Marathon Terms & Conditions

Standard Terms and Conditions of Sale

Acceptance of a Quotation, a verbal order to proceed with a purchase in response to a Quotation, and/or submission of a formal Purchase Order constitutes a contract between Marathon Technology (Marathon), a California corporation, and the Buyer (as named in “To”, “Bill To” or “Sold To” on the Quotation or Purchase Order; hereafter “Buyer”) and is subject to these Terms and Conditions of Sale (these “Terms and Conditions” and sometimes this “Agreement”).

1. Entire Agreement

a. Except as otherwise expressly permitted herein, these Terms and Conditions constitute the entire understanding between Marathon and Buyer relating to Buyer’s purchase of the products listed in the Quotation and/or Services (as defined below). Buyer’s order shall be deemed to incorporate the terms and conditions of this Agreement without reference in the order to these Terms and Conditions. In no event shall preprinted terms and conditions of a Buyer document (for example, a purchase order, confirmation, or acceptance) modify or add to the terms of an order or these Terms and Conditions. Buyer’s order is subject to Marathon’s acceptance. Marathon may accept an order by providing Buyer a written confirmation of acceptance, sent by mail or other electronic means; by shipping the Product; or by beginning performance.

b. These Terms and Conditions shall apply to all sales of tangible goods, software products or licenses, and any tangible goods provided or license(s) granted therewith (“Goods” or “Products”), and the sale of third-party services and service contracts (“Services”); provided that Services provided by Marathon and/or its agents or subcontractors shall be governed by a separate Master Services Agreement and the applicable Scope of Work thereunder. These Terms and Conditions may only be amended or modified in a writing stating specifically that it amends these Terms and Conditions and is signed by an authorized officer of each party.

2. Prices

a. Unless otherwise stated in writing by Marathon, all prices quoted expire thirty (30) days after the date of the quotation. All quoted prices accepted by Buyer within thirty (30) days after the date of the quotation are binding on Marathon only if delivery is scheduled to commence within three (3) months of the date on which the order is placed. Marathon may, at its discretion, honor quoted prices beyond the stated deadlines without obligation to do likewise in any future instance.

b. Unless otherwise stated in writing by Marathon, all prices quoted are exclusive of transportation, insurance, and state and local use, sales, property (ad valorem), and similar taxes. All applicable taxes shall be assumed and paid by Buyer, and shall be included in the invoice unless an alternate method of payment is agreed upon in advance.

c. The prices offered to a given purchaser reflect the consideration of credit terms, service levels, and other criteria which vary among purchasers. For this reason, the prices reflected in the Quotation are extended solely to the named Buyer. Marathon is in no way obligated to provide similar pricing to other purchasers. The offer(s) extended herein are confidential information between Marathon and the Buyer, except as otherwise required by law.

3. Payment Terms

a. Unless otherwise stated in writing by Marathon, Buyer shall pay, without offset or deduction, all invoices issued under this Agreement, including without limitation any invoices from Marathon for shipping and other charges pursuant to paragraphs 2.b and 6.a, prior to the shipment of goods, or within 30 days of the receipt of the invoice if credit terms are extended in advance. Buyer shall reimburse Marathon for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. Marathon reserves the right to change or rescind the payment terms for subsequent purchases when, in the opinion of Marathon, the financial condition or previous payment record of Buyer so warrants.

b. Buyer shall execute and deliver to Marathon any Application for Credit or other documents necessary or appropriate to determine whether Marathon will extend credit to the Buyer. Should the Buyer become delinquent in the payment of any sum due hereunder, in addition to any other remedies, Marathon shall not be obligated to continue performance.

c. Buyer shall not withhold payment of any amounts due and payable by reason of any claim or dispute with Marathon.

4. Remittance of Payment 

Unless otherwise specified on an Invoice or Statement presented to Buyer, payment shall be remitted to: 2413 Wood Hollow Drive, Livermore CA 94550.

5. Shipment

a. F.O.B. Origin. – All prices are F.O.B. Point of Shipment unless otherwise agreed to by the parties in writing. Buyer shall pay all shipping charges, including without limitation rigging, drayage, transportation, and reasonable and commensurate insurance charges.

b. Method of Shipment – Marathon will make a reasonable effort to ship in accordance with Buyer’s reasonable shipping instructions. In the absence of specific instructions or if Buyer’s instructions are unreasonable, Marathon reserves the right to ship by methods deemed by Marathon to be reasonable and appropriate.

c. Title and Risk of Loss – Title to the products and risk of loss and damage shall pass to the Buyer upon transfer to Marathon’s consigned inventory, delivery to a common carrier, the carrier acting as Buyer’s agent, or if there is no common carrier, upon delivery to Buyer.

6. Buyer’s Acts or Omissions

If Marathon’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Buyer or manufacturers, its agents, subcontractors, consultants, or employees, Marathon shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Buyer, in each case, to the extent arising directly or indirectly from the prevention or delay.

7. Inspection and Rejection of Nonconforming Goods

a. Buyer shall inspect the Products within ten (10) days after receipt (“Inspection Period“). Buyer will be deemed to have accepted the Products unless it notifies Marathon in writing of any Nonconforming Products (defined below) during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Marathon. “Nonconforming Products” means only the following: (i) Product shipped is different than identified in Buyer’s purchase order; or (ii) product’s label or packaging incorrectly identifies its contents.

b. If Buyer notifies Marathon of any Nonconforming Products, Marathon shall, in its sole discretion, (i) replace such Nonconforming Products with conforming Products, or (ii) credit or refund the price for such Nonconforming Products, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at Marathon’s expense and risk of loss using Marathon’s recommended vendor, the Nonconforming Products to Marathon’s facility located at 2413 Wood Hollow Drive, Livermore CA 94550. If Marathon exercises its option to replace Nonconforming Products, Marathon shall, after receiving Buyer’s shipment of Nonconforming Products, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Products.

c. The remedies set forth in Section 7.b are Buyer’s exclusive remedies for the delivery of Nonconforming Products. Except as provided under Section 7.b, all sales of Products to Buyer are made on a one-way basis and Buyer has no right to return Products purchased under this Agreement to Marathon.

8. Changes and Cancellations

If Marathon consents in writing to Buyer’s request for order cancellation or changes, the cancellation and/or change shall be subject to the following terms:

a. Buyer shall pay to Marathon any additional costs actually incurred by Marathon as a result of the change or cancellation, including, but not limited to, shipping charges and restocking fees.

b. In the event of cancellation, Buyer shall have no rights in the canceled products.

c. A change order or cancellation must be in writing, and its date of receipt will determine whether any charges will apply.

d. Any products returned after initial shipment are subject to the conditions of return imposed by manufacturers and/or distributors.

e. No product will be accepted for return unless prior arrangements are made with Marathon for the return and processing of said product.

9. Software

Buyer may not use any software products (including, without limitation, any associated documentation) listed in the quotation unless and until Buyer has executed the applicable license agreement(s), which shall govern Buyer’s use of such software products. With respect to any software products listed in the Quotation, the word “purchase” or similar or derivative words shall be construed to mean “license”, and “Buyer” or any similar or derivative words mean “Licensee”, in accordance with the terms of the software publisher’s License Agreement. In addition, title to the software products shall remain with the licenser, notwithstanding any term to the contrary contained herein.

10. Warranties and Maintenance

a. The products are provided to the Buyer without warranty by Marathon of any kind, either express or implied, including without limitation any implied warranty of merchantability or fitness for a particular purpose, or any warranty that any product will meet Buyer’s requirement(s).

b. Section 10.a does not affect any warranties or maintenance service agreements made available by manufacturers of products, acquisition or purchase of which Marathon encourages.

c. Marathon represents and warrants that: (i) it has the right to enter into this Agreement, and (ii) it will carry out its obligations under this Agreement in compliance with all laws, regulations, or ordinances to which it is or becomes subject.

11. Limitation of Liability

In no event shall Marathon be liable for any special, indirect, exemplary, incidental, punitive, or consequential damages (including without limitation damages for loss of use, revenue or profit), even if informed of the possibility thereof in advance. In no event shall the liability of Marathon exceed the total amount paid to Marathon under this Agreement. These limitations apply to all causes of action in the aggregate, including without limitation breach of contract, breach of warranty, negligence, misrepresentation, and other torts.

12. Insolvency

In the event of any proceedings, whether voluntary or involuntary, in bankruptcy or insolvency by or against Buyer, or in the event of the appointment, with or without Buyer’s consent, of an assignee for the benefit of creditors or of a receiver, Marathon may elect to cancel any unfilled part of Buyer’s order.

13. Confidential Information

All non-public, confidential or proprietary information of Marathon or its manufacturers, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Marathon to Buyer orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” is confidential, furnished solely in connection with the performance of this Agreement, and may not be disclosed or copied unless authorized in advance by Marathon in writing. Upon Marathon’s request, Buyer shall promptly return all documents and other materials received from Marathon. Marathon shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is:

(a) in the public domain;
(b) known to Buyer at the time of disclosure;
(c) rightfully obtained by Buyer on a non-confidential basis from a third party.

14. Covenant Not to Recruit Personnel

a. The parties recognize that the employees and independent contractors of both parties are highly-trained individuals whose talents are important and valuable assets of their respective employers. The loss of such personnel would cause serious damage to each party, including, without limitation, costs of hiring and training replacement personnel.

b. During the term of this Agreement and for a period of six (6) months thereafter, neither party shall, either directly or indirectly (through any affiliate, related party, or otherwise), hire, retain, or employ, or contact or solicit for employment or the provision of services, any employee (or independent contractor) of the other party, or any person who during the term of this Agreement or such six (6) month period is or was an employee (or independent contractor) of the other party.

c. While the losses to a party from a breach by the other party of paragraph b. immediately above would be substantial, proving such damages would be costly, impractical and extremely difficult. Accordingly, the parties have agreed that, if during the term of this Agreement or the six (6) month period thereafter either party, either directly or indirectly (through any affiliate, related party or otherwise) breaches paragraph b. immediately above, then the breaching party will pay to the damaged party a replacement and retraining fee in an amount equal to 50 percent (50%) of the total annualized compensation paid to or to be paid to such employee (or independent contractor). The replacement and retraining fee set forth above is a reasonable sum considering all of the circumstances existing on the date of this Agreement. Except for injunctive relief to enforce provisions of paragraph b. immediately above and this paragraph c., the recovery of the replacement and retraining fee shall be the sole entitlement of either party under this Section 14.

15. Force Majeure

In no event shall Marathon be liable for its failure to fulfill its obligations under this Agreement, including not meeting any estimated or agreed-upon delivery and/or or shipment dates, due to unforeseen circumstances or causes beyond its reasonable control, including without limitation, failure of the manufacturer to manufacture or provide sufficient quantities to meet market demand, discontinuance of manufacture, recall due to defect, or obsolescence of a product, acts of God, acts or omissions of the other party, Government priorities, man-made or natural disasters, strikes, war, or acts of terrorism. The time for performance of any such obligation shall be extended for the time period lost by reason of the delay. If a product cannot be provided due to Product availably limitations, the parties may agree in writing to substitute another Product.

16. Jurisdiction

This Agreement shall be governed by the laws of the State of California.

17. Rules of Export

Marathon may be subject to regulation by agencies of the U.S. Government, including the U.S. Department of Commerce, which prohibit export or diversion of certain products to certain countries. Buyer shall not knowingly assist or participate in any such export or diversion or other violation of applicable U.S. laws and regulations. Buyer shall not sell products in countries or to users not approved to receive classified technical equipment under applicable U.S. laws and regulations and that it will abide by such laws and regulations. Buyer shall hold harmless and indemnify Marathon for any damages resulting to Marathon from a breach of Buyer’s obligations under this paragraph. Buyer shall, where possible, include in all purchase orders the name and location of the end user customer. If Buyer purchases products for its own inventory, Buyer shall identify to Marathon the name and location of the end user customer when such products are sold from inventory. If Marathon is not notified otherwise, it shall be assumed for the purposes of this paragraph that the person(s) or agency(ies) specified in the “Ship To” field of the Purchase Order represent the end customer of the product(s).

18. Severability

If any provision of this Agreement is determined to be invalid or unenforceable in whole or in part, the remaining provisions and any partially enforceable provision shall, nevertheless, be binding and enforceable.

19. Survival

Provisions of this Agreement which by their nature should apply beyond their terms shall remain in effect after any termination or expiration of this Agreement, including but not limited to Sections 1, 2.b, 3.a, 3.c, 4 through 18, and 20.

20. Miscellaneous

a. Notices – Any notices required to be given hereunder shall be given in writing at the address of each party listed in the quotation, or to such other address as either party may designate by written notice to the other.

b. Assignment – Buyer shall not assign this Agreement or transfer any of the rights, duties, or obligations herein without the prior written consent of Marathon. Marathon may assign without notice all or part of the payments together with all the rights of an unpaid seller but without the assignee’s assumption of Marathon’s obligations under such order. In the event an assignment of all or part of the payments under any order, Marathon remains the seller to Buyer.

c. Non-enforcement – Failure by either party to exercise any of its rights hereunder shall not constitute or be deemed a waiver or forfeiture of such rights.

21. Microsoft Pass-Through Terms

Our Customer’s use of any Microsoft Software shall be subject to the terms and conditions of the Microsoft Customer Agreement [https://aka.ms/customeragreement] which is deemed to have been accepted by the Customer, and the Customer agrees to be bound by and to comply with all terms of the Microsoft Customer Agreement. By virtue of placing an order for any Microsoft products, you, as Marathon’s customer, are acknowledging you have read and agree to be bound by the applicable terms of the Microsoft Customer Agreement [https://aka.ms/customeragreement].