particular product for sale, and/or limit or end support for the product at any time.
The fee charged to the Customer for renewal of technical support is based upon continuous, uninterrupted purchase of this option by the Customer starting one (1) year after the initial date of purchase of the Product. If the Customer institutes the purchase of technical support beyond one (1) year past the date of initial purchase of the Product, or after an interruption in the continuous purchase of technical support, the Customer shall pay CaraFlow a fee equivalent to that amount which would have accrued from the date technical support expired: either one (1) year after the date of the initial Product purchase or beginning with expiration date of Customer’s technical support for the Product, through the date that technical support is initiated or reinstated.
Product Repair and Replacement Costs Outside of Warranty
Repair or replacement of Product which is not covered by the Limited Warranty will be subject to an additional fee. An estimate for repair or replacement will be provided to the Customer on a per case basis. CaraFlow will not commence repair or replacement work until Customer provides written or electronic approval of the quote. CaraFlow will use its best efforts to expedite repair or replacement. Customer is responsible for shipping costs.
Arbitration
Any claim, dispute, or controversy (whether in contract, tort or otherwise, whether preexisting, present or future, and including, but not limited to, statutory, common law, intentional tort and equitable claims) arising from or relating to the Products, the interpretation or application of these Terms and Conditions or the breach, termination or validity thereof, the relationships which result from these Terms and Conditions (including, to the full extent permitted by applicable law, relationships with third parties who are not signatories hereto), or CaraFlow’s advertising or marketing (collectively, a “Claim”) WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION. Arbitration will be conducted pursuant to the Rules of the American Arbitration Association and neither CaraFlow nor Customer will have the right to litigate any Claim in court or to have a jury trial on that Claim or to engage in pre-arbitration discovery, except as provided for in the applicable arbitration rules or by agreement of the parties involved. Furthermore, Customer will not have the right to participate as a representative or member of any class of claimants pertaining to any Claim. Notwithstanding any choice of law provision included in these Terms and Conditions, this arbitration agreement is subject to the Federal Arbitration Act (9 U.S.C. §§ 1-16). The arbitration will take place exclusively in Milwaukee, Wisconsin. Any court having jurisdiction may enter judgment on the award rendered by the arbitrator(s). Each party involved will bear its own cost of any legal representation, discovery or research required to complete arbitration. The existence or results of any arbitration will be treated as confidential. Notwithstanding anything to the contrary contained herein, all matters pertaining to the collection of amounts due to CaraFlow arising out of the Products will be exclusively litigated in court rather than through arbitration.
Miscellaneous Provisions
CaraFlow may assign or subcontract all or any portion of its rights or obligations with respect to the sale of Products or assign the right to receive payments, without Customer’s consent. Customer may not assign these Terms and Conditions, or any of its rights or obligations herein without the prior written consent of CaraFlow. Subject to the restrictions in assignment contained herein, these Terms and Conditions will be binding on and inure to the benefit of the parties hereto and their successors and assigns. No provision of this Agreement will be deemed waived, amended or modified by either party unless such waiver, amendment or modification is in writing and signed by both parties. The relationship between CaraFlow and Customer is that of independent contractors and not that of employer/employee, partnership or joint venture.
If any term or condition of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, the same shall not affect the other terms or conditions hereof or thereof or the whole of this Agreement.
Notices provided under this Agreement will be given in writing and deemed received upon the earlier of actual receipt or three (3) days after mailing if mailed postage prepaid by regular mail or airmail or one (1) day after such notice is sent by courier or facsimile transmission. Any delay or failure by either party to exercise any right or remedy will not constitute a waiver of that party to thereafter enforce such rights.
THE TERMS AND CONDITIONS OF SALES ARE LIMITED TO THOSE CONTAINED HEREIN. ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS IN ANY FORM DELIVERED BY CUSTOMER (“CUSTOMER”) ARE HEREBY DEEMED TO BE MATERIAL ALTERATIONS AND NOTICE OF OBJECTION TO THEM AND REJECTION OF THEM IS HEREBY GIVEN UNLESS AGREED TO IN WRITING ON BEHALF OF CARAFLOW LLC (“CARAFLOW”) BY A DULY AUTHORIZED REPRESENTATIVE OF THE COMPANY.
CUSTOMER AGREES TO BE BOUND BY AND ACCEPTS THESE TERMS AND CONDITIONS UNLESS CUSTOMER AND CARAFLOW HAVE SIGNED A SEPARATE AGREEMENT, IN WHICH CASE THE SEPARATE AGREEMENT WILL GOVERN.
These Terms and Conditions constitute a binding contract between Customer and CaraFlow and are referred to herein as either “Terms and Conditions” or “Agreement”. Customer accepts these Terms and Conditions by making a purchase from or placing an order with CaraFlow or otherwise requesting products (“Products”). These Terms and Conditions are subject to change without prior notice, except that the Terms and Conditions posted on the Site at the time Customer places an order will govern the order in question, unless otherwise agreed to in writing by CaraFlow and Customer.
Customer consents to receiving electronic records, such as sales order confirmations and invoices, which may be provided via a web browser or e-mail application connected to the Internet. Customer may withdraw consent to receiving electronic records or have the record provided in non-electronic form by contacting CaraFlow. Electronic signatures (or copies of signatures sent via electronic means) are equivalent to handwritten signatures and are equally binding upon the signer.
Customer may issue a purchase order for administrative purposes only. Additional or different terms and conditions contained in any such purchase order will be null and void. No course of prior dealings between the parties and no usage of trade will be relevant to determine the meaning of these Terms and Conditions or any purchase order or invoice. This Agreement contains the entire understanding of the parties with respect to the matters contained herein and supersedes and replaces in its entirety any and all prior communications and contemporaneous agreements and understandings, whether oral, written, electronic or implied, if any, between the parties with respect to the subject matter hereof.
Governing Law
THESE TERMS AND CONDITIONS, ANY SALE OF PRODUCTS HEREUNDER WILL BE GOVERNED BY THE LAWS OF THE STATE OF WISCONSIN, WITHOUT REGARD TO CONFLICTS OF LAWS RULES. ANY ARBITRATION, ENFORCEMENT OF AN ARBITRATION OR LITIGATION WILL BE BROUGHT EXCLUSIVELY IN MILWAUKEE COUNTY, WISCONSIN, AND CUSTOMER CONSENTS TO THE JURISDICTION OF THE FEDERAL AND STATE COURTS LOCATED THEREIN, SUBMITS TO THE JURISDICTION THERE OF AND WAIVES THE RIGHT TO CHANGE VENUE. CUSTOMER FURTHER CONSENTS TO THE EXERCISE OF PERSONAL JURISDICTION BY ANY SUCH COURT WITH RESPECT TO ANY SUCH PROCEEDING. Except in the case of nonpayment, neither party may institute any action in any form arising out of these Terms and Conditions more than one (1) year after the cause of action has arisen. The rights and remedies provided CaraFlow under these Terms and Conditions are cumulative, are in addition to, and do not limit or prejudice any other right or remedy available at law or inequity.
Risk of Loss
If Customer provides CaraFlow with Customer’s carrier account number or selects a carrier other than a carrier that regularly ships for CaraFlow, title to Products and risk of loss or damage during shipment pass from CaraFlow to Customer upon delivery to the carrier (F.O.B. Origin, freight collect). For all other shipments, title to Products and risk of loss or damage during shipment pass from CaraFlow to Customer upon delivery to the specified destination (F.O.B. Destination, freight prepaid and added). Notwithstanding the foregoing, title to software will remain with the applicable licensor(s), and Customer’s rights therein are contained in the license agreement between such licensor(s) and Customer. CaraFlow retains a purchase money security interest in the Products to secure payment in full. Customer authorizes CaraFlow to file a financing statement reflecting such security interest, and, if requested, Customer will record such purchase money security interest on its books.
Payment
Customer agrees to pay the total purchase price for the Products plus shipping (to the extent shipping is not prepaid by Customer), including shipping charges that are billed to CaraFlow as a result of using Customer’s carrier account number. Terms of payment are within CaraFlow’s sole discretion. Invoices are due and payable within the time period specified on the invoice, measured from the date of invoice, subject to continuing credit approval by CaraFlow. CaraFlow may invoice Customer separately for partial shipments. Customer agrees to pay interest on all past-due sums at the lower of one and one-half percent (1.5%) per month or the highest rate allowed by law. Customer will pay for, and will indemnify and hold CaraFlow harmless from, any applicable sales, use, transaction, excise or similar taxes and any federal, state or local fees or charges (including, but not limited to, environmental or similar fees), imposed on, in respect of or otherwise associated with the Products. Customer must claim any exemption from such taxes, fees or charges at the time of purchase and provide CaraFlow with the necessary supporting documentation. In the event of a payment default, Customer will be responsible for all of CaraFlow’s costs of collection, including, but not limited to, court costs, filing fees and attorneys’ fees.
Export Sales
If this transaction involves an export of items (including, but not limited to, commodities, software or technology) subject to the Export Administration Regulations, such items were exported from the United States by CaraFlow in accordance with the Export Administration Regulations. Customer agrees that it will not divert, use, export or re-export such items contrary to United States law. Customer expressly acknowledges and agrees that it will not export, re-export, or provide such items to any entity or person within any country that is subject to United States economic sanctions imposing comprehensive embargoes without obtaining prior authorization from the United States Government. The list of such countries subject to United States economic sanctions or embargoes may change from time to time but currently includes Cuba, Iran, Sudan, and Syria. Customer also expressly acknowledges and agrees that it will not export, re-export, or provide such items to entities and persons that are ineligible under United States law to receive such items, including but not limited to, any person or entity on the United States Treasury Department’s list of Specially Designated Nationals or on the United States Commerce Department’s Denied Persons List, Entity List, or Unverified List. In addition, manufacturers’ warranties for exported Products may vary or may be null and void for Products exported outside the United States.
Warranties
CaraFlow warrants that all Products shall be free from software viruses and defects in material and workmanship, and shall operate in accordance with CaraFlow’s specifications and CaraFlow’s marketing materials under normal use for a period of one (1) year from date of shipment to Customer, save that CaraFlow does not warrant that operation of the software will be completely uninterrupted or error-free. Customer shall be responsible for determining that the Products are suitable for Customer’s use. Provided that Customer notifies CaraFlow in writing of any claimed defect in the Products immediately upon discovery and any such Products are returned to the original shipping point, transportation charges prepaid, within one year from date of shipment to Customer and upon examination CaraFlow determines to its satisfaction that such Products are defective in material or workmanship, CaraFlow shall replace such Products, shipment to Customer prepaid by CaraFlow. CaraFlow shall have thirty days to replace such Products. This warranty is limited to a period of one (1) year, without regard to whether any claimed defects were discoverable or latent on the date of shipment.
If Customer shall fail to pay when due any portion of the purchase price or any other payment required from Customer to CaraFlow under this contract, this contract may, at CaraFlow’s option, be terminated.
CARAFLOW HEREBY EXPRESSLY DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, RELATED TO THE PRODUCTS, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF TITLE, ACCURACY, MERCHANT ABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF NONINFRINGEMENT, OR ANY WARRANTY RELATING TO THIRD PARTY SERVICES. THE DISCLAIMER CONTAINED IN THIS PARAGRAPH DOES NOT AFFECT THE TERMS OF ANY MANUFACTURER’S WARRANTY.
Customer expressly waives any claim that it may have against CaraFlow based on any product liability or infringement or alleged infringement of any patent, copyright, trade secret or other intellectual property rights (each a “Claim”) with respect to any Product and also waives any right to indemnification from CaraFlow against any such Claim made against Customer by a third party. Customer acknowledges that no employee of CaraFlow is authorized to make any representation or warranty on behalf of CaraFlow that is not in this Agreement.
Customer shall be solely responsible for daily back-up and other protection of its data and software against loss, damage or corruption. Customer shall be solely responsible for reconstructing data (including but not limited to data located on disk files and memories) and software that may be lost, damaged or corrupted. CARAFLOW AND ITS SUPPLIERS, SUBCONTRACTORS AND AGENTS ARE HEREBY RELEASED AND SHALL CONTINUE TO BE RELEASED FROM ALL LIABILITY IN CONNECTION WITH THE LOSS, DAMAGE OR CORRUPTION OF DATA AND SOFTWARE, AND CUSTOMER ASSUMES ALL RISK OF LOSS, DAMAGE OR CORRUPTION OF DATA AND SOFTWARE.
CaraFlow will not be responsible for and no liability shall result to CaraFlow for any delays in delivery or in performance which result from any circumstances beyond CaraFlow’s reasonable control, including, but not limited to, Product unavailability, carrier delays, delays due to fire, severe weather conditions, failure of power, labor problems, acts of war, terrorism, embargo, acts of God or acts or laws of any government or agency. Any shipping dates or completion dates provided by CaraFlow or any purported deadlines contained in any document are estimates only.
Pricing Information and Availability Disclaimer
CaraFlow reserves the right to make adjustments to pricing of Products offerings for reasons including, but not limited to, changing market conditions, discontinuation of Product, unavailability of Product, manufacturer price changes, supplier price changes and/or errors in advertisements. All orders are subject to Product availability. Therefore, CaraFlow cannot guarantee that it will be able to fulfill Customer’s orders.
Limitation of Liability
UNDER NO CIRCUMSTANCES AND NOT WITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY SET FORTH HEREIN, WILL CARAFLOW OR ITS SUPPLIERS, SUBCONTRACTORS OR AGENTS BE LIABLE FOR: (A) ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, BUSINESS, REVENUES OR SAVINGS , EVEN IF CARAFLOW HAS BEEN ADVISED OF THE POSSIBILITIES OF SUCH DAMAGES OR IF SUCH DAMAGES ARE OTHERWISE FORESEEABLE, IN EACH CASE, WHETHER A CLAIM FOR ANY SUCH LIABILITY IS PREMISED UPON BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY OF LIABILITY; (B) ANY CLAIMS, DEMANDS OR ACTIONS AGAINST CUSTOMER BY ANY THIRD PARTY; (C) ANY LOSS OR CLAIM ARISING OUT OF OR IN CONNECTION WITH CUSTOMER’S IMPLEMENTATION OF ANY CONCLUSIONS OR RECOMMENDATIONS BY CARAFLOW BASED ON, RESULTING FROM, ARISING OUT OF OR OTHERWISE RELATED TO THE PRODUCTS; OR (D) ANY UNAVAILABILITY OF THE PRODUCT FOR USE OR ANY LOST, DAMAGED OR CORRUPTED DATA OR SOFTWARE. IN THE EVENT OF ANY LIABILITY INCURRED BY CARAFLOW THE ENTIRE LIABILITY OF CARAFLOW FOR DAMAGES FROM ANY CAUSE WHATSOEVER WILL NOT EXCEED THE DOLLAR AMOUNT PAID BY CUSTOMER FOR THE PRODUCTS AND SERVICES GIVING RISE TO THE CLAIM.
Limited Software License of Products
CaraFlow shall at all times have and retain title and full ownership of all software, database, firmware programming routines and documentation thereof supplied by CaraFlow, its Products, and all subsequent copies, regardless of the form or media, in or on which the copies may exist (collectively “software”). Subject to the terms of this Agreement and Customer’s obligations of payment, CaraFlow grants to Customer a non-exclusive and non-transferable license to use the software on only as many computers, processors, scanners, or other computing devices as Customer has paid for software seats. Customer may not (i) reverse engineer, disassemble, decompile, or otherwise attempt to derive the source code of the software into any human perceivable form; (ii) copy, modify, adapt, transfer, translate, disclose, rent, lease, grant a security interest in, or loan the software, database, firmware programming routines or any portion thereof; (iii) create derivative works based upon the software, database, firmware programming routines, and any corresponding documentation; (iv) use or copy the software, database, firmware programming routines, or any corresponding documentation in any manner that is inconsistent with the terms of this Agreement; or (v) remove any copyright or proprietary notices or labels in or on the software, database, firmware programming routines, or any corresponding documentation. The software, database, firmware programming routines and any corresponding documentation are the intellectual property of CaraFlow and are protected by United States copyright and intellectual property laws, international treaty provisions, and applicable laws of the country in which it is being used. Customer agrees to take reasonable steps to protect proprietary interests of CaraFlow in the software, database, firmware and any corresponding documentation supplied under this Agreement.
Confidential Information
Each party anticipates that it may be necessary to provide access to information of a confidential nature of either party or a third party (hereinafter referred to as “Confidential Information”) to the other party in the performance of this Agreement. “Confidential Information” means any information or data in oral, electronic or written form which the receiving party knows or has reason to know is proprietary or confidential and which is disclosed by a party in connection with this Agreement or which the receiving party may have access to in connection with this Agreement. Confidential Information will not include information which: (a) becomes known to the public through no act of the receiving party; (b) was known to the receiving party, or becomes known to the receiving party from a third party having the right to disclose it and having no obligation of confidentiality to the disclosing party with respect to the applicable information; or (c) is independently developed by agents, employees or subcontractors of the receiving party who have not had access to such information. To the extent practicable, Confidential Information should be clearly identified or labeled as such by the disclosing party at the time of disclosure or as promptly thereafter as possible, however, failure to so identify or label such Confidential Information will not be evidence that such information is not confidential or protectable.
Each party agrees to hold the other party’s Confidential Information confidential for a period of three (3) years following the date of disclosure and to do so in a manner at least as protective as it holds its own Confidential Information of like kind but to use no less than a reasonable degree of care. Disclosures of the other party’s Confidential Information will be restricted (i) to those individuals who are participating in the performance of this Agreement and need to know such Confidential Information for purposes of providing or utilizing the Products, or (ii) to its business, legal and financial advisors, each on a confidential basis. Each party agrees not to use any Confidential Information of the other party for any purpose other than the business purposes contemplated by this Agreement. Upon the written request of a party, the other party will either return or certify the destruction of the Confidential Information of the other party.
If a receiving party is required by law, rule or regulation, or requested in any judicial or administrative proceeding or by any governmental or regulatory authority, to disclose Confidential Information of the other party, the receiving party will give the disclosing party prompt notice of such request so that the disclosing party may seek an appropriate protective order or similar protective measure and will use reasonable efforts to obtain confidential treatment of the Confidential Information so disclosed.
Product Return Policy
CaraFlow offers a thirty (30) day return policy on most products sold. Customer may obtain additional details and any applicable updates from the dedicated CaraFlow account manager or may obtain manufacturer contact information by contacting CaraFlow Customer Relations at 414-906-9170 or by emailing info@caraflow.com.
Return Restrictions
Defective Product Returns – Customer may return defective Products directly to CaraFlow within thirty (30) days of invoice date and receive, at CaraFlow’s option, replacement, exchange, or repair. After thirty (30) days, only the product warranty applies.
Non-Defective Product Returns – Customer may return most non-defective Products directly to CaraFlow within thirty (30) days of invoice date and receive, at Customer’s option, refund or exchange. A 25% restocking fee is required on allowable non-defective product returns up to 30 days from date of purchase.
Customer Shipment of Returned Merchandise
Return Merchandise Authorization (RMA) – No returns of any type will be accepted by CaraFlow unless accompanied by a unique RMA number, which Customer may obtain by providing the following information to CaraFlow: customer name, applicable invoice number, product serial number, and details of Customer’s issue with the product being returned. Customer has ten (10) days to return a Product after the applicable RMA is issued. CaraFlow reserves the right to refuse any unauthorized returns including those that occur after the ten (10) day period or of Products that are unaccompanied by a valid RMA number issued by CaraFlow.
Returned Products Must Be Complete – All Products must be returned one hundred percent (100%) complete, including all original boxes, packing materials, manuals, blank warranty cards, and other accessories provided by the manufacturer. CaraFlow reserves the right to refuse the return of incomplete Products.
Shipping Costs
Customer is responsible for the cost of shipping returned items to CaraFlow. CaraFlow is responsible for the return cost of shipping replacements or exchanges of returned items and will match Customer’s shipping method or use an equivalent shipping method.
Software Subscriptions & Renewal
The fee charged to the Customer for renewal of software subscription Products is based upon continuous, uninterrupted purchase of this option by the Customer starting one (1) year after the initial date of purchase of the Product. If the Customer institutes the purchase of the extended software subscription beyond one (1) year past the date of initial purchase of the software subscription Product, or after an interruption in the continuous purchase of the software subscription Product, the Customer shall pay CaraFlow a fee equivalent to that amount which would have accrued from the date software subscription expired: either one (1) year after the date of the initial software subscription Product purchase or beginning with expiration date of Customer’s software subscription for the Product, through the date that software subscription is initiated or reinstated.
Technical Support & Enhancements
CaraFlow will provide technical support and enhancements for Product when technical support and enhancements are provided with the original Product purchase, when Customer purchases technical support & enhancements for a Product, or with a Software Subscription. CaraFlow will provide the following:
Technical Support – CaraFlow will provide the Customer with email and telephone technical support during normal business hours (weekdays, 8am – 5pm CST). Technical Support includes:
- General help and technical assistance
- Problem diagnosis and resolution
- Remote training performed via the web and/or conference call
- Product configuration assistance
Enhancements – CaraFlow will distribute to the Customer all developed or current enhancements to Product, when enhancements are generally released by CaraFlow. Enhancements include:
- System updates – versions of software that operate under new releases of the computer manufacturer’s operating system.
- Software enhancements – versions of software which encompass improvements, extensions, and other changes which CaraFlow, in its sole discretion, deems to be logical improvements or extensions of the original Product supplied to the Customer by CaraFlow.
- Documentation – updates and extensions of user documentation.
Technical Support Fees & Renewal
All purchased Products include one-year of technical support & maintenance. Subject to CaraFlow’s sole discretion, Customer may extend the technical support and maintenance by purchasing an extended technical support and maintenance option from CaraFlow. CaraFlow reserves the right to no longer offer any particular product for sale, and/or limit or end support for the product at any time.
The fee charged to the Customer for renewal of technical support is based upon continuous, uninterrupted purchase of this option by the Customer starting one (1) year after the initial date of purchase of the Product. If the Customer institutes the purchase of technical support beyond one (1) year past the date of initial purchase of the Product, or after an interruption in the continuous purchase of technical support, the Customer shall pay CaraFlow a fee equivalent to that amount which would have accrued from the date technical support expired: either one (1) year after the date of the initial Product purchase or beginning with expiration date of Customer’s technical support for the Product, through the date that technical support is initiated or reinstated.
Product Repair and Replacement Costs Outside of Warranty
Repair or replacement of Product which is not covered by the Limited Warranty will be subject to an additional fee. An estimate for repair or replacement will be provided to the Customer on a per case basis. CaraFlow will not commence repair or replacement work until Customer provides written or electronic approval of the quote. CaraFlow will use its best efforts to expedite repair or replacement. Customer is responsible for shipping costs.
Arbitration
Any claim, dispute, or controversy (whether in contract, tort or otherwise, whether preexisting, present or future, and including, but not limited to, statutory, common law, intentional tort and equitable claims) arising from or relating to the Products, the interpretation or application of these Terms and Conditions or the breach, termination or validity thereof, the relationships which result from these Terms and Conditions (including, to the full extent permitted by applicable law, relationships with third parties who are not signatories hereto), or CaraFlow’s advertising or marketing (collectively, a “Claim”) WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION. Arbitration will be conducted pursuant to the Rules of the American Arbitration Association and neither CaraFlow nor Customer will have the right to litigate any Claim in court or to have a jury trial on that Claim or to engage in pre-arbitration discovery, except as provided for in the applicable arbitration rules or by agreement of the parties involved. Furthermore, Customer will not have the right to participate as a representative or member of any class of claimants pertaining to any Claim. Notwithstanding any choice of law provision included in these Terms and Conditions, this arbitration agreement is subject to the Federal Arbitration Act (9 U.S.C. §§ 1-16). The arbitration will take place exclusively in Milwaukee, Wisconsin. Any court having jurisdiction may enter judgment on the award rendered by the arbitrator(s). Each party involved will bear its own cost of any legal representation, discovery or research required to complete arbitration. The existence or results of any arbitration will be treated as confidential. Notwithstanding anything to the contrary contained herein, all matters pertaining to the collection of amounts due to CaraFlow arising out of the Products will be exclusively litigated in court rather than through arbitration.
Miscellaneous Provisions
CaraFlow may assign or subcontract all or any portion of its rights or obligations with respect to the sale of Products or assign the right to receive payments, without Customer’s consent. Customer may not assign these Terms and Conditions, or any of its rights or obligations herein without the prior written consent of CaraFlow. Subject to the restrictions in assignment contained herein, these Terms and Conditions will be binding on and inure to the benefit of the parties hereto and their successors and assigns. No provision of this Agreement will be deemed waived, amended or modified by either party unless such waiver, amendment or modification is in writing and signed by both parties. The relationship between CaraFlow and Customer is that of independent contractors and not that of employer/employee, partnership or joint venture.
If any term or condition of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, the same shall not affect the other terms or conditions hereof or thereof or the whole of this Agreement.
Notices provided under this Agreement will be given in writing and deemed received upon the earlier of actual receipt or three (3) days after mailing if mailed postage prepaid by regular mail or airmail or one (1) day after such notice is sent by courier or facsimile transmission. Any delay or failure by either party to exercise any right or remedy will not constitute a waiver of that party to thereafter enforce such rights.