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Terms of Use, Warranty, Returns, Equipment Quote Terms & Conditions

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Terms of Use Agreement

Updated: February 18, 2016

Welcome! These Terms of Use (the “Terms of Use”) govern your use of the Curvature.com website (together with all subpages thereunder, the “Site”). Your access to, and use of, the Site, and the services, products and networks found at or related to the Site (referred to collectively as the “Service”) are subject to these Terms of Use. The terms “Company”, “we,” “us”, or “our” shall refer to Curvature LLC and its subsidiaries, affiliates, sister and parent companies.

By using the Site, you signify that you have read, understand and agree to be bound by these Terms of Use and to comply with all applicable laws and regulations, including U.S. export and re-export control laws and regulations.

We may change or modify these Terms of Use at any time without further notice and such changes or modifications will come into effect immediately upon posting to the Site. We will indicate at the top of this page the date these Terms of Use were last revised. Your continued use of the Service or the Site after any change or modification constitutes your acceptance of the new Terms of Use. If you do not agree to abide by these or any future versions of the Terms of Use, do not use or access (or continue to use or access) the Service or the Site. It is your responsibility to regularly check the Site to determine if there have been changes to these Terms of Use.

PLEASE READ THESE TERMS OF USE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS, INCLUDING VARIOUS LIMITATIONS AND EXCLUSIONS.

Personal Use Only

The Site and Services are made available for your personal, non-commercial use only. You may not use the Site to sell a product or service, or to increase traffic to your Web site for commercial reasons, such as advertising sales. You may not take the results from a search and reformat and display them, or mirror the Company home page or results pages on your Website. You may not “meta-search” the Site. If you want to make commercial use of the Services, you must enter into written agreement with us to do so in advance.

Submissions

You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Site or the Service (“Submissions”), provided by you to us are non-confidential and shall become our sole property. We shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you. Notwithstanding the foregoing, all personally identifiable information provided to us will be treated in accordance with our privacy policy.

User Conduct

You agree that you will not distribute, post or transmit to or from this Site any Submissions that are unlawful, defamatory, harassing, threatening, libelous, obscene, pornographic or otherwise sexually explicit, scandalous, inflammatory, or other material that could give rise to any civil or criminal liability under the law.

Intellectual Property

All information, materials and other content contained on this Site (including any submissions as discussed above, “Content”) are our copyrighted material. Except as stated herein, none of the Content may be used, copied, reproduced, transmitted, re-transmitted, distributed, downloaded, posted or otherwise exploited without our prior written consent.

Trademarks

“Curvature” and “NetSure” are registered trademarks of the Company. You are not permitted to use these trademarks without the Company’s prior written consent.

No Representations and Warranties

EXCEPT AS EXPRESSLY SET FORTH HEREIN, WE DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, NONINFRINGEMENT OR ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE SPECIFICALLY DISCLAIM ANY REPRESENTATION OR WARRANTY REGARDING THE ERROR-FREE, DISRUPTION-FREE OR INTERRUPTION-FREE NATURE OF THE SITE OR THE SERVICES.

Limitation of Liability

UNDER NO CIRCUMSTANCES SHALL WE BE LIABLE TO YOU OR ANY THIRD PERSON FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, RELIANCE, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, COST OF COVER, OR LOST DATA THAT ARISE IN WHOLE OR IN PART FROM YOUR USE OF, OR  INABILITY TO USE, THE SITE OR THE SERVICES, OR YOUR RELIANCE UPON THE SITE OR THE SERVICES, OR OUR PROVISION OF, OR FAILURE TO PROVIDE, THE SITE OR THE SERVICES, WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, WE HAVE NO DUTY TO UPDATE THE SITE OR THE CONTENTS THEREOF. IN NO EVENT SHALL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, OR OTHERWISE) EXCEED FIVE DOLLARS ($5.00). IF YOU ARE DISSATISFIED WITH THE SITE OR THE SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY SHALL BE TO DISCONTINUE USE OF THE SITE AND THE SERVICES.

Governing Law; Other

The laws of the State of California, without regard to principles of conflict of laws, will govern these Terms of Use and any dispute of any sort that might arise between you and us or any of our affiliates. You agree not to commence or prosecute any action in connection therewith other than in the state and federal courts located in Santa Barbara, California, and you hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to, venue and jurisdiction in the state and federal courts of Santa Barbara, California.

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Equipment Returns

You may return Equipment within thirty (30) days of the date on which you received the Equipment subject to a restocking fee equal to 20% of the purchase price for such Equipment. You must return such Equipment in the same condition it was in when it was initially delivered to you.

We will replace non-working or defective Equipment in accordance with the terms of our Warranty as set forth below.

If you wish to return any Equipment, you must first contact us for prior authorization and additional instructions. You may contact us at [email protected].

The return policy set forth above only applies to pre-owned and refurbished original equipment manufacturer (“OEM”) branded  equipment, OEM branded equipment acquired outside of authorized resale channels (i.e. “new in box” or “out of channel” equipment) and new Curvature branded equipment (collectively, the “Equipment”). Returns of new OEM branded equipment are subject to the return polices of the OEM.

Software, maintenance contracts, support contracts, warranty contracts and other special order items may not be returned.

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Warranty

Curvature’s Equipment Warranty

This warranty is effective as of August 7, 2019 and applies to pre-owned and refurbished original equipment manufacturer (“OEM”) branded equipment, OEM branded equipment acquired outside of authorized resale channels (i.e. “unused in box”, “new in box” or “out of channel” equipment) and new Curvature branded equipment (collectively, the “Equipment”).

Curvature warrants that the Equipment sold to Buyer will be free from defects in material and workmanship for the lifetime of such Equipment provided that the Equipment is properly used and maintained.

Notwithstanding the foregoing, the warranty for certain Equipment shall be limited. Pre-owned X86 servers and all complex server products (excluding hard drives and solid-state drives) will carry a lifetime warranty but only for so long as the original configuration is maintained on the Equipment. Any changes to the original configuration will invalidate the warranty with the exception of hard drive and memory changes. The warranty period for pre-owned hard drives and solid-state drives and other pre-owned storage products (including storage systems, controllers, shelves, tape drives and libraries) will be one year from the date of shipment. The warranty period for Curvature-branded solid-state drives shall expire upon the earlier of: (a) five years from the date of shipment or (b) the point at which the use of the drive exceeds the stated endurance limit as set forth in the applicable product specifications.

During the warranty period, Curvature will, at its discretion, either replace defective Equipment with a properly functioning unit (“Replacement Equipment”) or issue a credit to Buyer for the purchase price paid by Buyer for the defective Equipment. Curvature reserves the right to replace defective Equipment with the same model or an upgraded model with comparable functionality.

Buyer may open a warranty claim by contacting the Curvature support desk via phone at 800-301-9850 or electronically at [email protected]. Curvature Maintenance customers may open a ticket directly through the singlePoint ticketing system.

Buyer must ship the defective Equipment back to Curvature unless otherwise agreed upon. Buyer must do so within ten days of receipt of Replacement Equipment or refund, whichever is applicable. If Buyer fails to return the defective Equipment, and if Curvature issued Buyer a credit for the defective Equipment, Curvature may cancel the credit. If Buyer fails to return the defective Equipment, and if Curvature sent Replacement Equipment, Buyer shall be liable for the cost of such Replacement Equipment and Curvature shall invoice Buyer accordingly.

Curvature shall cover the costs of shipping the defective Equipment back to Curvature but only if shipped from the same location to which Curvature initially delivered the Equipment or another location with comparable shipping costs. Buyer must obtain a valid return authorization number from Curvature prior to returning defective Equipment. In addition, Buyer must ship the defective Equipment using Curvature’s account with its preferred carrier. If Buyer ships such defective Equipment per a different account or with a different carrier, Curvature will not be liable for shipping costs.

If Buyer returns Equipment claiming that it was defective but it is determined not to have been defective, Buyer shall be liable for all shipping costs associated with such improper return. In addition, if Curvature issued Buyer a credit for such improperly returned Equipment, Curvature may cancel the credit and if Curvature sent Replacement Equipment for such improperly returned Equipment, Buyer shall be liable for the cost of such Replacement Equipment and Curvature shall invoice Buyer accordingly.

Curvature will pay for the costs to ship Replacement Equipment to the Buyer but only if shipped to the same location to which Curvature initially delivered the Equipment or another location with comparable shipping costs. Replacement Equipment will be shipped using Curvature’s preferred carrier, freight prepaid by Curvature. Curvature shall also cover the cost of any import duties, taxes or other similar fees, arising in connection with the shipment of such Equipment, except for any such duties, taxes or fees arising as a result of shipments to or from India, China, Russia, Central America, South America, Philippines, South Korea, Thailand, or Saudi Arabia, which shall be Buyer’s responsibility.

This warranty does not apply to any failure of the Equipment due to misuse, abuse, accident, neglect, mishandling, lack of proper maintenance, environmental factors, improper installation or configuration, flood, fire or other natural disasters, physical damage, electrical issues such as lightning, power surges or incorrect electrical voltages, or improper modifications.

This warranty is nontransferable and only valid for the original purchaser of the Equipment (“Buyer”).

This warranty does not apply to any new OEM branded equipment for which Curvature is an authorized reseller or any new OEM branded equipment acquired for resale by Curvature from an authorized reseller. Warranties for such equipment are provided solely by the manufacturer of the equipment. CURVATURE EXPRESSLY DISCLAIMS ANY AND ALL EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO ANY SUCH EQUIPMENT, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. To the extent it is authorized to do so, Curvature will pass through to the Buyer any transferable warranties. Curvature’s sole responsibility with respect to any such warranties is to provide Buyer with reasonable assistance in its efforts to have the manufacturer honor the warranties.

This warranty does not apply to any products purchased in wholesale transactions. This warranty does not cover mainframes, software, batteries, licenses or any equipment provided as part of Curvature’s maintenance services or other services. Curvature disclaims any warranty, express or implied, for such goods and services, except as separately agreed to in writing by Curvature.

EXCEPT AS SET FORTH ABOVE, OR AS OTHERWISE AGREED TO BY CURVATURE IN WRITING, CURVATURE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, WITH REGARD TO THE EQUIPMENT, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, SUITABILITY, OR NON-INFRINGEMENT.

THE REMEDY OF REPLACEMENT OR REFUND, AS DETERMINED IN CURVATURE’S SOLE DISCRETION, WILL BE THE EXCLUSIVE AND SOLE REMEDY OF BUYER WITH RESPECT TO ANY CLAIMS BASED ON THE EQUIPMENT. IN NO EVENT SHALL CURVATURE BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONTINGENT, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR ANY DAMAGE OR LOSS OF OTHER PROPERTY OR GOODS, LOSS OF PROFITS OR REVENUE, LOSS OF USE OR LOSS OF DATA.

THE LIFETIME WARRANTY COVERAGE SET FORTH ABOVE TERMINATES UPON THE SALE OR TRANSFER OF THE EQUIPMENT BY BUYER TO ANOTHER PARTY.

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Selling Equipment to Curvature

We honor our commitments and we expect anyone who sells us equipment to do the same. If we buy equipment from you and such equipment is not in good physical and working condition with valid serial numbers, we expect you to refund all amounts we paid for such equipment. We will only buy equipment from legitimate suppliers who are able to convey to us clear and free title to the equipment.

To request a bid for your equipment, click here.

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Curvature Equipment Quote Terms and Conditions

  1. General Application. These terms and conditions and the “Quote” into which they are incorporated by reference (together, the “Agreement”) shall govern the sale of the equipment and other products specified in the Quote (the “Equipment”) by the Curvature entity identified on the Quote (“Curvature”) to the buyer identified on the Quote (“Buyer”). By accepting the Quote and/or issuing a purchase order for the Equipment, Buyer agrees to be bound by these terms and conditions. Curvature’s offer to sell the Equipment is expressly conditioned on Buyer’s acceptance of these terms and conditions. Curvature’s acceptance of any offer by Buyer to purchase the Equipment is also expressly conditioned on Buyer’s acceptance of these terms and conditions. No other terms and conditions (including any pre-printed terms and conditions attached to Buyer’s purchase order) shall apply. Notwithstanding the foregoing, if Curvature and Buyer have entered into a separate written master agreement applicable to the Equipment then such agreement shall govern the sale of the Equipment and these terms and conditions shall be inapplicable.
  2. Purchase and Sale. Curvature hereby offers to sell the Equipment to Buyer and Buyer may accept such offer by accepting the Quote in writing and/or issuing a purchase order for the Equipment thereby creating an “Order”. By accepting such offer, Buyer hereby authorizes Curvature to act as Customer’s representative in (a) the acquisition of, registration of, and/or acceptance of any terms and conditions necessary to acquire, licenses related to third-party software on the Equipment, (b) the installation of such software on the Equipment, and (c) the acquisition of any third-party maintenance or service plans/contracts pertaining to the Equipment.  Curvature makes no representation or warranty as to whether any license or contract purchased pursuant to this authorization will be deemed valid by the software owner/licensor and/or maintenance/service provider.  Buyer may not cancel an Order unless Curvature agrees in writing to such cancellation.
  3. Prices and Payment; Taxes. The agreed upon price for the Equipment is set forth on the Quote and will be set forth in the corresponding invoice generated by Curvature (each an “Invoice”). Buyer shall be responsible for all shipping charges, and any applicable taxes (e.g. sales tax, VAT, GST), fees, duties, levies, or similar charges imposed by any governmental authority relating to the purchase of the Equipment (except for any taxes based on Curvature’s income). The shipping charges and applicable taxes will also be set forth on the Invoice. Payment shall be due 30 days from receipt of Invoice unless stated otherwise on the Invoice.  Amounts not paid when due shall bear interest at the rate of 1.5% per month (18% per annum) or the highest rate allowed under applicable law, whichever is lower.  All payment obligations are absolute and are not subject to counterclaim or setoff.
  4. Shipment; Title and Risk of Loss. Unless stated otherwise on the Quote, title to, and risk of loss of, the Equipment shall pass to Buyer when the carrier takes possession of the Equipment at Curvature’s shipping point.  All delivery dates are approximate. Curvature will deliver in one shipment when possible but reserves the right to make delivery in installments.
  5. Inspection and Acceptance of Goods. Failure to reject the Equipment due to material non-conformance to this Agreement within seven (7) days after delivery constitutes acceptance of the Equipment by Buyer.
  6. Warranty and Return Policy. Curvature’s warranty on the Equipment can be found at the following page: https://www.curvature.com/PoliciesAndWarranty#Warranty.
    Curvature’s return policy for the Equipment can be found at the following page: https://www.curvature.com/PoliciesAndWarranty#ProductReturns.
  7. Disclaimer; Limitation of Liability.  THE ABOVE LIMITED WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES AND CURVATURE DISCLAIMS ALL OTHER EXPRESS OR IMPLIED WARRANTIES.  THE REMEDY OF REPAIR, REPLACEMENT OR REFUND, AS SELECTED BY CURVATURE, WILL BE THE EXCLUSIVE AND SOLE REMEDY OF BUYER WITH RESPECT TO ANY DEFECTIVE EQUIPMENT.  CURVATURE SHALL NOT BE LIABLE TO BUYER, WHETHER IN CONTRACT, TORT OR OTHERWISE, (A) FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING LOSS OF PROFITS OR LOSS OF REVENUE (EVEN IF SUCH DAMAGES ARE FORESEEABLE, AND WHETHER OR NOT IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), OR (B) IN AN AMOUNT GREATER THAN THE TOTAL AMOUNT PAID TO CURVATURE BY BUYER UNDER THIS QUOTE.
  8. Export Restrictions. All Equipment is exported in accordance with the United States Export Administration Act of 1979 as amended, the United States Export Administration Regulations (“EAR”), EU Regulation 428/2009, Singapore’s Strategic Goods Control Act and all other applicable laws and regulations and international treaties and agreements (collectively, the “Applicable Laws”), and any diversion or re-export by Buyer contrary to the Applicable Laws is strictly prohibited. Buyer hereby agrees that it will strictly comply with the Applicable Laws.  In furtherance of the foregoing, Buyer shall neither sell nor transfer any Equipment to: (a) any person, company or other entity if Buyer knows or has reason to know that the Equipment will be re-exported, sold or otherwise transferred in violation of the Applicable Laws; (b) any person, company or other entity appearing on any of the EAR  lists of prohibited persons or entities, including but not limited to the Table of Denial Orders, or the Specially Designated Nationals List administered by the U.S. Treasury Department Office of Foreign Assets Control; (c) any person, company or other entity located in Cuba, Iran, North Korea, Sudan, Syria or any other country where US-origin items, software or technology may not be exported under the EAR, from time to time; or (d) any person, company or other entity if Buyer knows that such Equipment is for use in connection with design, development, production, stockpiling or use of nuclear, chemical or biological weapons or missile delivery systems for these weapons, or at a facility at which such activities are taking place.  Buyer agrees to indemnify and hold harmless Curvature against any claim, demand, action, proceeding, judgment, penalty, fine, loss, liability, cost or expense (including reasonable attorneys’ fees) suffered or incurred by Curvature, and arising out of or relating to any violation, or alleged violation, by Buyer or any of its customers of the Applicable Laws.
  9. Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina, without regard to conflict of law provisions thereof.  Each party hereto consents to the exclusive jurisdiction of the state courts of North Carolina, Mecklenburg County, for any litigation that may arise out of this Agreement and each party hereto waives any objection based on forum non conveniens or any other objection to such venue.
  10. Notices. Any notice, approval or other communication to the other party under this Agreement must be submitted by facsimile, email, overnight express mail or certified or registered mail (postage prepaid, return receipt requested) to the contact details provided by the other party in the Quote and/or purchase order and shall be effective upon receipt.
  11. Miscellaneous. If either party fails to perform its obligations because of strikes, lockouts, labor disputes, embargoes, acts of God, inability to obtain labor or materials or reasonable substitutes for labor or materials, enemy or hostile governmental action, civil commotion, fire or other casualty, or other causes beyond the reasonable control of the party obligated to perform, then that party’s non-performance shall be excused until such time as the cause of such non-performance has ended. Notwithstanding the foregoing, if such an event continues for more than ten (10) days, the other party shall be permitted to terminate this Agreement in its discretion. This Agreement is made solely for the benefit of Curvature and Buyer and their respective successors and assigns, and no other person or entity shall have or acquire any right by virtue of this Agreement.  The waiver of a provision, covenant, condition or right, or an extension of time, will be effective only if made in writing, and will not be construed as a subsequent waiver of the same or any other provision, covenant, condition or right, or an extension of any other time.  Except as may be set forth in a written agreement signed between Curvature and Buyer, this Agreement constitutes the final, complete, and exclusive statement of the terms of the purchase and sale of the Equipment between the parties and supersedes all prior and contemporaneous understandings or agreements of the parties.  In the event any provision of this Agreement is found to be void and unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall nevertheless be binding upon the parties with the same effect as though the void or unenforceable part had been severed and deleted.  The prevailing party in any action, suit, arbitration or proceeding arising from or based upon this Agreement shall be entitled to recover its reasonable attorneys’ fees in connection therewith in addition to the costs of such action, suit, or proceeding. The headings in this Agreement are included for convenience only and shall neither affect the construction or interpretation of any provision in this Agreement nor affect any of the rights or obligations of the parties to this Agreement.

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Questions? Email us or call for a quote:

North America: +1 800 230 6638
Europe, Middle East and Africa: +31 (0)20 449 9292
Asia Pacific: +65 6411 7388

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2810 Coliseum Centre Drive Suite 600 28217 Charlotte, NC
+1(704)921-1620 [email protected]