Terms and Conditions of Sales and Services
Smart Monkeys, Inc. warrants that any bugs corrections and/or other modifications required to match the original scope of work will be done at no cost. This warranty is only valid for 90 days from the day that the programming code is delivered. SMART MONKEYS, INC. DISCLAIMS ALL OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE. Customer is solely responsible for determining the suitability of the goods and services purchased for the use contemplated by Customer and Customer assumes all risk and liability for loss, damage, or injury out of the use or possession of the goods and services furnished under this Agreement.
Smart Monkeys, Inc. does not offer warranties for the hardware products that it resells. Such products are warranted by their manufacturer. Software applications sold by Smart Monkeys, Inc. contain separate warranties in the End User License agreements.
Customer’s exclusive remedy and Smart Monkeys, Inc.’s sole responsibility for any claim or cause of action arising under this Agreement is expressly limited to either (1) replacement or refund of the purchase price, less costs, of all goods and services shown to be other than as warranted or (2) payment not to exceed the purchase price of the specific goods or service for which damages are claimed, less costs. Any refund or replacement is conditioned upon Customer giving Smart Monkeys, Inc. written notice of such defect within the warranty period.
IN NO EVENT SHALL SMART MONKEYS, INC. BE LIABLE TO CUSTOMER WHETHER IN CONTRACT OR TORT OR FOR BREACH OF STATUTORY DUTY FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION CLAIMS FOR INDEMNIFICATION, LOST REVENUES AND PROFITS EVEN IF SMART MONKEYS, INC. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Unless otherwise agreed in writing, the Customer must make payment within fifteen days after the date of the invoice. If payment is not received within the due date, Smart Monkeys, Inc. may charge interest at a monthly rate of 1.5%, or the maximum rate allowed by applicable law, whichever is less, on all overdue amounts without notification. Payment shall not be withheld, delayed, postponed or modified in any way because of end client. Any applicable taxes or government charges may be added to Smart Monkeys, Inc.’s invoice at Smart Monkeys, Inc.’s sole discretion.
Modifications and Performance
Purchasing orders that are set for a specific amount of days or hours cannot be modified without prior consent from Smart Monkeys, Inc. and such request shall be made through a change order form. Additional modifications or features not mentioned in the initial scope of work will be subject to a new and separate quotation. Smart Monkeys, Inc. reserves the right to manage the manner services are provided as long as Smart Monkeys, Inc. performs the services outlined in the scope of work.
Services and Ownership
Smart Monkeys, Inc. reserves the right to provide additional software, at no cost, if deemed necessary to enhance the services provided. Licenses for such software will be transferred to the Customer upon full payment of such services, until then, such licenses shall remain property of Smart Monkeys, Inc. All programming codes are owned by Smart Monkeys, Inc. until full payment is provided. Smart Monkeys, Inc. reserves the right to implement code restrictions or protective mechanisms to limit the use of the work provided until full payment is received.
Termination of the Agreement
Either party may terminate this agreement upon notice in writing if (a) the other part is in breach of any material obligation contained in this Agreement, which is not remedied (if the same is capable of being remedied) within 90 days of written notice from the other party so to do; or (b) a voluntary arrangement is approved, a bankruptcy or an administration order is made or a receiver or administrative receiver is appointed over any of the other party’s assets or if any circumstances arise which entitle the court or a creditor to appoint a receiver, administrative receiver or administrator or present or make a winding-up petition or order in respect of the other party.
Smart Monkeys, Inc. will incur no liability in delay in performance, non-performance or other failure to meet any obligation to the Customer caused by circumstances beyond its control including but not limited to: war, fire, flood, hurricane, strike, labor troubles, breakage of equipment, accident, riots, acts of governmental authority or terrorists, or Acts of God.
Smart Monkeys, Inc. represents and warrants that, as of the date of this Agreement, it is not aware of any claim or action alleging that the goods or services infringes any third party intellectual property right. Smart Monkeys, Inc., however, disclaims any obligation of defense or indemnity of the Customer or the end client with respect to any such claim or action and shall have no liability arising out of any such actual or alleged intellectual property infringement arising out of this Agreement.
Applicable Laws and Commencement of Suit
This Agreement shall be governed by and construed in accordance with the laws of the State of Florida without reference to the principles of conflict of laws. The UN Convention on Contracts for the International Sale of Goods shall not apply and is specifically excluded. Any dispute shall be litigated exclusively with venue in Miami-Dade County, Florida, USA and must be commenced within twelve (12) months after the cause of action has accrued. Customer agrees to adhere to all applicable export control laws and regulations.
These terms and conditions along with any applicable Smart Monkeys, Inc.’s documentation (including but not limited to quotes, invoices, and purchase orders) represent the entire agreement between Smart Monkeys, Inc. and Customer with respect to the sale of the goods and services. No additional or different terms in the Customer’s purchase order or documents shall create any additional Customer rights or Smart Monkeys, Inc.’s obligations.
Federal Acquisition Regulations (FAR)
This is a commercial item agreement. Pursuant to (FAR) 52.122-5(e)(1) and FAR 52.244-6 concerning the acquisition of commercial items, Smart Monkeys, Inc. only accepts the following provisions (1)FAR 52.219-8, (2)FAR 52.222-26, (3) FAR 52.222-35, (4) FAR 52.222-36, (5) FAR 52.222-41, (6) FAR 52.222-41, and (7) FAR 52.247-64.