These Terms and Conditions of Sale (the “Terms”) govern the sale of hardware products and any related firmware, software, documentation, and services by [Nodestream, Inc.], a [Delaware] corporation doing business as Nodestream.ai (“Nodestream,” “we,” “us,” or “our”), to the business purchaser identified on the applicable quotation, order, or invoice (“Customer,” “you,” or “your”). These Terms apply to all quotations, order acknowledgments, invoices, and sales of Products by Nodestream and form a binding agreement between Nodestream and Customer.
Business customers only. Nodestream sells exclusively to businesses for commercial purposes and does not sell to consumers. By placing an order, you represent and warrant that you are acquiring Products in the ordinary course of your business and not for personal, family, or household use.
1.1 Acceptance. By submitting a purchase order, issuing instructions to ship, accepting delivery of, or paying for any Product, Customer accepts and agrees to be bound by these Terms.
1.2 Order of precedence. If the parties have executed a separate written master purchase, supply, or reseller agreement signed by authorized representatives of both parties, that agreement governs and controls over any conflicting provision of these Terms. Otherwise, these Terms control. These Terms supersede and reject any additional or different terms contained in Customer’s purchase order, vendor portal, or other documents, and no such terms will bind Nodestream unless expressly agreed in a writing signed by Nodestream.
1.3 Entire understanding. These Terms, together with the applicable quotation, order acknowledgment, and any documents expressly incorporated by reference, constitute the entire agreement between the parties regarding the sale of the Products and supersede all prior or contemporaneous understandings on that subject.
3.1 Quotations. Quotations are for informational purposes, are valid for [thirty (30)] days unless otherwise stated, and do not constitute an offer that Customer can accept to form a contract. Nodestream may revise or withdraw a quotation at any time before it accepts an Order.
3.2 Order acceptance. An Order is binding only when Nodestream accepts it, whether by written acknowledgment or by shipping the Products. Nodestream may accept or decline any Order in whole or in part in its discretion.
3.3 Changes and cancellation. After acceptance, Customer may not change or cancel an Order without Nodestream’s prior written consent. Orders for custom, configured-to-order, or non-stock Products are non-cancellable and non-returnable. Nodestream may modify Specifications to incorporate changes that do not materially reduce a Product’s functionality.
3.4 Allocation. If demand exceeds available supply, Nodestream may allocate Products among its customers in a manner it determines to be fair and reasonable, without liability.
4.1 Prices. Prices are stated in U.S. dollars and are exclusive of taxes, shipping, insurance, duties, and similar charges unless expressly stated otherwise. Prices are those in effect at the time Nodestream accepts the Order.
4.2 Taxes. Customer is responsible for all sales, use, excise, value-added, and similar taxes and duties arising from an Order, other than taxes based on Nodestream’s net income. If Customer claims a tax exemption, it must provide a valid exemption certificate before shipment.
4.3 Payment terms. Unless Nodestream agrees otherwise in writing, payment is due net [thirty (30)] days from the invoice date, subject to credit approval. Nodestream may require prepayment, a deposit, or other payment assurances. Customer will pay in the currency stated on the invoice using the methods Nodestream designates.
4.4 Late payment. Past-due amounts accrue interest at the lesser of [one and one-half percent (1.5%)] per month or the maximum rate permitted by law. Nodestream may suspend performance, withhold shipments, or revoke credit terms while any amount is past due, and Customer will reimburse Nodestream’s reasonable costs of collection, including attorneys’ fees.
4.5 No setoff. Customer will pay all amounts when due without setoff, deduction, or withholding of any kind.
4.6 Security interest. Nodestream retains a purchase-money security interest in each Product until Customer has paid for it in full, and Customer authorizes Nodestream to file financing statements to perfect that interest.
5.1 Shipping terms. Unless otherwise agreed in writing, Products are delivered [FCA Nodestream’s shipping facility (Incoterms 2020)]. Risk of loss passes to Customer when the Products are made available to the carrier at Nodestream’s facility.
5.2 Delivery dates. Delivery and ship dates are estimates only. Nodestream will use commercially reasonable efforts to meet them but is not liable for any loss arising from late delivery, and late delivery does not entitle Customer to cancel an Order or refuse Products.
5.3 Partial shipments. Nodestream may ship Products in installments and invoice each installment separately.
5.4 Title. Title to a Product passes to Customer upon Nodestream’s receipt of payment in full for that Product, subject to Section 4.6.
5.5 Inspection and acceptance. Customer will inspect Products promptly upon receipt and will be deemed to have accepted them unless it gives Nodestream written notice of any visible damage, shortage, or nonconformity within [ten (10)] days after delivery. Customer’s sole remedy for non-conforming Products is set out in Sections 6 and 7.
6.1 RMA required. Customer may not return any Product without first obtaining a Return Materials Authorization (“RMA”) number from Nodestream. Returned Products must be in their original packaging and reference the RMA number.
6.2 Non-conforming or DOA Products. If a Product is non-conforming or dead-on-arrival and Customer notifies Nodestream within the period in Section 5.5, Nodestream will, at its option and as Customer’s exclusive remedy, repair, replace, or refund the price of the affected Product.
6.3 Other returns. Returns of conforming, non-defective Products, if accepted by Nodestream in its discretion, are subject to a restocking fee of [fifteen percent (15%)] and must be made within [thirty (30)] days of delivery. Custom and configured-to-order Products are not returnable.
6.4 Return shipping. Customer bears the cost and risk of returning Products to Nodestream except where the return is due to Nodestream’s error or a non-conforming Product.
7.1 Warranty. Nodestream warrants that, under normal use and service, each Product will be free from defects in materials and workmanship and will conform in all material respects to its Specifications for a period of [twelve (12) months] from the date of delivery (the “Warranty Period”).
7.2 Exclusive remedy. If a Product fails to conform to the warranty during the Warranty Period and Customer follows the RMA process, Nodestream will, at its option and as Customer’s sole and exclusive remedy, repair the Product, replace it with a new or refurbished equivalent, or refund the price paid for it. Replacement or repaired Products are warranted for the remainder of the original Warranty Period.
7.3 Exclusions. The warranty does not apply to any Product or part that has been: (a) misused, abused, or operated outside the Specifications or the operating environment described in the Documentation; (b) improperly installed, configured, maintained, stored, or handled; (c) modified, altered, or repaired by anyone other than Nodestream or its authorized service provider; (d) damaged by accident, power surge, natural disaster, or external causes; (e) subject to normal wear or affecting only consumable or expendable parts; or (f) combined with hardware, software, or systems not supplied or approved by Nodestream where the defect would not have occurred but for the combination.
7.4 Warranty claims. Customer must obtain an RMA and return the Product as instructed. Customer is responsible for removing and reinstalling Products and for backing up its data before returning any Product.
7.5 Third-party components. Certain components may carry warranties from their original manufacturers. To the extent permitted, Nodestream will pass through such warranties to Customer; they are the responsibility of the applicable manufacturer.
EXCEPT FOR THE LIMITED HARDWARE WARRANTY EXPRESSLY SET FORTH IN SECTION 7, THE PRODUCTS, FIRMWARE, DOCUMENTATION, AND ANY RELATED SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND NODESTREAM DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. NODESTREAM DOES NOT WARRANT THAT THE PRODUCTS OR FIRMWARE WILL OPERATE UNINTERRUPTED OR ERROR-FREE OR THAT THEY WILL MEET CUSTOMER’S REQUIREMENTS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY.
9.1 License grant. Subject to these Terms and payment in full, Nodestream grants Customer a limited, non-exclusive, non-transferable (except with the Product), non-sublicensable license to use the Firmware solely in object-code form, solely as embedded in or installed on the Product, and solely to operate that Product for Customer’s internal business purposes.
9.2 Restrictions. Except as permitted by applicable law or an applicable open-source license, Customer will not, and will not permit others to: copy (other than for ordinary operation), modify, translate, or create derivative works of the Firmware; reverse engineer, decompile, or disassemble the Firmware; rent, lease, lend, sell, or distribute the Firmware separately from the Product; remove or alter any proprietary notices; or use the Firmware to develop a competing product.
9.3 Ownership. The Firmware is licensed, not sold. Nodestream and its licensors retain all right, title, and interest in and to the Firmware, Documentation, and all intellectual property rights in them. No rights are granted except as expressly stated.
9.4 Open-source components. A Product may include open-source or third-party software that is licensed under separate terms. Those terms govern that software and, to the extent of any conflict with this Section 9, control with respect to that software.
9.5 Updates. Nodestream may, but is not obligated to, make Firmware updates available. Updates are licensed under these Terms unless accompanied by separate terms. Nodestream may discontinue support for a Product or Firmware version on reasonable notice.
10.1 Installation and operation. Customer is responsible for properly installing, configuring, operating, and maintaining the Products in accordance with the Documentation, including providing a suitable operating environment, power, network, and trained personnel.
10.2 Compliance. Customer will use the Products in compliance with all applicable laws, regulations, and third-party rights, and will obtain any permits or licenses required for its use.
10.3 High-risk uses. The Products are not designed, intended, or authorized for use in any application in which the failure of the Product could lead to death, personal injury, or severe physical or environmental damage, including life-support systems, nuclear facilities, aircraft navigation or control, or weapons systems. Customer assumes all risk of, and will not use the Products for, any such high-risk use without Nodestream’s prior written agreement.
10.4 Security. Customer is responsible for the security of its own networks, systems, credentials, and data, including changing default credentials and applying Firmware updates Nodestream makes available.
11.1 Ownership. Nodestream and its licensors own all intellectual property rights in and to the Products, Firmware, Documentation, and any improvements to them. Except for the limited license in Section 9, no license or other right is granted to Customer, whether by implication, estoppel, or otherwise.
11.2 Trademarks. Nodestream’s names, logos, and product names are trademarks of Nodestream. Customer receives no right to use them except to resell unmodified Products in their original packaging where Customer is an authorized reseller.
11.3 Feedback. If Customer provides suggestions or feedback about the Products, Nodestream may use it for any purpose without restriction or obligation to Customer.
12.1 Defense. Nodestream will defend Customer against any third-party claim alleging that a Product, as delivered and used in accordance with the Documentation, infringes a valid U.S. patent, copyright, or trademark or misappropriates a trade secret, and will pay damages and costs finally awarded against Customer (or agreed in settlement) for such claim, provided Customer promptly notifies Nodestream, gives Nodestream sole control of the defense and settlement, and reasonably cooperates.
12.2 Remedies. If a Product is or may become subject to an infringement claim, Nodestream may, at its option and expense: (a) procure for Customer the right to continue using it; (b) modify or replace it so it becomes non-infringing while substantially equivalent; or (c) accept its return and refund the price paid, less reasonable depreciation.
12.3 Exclusions. Nodestream has no obligation for any claim arising from: (a) modification of a Product by anyone other than Nodestream; (b) combination of a Product with items not supplied by Nodestream; (c) Customer’s designs, specifications, or instructions; (d) use of a superseded version where the claim would have been avoided by using a current version; or (e) Firmware governed by open-source or third-party licenses. This Section 12 states Nodestream’s entire liability and Customer’s exclusive remedy for any claim of intellectual property infringement.
Customer will defend, indemnify, and hold harmless Nodestream and its Affiliates and their respective officers, directors, employees, and agents from and against any third-party claims, liabilities, damages, and expenses (including reasonable attorneys’ fees) arising out of or relating to: (a) Customer’s use, resale, installation, or operation of the Products in violation of these Terms, the Documentation, or applicable law; (b) Customer’s designs, specifications, or instructions, or any combination or modification of the Products by or for Customer; (c) Customer’s data or content; or (d) Customer’s breach of these Terms, except to the extent the claim is covered by Section 12.
14.1 EXCLUSION OF DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, OR FOR ANY LOST PROFITS, LOST REVENUE, LOST DATA, BUSINESS INTERRUPTION, OR COST OF SUBSTITUTE GOODS, ARISING OUT OF OR RELATING TO THE PRODUCTS OR THESE TERMS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE THEORY OF LIABILITY.
14.2 LIABILITY CAP. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NODESTREAM’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THE PRODUCTS OR THESE TERMS WILL NOT EXCEED THE AMOUNTS PAID BY CUSTOMER TO NODESTREAM FOR THE SPECIFIC PRODUCT(S) GIVING RISE TO THE CLAIM DURING THE TWELVE (12) MONTHS BEFORE THE EVENT GIVING RISE TO THE LIABILITY.
14.3 Exceptions. The limitations in this Section 14 do not apply to liability that cannot be excluded or limited under applicable law, to Customer’s payment obligations, or to a party’s indemnification obligations under Sections 12 and 13.
14.4 Allocation of risk. The parties acknowledge that the prices reflect this allocation of risk and that these limitations are an essential basis of the bargain between them and will apply even if a limited remedy fails of its essential purpose.
Each party may receive non-public information of the other that is marked or reasonably understood to be confidential (“Confidential Information”). The receiving party will use the Confidential Information only to perform under these Terms, will protect it with at least reasonable care, and will not disclose it except to personnel and advisors who need to know and are bound by similar obligations. Confidential Information does not include information that is or becomes public without breach, is independently developed, or is rightfully received from a third party. The receiving party may disclose Confidential Information if required by law, provided it gives reasonable prior notice where permitted.
16.1 Term. These Terms apply to each Order and continue until the parties’ obligations under all Orders are fulfilled, unless terminated earlier.
16.2 Termination. Either party may terminate an unfulfilled Order if the other party materially breaches these Terms and does not cure the breach within [thirty (30)] days after written notice, or immediately if the other party becomes insolvent or subject to bankruptcy or similar proceedings.
16.3 Effect. Termination does not relieve Customer of the obligation to pay for Products delivered or for non-cancellable Orders. Sections that by their nature should survive termination (including Sections 4, 7–15, 17, and 19–20) survive.
Each party will comply with all applicable laws in performing under these Terms. The Products, Firmware, and related technology may be subject to the export control laws of the United States and other jurisdictions. Customer will not export, re-export, or transfer any Product or Firmware in violation of those laws, including to any embargoed country or restricted party, and will not use the Products for any prohibited end use. Customer will comply with all applicable anti-corruption laws, including the U.S. Foreign Corrupt Practices Act.
Neither party is liable for any delay or failure to perform (other than payment obligations) caused by events beyond its reasonable control, including acts of God, natural disasters, fire, flood, epidemic or pandemic, war, terrorism, civil unrest, labor disputes, governmental action, supplier or carrier failures, shortages of materials or components, or failures of telecommunications or utilities. The affected party will use reasonable efforts to resume performance.
19.1 Governing law. These Terms and any dispute arising out of or relating to them or the Products are governed by the laws of the State of California, excluding its conflict-of-laws rules. The United Nations Convention on Contracts for the International Sale of Goods does not apply.
19.2 Venue. The parties submit to the exclusive jurisdiction of the state and federal courts located in [San Francisco County], California, and waive any objection to venue there. [If arbitration is preferred, replace this Section 19.2 with a binding arbitration clause administered by [JAMS/AAA] in [San Francisco], California.]
19.3 Jury waiver. TO THE EXTENT PERMITTED BY LAW, EACH PARTY WAIVES ANY RIGHT TO A JURY TRIAL IN ANY PROCEEDING ARISING OUT OF OR RELATING TO THESE TERMS.
19.4 Limitation period. Except for payment claims, any action arising out of or relating to these Terms must be brought within [one (1) year] after the cause of action accrues, to the extent permitted by law.
19.5 Attorneys’ fees. In any proceeding to enforce these Terms, the prevailing party is entitled to recover its reasonable attorneys’ fees and costs.
20.1 Assignment. Customer may not assign or transfer these Terms or any Order without Nodestream’s prior written consent, except to a successor of all or substantially all of its business that is not a competitor of Nodestream. Nodestream may assign these Terms to an Affiliate or in connection with a merger, acquisition, or sale of assets. Any prohibited assignment is void.
20.2 Notices. Notices must be in writing and sent to the addresses on the applicable Order or to [legal@nodestream.ai] for Nodestream, and are effective on receipt.
20.3 Severability and waiver. If any provision is held unenforceable, the remaining provisions remain in effect, and the unenforceable provision will be modified to the minimum extent necessary to make it enforceable. A party’s failure to enforce any provision is not a waiver of its right to do so later.
20.4 No third-party beneficiaries. These Terms do not create any rights in any third party.
20.5 Independent contractors. The parties are independent contractors, and nothing in these Terms creates a partnership, joint venture, agency, or employment relationship.
20.6 Counterparts and electronic acceptance. These Terms may be accepted electronically and in counterparts, each of which is deemed an original.
20.7 Relationship to Privacy Policy. Nodestream’s collection and use of personal information is described in the Nodestream.ai Privacy Policy, which is incorporated by reference.
