HUDL HARDWARE TERMS OF SALE
These Hudl Hardware Terms of Sale (“Hardware Terms”), together with the online agreement found at https://www.hudl.com/eula (“Organization Terms”) and any applicable quotation, purchase order, order confirmation or invoice (“Sales Confirmation”), form the agreement (“Agreement”) between Organization and Hudl as it relates to Organization’s order, receipt and use of Hudl’s hardware products (“Hardware”). All capitalized terms not defined in these Hardware Terms have the meaning given to them in the Organization Terms.
- Acceptance of Terms — By purchasing and accepting delivery the Hardware, Organization agrees to be bound by these Hardware Terms. Any terms or conditions contained in any other form or other document submitted by Organization that are inconsistent with, or in addition to, this Agreement are rejected, objected to and shall be deemed void and of no force or effect.
- Cancellation; Changes — Once submitted, any cancellation or change to Organization’s Hardware order may be made only with advance written approval of Hudl and such changes may require different terms, including a change in the price and time of delivery. Hudl may cancel any order, in whole or in part, upon (a) Organization’s breach of this Agreement, (b) Organization’s bankruptcy, insolvency, dissolution, receivership proceedings, or(c) the occurrence of any event leading Hudl to reasonably question Organization’s willingness or ability to perform.
- Delivery — Hudl shall deliver the Hardware within a reasonable time after receiving Organization’s Sales Confirmation, subject to the Hardware’s availability. Delivery of Hardware to the carrier at Hudl’s shipping point constitutes delivery to Organization, and Organization bears all risk of loss or damage in transit. Hudl is not liable for any delays, loss, or damage in transit. Unless otherwise set forth in the Sales Confirmation, Hudl shall deliver the Hardware, EX WORKS (Incoterms® 2010) at the location specified in the Sales Confirmation (“Delivery Location”), using Hudl’s standard methods for packaging and shipping the applicable Hardware. Hudl is not liable for any non-delivery of Hardware to the Delivery Location, unless Organization gives Hudl written notice of such non-delivery within five (5) business days following the date that Organization would, in the ordinary course of business, have received the Hardware. Hudl’s liability for non-delivery of the Hardware shall be limited to replacing the Hardware within a reasonable time or adjusting the Sales Confirmation respecting such Hardware to reflect the actual quantity delivered. Hudl may make delivery in multiple installments, in which case such installments may be separately invoiced and paid for when due per invoice, without regard to subsequent deliveries. Delay in delivery of any installment will not relieve Organization of its obligations to accept remaining deliveries.
- Price; Taxes — Unless otherwise set forth in an applicable Sales Confirmation, the price of the Hardware is based on the prices quoted on the Sales Confirmation. All stated prices are exclusive of any taxes, fees, duties, and levies, however designated or imposed, and Hudl is not be responsible for the payment of any use tax, sales tax, excise tax, duty, custom, inspection or testing fee, or any other tax, fee or charge of any nature whatsoever imposed by any governmental authority, on or measured by the transaction between us, with the sole exception of any sales taxes invoiced and collected from Organization by Hudl. Organization shall pay any other such charges separately and in addition to the prices in the Sales Confirmation. If Hudl is required to pay any such tax, fee or charge, Organization shall reimburse Hudl therefore; or, in lieu of such payment, Organization shall provide Hudl at the time the order is submitted an exemption certificate or other document acceptable to the authority imposing the tax, fee or charge.
- Payment — Unless otherwise set forth in the Sales Confirmation, Organization shall pay Hudl all invoiced amounts on receipt, but in any case, no later than thirty (30) days following the date of invoice. Unpaid amounts shall accrue interest at a rate equal to the lesser of one and one-half percent (1.5%) per month and the maximum rate permitted by applicable law, from due date until paid, plus Hudl’s reasonable costs of collection. Hudl reserves all other rights granted to a seller under the Uniform Commercial Code (“UCC”) for a buyer’s failure to pay for the Hardware or any other breach by Organization of the Agreement. In addition to all other remedies available to Hudl (which Hudl does not waive by the exercise of any rights hereunder), Hudl may suspend the delivery of any Hardware or access to the Platform if Organization does not pay any amounts when due and such failure continues for five (5) business days following Organization’s receipt of notice thereof. Organization may not withhold payment of any amounts due and payable as a set-off of any claim or dispute with Hudl, regardless of whether relating to Hudl’s breach, bankruptcy, or otherwise.
- Limited Warranty — Hudl warrants that the Hardware shall, at the time of delivery, conform to the description of such Hardware as provided to Organization by Hudl through Hudl’s product directory, analytical data or other then-current literature. THIS WARRANTY IS EXCLUSIVE, AND HUDL MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF ANY THIRD-PARTY PATENT OR INTELLECTUAL PROPERTY RIGHTS. Hudl’s warranties made in connection with this sale shall not be effective if Hudl has determined, in its reasonable discretion, that Organization has misused the Hardware in any manner, has failed to use the Hardware in accordance with industry standards and practices, or has failed to use the Hardware in accordance with instructions, if any, furnished by Hudl. HUDL’S SOLE AND EXCLUSIVE LIABILITY AND ORGANIZATION’S EXCLUSIVE REMEDY WITH RESPECT TO HARDWARE THAT IS PROVED TO HUDL’S SATISFACTION TO BE DEFECTIVE OR NONCONFORMING SHALL BE REPLACEMENT OF SUCH HARDWARE WITHOUT CHARGE OR REFUND OF THE PURCHASE PRICE, IN HUDL’S SOLE DISCRETION, UPON THE RETURN OF SUCH PRODUCTS IN ACCORDANCE WITH HUDL’S INSTRUCTIONS. HUDL SHALL NOT IN ANY EVENT BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND RESULTING FROM ANY USE OR FAILURE OF THE HARDWARE, EVEN IF HUDL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE INCLUDING, WITHOUT LIMITATION, LIABILITY FOR LOSS OF USE, COST OF CAPITAL, LOSS OF WORK IN PROGRESS, DOWN TIME, LOSS OF REVENUE OR PROFITS, FAILURE TO REALIZE SAVINGS, ANY LIABILITY OF BUYER TO A THIRD PARTY, OR FOR ANY LABOR OR ANY OTHER EXPENSE, DAMAGE OR LOSS OCCASIONED BY SUCH PRODUCT INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY OR PROPERTY DAMAGE UNLESS SUCH PERSONAL INJURY OR PROPERTY DAMAGE IS CAUSED BY HUDL’S GROSS NEGLIGENCE. THE EXCLUSION OF SUCH DAMAGES AND/OR CLAIMS SHALL BE DEEMED INDEPENDENT OF, AND SHALL SURVIVE, ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY ARISING FROM THE PURCHASE AND/OR THESE TERMS AND CONDITIONS. HUDL’S LIABILITY FOR DAMAGES HEREUNDER SHALL IN NO CASE EXCEED THE CONTRACT PRICE FOR THE SPECIFIC HARDWARE THAT GIVES RISE TO THE BREACH. THESE EXCLUSIONS AND LIMITATIONS ON DAMAGES SHALL APPLY REGARDLESS OF HOW THE LOSS OR DAMAGE MAY BE CAUSED AND AGAINST ANY THEORY OF LIABILITY, WHETHER BASED ON CONTRACT, INDEMNITY, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER THEORY. ALL CLAIMS MUST BE BROUGHT WITHIN ONE (1) YEAR OF SHIPMENT, REGARDLESS OF THEIR NATURE.
- Returns — Hardware may be returned for a full refund within thirty (30) days of shipment.
- Claims and Liability — Immediately upon receipt of any Hardware shipped hereunder, Organization shall inspect the same and shall notify Hudl in writing of any claims for shortages, defects or damages and shall hold such Hardware for Hudl’s written instructions concerning disposition. If Organization does not so notify Hudl within five (5) business days after the Hardware has been received by Organization, such Hardware shall conclusively be deemed to conform to this Agreement and to have been irrevocably accepted by Organization. In any claim, brought subject to the conditions above, Organization must prove to the satisfaction of Hudl that it followed all instructions for use, care, storage, maintenance, handling and application of the Hardware. Unless otherwise specifically restricted by mandatory applicable law, Hudl’s liability under any claim and in connection with any possible allegation, whether based on negligence, contract, or any other cause of action, shall be limited to either (i) the replacement of the Hardware or the supply of equivalent goods; (ii) the repair, or payment of the cost of repair, of the Hardware; or (iii) credit in an amount equal to the purchase price specified in the pertinent Sales Confirmation, or in an amount of equivalent goods, all at Hudl’s sole option. Organization acknowledges that the remedy available to it as specified herein, is in lieu of any remedies that may be otherwise available, now or in the future, whether in law or in equity, relating to any loss or damage, whether directly or indirectly, arising from the purchase and/or the use of Hardware, including without limitation, any actual or contingent damages, loss of production, loss of profit, loss of use, loss of contracts or any other consequential or indirect loss whatsoever, whether pecuniary or non-pecuniary. If any limitation on Hudl’s liability hereunder be held ineffective under applicable law, than Hudl’s liability shall in any event be limited to the minimum amount of damages to which Hudl may limit its liability, where such is greater than the purchase price as specified in the pertinent Sales Confirmation.
- Governing Law; Disputes — All disputes allegedly arising from the legality, interpretation, application, or performance of the Sales Confirmation, the Hardware or this Agreement shall be governed by the laws of the State of Nebraska without reference to its conflict of laws principles.