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Terms and Conditions of Sale

October 16, 2013

  1. ENTIRE AGREEMENT.  The terms and conditions of this Agreement shall control all sales of zSpace’s hardware and the licensing of software products and support (“Products”) hereunder.  These Terms and Conditions of Sale (“Agreement”), together with those appearing on the face of this form (if any), shall constitute the complete and exclusive statement of all the terms of the agreement between zSpace and Customer unless different, contradictory or additional terms and conditions are agreed to in a writing signed by authorized representatives of both parties.  In no event shall this Agreement be deemed an acceptance by zSpace of any terms and conditions included with Customer’s purchase order or similar Customer document, and zSpace’s performance hereunder is expressly conditioned on Customer’s assent to this Agreement.
  2. PRODUCTS.  zSpace reserves the right to change or improve any product at any time, and will inform Customer of any major changes to products ordered under this Agreement that affect form, fit or function, prior to shipment.
  3. PURCHASE ORDERS; ALLOCATION.  Orders shall be subject to written acceptance by zSpace and delivery schedules established in accordance with product availability and Customer’s credit status; however zSpace shall not have any liability for failure to meet a delivery date.  If zSpace’s order acknowledgment changes any of Customer’s purchase order requirements, Customer will be deemed to agree to the changes unless written objection is received by zSpace by the end of the next business day.  zSpace reserves the right to allocate inventories and current production in its sole discretion.
  4. PRICE; PAYMENT TERMS; AND INTEREST.  The price paid by Customer shall be that stated on the face of this form.  All prices are in U.S. dollars, and all payments are to be made in U.S. dollars, free of any restrictions.  Standard payment terms are net thirty (30) days from the date of invoice, which is the date of shipment, but zSpace reserves the right to require alternative payment terms, including payment in advance, irrevocable letter of credit, or C.O.D.  Customer must give zSpace written notice of any discrepancies among the purchase order, the invoice, and the products received, within ten (10) days after receipt of the products or the invoice, whichever occurs later.  Payment is not conditioned upon the products meeting any acceptance testing procedures Customer may have.  Payments should be made to the appropriate address as stated on the invoice.  zSpace reserves the right to charge Customer interest on any delinquent balance. The interest is computed on a daily basis for each day that the payment is delinquent at the lesser of eighteen percent (18%) per year or the maximum rate permitted by law.  zSpace reserves the right to refuse shipment to Customer if Customer is delinquent in making payments.
  5. TAXES AND DUTIES.  Customer is responsible for payment of all taxes of every kind imposed in connection with the sale or licensing of zSpace products hereunder (except for taxes imposed on zSpace’s income), including, without limitation, all sales, use, value-added, gross receipts, excise, or other taxes of any nature, and any penalties, interest and collection or withholding costs associated with any of the foregoing items.  All such amounts are in addition to other amounts payable hereunder and this obligation shall survive termination or expiration of this Agreement.  Customer may provide zSpace with a tax exemption certificate acceptable to the taxing authorities in lieu of paying such taxes; however, Customer shall reimburse zSpace for any fines, penalties, taxes and other charges, including expenses incurred by zSpace, due to Customer’s submission of invalid information.  If applicable law requires Customer to withhold any income taxes levied by the authorities in Customer’s country of residence on payments to be made pursuant to this Agreement (“Withholding Tax”), Customer shall take advantage of the reduced Withholding Tax provided for by tax treaty then in force between Customer’s country of residence and zSpace’s country of residence, and shall be entitled to deduct such Withholding Tax from the payments due to zSpace hereunder.  Customer shall promptly effect payment of the Withholding Tax to the appropriate tax authorities and shall transmit to zSpace within thirty (30) business days of such payment official tax receipts or other evidence issued by the appropriate tax authorities sufficient to enable zSpace to support a claim for income tax credits in zSpace’s country of residence.  Customer further agrees to assist zSpace, upon request, if zSpace contests, by appropriate legal or administrative proceedings, the validity or amount of the Withholding Tax.  In the event zSpace does not receive official tax receipts or other evidence within thirty (30) days, zSpace shall have the right to invoice Customer for such Withholding Tax and Customer agrees to pay such amounts upon receipt of invoice.
  6. DELIVERY.  Products shall be shipped Ex Works (Incoterms 2000), place of manufacture or zSpace’s warehouse, freight collect or pre-paid and added to the invoice.  Title and risk of loss or damage in respect to the products shipped hereunder shall pass to Customer on delivery to the first common carrier, except that shipments to destinations outside of the United States are subject to the Reservation of Title provision contained in Section 8 below.  Products are deemed accepted by Customer upon delivery to the carrier.  Customer is responsible for payment of all costs relating to transportation, delivery, and insurance.  Customer will be responsible for filing claims relating to any lost or damaged goods.
  7. IMPORTER OF RECORD.  For international shipments, Customer shall be the importer of record and is responsible for fulfilling quota terms, obtaining import licenses, paying import license or permit fees, duties and customs fees, and any other governmental or import taxes or fees, and preparing and submitting all required documentation in connection with importing the products.
  8. SECURITY INTEREST; RESERVATION OF TITLE.  Customer hereby grants to zSpace a purchase money security interest covering each shipment of products made hereunder (and any proceeds thereof) in the amount of zSpace’s invoice for such shipment until payment in full is received by zSpace.  (A purchase money security interest only applies to products purchased by Customer and the proceeds from the sale of such products by Customer.)  Customer agrees to sign and execute any and all documents as required by zSpace to perfect such security interest.  For products shipped to destinations outside of the United States, zSpace reserves title in such products until Customer pays zSpace in full for such products, at which time title in such products shall pass to Customer (except that in the case of software or firmware, only title to the media shall pass).
  9. CHANGES TO PURCHASE ORDER; CANCELLATION.  Any and all changes to Customer ‘s purchase orders must be provided in writing (including e-mail).  Any change order increasing the purchase will be accepted by zSpace if it can satisfy the additional requirement from available capacity and the dollar value is within the authorized credit limit.  If Customer cancels all or any portion of an order prior to shipment, a cancellation charge of ten percent (10%) of the net price will be assessed.  If zSpace is unable to meet the delivery schedule, it shall provide notice as soon as it is reasonably aware of the situation.  If zSpace fails to ship on scheduled ship date, Customer may cancel at no charge.
  10. RESCHEDULING.  Customer may reschedule shipping within the booking window, which is ninety (90) days from the date of order entry. Shipments delayed beyond the booking window will be canceled and the cancellation charge will be as of the date the reschedule request was received.
  11. SOFTWARE LICENSE.  All software is provided subject to the end-user license agreement that is included with the software, and that is incorporated herein in its entirety by this reference.  If there is any inconsistency between this Agreement and such license agreement, the license agreement will prevail.  Customer agrees to be bound by the license agreement.  If Customer does not agree to abide by the end user license agreement, Customer must not use the software and must return the product to zSpace for a refund of the purchase price.  Customer expressly acknowledges that zSpace does not sell any software and terms such as “sell” and “purchase”, as used in this Agreement, apply only to the extent the Products consist of non-software items.  You must not reverse engineer or decompile the software except to the extent permitted by applicable law despite any contractual prohibition.
  12. LIMITED WARRANTY; WARRANTIES EXCLUSIVE.  The limited warranty is stated in the documentation accompanying the product or software.  If there is any inconsistency between this Agreement and the limited warranty statement, this Agreement will prevail.  TO THE FULL EXTENT ALLOWED BY LAW, THE WARRANTIES AND REMEDIES stated in the user and installation guide ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES, terms, or conditions, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, OR ARISING FROM THE COURSE OF DEALING BETWEEN THE PARTIES OR USAGE OF TRADE, INCLUDING WARRANTIES, terms, or conditions OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, satisfactory quality, CORRESPONDENCE WITH DESCRIPTION, NON-INFRINgeMENT, AND ACCURACY OF INFORMATION GENERATED, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.
  13. LIMITATION OF LIABILITY. TO THE FULL EXTENT ALLOWED BY LAW THE PARTIES EXCLUDE ANY LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND, OR FOR LOSS OF REVENUE OR PROFITS, LOSS OF BUSINESS, OR OTHER FINANCIAL LOSS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE PERFORMANCE OR BREACH HEREOF, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. ZSPACE’S MAXIMUM LIABILITY TO CUSTOMER FOR DAMAGES HEREUNDER SHALL NOT EXCEED THE PURCHASE PRICE OF THE PRODUCTS PURCHASED HEREUNDER.  THESE DISCLAIMERS OF LIABILITY WILL NOT BE AFFECTED IF ANY REMEDY PROVIDED HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
  14. Disclaimer of Platform based Liability. The zSpace zSpace® Platform incorporates a stereo display apparatus. Customer acknowledges that: (i) use of a stereo display apparatus subjects the user to a non-normal exercising of the eyes by extending the normal accommodation, convergence and focus of the eyes in concert with each other; and (ii) some users may experience dizziness, nausea, headaches and/or other sensations of physical discomfort or illness. Customer will notify its employees, consultants, contractors and any other person that Customer permits or authorizes to use the zSpace® Platform (an “zSpace zSpace® Platform User”) of the risks associated with use of the zSpaceSpace® Platform, as described herein. zSpace disclaims any and all liability to Customer or to any zSpaceSpace® Platform User for any dizziness, nausea, headaches and/or other sensations of physical discomfort or illness that an zSpaceSpace® Platform User may experience as a result of use of the zSpaceSpace® Platform.
  15. Non-Disclosure of Confidential Material.  All non-public technical and business information disclosed by zSpace to Buyer is zSpace’s confidential information and Buyer will not use such information except as expressly authorized in connection with use of the Products and will not disclose such information to any third parties
  16. EXPORT COMPLIANCE.  Customer agrees not to export, either directly or indirectly, any product purchased hereunder without first obtaining any required license or other approval from the U.S. Department of Commerce or any other agency or department of the United States Government.  In the event Customer exports any such product from the United States or re-exports it from a foreign destination, Customer shall ensure that the export/re-export or import of the product is in compliance with all laws, regulations, orders or other restrictions of the United States and the appropriate foreign government.
  17. U.S. GOVERNMENT RIGHTS.  If Customer is an agency and/or instrumentality of the United States of America, all software and the related documentation is provided subject to the restrictions applicable to other end users in accordance with the terms of zSpace’s standard end-user license agreement and as provided in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013(c)(1)(ii) (Oct. 1988), FAR 12.212(a)(1995), FAR 52.227-19, or FAR 52.227-14 (Alt III), as applicable.  If Products are sold under a US Government contract zSpace rejects provisions or clauses required to be passed on to sellers pursuant to such contract and such provisions or clauses shall not be deemed to be binding on zSpace unless accepted in writing by an authorized representative.
  18. Certain Applications.  zSpace’s Products are not designed and not warranted to be suitable for use in military applications and/or military environments, life support applications or other critical applications which may involve potential risk of death, personal injury or severe property or environmental damage. Use of Products in such applications is fully at the risk of Buyer.
  19. FORCE MAJEURE.  zSpace shall not be liable to Customer for any alleged loss or damages resulting from delays in performance (including loss or damages resulting from delivery of the products being delayed) caused by acts of Customer, acts of civil or military authority, governmental priorities, earthquake, fire, flood, epidemic, quarantine, energy crisis, strike, labor trouble, war, riot, accident, shortage, delays in transportation, or any other causes beyond zSpace’s reasonable control.
  20. Partial Invalidity.  If any provision of this Agreement is held to be invalid or unenforceable, the remainder of this Agreement shall continue in full force and effect so long as neither party is denied material economic benefit hereunder and will be interpreted to reflect the original intent of the parties.
  21. WAIVER.  A waiver of any default hereunder or of any of the terms and conditions of this Agreement shall not be deemed to be a continuing waiver or a waiver of any other default or of any other term or condition, but shall apply solely to the instance to which such waiver is directed.
  22. ASSIGNMENT.  Neither party shall assign this Agreement or any of its rights under this Agreement without the prior written consent of the other party, which will not be unreasonably withheld or delayed; except that either party may assign all, but not part, of this Agreement to its successor in a merger or other similar corporate reorganization or to the purchaser of substantially all of its assets to which this Agreement relates, provided such successor or purchaser agrees in writing to comply with the terms of this Agreement.  Subject to the foregoing, this Agreement is binding upon, inures to the benefit of, and is enforceable by the Parties hereto and their respective successors and assigns.
  23. ARBITRATION.  All disputes, claims, and controversies between the Parties arising out of or related to this Agreement or the breach thereof (except for non-payment or late payment, breach of any obligation of confidentiality; infringement, misappropriation, or misuse of any intellectual property right; or any other claim where interim relief from the court is sought to prevent serious and irreparable injury to one of the Parties or to others) shall be settled by arbitration.  The arbitration shall be conducted by one arbitrator, under the auspices of the American Arbitration Association and under its then-current Commercial Arbitration Rules.  The power of the arbitrator shall not exceed that possessed by a Superior Court Judge in California.  The arbitrator shall issue a written opinion in support of his or her decision, stating the legal and factual basis for the decision and the reasoning leading to such decision.  The arbitrator is prohibited from awarding damages or remedies in excess of those allowed by the provisions of this Agreement.  The decision and award of the arbitrator shall be final and binding and judgment on the award so rendered may be entered in any court having jurisdiction thereof.  The arbitration shall be held in Santa Clara County, California, or a mutually convenient location, and the award shall be deemed to be made in California.  Both parties will share the costs of the arbitration equally, except that each Party shall bear its own costs and expenses, including attorney’s fees, witness fees, travel expenses, and preparation costs.
  24. GOVERNING LAW AND VENUE.  This Agreement shall be construed in accordance with, and all disputes hereunder shall be governed by, the laws of the State of California, except its conflict of lawS rules.  The United Nations Convention on Contracts for the International Sale of Goods (1980) is hereby excluded in its entirety from application to this Agreement.  Subject to the Arbitration provision above, the Superior Court of Santa Clara County and/or the United States District Court for the Northern District of California shall have exclusive jurisdiction and venue over all controversies in connection herewith.
  25. ATTORNEY’S FEES.  With the exception of the Arbitration provision above, in any legal action to enforce, or arising out of, this Agreement, the prevailing party shall be entitled to be awarded all court costs and reasonable legal fees incurred.
  26. CHOICE OF LANGUAGE.  The original of this Agreement is in English and Customer waives any right to have it written in any other language.

End User Software License Agreement

Limited Warranty Statement

490 Deguigne, Suite 200   (877) 977-2231

Sunnyvale, CA  94085 USA info@zspace.com

END-USER SOFTWARE LICENSE AGREEMENT

This End-User License Agreement (the “Agreement”) is a legal agreement between the End-User, (“Licensee”) (either an individual or an entity) and zSpace®, Inc. (“zSpace”) regarding the use of the zSpace Software. BY INSTALLING THIS SOFTWARE, UTILIZING THE HARDWARE WHICH IS DRIVEN BY THIS SOFTWARE OR CLICKING ON THE “ACCEPT” BUTTON (EITHER OF WHICH IS THE EFFECTIVE DATE OF THIS AGREEMENT), LICENSEE IS AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT. This Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties.  This Software is licensed (not sold), and its use is subject to the terms of this Agreement.

  1.  Definition of Software and Documentation. Software” means the object code version of the software program that is packaged with this Agreement, all permitted reproductions of the same made by Licensee, and all upgrades, enhancements or improvements to such software program subsequently provided to Licensee by zSpace or its authorized agents, distributors, or resellers on any distribution media or via any form of electronic distribution.  “Documentation” means the related documentation generally provided by zSpace with the Software, which may be provided in hard copy or “online” or electronically.
  2. License.  Subject to the other terms in this Agreement, zSpace hereby grants to Licensee a personal, perpetual, and non-exclusive license to install and/or use the Software on zSpace zSpace® hardware for Licensee’s internal business purposes.  Licensee must license a separate copy of the Software for each zSpace zSpace® hardware instance on which it is installed.  Licensee may make up to two (2) copies of the Software to be used for archival or back-up purposes only.  Licensee may copy the Documentation as reasonably necessary in connection with Licensee’s authorized internal use of the Software.  Licensee may not use the Software with any equipment other than the equipment specified by zSpace. Licensee may not loan, rent, lease, license, sublicense or distribute the Software or any copies.  The Software contains certain open source software and is licensed pursuant to the applicable open source licenses specified in the documentation and is provided WITHOUT ANY WARRANTY.  You can modify and distribute the open source software in accordance with the terms of the specified licenses.  Upon request at any time within three (3) years from your receipt of this software the supplier will provide it to you in source code form.  More details are available from zSpace at zSpace.com.
  3. Copyright and other intellectual property rights.  All intellectual property rights in the Program(s) and user documentation are owned by zSpace and are protected by copyright and other intellectual property laws, international treaty provisions and applicable national laws. All rights not expressly granted in this Agreement are reserved by zSpace.
  4. Further Restrictions.  Except to the extent the following prohibitions may be prohibited by local law, Licensee may not:  (a) modify, adapt, decompile, disassemble, or reverse engineer the Software; (b) create derivative works (as defined in the United States Copyright Act, 17 USC §101) based on the Software; (c) allow any third party to use or have access to the Software or Documentation, except for an outsourced service provider who agrees to be bound by this Agreement; (d) make the Software available over the Internet or similar networking technology;  (e) use, evaluate or view the Software or Documentation for purpose of designing, modifying, or otherwise creating any software program, or any portion thereof, which performs functions similar to the functions performed by the Software; or (f) sublicense the Software or Documentation to any third party. If Licensee wishes to obtain interface information relating to the Program, to achieve interoperability, a request should be made in writing to zSpace.
  5. Ownership.  Licensee acknowledges and agrees that:  (a) the underlying structure, sequence, organization and source code of the Software are valuable trade secrets of zSpace and/or its licensors;  (b) the Software and Documentation, including any copy or partial copy made by Licensee, are the property of zSpace or its licensors, and not Licensee; and (c) Licensee will use the Software and Documentation only under the terms and conditions described herein.  Licensee may not remove or alter any copyright, trademark and other proprietary rights notices included by zSpace on the originals, and will include all such notices on any copies.
  6. Upgrades.  If the Software is labeled as an upgrade, Licensee must be properly licensed to use the Software identified by zSpace as being eligible for the upgrade in order to use the upgraded Software.  Software labeled as an upgrade replaces and/or supplements the Software that formed the basis for Licensee’s eligibility for the upgrade.  Licensee may use the upgrade and the resulting upgraded Software only in accordance with the terms of this Agreement; except that when an upgrade is downloaded from the Internet or by File Transfer Protocol (FTP), Licensee may additionally make one copy of the upgrade for each licensed copy of the underlying Software.  If the Software is an upgrade of a component of a package of software programs that Licensee licensed as a single product, the Software may be used only as part of that single software package and may not be separated for use.
  7. Limited Warranty; Limitation of Liability.  The limited warranty and limitation of liability applicable to this Software, not including any open source software, are as stated in the zSpace zSpace® Product documentation, whether in paper or electronic form, accompanying the Software.  Such warranty and limitation of liability are incorporated herein in their entirety by this reference.
  8. Termination.  Upon any violation of any of the provisions of this Agreement, Licensee’s rights to use the Software shall automatically terminate and Licensee shall be obligated to destroy all copies of the Software and related Documentation.  Licensee may terminate this Agreement at any time by destroying the Software and related Documentation.
  9. Software Transfer.  Licensee may permanently transfer all of its rights under this Agreement, provided: (a) Licensee transfers the physical zSpace zSpace® hardware in which the Software is made available; (b) Licensee transfers Documentation and all copies of the Software, Documentation and any upgrades with the zSpace zSpace® hardware on which it is installed; (c) Licensee retains no copies, including copies stored on any medium and (d) the recipient agrees to the terms of this Agreement.
  10. Statutory rights.  If Licensee purchased the license of the copy of the Program(s) covered by this Agreement as a consumer, the exclusions and limitations contained in this Agreement do not affect any statutory rights to which Licensee are entitled and which may not by law be excluded or limited.
  11. U.S. Government License Rights.  If Licensee is an entity of the United States Government, Licensee shall receive the Programs with restricted rights.  In no event shall the Government acquire greater than RESTRICTED/LIMITED RIGHTS.  At a minimum, use, duplication, or disclosure by the Government is subject to restrictions as set forth in FAR §52.227-14 Alternates I, II and III (JUN 1987); FAR §52.227-19 (JUN 1987) and/or FAR §12.211/12.212 (Commercial Technical Data/Computer Software); and DFARS §252.227-7015 (NOV 1995) (Technical Data) and/or DFARS §227.7202 (Computer Software) as applicable. If Products are sold under a US Government contract, zSpace rejects provisions or clauses required to be passed on to sellers pursuant to such contract and such provisions or clauses shall not be deemed to be binding on zSpace unless accepted in writing by an authorized representative.
  12. Export.  Licensee agrees not to export, either directly or indirectly, the Software or Documentation without first obtaining any required license or other approval from the U.S. Department of Commerce or any other agency or department of the United States Government.  In the event Licensee exports any Software or Documentation from the United States or re-exports it from a foreign destination, Licensee shall ensure that the export/re-export or import of the Software and Documentation is in compliance with all laws, regulations, orders or other restrictions of the United States and the appropriate foreign government.
  13. Entire Agreement; Other Signed License.  This Agreement represents the complete agreement concerning the matters covered and may be amended only by a writing executed by both parties.  However, if Licensee has in effect a signed license agreement with zSpace with respect to the Software covered by this Agreement, then notwithstanding any other provision in this Agreement, the terms of that signed license agreement shall control Licensee’s use of the Software and related Documentation. If any provision of this Agreement is held to be invalid or unenforceable, the remainder of this Agreement shall continue in full force and effect so long as neither party is denied material economic benefit hereunder and will be interpreted to reflect the original intent of the parties. 
  14. Waiver.  A waiver by zSpace of any term or condition of this Agreement in any instance shall not be deemed or construed to be a future waiver of such term or condition.
  15. Construction; Language.  As used in this Agreement, the words “include” and “including”, and variations thereof, will not be deemed to be terms of limitation, but rather will be deemed to be followed by the words “without limitation.”  The headings in this Agreement will not be referred to in connection with the construction or interpretation of this Agreement.  This Agreement is in the English language only, which language shall be controlling in all respects, and all notices under this Agreement shall be in the English language.
  16. Governing Law and Jurisdiction:  This Agreement IS governed by the laws of the State of California as such laws are applied to agreements entered into and to be performed entirely within California between California residents, and by the laws of the United States.  The United Nations Convention on Contracts for the International Sale of Goods (1980) is hereby excluded in its entirety from application to this Agreement.  The Superior Court of Santa Clara County and/or the United States District Court for the Northern District of California shall have exclusive jurisdiction and venue over all controversies in connection herewith.

490 Deguigne, Suite 200   (877) 977-2231

Sunnyvale, CA  94085 USA info@zspace.com

Copyright © 2012 by zSpace, Inc.  Patents Pending.

LIMITED WARRANTY

This warranty applies to customers located in the United States, Australia, Canada (except Quebec), Ireland, New Zealand, U.K., and other English language countries, and countries for which a translation into the local language is not provided.

HARDWARE.  zSpace, Inc. (“zSpace”), warrants to the end user (“Customer”) that this product will be free from defects in workmanship and materials, under normal use, for one (1) year from the date of purchase from zSpace or its authorized reseller.  zSpace’s sole obligation under this express warranty shall be, at zSpace’s option and expense, to repair the product or part, replace the product or part with a comparable product or part, or if neither repair nor replacement is reasonably available, zSpace may, in its sole discretion, refund to Customer the purchase price paid for the product or part.  Replacement products or parts may be new or reconditioned.  zSpace warrants any replaced or repaired product or part for a period of ninety (90) days from shipment, or through the end of the original warranty, whichever is longer.

SOFTWARE.  zSpace warrants to Customer that each software program licensed from it will perform in substantial conformance to its published program specifications, for a period of ninety (90) days from the date of purchase from zSpace or its authorized reseller.  zSpace warrants the media containing software against failure during the warranty period.  No updates are required to be provided, but zSpace may choose to provide updates in its sole discretion.  zSpace’s sole obligation under this express warranty shall be, at zSpace’s option and expense, to replace any defective media, to modify the software so that it substantially conforms to the applicable zSpace published program specifications.  zSpace makes no warranty or representation that its software products will meet Customer’s requirements or work in combination with any hardware or applications software products provided by third parties, that the operation of the software products will be uninterrupted or error-free, or that all defects in the software products will be corrected.  Certain software contains certain open source software and is licensed pursuant to the applicable open source licenses specified in the documentation and is provided WITHOUT WARRANTY OF ANY KIND.

OBTAINING WARRANTY SERVICE. If the product was purchased through a reseller, Customer should contact the reseller for warranty procedures.  If the product was purchased directly from zSpace, or if the reseller is unable to provide warranty service,Customer must contact zSpace’s Technical Service Center within the applicable warranty period to obtain a return materials authorization (RMA) number.  Dated proof of original purchase from zSpace or its authorized reseller will be required.  Products or parts shipped by Customer to zSpace must be sent prepaid and packaged appropriately for safe shipment, and it is recommended that they be insured or sent by a method that provides for tracking of the package.  Responsibility for loss or damage does not transfer to zSpace until the returned item is received by zSpace.  If Advance Exchange is not available (see paragraph immediately below), the repaired or replaced item will be shipped to Customer, at zSpace’s expense, not later than fifteen (15) days after zSpace receives the defective product, and zSpace will retain risk of loss or damage until the item is delivered to Customer.  zSpace shall not be responsible for Customer’s software, firmware, information, or memory data contained in, stored on, or integrated with any products returned to zSpace for repair, whether under warranty or not.  All returned products or parts that are replaced become the property of zSpace.  If zSpace determines that failure of the product(s) was not a result of a defect in materials or workmanship, zSpace reserves the right to charge Customer for time and materials at zSpace’s then-current labor rate, and return shipping charges.  zSpace will advise Customer prior to assessing these charges.

Dead- or Defective-on-Arrival.  In the event a product completely fails to function or exhibits a defect in materials or workmanship within the first forty-eight (48) hours of installation but no later than thirty (30) days after the date of purchase, and this is verified by zSpace, it will be considered dead- or defective-on-arrival (DOA) and a replacement shall be provided prior to zSpace receiving the defective product (“Advance Exchange”), but only if Customer provides a purchase order number, credit card number, or other method of payment acceptable to zSpace, to be used if zSpace needs to charge Customer for the replacement, as explained below.  The replacement product will normally be shipped the second business day after issuance of an RMA that is issued by 3:00 p.m. Pacific Time, and on the third business day following issuance of an RMA that is issued after 3:00 p.m. Pacific Time, but may be delayed due to availability and export or import procedures.  The shipment of Advance Exchange products is subject to local legal requirements and may not be available in all locations.  When an Advance Exchange is provided and Customer fails to return the original product to zSpace within fifteen (15) days after shipment of the replacement, zSpace will charge Customer for the replacement product, at list price.

WARRANTIES EXCLUSIVE.  IF THIS PRODUCT DOES NOT OPERATE AS WARRANTED ABOVE, CUSTOMER’S SOLE REMEDY FOR BREACH OF THAT WARRANTY SHALL BE REPLACEMENT OR REPAIR OF THE PRODUCT OR PART, OR REFUND OF THE PURCHASE PRICE PAID, AT ZSPACE’S OPTION.  TO THE FULL EXTENT ALLOWED BY LAW, THE FOREGOING WARRANTIES AND REMEDIES ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES, TERMS, OR CONDITIONS, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, OR ARISING FROM THE COURSE OF DEALING BETWEEN THE PARTIES OR USAGE OF TRADE, INCLUDING WARRANTIES, TERMS, OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, CORRESPONDENCE WITH DESCRIPTION, NON-INFRINGEMENT, AND ACCURACY OF INFORMATION GENERATED, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.  ZSPACE DOES NOT AUTHORIZE ANY RESELLER, EMPLOYEE, OR ANY OTHER PERSON TO MODIFY OR EXTEND THIS WARRANTY, OR TO ASSUME FOR IT ANY OTHER OBLIGATION OR LIABILITY IN CONNECTION WITH THE SALE, INSTALLATION, MAINTENANCE OR USE OF ITS PRODUCTS.

zSpace shall not be liable under this warranty if its testing and examination disclose that the alleged defect or malfunction in the product does not exist or was caused by Customer’s or any third person’s misuse, neglect, improper installation or testing, unauthorized attempts to open, repair, or modify the product, or any other cause beyond the range of the intended use, or by accident, fire, lightning, POWER CUTS or outages, other hazards, or acts of God.

LIMITATION OF LIABILITY. TO THE FULL EXTENT ALLOWED BY LAW, ZSPACE EXCLUDES FOR ITSELF AND ITS SUPPLIERS ANY LIABILITY, WHETHER BASED IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, OR PUNITIVE DAMAGES OF ANY KIND, OR FOR LOSS OF REVENUE OR PROFITS, LOSS OF BUSINESS, LOSS OF INFORMATION OR DATA, OR OTHER FINANCIAL LOSS ARISING OUT OF OR IN CONNECTION WITH THE SALE, INSTALLATION, MAINTENANCE, USE, PERFORMANCE, FAILURE, OR INTERRUPTION OF THIS PRODUCT, EVEN IF ZSPACE OR ITS AUTHORIZED RESELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND LIMITS ITS LIABILITY TO REPLACEMENT, REPAIR, OR REFUND OF THE PURCHASE PRICE PAID, AT ZSPACE’S OPTION.  THIS DISCLAIMER OF LIABILITY FOR DAMAGES WILL NOT BE AFFECTED IF ANY REMEDY PROVIDED HEREIN SHALL FAIL OF ITS ESSENTIAL PURPOSE.

DISCLAIMER. Some countries, states, or provinces do not allow the exclusion or limitation of implied warranties or the limitation of incidental or consequential damages for certain products supplied to certain purchasers, or the limitation of liability for personal injury, so the above limitations and exclusions may be limited in their application to you.  When the implied warranties are not allowed to be excluded in their entirety, they will be limited to the duration of the applicable written warranty.  This warranty gives you specific legal rights which may vary depending on local law.

GOVERNING LAW AND VENUE.  This LIMITED WARRANTY IS governed by the laws of the State of California as such laws are applied to agreements entered into and to be performed entirely within California between California residents, and by the laws of the United States.  The United Nations Convention on Contracts for the International Sale of Goods (1980) is hereby excluded in its entirety from application to this Limited Warranty.  The Superior Court of Santa Clara County and/or the United States District Court for the Northern District of California shall have exclusive jurisdiction and venue over all controversies in connection herewith.

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