Terms and Conditions of Sale

Terms and Conditions of Sale - Applies to All Purchases by Internet

These terms and conditions ("Agreement") apply to your purchase of products and/or services and support ("Product") sold by Actian. By accepting delivery of the Product, you accept and are bound to the terms and conditions of this Agreement. THIS AGREEMENT SHALL APPLY UNLESS (I) YOU HAVE A SEPARATE PURCHASE AGREEMENT WITH ACTIAN, IN WHICH CASE THE SEPARATE AGREEMENT SHALL GOVERN; OR (II) OTHER ACTIAN TERMS AND CONDITIONS APPLY TO THE TRANSACTION.

1. Other Documents. This Agreement may NOT be altered, supplemented, or amended by the use of any other document(s) unless otherwise agreed to in a written agreement signed by both you and Actian.

2. Payment Terms; Orders; Quotes; Interest. Terms of payment are within Actian's sole discretion, and unless otherwise agreed to by Actian, payment must be received by Actian prior to Actian's acceptance of an order. Payment for the products will be made by credit card, wire transfer, or some other prearranged payment method. Your order is subject to cancellation by Actian, in Actian's sole discretion. Actian is not responsible for pricing, typographical, or other errors in any offer by Actian and reserves the right to cancel any orders resulting from such errors.

3. Shipping Charges; Taxes; Title; Risk of Loss. Shipping and handling are additional unless otherwise expressly indicated at the time of sale. Title to products passes from Actian to Customer on shipment from Actian's facility. Loss or damage that occurs during shipping by a carrier selected by Actian is Actian's responsibility. Loss or damage that occurs during shipping by a carrier selected by you is your responsibility. You must notify Actian within 21 days of the date of your invoice or acknowledgement if you believe any part of your purchase is missing, wrong or damaged. Unless you provide Actian with a valid and correct tax exemption certificate applicable to your purchase of Product and the Product ship-to location, you are responsible for sales and other taxes associated with the order. Shipping dates are estimates only.

4. Warranties. ACTIAN MAKES NO WARRANTIES FOR SERVICE, SOFTWARE, SERVICE, MAINTENANCE OR SUPPORT. SUCH PRODUCT, SOFTWARE, SERVICE, MAINTENANCE OR SUPPORT IS PROVIDED BY ACTIAN "AS IS".

5. Software. All software is provided subject to a license agreement and you agree that you will be bound by such license agreement in addition to these terms. Title to software remains with the applicable licensor(s).

6. No Returns or Refunds. All sales are final. Neither you nor your customers may return Products to Actian or receive a refund for Products.

7. Changed or Discontinued Product. Actian's policy is one of ongoing update and revision. Actian may revise and discontinue Product at any time without notice to you and this may affect information saved in your online "cart." Actian will ship Product that has the functionality and performance of the Product ordered, but changes between what is shipped and what is described in a specification sheet or catalog are possible.

8. Service and Support. Service offerings may vary from Product to Product. In addition to these terms and conditions, Actian may provide such service and support to you as described on the Actian web site at http://www.actian.com. Actian may in its discretion revise their general and optional service and support programs and the terms and conditions that govern them without prior notice to you. Actian has no obligation to provide service or support until Actian has received full payment for the Product or service/support contract you purchased. It is your responsibility to backup all existing data, software, and programs before receiving services or support (including telephone support). Actian will have no liability for loss or recovery of data, programs or loss of use of system(s) arising out of the services or support or any act or omission, including negligence, by Actian. Actian is not permitted by law to copy pirated or copyrighted materials or to copy or handle illegal data. Prior to Actian providing service or support, you represent that your system(s) does not contain illegal files or data. You also represent that you own the copyright or have a license to make copies to all files on your system and do not have any data that would cause Actian to be liable for copyright infringement if those files were copied by Actian.

9. LIMITATION ON LIABILITY. ACTIAN AND ITS LICENSORS' AGGREGATE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT OR THE SOFTWARE OR DOCUMENTATION IS LIMITED TO THE TOTAL OF ALL PAYMENTS RECEIVED BY ACTIAN FOR THE LICENSE. ACTIAN AND ITS LICENSORS SHALL NOT IN ANY CASE BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT OR PUNITIVE DAMAGES EVEN IF ACTIAN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER UNDER THEORY OF WARRANTY, TORT, PRODUCTS LIABILITY OR OTHERWISE. ACTIAN AND ITS LICENSORS' ARE NOT RESPONSIBLE FOR LOST PROFITS OR REVENUE, LOSS OF USE OF THE SOFTWARE, LOSS OF DATA, COSTS OF RE-CREATING LOST DATA, THE COST OF ANY SUBSTITUTE EQUIPMENT OR PROGRAM, OR CLAIMS BY ANY PARTY OTHER THAN YOU. LIMITATIONS IN THIS SECTION SHALL NOT APPLY TO LIABILITY FOR BODILY INJURY OF A PERSON. Some states or countries do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you.

10. Governing Law and Legal Actions. This Agreement shall be governed by, and interpreted in accordance with, the laws of the State of California, U.S., regardless of application of choice-of-law rules or principles. This Agreement expressly excludes the United Nations Convention on Contracts for the International Sale of Goods. Unless otherwise elected by Actian in writing for a particular instance (which Actian may do at its option), the sole Jurisdiction and venue for actions related to the subject matter hereof shall be the state and U.S. federal courts having within their jurisdiction the location of Actian's principal place of business. Both parties consent to the jurisdiction of such courts and agree that process may be served in the manner provided herein for giving of notices or otherwise as allowed by the state of California or U.S. federal law.