Conditions of Use
PLEASE READ THE TERMS AND CONDITIONS OF USE CAREFULLY BEFORE USING THIS SITE.
Page Updated: September 28, 2016
Generally: These Terms and Conditions (the “Contract”) constitute an offer by CalMango, Inc. (“Seller” or CalMango, Inc.) to provide the products of Seller (the “Products”) to the original purchaser who purchases such Products (“Buyer”). Seller hereby objects to and rejects any additional, different or varying terms proposed by Buyer, unless Seller expressly assents to such terms in writing. SELLER’S AGREEMENT TO PROVIDE THE PRODUCTS IS EXPRESSLY CONDITIONED ON BUYER’S ASSENT TO ALL OF THE TERMS AND CONDITIONS SET FORTH HEREIN, NOTWITHSTANDING ANY LANGUAGE IN BUYER’S PURCHASE ORDER, IF ONE EXISTS, OR OTHER WRITING OR ORAL REPRESENTATION. THIS CONTRACT, INCLUDING ALL ITEMS EXPRESSLY INCORPORATED BY REFERENCE, CONSTITUTES THE FINAL EXPRESSION OF THE TERMS BETWEEN SELLER AND BUYER REGARDING THE PRODUCTS CONDERNING THE MATTERS SPECIFIED HEREIN AND IS A COMPLETE AND EXCLUSIVE STATEMENT OF THOSE TERMS. The rights and obligations contained herein shall inure to and be binding upon the parties, their legal representatives, successors and permitted assigns.
CalMango, Inc. and Customer agree that the terms and conditions in this document shall govern exclusively the sale or licensing by CalMango, Inc. of all products (collectively referred to as “Goods”). No addition or modification to any of the terms and conditions as they appear in this document shall be binding upon CalMango, Inc. unless in writing and signed by an authorized representative of CalMango, Inc..
Terms: Payment is due when the order is placed unless payment terms are specified in the invoice. If such terms are permitted in the invoice, terms are net thirty (30) days from date of invoice, subject to credit approval. Customer agrees to pay interest on all past due amounts at a rate of Ten Percent (10%) per annum. Customer to pay all costs of collection, including attorney fees.
Shipment: Shipment will be F.O.B. CalMango, Inc.’s warehouse or other point of shipment by CalMango, Inc.. Customer to pay all shipping, insurance, C.O.D. and related charges.
Title and Responsibility: Title to hardware shall remain with CalMango, Inc. as security only and until paid in full. Title for software or firmware remains with CalMango, Inc. and is licensed for use by Customer pursuant to CalMango, Inc.’s license agreement. Risk of loss or damage shall pass to Customer upon shipment from F.O.B. point.
Quotations: All written quotations and pro forma invoices automatically expire unless accepted within thirty (30) days from the date quoted. Verbal quotations expire the same day they are made. In order for internet orders to be binding, quotations must specifically identify Goods and list the actual quantities involved. All stenographic and clerical errors are subject to correction.
Published Prices: Prices shown in any CalMango, Inc. publication, including the internet, are subject to change without notice and Customer shall not construe published prices as a definite quotation or offer to sell by CalMango, Inc..
Taxes: The Customer shall pay or reimburse CalMango, Inc. for all sales, use, excise or similar taxes as they apply.
Scope Change: All changes affecting Goods, delivery date or otherwise affecting the scope of the order are to be documented in writing and subject to prior approval at CalMango, Inc. Headquarters. All changes approved by CalMango, Inc. may result in price, delivery, specification, and/or other changes.
Trademarks, etc.: All Trademarks, Service Marks, Trade Names, and Trade Dress are subject to the CalMango, Inc. Intellectual Property Rights license agreement set forth below. By using the product, Customer agrees to the terms and conditions of the CalMango, Inc. license agreement.
Warranty: Company warrants only that the Goods covered hereby shall be free from defects in material and workmanship under proper and normal use proven within six months from date of shipment to have existed on such date. The CalMango, Inc. warranty for Goods shall be limited to the replacement of, or issuance of a credit for the Goods involved, at CalMango, Inc.’s option, only after the return of such Goods with CalMango, Inc.’s consent. Any warranty service (consisting of time, travel, and expenses related to such services) performed other than at CalMango, Inc.’s factory, shall be at Customer’s expense.
Such warranty satisfaction is available only if (a) CalMango, Inc. is promptly notified in writing upon discovery of an alleged defect and (b) CalMango, Inc.’s examination of the subject Goods discloses, to its satisfaction, that any alleged defect has not been caused by misuse, neglect, improper installation, improper operation, improper maintenance, repair, alteration or modification, accident, or unusual deterioration or degradation of the Goods due to physical environment. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES WHETHER EXPRESSED, IMPLIED OR STATUTORY INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS and thereby excludes certifications or the like for product performance, use or design with respect to any standard, regulation or the like (unless and to the extent independently approved in writing at CalMango, Inc. Headquarters) AND EXTENDS ONLY TO CUSTOMER PURCHASING FROM CalMango, Inc. OR AUTHORIZED CalMango, Inc. RESELLER.
Intellectual Property Rights: The Buyer of the Products is hereby granted a limited, restricted, and non-transferable license to use the trade names “CalMango, Inc.”, and/or the name of any other CalMango, Inc. product, together with the associated trade images only in connection with the retail sale of the specific products purchased, and such trade names and trade images may not be used and/or displayed in any manner whatsoever through the use of digital and/or electronic media, including, but not limited to, sales and/or advertising conducted by use of the internet, a computer, television, satellite and/or cable transmissions. Buyer specifically covenants and agrees that it will not sell the Products by use of the internet, a computer, television, satellite and/or cable transmissions and Buyer shall not sell the Products to anyone and/or any entity for the purpose of resale.
Nothing in this agreement shall be construed to give Buyer any right to use any of the trademarks of Seller on or in connection with the sale of any goods or services other than the Products, and Buyer agrees not to make, or allow any of its affiliates or customers to make any such use. Any use of Seller’s trademarks or other intellectual property shall be subject to prior written approval of Seller and such restrictions as Seller may, in its sole discretion, impose from time to time. Seller may revoke such limited license at any time in its sole discretion. Buyer’s use of the trademarks, and any and all goodwill associated therewith, shall inure to Seller’s benefit. Buyer acknowledges and agrees that Seller owns all right, title and interest in and to its trademarks and trade names. Except as otherwise agreed by Seller, Products sold by Buyer shall bear Seller’s trademarks and trade names, and Buyer shall not remove or efface such trademarks and trade names. Buyer will not sell any of the Products, except in connection with such trademarks and trade names, and will not repackage the Products in any manner and resell such Products utilizing a different trademark and/or trade name. Buyer and its affiliates agree to take all steps that Seller may from time to time consider to be necessary to perfect or protect Seller’s rights in the trademarks and trade names. Buyer shall inform Seller promptly of any potential or actual infringement of any of Seller’s trademarks and/or trade names or resale of the Products and shall provide all assistance and information required by Seller in connection with any such infringement or resale.
The obligations assumed by Buyer under the terms of this agreement to preserve, protect and defend the intellectual property rights of Seller and not to permit the resale of the Products are of a special, unique, unusual, extraordinary, and intellectual character which gives the obligations a peculiar value, the loss of which cannot be reasonably or adequately compensated in damages in an action at law. Buyer, therefore, expressly agrees that Seller, in addition to any other rights or remedies which Seller may have, shall be entitled to injunctive and other equitable relief to prevent a breach of this contract by Buyer. Should any party to this agreement be required to institute legal proceedings to enforce the terms of this agreement, the prevailing party shall be entitled to an award of attorney’s fees in addition to such costs as may be permitted by the Court.
Buyer shall also indemnify Seller for all costs, including actual attorney’s fees, incurred by Seller for any actions taken by the Seller to prevent an infringement of the intellectual property rights of the Seller or resale of the Products by any customer of the Buyer.
Limit of Liability: IN NO EVENT, REGARDLESS OF CAUSE, SHALL CalMango, Inc. ASSUME RESPONSIBILITY OR LIABILITY FOR (a) PENALTIES OR PENALTY CLAUSES OF ANY DESCRIPTION, OR (b) INDEMNIFICATION OF CUSTOMER OR OTHERS FOR COSTS, DAMAGES, OR EXPENSES EACH ARISING OUT OF OR RELATED TO THE GOODS OR SERVICES OF THIS ORDER, OR FOR CERTIFICATION, UNLESS OTHERWISE SPECIFICALLY PROVIDED HEREIN, OR (c) INDIRECT OR CONSEQUENTIAL DAMAGES UNDER ANY CIRCUMSTANCE, INCLUDING ANY LOSS, INJURY, OR OTHER DAMAGES. CalMango, Inc.’s MAXIMUM LIABILITY, INCLUDING DIRECT DAMAGES, SHALL NOT EXCEED THE AMOUNT OF THE PURCHASE ORDER. THIS LIMITATION OF CalMango, Inc. LIABILITY WILL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE. ANY ACTION AGAINST CalMango, Inc. MUST BE BROUGHT WITHIN SIX MONTHS AFTER THE CAUSE OF ACTION ACCRUES.
Export Control: Any Goods supplied by CalMango, Inc. under these Terms and Conditions are subject to the United States Export Administration Act and Regulations, which includes the licensing of certain products. It is the responsibility of the exporter to comply with the Act and Regulations.
Return of Goods: Customers desiring to return or exchange Goods must first obtain a Return Merchandise Authorization (“RMA”) number. The RMA number must appear on the shipping carton. A Return Merchandise Authorization will be valid for thirty (30) days only. The customer shall pay all shipping and insurance charges to CalMango, Inc..
When Goods are received without an RMA number, or if the RMA has expired, CalMango, Inc. may, at its option, return the Goods to the customer, freight collect, or process the return for a handling charge of twenty-five dollars ($25) or ten percent (10%) of the product cost, whichever is greater.
Returns for credit are subject to a twenty percent (20%) re-stocking fee. Under no circumstances may Goods be returned after thirty (30) days.
Cancellation and Termination: Customer may terminate any order or contract only by written notice and upon payment to CalMango, Inc. of reasonable and proper cancellation charges, including but not limited to all labor, facility, and equipment costs identified in the order or contract and which have been incurred prior to the date of notice of cancellation. All additional costs resulting from the cancellation and a restocking charge of twenty percent (20%) of the final net price will be included in the cancellation charges to compensate for disruptions in scheduling, planned production, and other direct costs. Customer shall make payment within thirty (30) days from date of invoice.
CalMango, Inc. shall have the right to cancel any order or contract at any time by written notice for any breach of the order or contract by the Customer and CalMango, Inc. shall be entitled to collect cancellation charges as identified above.
No termination by Customer for default shall be effective unless and until CalMango, Inc. shall have failed to correct such alleged default within forty-five (45) days after receipt by CalMango, Inc. of the written notice specifying such default.
Force Majeure: CalMango, Inc. shall not be liable for any loss, damage or delay in delivery due to acts of God or causes beyond its reasonable control including acts of the Customer, acts of civil or military authority, fires, strikes, floods, epidemics, quarantine restrictions, war, riots, delays in transportation, transportation embargoes, or inability due to causes beyond its reasonable control to obtain necessary engineering talent, labor, materials or manufacturing facilities. In the event of such delay, the delivery date shall be extended for that length of time as may be reasonably necessary to compensate for the delay.
Government Clauses and Contracts: No Government contract regulations or clauses shall apply to the goods of this order or bind CalMango, Inc. unless specifically agreed in writing at CalMango, Inc. Headquarters.
Assignment: Neither party may assign this agreement without the written consent of the other party.
Third Party Beneficiaries: There shall be no Third Party Beneficiaries to this Agreement unless specifically agreed to by CalMango, Inc. in writing.
Governing Law: This Agreement has been entered into and executed in the State of California and shall be interpreted in accordance with the laws of said State. If any provision herein is subsequently determined to be unenforceable as to any party for any reason whatsoever, that provision shall likewise be unenforceable as to all parties to this agreement. Customer agrees that all actions or proceedings arising directly or indirectly from this Agreement shall be litigated exclusively in courts having situs within the State of California and Los Angeles County. Customer hereby consents to the jurisdiction of any local, state or federal court located within the State of California and Los Angeles County and waives the personal service of any and all process upon Customer herein and consents that all such service or process may be made by certified mail to the Customer.