These general terms of sale (the “Terms & Conditions”) apply to purchases by you from Indistinguishable From Magic, Inc. (the “Company” or “IFM”) of products made by or on behalf the Company, unless both parties have signed a written contract covering the sale of the products, in which case the terms and conditions of the contract will govern to the extent they are inconsistent with these terms.
These Terms & Conditions are as in effect at the time of publication and are subject to change at any time.
These Terms & Conditions govern the sale and/or licensing by IFM of all products and software (each, a “Product”) furnished to you hereunder, whether such sale or licensing is effected by paper-based transactions, via e-mail or other forms of electronic data interchange or electronic commerce, and represents the entire agreement between you and IFM with respect thereto. Your receipt or acceptance of delivery of any of the Product ordered or purchased hereunder will constitute its acceptance of these terms and conditions. No addition or modification to these terms and conditions will be binding on IFM unless agreed to by IFM in writing. IFM objects to and rejects other terms and conditions that may be proposed by you or that appear on or are referenced in a purchase order or requisition of you that are in addition to or otherwise not consistent with these terms and conditions.
All prices published by IFM or quoted by IFM representatives may be changed at any time without notice. All prices quoted by IFM or IFM representatives in a writing apart from our website, app or ecommerce sites are valid for 30 days, unless otherwise stated in writing. All prices for the Product posted on our website, app or ecommerce sites are subject to change at any time without notice.
Prices for the Product exclude all sales, value added and other taxes and duties imposed with respect to the sale, delivery, or use of any Product covered hereby, all of which taxes and duties must be paid by you. If you claim any exemption, you must provide a valid, signed certificate or letter of exemption for each respective jurisdiction.
Payment for Products is due prior to shipment of Products to you. By providing a credit card or other payment method accepted by IFM, you represent and warrant that you are authorized to use the designated payment method and that you authorize us (or our third-party payment processor) to charge your payment method for the total amount of your order (including any applicable taxes and other charges). If the payment method you provide cannot be verified, is invalid or is otherwise not acceptable, your order may be suspended or canceled. You must resolve any problem we encounter in order to proceed with your order. In the event you want to change or update payment information associated with your IFM account, you can do so at any time by logging into your account and editing your payment information. All payments shall be made in U.S. Dollars.
The Products will be shipped to the destination specified by you, F.O.B. IFM’s shipping point. All shipping dates are approximate only, and IFM will not be liable for any loss or damage resulting from any delay in delivery or failure to deliver which is due to any cause beyond IFM’s reasonable control. Product available for reservation and pre-order are not offered for sale by IFM. Your placement of a reservation and pre-order does not create a contract for sale.
By placing a reservation and pre-order for a Product that is not yet available for sale, you make an offer to IFM to purchase the Product subject to these Terms & Conditions. IFM may, in its sole discretion, obtain an authorization from your bank or credit card company for no charge. An authorization from your payment card company may stay open for several days or weeks before a charge is actually made. You may cancel your offer to purchase a pre-ordered Product at any time prior to shipment and you will not be charged. Later, when the Product is offered for sale, IFM may accept your offer to purchase Product subject to these Terms & Conditions. At that time, IFM will capture payment on the payment card you provided and ship your Product.
IFM reserves the right to cancel or refuse any order for any reason at any time prior to shipment, including after an order has been submitted, whether or not the order has been confirmed. We may attempt to contact you if all or a portion of your order is canceled, or if additional information is needed to complete and accept your order.
If there is a delay in shipping any Product due to any cause beyond IFM’s reasonable control, IFM reserves the right to terminate your order or to reschedule the shipment within a reasonable period of time, and you will not be entitled to refuse delivery or otherwise be relieved of any obligations as the result of such delay. Product as to which delivery is delayed due to any cause within your control may be placed in storage by IFM at your risk and expense and for your account. Orders in process may be canceled only with IFM’s written consent and upon payment of IFM’s cancellation charges. Orders in process may not be changed except with IFM’s written consent and upon agreement by the parties as to an appropriate adjustment in the purchase price therefore. Credit will not be allowed for Product returned without the prior written consent of IFM.
All sales are final. Neither you nor any end users may return Product to IFM except as expressly permitted by IFM standard limited warranty, which is set forth below. Credit will not be allowed for Product returned without the prior written consent of IFM.
Title to and risk of loss of any physical Product will pass to you upon delivery of possession of such Product by IFM to the carrier.
You may need to use software programs in your Product to use or have full access to certain features of the Product. You are required to accept and use the software included in your Product by IFM at the time of purchase and other software programs that may be delivered to your Product by IFM from time to time. The Company and/or its subsidiaries, affiliates, and licensors retain title to and ownership of all the software for the Product and certain intellectual property rights in the Product. We and/or our affiliates also retain ownership of all IFM copyrights and trademarks. In the case of third-party software delivered by the Company and/or its subsidiaries and affiliates to the Product, the applicable third party retains title to and ownership of its software, copyrights, and trademarks.
You will not attempt to disassemble, decompile, create derivative works of, reverse engineer, modify, sublicense, distribute publicly perform, publicly display, copy, or use for other purposes the Product or the software used in connection with the Product (collectively, “Reverse Engineering”), all of which is strictly prohibited. If enforcement of the foregoing is prohibited by applicable law, you may engage in Reverse Engineering solely to obtain information necessary to achieve interoperability with the Product and Product Software, or as otherwise permitted by applicable law, but only if: (a) Reverse Engineering is strictly necessary to obtain such information: and (b) you first requested such information from IFM and we failed to make such information available under reasonable terms. If you use the Product or install any Product Software or related applications on your home computer or cellular phone ownership and the other terms of such use are governed by the applicable End User License Agreement for the Product Software, which can be found at www.ifmagic.io/legal/eula-product-software, to which EULA you must agree prior to installation.
Certain components of the software for the Product are subject to the GNU Lesser General Public License ("LGPL") or other so-called open source licenses ("Open Source Software"). Open Source Software may not be subject to the restrictions in the immediately preceding section of these Terms & Conditions. You are free to use, modify, and distribute Open Source Software that is subject to the GPL so long as you comply with the terms of the LGPL (available at https://www.gnu.org/licenses/old-licenses/lgpl-2.1.en.html). For clarification, these Terms do not limit your rights under, or grant you rights that supersede, the license terms of any applicable Open Source Software. If required by any license for particular Open Source Software, IFM makes such Open Source Software, and IFM’ modifications to that Open Source Software, available by written request to IFM at the email ro mailing address listed below. Software.
Only the applicable sales conditions, the descriptions, characteristics, features, presentations and price that we publish and directly present on our website or app, will be regarded as constituting the description of the Product. You are fully responsible for verifying whether Product, as described in the above-mentioned published materials, meet your needs and intended use.
IFM warrants that IFM Product will be free from defects in material and workmanship for a period of one (1) year from the date of purchase (the “Limited Warranty”).
Scope of Limited Warranty
This Limited Warranty applies to IFM-branded Product purchased directly from IFM. If an IFM Product has been integrated within a product or system by a manufacturer or system integrator, no warranty is provided by IFM. Please contact the place of purchase, the system manufacturer or system integrator directly for warranty service.
Warranty Procedures and Remedies
During the applicable warranty period, if you are unable to resolve a product problem and IFM Technical Support determines the product is defective, a Return Material Authorization (RMA) will be issued. Following receipt of an RMA number, you shall return the product to IFM, freight prepaid. Upon verification of warranty, IFM will, at its option, repair or replace the product and return it to you freight prepaid. If the product is not under warranty, you may have IFM repair the unit on a fee basis or return it. No services are handled at your site under this Limited Warranty.
Warranty Periods
The Limited Warranty period starts on the date of purchase from IFM. You may be required to provide a proof of purchase as a condition of receiving a warranty service.
Warranty Exclusions
No warranty will apply if the Product (1) has been altered, except by IFM; (2) has not been installed, operated, repaired, or maintained in accordance with instructions supplied by IFM in the applicable product documentation; (3) has been used in violation of the license granted by IFM; or (4) has been subjected to unreasonable physical, thermal or electrical stress, misuse, negligence, or accident. The Limited Warranty does not extend to any damages, malfunctions, or non-conformities caused by (1) normal wear due to product use; (2) use of non-IFM furnished equipment or software with products; or (3) failure to implement all new updates to the Product Software.
Disclaimer
EXCEPT AS EXPRESSLY SET FORTH ABOVE, IFM MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT, OR WARRANTIES OR OBLIGATIONS ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. FURTHER, IFM DOES NOT WARRANT THAT ITS SOFTWARE IS ERROR FREE OR THAT END USERS WILL BE ABLE TO OPERATE THE SOFTWARE WITHOUT PROBLEMS OR INTERRUPTION.
Limitation of Liability
YOUR EXCLUSIVE REMEDY FOR ANY DEFECTIVE PRODUCT IS LIMITED TO THE REPAIR OR REPLACEMENT OF THE DEFECTIVE PRODUCT.
IN NO EVENT WILL IFM OR ITS AFFILIATES BE LIABLE FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, LOST PROFITS, OR LOST DATA, OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF IFM OR ITS AFFILIATE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, AND WHETHER OR NOT ANY REMEDY PROVIDED SHOULD FAIL OF ITS ESSENTIAL PURPOSE. THE TOTAL CUMULATIVE LIABILITY TO YOU, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE PURCHASE PRICE OF THE PRODUCT. IN ADDITION, IFM SHALL NOT BE LIABLE FOR YOUR OR ANY THIRD PARTY’S SOFTWARE, FIRMWARE, INFORMATION, OR MEMORY DATA CONTAINED IN, SORTED ON, OR INTEGRATED WITH ANY PRODUCT RETURNED TO IFM, WHETHER UNDER WARRANTY OR NOT.
General
The laws of the State of New York, USA, govern this Limited Warranty. It gives you specific legal rights, and you may also have other rights that vary from state to state. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the limitations or exclusions in this limited warranty statement may not apply to you.
For consumers, who are covered by consumer protection laws or regulations in their country of purchase or, if different, their country of residence, the benefits conferred by this Limited Warranty are in addition to all rights and remedies conveyed by such consumer protection laws and regulations.
You shall indemnify, defend and hold harmless IFM and its officers, directors, shareholders and employees, from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorneys’ fees and disbursements and court costs) to the extent arising from or in connection with (1) the negligence or willful misconduct of you, its agents, employees, representatives or contractors; (2) use of a Product in combination with equipment or software not supplied by IFM where the Product itself would not be infringing; (3) use of a Product in an application or environment for which it was not designed; or (4) modifications of a Product by anyone other than IFM without IFM’s prior written approval.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE LIABILITY OF IFM UNDER THESE TERMS AND CONDITIONS (WHETHER BY REASON OF BREACH OF CONTRACT, TORT, INDEMNIFICATION, OR OTHERWISE) SHALL NOT EXCEED AN AMOUNT EQUAL TO THE TOTAL PURCHASE PRICE THERETOFORE PAID BY YOU TO IFM WITH RESPECT TO THE PRODUCT(S) GIVING RISE TO SUCH LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL IFM BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF USE OF FACILITIES OR EQUIPMENT, LOSS OF REVENUE, LOSS OF DATA, LOSS OF PROFITS OR LOSS OF GOODWILL), REGARDLESS OF WHETHER IFM (1) HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES OR (2) IS NEGLIGENT.
You acknowledge that each Product and any related Product Software and technology, including technical information supplied by IFM or contained in documents (collectively “Items”), may be subject to export controls of the U.S. government. The export controls may include, but are not limited to, those of the Export Administration Regulations of the U.S. Department of Commerce (the “EAR”), which may restrict or require licenses for the export of Items from the United States and their re-export from other countries. You shall comply with the EAR and all other applicable laws, regulations, laws, treaties, and agreements relating to the export, re-export, and import of any Item. You shall not, without first obtaining the required license to do so from the appropriate U.S. government agency; (1) export or re-export any Product, or (2) export, re-export, distribute or supply any Item to any restricted or embargoed country or to a person or entity whose privilege to participate in exports has been denied or restricted by the U.S. government. You shall cooperate fully with IFM in any official or unofficial audit or inspection related to applicable export or import control laws or regulations, and shall indemnify and hold IFM harmless from, or in connection with, any violation of this Section by you or its employees, consultants, agents, or customers.
(1) The construction, interpretation, and performance of these terms and all transactions under it shall be governed by the laws of the State of New York, USA. You agree that any action relating to this Agreement shall be instituted and prosecuted in a federal or state court of competent jurisdiction located in New York County, New York (“NY Courts”) and each party waives its right to a change of jurisdiction or venue. You hereby submit and consent to the exclusive jurisdiction of the NY Courts in any action arising out of or relating to these terms of sale and waive any other venue to which it may be entitled by domicile or otherwise and agree not to bring any action except in the foregoing NY Courts.
(2) In the event of any legal proceeding between the IFM and you relating to these terms of sale, neither party may claim the right to a trial by jury, and both parties waive any right they may have under applicable law or otherwise to a right to a trial by jury.
(3) The application to this Agreement of the U.N. Convention on Contracts for the International Sale of Goods is hereby expressly excluded.
(4) If any one or more provisions contained herein shall be held by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall remain in full force and effect, unless the revision materially changes the bargain.
(5) IFM’s failure to enforce, or IFM’s waiver of a breach of, any provision contained herein shall not constitute a waiver of any other breach or of such provision.
(6) IFM shall not be liable for any damages or penalty for delay in delivery or for any other failure to perform in accordance with the terms and conditions hereof if such delay or failure to perform is due in whole or in part to factors beyond IFM’s reasonable control, including, but not limited to, delay in transportation or delay in delivery by IFM’s vendors.
(7) The terms and conditions set forth herein constitute the entire agreement between IFM and you. IFM’s offer to sell is expressly limited to the terms stated herein. IFM shall not be bound by any terms of your order which add to, modify, or are in any way different from the terms set forth in this document.
This Agreement was last revised on January 17, 2023.
Copyright © 2023 Indistinguishable From Magic, Inc. All Rights Reserved.
