TERMS AND CONDITIONS OF SALE
These Terms and Conditions of Sale (“Terms”) are incorporated into and form part of any quote issued by iXsystems, Inc. d.b.a. TrueNAS (“TrueNAS”) and accepted by the customer (“Customer”), and any corresponding purchase order (“Purchase Order”) or statement of work (“Statement of Work” or “SOW”). These Terms are binding as of the date Customer accepts the applicable quote.
1. Applicability; Channel Agreements
These Terms apply solely to direct purchases made by end customers from TrueNAS. These Terms do not apply to purchases made pursuant to a separately executed partner, reseller, distributor, referral, or other channel agreement with TrueNAS (each, a “Channel Agreement”). In the event of any conflict between these Terms and a Channel Agreement, the Channel Agreement shall govern.
2. Sale of Products and Services
TrueNAS shall sell to Customer the hardware, software, firmware, and/or support services specified in the applicable Purchase Order or SOW (collectively, the “Products” and “Services”), subject to these Terms.
3. Shipping; Delivery; Title; Risk of Loss
Unless otherwise expressly stated in an applicable quote, Purchase Order, or SOW, all Hardware shall be shipped FOB Destination, Freight Prepaid & Add, worldwide.
Title to and risk of loss for Hardware shall pass to Customer upon delivery to the designated delivery location. Delivery dates are estimates only, and TrueNAS shall not be liable for delays in shipment or delivery.
Customer is solely responsible for all customs duties, import taxes, value-added taxes, and similar governmental charges unless otherwise expressly agreed in writing prior to issuance of the applicable Purchase Order. Customer shall be the importer of record unless otherwise agreed in writing.
4. Import and Export Compliance
Each Party shall comply with all applicable U.S. and foreign import, export, and trade control laws. Where required, TrueNAS may obtain export authorizations based on information provided by Customer. Customer represents that all such information is accurate and complete and shall be responsible for any consequences resulting from inaccurate or incomplete information.
5. Packaging; Excess Hardware
TrueNAS shall package Hardware in accordance with commercially reasonable practices. If Customer receives Hardware in excess of the quantity specified in the applicable Purchase Order, Customer shall promptly notify TrueNAS and return such excess Hardware at TrueNAS’s expense.
6. Inspection; Non-Conforming Hardware
Customer shall inspect shipments upon receipt and notify TrueNAS in writing of any Hardware that materially fails to conform to the applicable Purchase Order (“Non-Conforming Hardware”) within fourteen (14) days after discovery. Customer’s sole and exclusive remedy for Non-Conforming Hardware shall be repair or replacement, at TrueNAS’s option.
7. Cancellation; Returns; Configured Hardware
Customer may cancel an accepted Purchase Order or SOW without penalty within five (5) business days following acceptance.
Cancellations after the five-day period or returns not made pursuant to the Hardware Warranty may be subject to a cancellation charge or restocking fee of up to twenty percent (20%), unless otherwise waived or reduced by TrueNAS in its sole discretion.
8. Software and Support Services
Customer’s use of any software or firmware, including software embedded in Hardware, is governed by the applicable end-user license agreement. Support services, if purchased, shall be provided in accordance with the applicable support terms available at https://www.truenas.com/support.
9. Hardware Warranty
Except as otherwise specified in an applicable Purchase Order or SOW, TrueNAS warrants that Hardware shall be free from material defects in workmanship and materials under normal use for twelve (12) months from delivery (“Hardware Warranty Period”).
Customer’s sole and exclusive remedy for Hardware that fails to conform to this warranty shall be, at TrueNAS’s option, repair or replacement. This warranty does not apply to failures resulting from misuse, abuse, unauthorized modification, improper installation, accident, or use outside the intended purpose.
THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY LAW.
10. Pricing; Taxes
Prices are as stated in the applicable quote and exclude all taxes, duties, and similar charges, except taxes based on TrueNAS’s net income. Customer is responsible for all applicable taxes unless Customer provides a valid exemption certificate. Required deposits, if any, are non-refundable unless otherwise expressly stated.
11. Payment and Credit Terms
All orders are subject to credit approval by TrueNAS. Unless Customer has received written confirmation of approved credit terms, payment is due in full prior to shipment or delivery.
If credit terms are approved, payment shall be due as stated on the invoice. Amounts not paid when due shall accrue interest at the lesser of 1.5% per month or the maximum rate permitted by law, plus reasonable costs of collection.
Customer may dispute an invoice solely for clear, objective billing errors and must notify TrueNAS within a reasonable time. Customer may not withhold payment of undisputed amounts.
TrueNAS may suspend performance or shipments for non-payment or credit concerns without liability.
12. Customer-Supplied Third-Party Products
This Section applies solely to hardware, software, firmware, data, or materials supplied or designated by Customer. TrueNAS assumes no responsibility or liability for Customer-supplied third-party products, and Customer represents that it has all rights necessary to permit their use.
13. Intellectual Property
Except for Customer Confidential Information and Customer-owned Intellectual Property, TrueNAS retains all right, title, and interest in its Intellectual Property. Subject to payment in full, TrueNAS grants Customer a non-exclusive, non-transferable right to use the Products solely for Customer’s internal business purposes.
14. Confidentiality
Each Party agrees to maintain the confidentiality of the other Party’s non-public information disclosed in connection with quotes, pricing, and non-public product information, and to use such information solely for purposes of the contemplated transaction. This obligation does not apply to information that is publicly available or independently developed without use of the Confidential Information.
15. Limitation of Liability
Except for liability arising from a Party’s willful misconduct or gross negligence, neither Party shall be liable for indirect, incidental, consequential, or punitive damages, including lost profits or lost data.
TrueNAS’s aggregate liability arising out of or related to any Product or Service shall not exceed the amounts paid by Customer for the specific Product or Service giving rise to the claim during the twelve (12) months preceding the event giving rise to liability.
16. Compliance with Laws
Customer shall comply with all applicable laws and regulations, including anti-corruption and trade compliance laws. Use of TrueNAS Products does not itself ensure Customer’s compliance with any regulatory requirements.
17. Force Majeure
Neither Party shall be liable for failure or delay in performance due to causes beyond its reasonable control.
18. Governing Law; Venue
These Terms shall be governed by the laws of the State of Delaware. The Parties consent to the exclusive jurisdiction and venue of the state and federal courts located in the State of Delaware.
19. Miscellaneous
If any provision is held unenforceable, the remaining provisions shall remain in effect. Failure to enforce any provision shall not constitute a waiver. Any action arising out of or relating to these Terms must be brought within one (1) year after the cause of action arises.