Terms and Conditions of Sale

ControlByWeb®, LLC

These terms and conditions of sale (“Agreement”) are applicable to any order placed with and accepted by ControlByWeb, LLC (referred to herein as “CBW”). By placing this order and/or using CBW “Products,” the “Buyer” agrees to be bound by and comply with these terms and conditions of sale. Any currencies listed herein are assumed U.S. dollars (USD) unless stated otherwise.

1. ACCEPTANCE OF ORDER

Acceptance of any order is subject to pre-payment or credit approval and acceptance of order by CBW.

2. PRICES

Orders are billed at the prices (in US dollars) in effect at the time of shipment unless a written quote is provided. If a quote is provided, prices are valid for the period of thirty (30) days unless otherwise specified on the specific quote. Prices listed are subject to change without notice. All prices quoted are FOB origin, CBW’s facility in Nibley, Utah, U.S. Shipping charges will be added to invoice unless Buyer provides a valid shipping account number. Taxes will be added to orders shipped where CBW is required to collect taxes unless tax exemption certificate is provided in advance. Buyer is responsible for any additional taxes, duties, import fees, etc., that may be required by their local government or by the carrier.

3. PAYMENT

Full payment is due in advance unless net-thirty (30) terms are set up.

4. NEW AND ONGOING SUBSCRIPTIONS

When Buyer purchases a subscription, Buyer agrees to CBW’s Terms and Conditions of Sale for Online Services, Cloud, Mobile Applications, and Communications (available on the CBW Cloud website (www.ControlByWeb.cloud) or upon request).

(a) SUBSCRIPTIONS: ControlByWeb Cloud (“Cloud”) subscriptions and cellular data plans are paid annually and auto-renew on the anniversary of activation. No refunds are available on subscriptions or cellular data fees.

(b) CELLULAR DATA PLAN TERMS: Cellular data overages are billed monthly at $0.50 per megabyte. Data plans are paid annually and auto-renew on the anniversary of activation. The credit card information provided will be stored at time of purchase and used for auto-renewal unless a new method of payment is provided before that date. (Note that CBW cellular data plans are intended to be used to enable CBW devices to push small data packets.)

(c) CANCELLATIONS AND UPGRADES: Buyer may cancel at any time to prevent auto-renewal at the end of the plan year but will not receive any prorated refund. Upgrades are prorated according to the remaining time on the plan. Buyer must contact CBW to upgrade or cancel the renewal of Cloud and cellular data plans.

5. NET-THIRTY (30) ACCOUNTS

(a) All net-thirty orders are subject to credit approval and acceptance by CBW. (b) Payment is due thirty (30) calendar days from the date of the invoice. (c) If Buyer does not pay the invoiced amount on or before the invoice due date, Buyer will, in addition, pay finance charges of one and one-half percent (1.5%) per month on the late balance until paid in full. CBW reserves all legal rights, including but not limited to, the right to (1) withhold shipment of Products until full payment is made; and/or (2) revoke any credit extended to Buyer; and/or (3) withhold technical support, firmware updates, or repairs on all Products sold to Buyer. Any such action shall not relieve Buyer of any of their existing obligations, including the obligation of Buyer to pay for all Products received from CBW. CBW shall retain a security interest in the Products until final payment is received. Buyer is responsible to CBW for all reasonable attorneys’ fees, court costs, and/or collection agency fees should Buyer default or be late on any payments.

6. PACKAGING AND DELIVERY

CBW reserves the right to select the manner in which the Product is packaged. Special requirements for packaging will be subject to extra charges unless otherwise agreed upon by CBW in writing. Shipping dates quoted by CBW are made in good faith but are not guaranteed. CBW will use its discretion as to the selection of shipping services and routings unless otherwise specified and paid for by Buyer.

7. SHIPMENT AND RISK OF LOSS

All orders are shipped FOB origin, CBW’s facility in Nibley, Utah, U.S. Risk of loss of the Products shall pass to Buyer upon delivery to the common carrier.

The following is true of orders subtotaling less than $5,000 (excluding shipping and handling fees, taxes, import duties, tariffs, or other charges): They are uninsured by default. Buyer may opt for shipping protection through a third-party service offered during checkout on the CBW website. Buyer should contact the third-party service for insurance claims or inquiries. Buyer may choose not to purchase insurance, indicating that Buyer understands and accepts all risks of loss therein.

The following is true of orders subtotaling $5,000 or greater: Insurance is automatically applied to shipping and handling subtotal. Insurance claims should be made directly through CBW.

For custom shipping arrangements, contact CBW directly.

8. INSPECTION AND ACCEPTANCE

The Products covered hereby shall be deemed inspected and accepted within ten (10) days after receipt thereof unless a written notice of claim is given by Buyer within the ten (10) day period.

9. LIMITED WARRANTY

CBW warrants our Products to be free of defects in workmanship and material under normal use and service and to perform substantially in accordance with published CBW specifications (subject to reasonable tolerances) for a period of five (5) years from the date of invoice. This warranty includes all standard CBW products that are manufactured by CBW and does not include sensors, power supplies, and products that are sold on the CBW website but not manufactured by CBW. Custom Products that are manufactured by CBW are warranted for a period of twelve (12) months from the date of invoice. CBW warrants functionality of Products as specified when shipped; however, CBW cannot and does not guarantee or warrant ongoing compatibility with software, protocols, or devices that are developed or maintained by third parties such as web browsers and automation software. During the warranty period, CBW’s obligation is limited to, at its option, either repair or replace Products that prove to be defective, which shall be the sole and exclusive remedy under this limited warranty. Section 11-b describes return procedures and shipping costs that are covered and not covered under this warranty.

The foregoing warranty shall not apply to defects or damage resulting from improper use or misuse, neglect, shipping damage, unauthorized or improper repair, tampering, modification, improper connection, improper installation, or operation outside the electrical/environmental specifications for the product. Further, the warranty does not cover Acts of God, including but not limited to lightning, fire, flood, hurricanes, and tornadoes. This warranty does not cover damage to property, equipment, direct, indirect, consequential, or incidental damage (including damage for loss of business profit, business interruption, loss of data, and the like) arising out of the use or misuse of this product. TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL THE LIABILITY OF CBW TO BUYER OR ANY OTHER PARTY EXCEED THE ORIGINAL PURCHASE PRICE OF THE PRODUCT, REGARDLESS OF THE FORM OF THE CLAIM. No other warranty is expressed or implied. CBW specifically disclaims the implied warranties or merchantability and fitness for a particular purpose.

10. INDEMNIFICATION

Buyer indemnifies CBW against any loss, damages, injury claims, demands, etc., asserted by or claimed by any third party in connection with or related to Buyer’s responsibilities or the products that arise out of the negligent or wrongful acts of Buyer or third parties affiliated with Buyer.

11. RETURNS AND REPAIRS

(a) RETURN FOR CREDIT OR REFUND: With some exceptions, Products may be returned within 30 days of purchase date for a full refund of the purchase price (excluding shipping). Products returned within that time frame may be opened but must be in new, resaleable condition and include all components (original packaging, connectors, cables, etc.) that were shipped with the Products. Power supplies may only be returned unopened. Orders subtotaling over $1000 may be subject to a 5% restocking fee. Unopened Products that are returned more than thirty (30) days but less than ninety (90) days from date of purchase may be returned for a refund of the purchase price minus a 20% restocking fee. Furthermore, cellular-enabled hardware with an activated SIM card will incur an additional, minimum restocking fee of $25. Notwithstanding the foregoing, custom Products, special orders, orders of 40 units or more, and/or items that are beyond ninety (90) days from the purchase date may not be returned. (Special orders may include sensors, power supplies, and other products that are sold on the CBW website but not manufactured by CBW.) Before returning Products, Buyer must contact CBW and obtain an RMA (Return Merchandise Authorization) number. Products must be well packaged and returned to CBW using prepaid, insured shipping. Upon receipt of Products, CBW will inspect Products before accepting the return. Products that are not in new, resaleable condition or that have missing components will not be accepted, no refund will be given, and the Product will be returned to Buyer at their expense.

(b) RETURN FOR REPAIR: Before returning Products for repair, Buyer must contact CBW to obtain an RMA number. Before issuing an RMA, a CBW technician will work with Buyer in an attempt to resolve problems without the need for a return (all Products are fully tested before they are shipped; in many cases, problems can be resolved without returning Products). When returns are necessary and authorized, Products must be properly packaged and returned to CBW. If repairs are not covered under the Product warranty, CBW will provide Buyer with repair costs before making repairs. Buyer may choose to (1) proceed with the repair or (2) have CBW return the Product to Buyer without making the repair at Buyers expense. Buyer shall prepay all charges for shipping to CBW. For repairs covered under warranty, CBW will pay the shipping charges to return the product to Buyer if the product is shipped within the continental United States and if the repair is done within twelve (12) months from the date of the invoice. For repairs that are not covered under warranty, repairs that are made after twelve (12) months from the date of invoice, and for all Products shipped outside of the United States, Buyer shall pay all shipping charges, duties, and taxes.

All returns must be shipped to:
ControlByWeb LLC
1681 West 2960 South
Nibley, Utah 84321 U.S.

12. INTELLECTUAL PROPERTY

Any and all inventions, designs, source code, discoveries, patent applications, patents, copyrights, trademarks and trade names, commercial symbols, trade secrets, work products, and information embodying proprietary data existing and owned by CBW as of the date of the Order shall be and remain the sole and exclusive property of CBW.

All rights and ownership of any software and firmware incorporated in Products or otherwise supplied to Buyer shall remain the sole and exclusive property of CBW and/or its third-party providers. Buyer is hereby granted and accepts a personal, non-exclusive, non-transferable, royalty-free license to use the software, as provided and as intended by CBW, solely for Buyer’s internal business purposes in the country in which the software or Product was furnished.

The drawings, text, product depictions, logos, content, product descriptions, and organization of CBW’s catalog, website, brochures, and user’s manuals are proprietary to CBW and protected by intellectual property laws, including but not limited to United States Copyright law and United States Trademark law. CBW owns copyrights in these referenced works as well as the selection, arrangement, coordination, and structure of the arranged content and works. Use of CBW Products, documentation, and/or website does not give Buyer or any third party a right to modify, reproduce, transmit, publish, publicly display, adapt, or create derivative works or in any way exploit any of the materials and content contained within these works.

13. CUSTOM PRODUCTS, PRODUCT MODIFICATIONS, AND SERVICES

Buyer understands that when Buyer pays CBW to modify Products or to build custom versions of Products, the resulting Products are built upon a foundation of hardware, firmware, etc., that have taken CBW many years to develop. Buyer agrees that CBW will maintain ownership of Product design, firmware, software, documentation (including users manuals) etc., related to the services provided including all modifications, upgrades and enhancements thereto made to Products during the term of the order. In addition, unless otherwise agreed in writing, title to all tooling necessary to produce the Products shall remain vested in CBW, whether or not Buyer pays a tooling charge or pays for such tooling. Tooling may be considered obsolete and destroyed by CBW if it does not receive any orders from Buyer requiring the use of such tooling for a period of one (1) year.

14. ACCEPTABLE USE

CBW Products are very robust and reliable; however, CBW Products may NOT be used in any application where their function or failure could cause serious injury or loss of human life, or where CBW Products would require certification(s) for which they are not certified. CBW Products may not be used for any application involving illegal activity.

15. PRODUCT LIFE

CBW strives to make Products available for long periods of time; however, CBW reserves the right to discontinue Products at any time, with or without notice.

16. PRODUCT DOCUMENTATION

User’s manuals and other documentation for Products are available on the CBW website (www.ControlByWeb.com). Product documentation can only be used for the sole purpose of installing, operating, and supporting CBW Products. Buyer agrees to comply with CBW copyrights and understands that manuals must remain fully intact. No part or parts of the manual can be copied, extracted, modified, or changed without written permission from CBW.

17. FORCE MAJEURE

CBW shall not be liable for any delay or failure in performance or for any damages suffered by Buyer by reason of such delay, if caused or arising directly or indirectly from any act beyond CBW’s reasonable control including, but not limited to, Acts of God, vandalism, sabotage, accidents, strikes or other labor disputes, mechanical breakdown, shortages or delays in obtaining suitable parts, equipment, material, labor, power or transportation, acts of suppliers, interruption of utility services, acts of terrorism, or acts of any unit or agency of government. Any delays so occasioned shall affect a corresponding extension of CBW’s performance dates which are, in any event, understood to be approximate.

18. GOVERNING LAW

These General Terms and Conditions of Sale shall be governed and interpreted in accordance with the laws of the State of Utah, regardless of the laws that might otherwise govern under applicable Utah principles of conflicts of law, and without regard to the United Nations Convention on Contracts for the International Sale of Goods. Venue for any dispute arising from or related to these General Terms and Conditions of Sale shall be exclusively in the federal or state courts of the State of Utah. Prevailing party is entitled to an award of attorney fees in any suit brought based on this agreement.

19. COMPLIANCE WITH LAWS

CBW will use its commercially best efforts to comply with all federal, state, and local laws and regulations governing CBW’s Products. Buyer agrees that it will specifically comply with; (i) the export/re-export laws of the United States, as promulgated by the U.S. Department of Commerce including, if applicable, all requirements of the International Traffic in Arms Regulations and/or the Export Administration Act, as may be amended; (ii) the applicable export/re-export or import controls imposed by foreign countries; and (iii) all applicable laws and regulations imposed by any competent authorities including, without limitation, the U.S. Department of Commerce, and any controls or regulations of the U.S. Foreign Corrupt Practices Act and the anti-boycott regulations of the U.S. Department of State.

20. WAIVER

The failure of either party to enforce any provisions herein shall not be construed to constitute a waiver of such provision or of the right of such party to enforce each and every such provision.

21. SURVIVAL

If a court finds any of these provisions unenforceable, the remaining provisions remain enforceable.

22. ENTIRE AGREEMENT

Excepting agreements between CBW and authorized distributors with signed distributor agreements dated after April 2, 2014, these General Terms and Conditions of Sale set forth the entire understanding and agreement between the parties and supersedes all previous and contemporaneous agreements, whether verbal or written, expressed or implied, relating to the subject matter herein. These General Terms and Conditions of Sale may not be altered, amended, or modified except by written instrument executed by the authorized representatives of both parties.