(a) These terms and conditions of sale (these “Terms”) are the only terms which govern the sale of the products (“Products”) and services (“Services”) by the seller named on the accompanying quotation (“Seller”) to purchaser named on the accompanying quotation (“Buyer”). Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Products covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms. (
b) The accompanying quotation (the “Quotation” and with these Terms collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede
all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral.
(c) Buyer accepts these Terms by signing and returning Seller’s Quotation, by sending a purchase order in response to the Quotation, by submitting instructions to Seller to ship the Product or by accepting or paying for the Product or Service. No additional or different terms,
conditions or warranties other than those identified in the Quotation and no agreement or understanding, oral or written, in any way purporting to modify the terms and conditions, whether contained in Buyer’s purchase order or shipping release forms, or elsewhere, shall be binding on
Seller unless hereafter made in writing, signed by Seller’s authorized representative, and specifically referencing these Terms and stating that it modifies them. Buyer is hereby notified of Seller’s express rejection of any terms inconsistent with these Terms or to any other terms proposed by Buyer. Neither Seller’s subsequent lack of objection to any terms, nor the delivery of the Products or Services, shall constitute an agreement by Seller to any such terms. Trade custom, trade usage and past performance are superseded by these Terms and shall not be used to interpret these Terms.
(a) Seller will deliver or make available the Products within a reasonable time after receiving Buyer’s purchase order, subject to their availability. The delivery date provided by Seller for the Products is only an estimate and is based upon prompt receipt of all necessary information from Buyer. If Buyer causes Seller to delay shipment or completion of the Products, Seller will be entitled to any and all extra costs and expenses resulting from the delay. Seller will not be liable for any delays, loss, or damage in transit, and failure to deliver within the time
estimated will not be a material breach of contract on Seller’s part. Seller will use commercially reasonable efforts to make shipments as scheduled.
(b) Unless otherwise agreed in writing by the parties, Seller shall deliver the Products to Buyer F.O.B. shipping point (the “Delivery Point”) using Seller’s standard methods for packaging and shipping such Products.
(c) Seller may, in its sole discretion, without liability or penalty, make partial shipments of Products to Buyer unless Buyer requests shipment in full and such request is noted on the Quotation. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order.
(d) If for any reason Buyer fails to accept delivery of any of the Products, or if Seller is unable to deliver the Products at the Delivery Point on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Products shall pass to Buyer; (ii) the Products shall be deemed to have been delivered; and (iii) Seller, at its option, may store the Products until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
3. Title and Risk of Loss.
Title and risk of loss passes to Buyer upon delivery of the Products at the Delivery Point. As collateral security for the payment of the purchase price of the Products, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Products, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the New Hampshire Uniform Commercial Code.
4. Regulatory Requirements.
(a) BUYER REPRESENTS AND WARRANTS THAT ANY AND ALL REGULATORY REQUIREMENTS, INCLUDING BUT NOT LIMITED TO TAA, FIPS 140-2, FIPS 140-3, UID, IPV6, RFID, ENERGY STAR, EPEAT, COUNTERFEIT PRODUCTS, INFORMATION ASSURANCE, AND DPAS, WERE DISCLOSED TO SELLER IN WRITING AT THE TIME OF SOLICITATION OR REQUEST FOR QUOTE, AND ACKNOWLEDGES THAT SUCH REGULATORY REQUIREMENTS ARE SATISFIED THROUGH ACCEPTANCE OF THIS QUOTATION. If Buyer fails to comply, Seller shall have no liability for providing non-compliant Products or Services. Compliance with such regulatory requirements, if any, is dependent upon the nature of requirement and the Product or Service being sold.
(b) Quotations contain non-TAA compliant items unless otherwise marked on the Quotation. If Buyer requires TAA compliant items, please contact Seller’s representative.
5. Inspection and Rejection of Nonconforming Products.
(a) Buyer shall inspect the Products within 10 days of receipt (“Inspection Period”). Buyer will be deemed to have accepted the Products unless it notifies Seller in writing of any Nonconforming Products during the Inspection Period and furnishes such written evidence or other documentation as required by Seller. “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 timely notifies Seller of any Nonconforming Products, Seller 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 its expense and risk of loss, the Nonconforming Products to Seller’s facility at the address noted in the Quotation. If Seller exercises its option to replace Nonconforming Products, Seller shall, after receiving Buyer’s shipment of Nonconforming Products, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Products to the Delivery Point.
(c) Buyer acknowledges and agrees that the remedies set forth in Section 5(b) are Buyer’s exclusive remedies for the delivery of Nonconforming Products.
6. Cancellation of Purchase Order; Returns.
(a) Buyer may cancel its order only with the prior written consent of Seller, which Seller may withhold in its sole discretion. All cancellations will be subject to payment to Seller of reasonable cancellation charges.
(b) Buyer may return Products only at its sole cost and only with the prior written authorization of Seller, subject to a restocking fee of 15% for any open box items. No returns of special, custom, or made-to-order Products will be permitted. Returns and cancellation of any cloud subscription services shall be governed by the end-user license agreement with the software manufacturer. No returns will be permitted more than thirty (30) days after delivery or such shorter periods as required by the manufacturer of the Product.
(a) Buyer shall purchase the Products from Seller at the prices (the “Prices”) set forth on the Quotation provided that Seller issues a purchase order prior to the expiration date set forth on the Quotation. Unless otherwise provided on the Quotation, prices are provided with best estimated pricing and are subject to change upon notice to Buyer at any time before delivery of the Products to a carrier for shipment to Buyer and in the event of such increase these Terms shall be construed as if the increased prices were originally inserted herein, and Buyer shall be billed by Seller on the basis of such increased prices. All Prices shall be confidential and Buyer shall not disclose such prices to any unrelated party.
(b) All Prices are exclusive of shipping and handling charges, which are the obligation of Buyer. Shipping and handling charges included in the Quotation are estimates only and all final shipping and handling charges will be confirmed at the time of shipment and reflected on Seller’s invoice.
(c) All Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Buyer; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel or real or personal property or other assets. Buyer shall be responsible for all such charges, costs and taxes, unless Buyer indicates that it is tax exempt prior to issuance of the Quotation, and confirms such exemption on its purchase order and by presenting an exemption certificate acceptable to Seller at the time of order. If any exemption certificate presented by Buyer is held to be invalid, then Buyer will immediately pay Seller the amount of any such taxes as well as any penalties and interest related thereto.
8. Payment Terms.
(a) The Prices included on the Quotation reflect a 3% discount for payment by cash, check or wire transfer. This discount will not apply in the event that Buyer pays using a credit or debit card. Buyer shall pay all invoiced amounts due to Seller within 30 days from the date of Seller’s invoice. Buyer shall make all payments hereunder in US dollars.
(b) Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Products if Buyer fails to pay any amounts when due hereunder and such failure continues for 15 days following written notice thereof.
(c) Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise.
9. Limited Warranty.
(a) Seller warrants that: (i) no contractual obligations exist that would prevent Seller from entering into this Agreement; (ii) it has the requisite authority to execute, deliver, and perform its obligations under this Agreement; and (iii) the Services provided by Seller shall be provided by competent personnel in accordance with applicable professional standards.
(b) EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 9(A), SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (c) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. (c) PRODUCTS MANUFACTURED BY A THIRD PARTY (“THIRD PARTY PRODUCT”) ARE NOT COVERED BY THE WARRANTY IN SECTION 9(A). FOR THE AVOIDANCE OF DOUBT, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (c) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. THE MANUFACTURERS, SUPPLIERS, OR VENDORS OF SUCH THIRD PARTY PRODUCTS MAY PROVIDE THEIR OWN WARRANTIES, AND SELLER AGREES TO INFORM BUYER, UPON REQUEST (1) THE MANUFACTURER OR SUPPLIER WHO IS RESPONSIBLE FOR WARRANTY (IF ANY) RELATING THERETO, AND (2) THE PROCEDURE TO OBTAIN ANY WARRANTY SERVICE THEREON, IF KNOWN BY SELLER. (d) BUYER SHALL NOTIFY SELLER IN WRITING WITHIN THIRTY (30) DAYS AFTER COMPLETION OF THE SERVICES WHEN ANY OF THE SERVICES FAIL TO CONFORM TO THE STANDARD OF CARE SET FORTHIN THIS AGREEMENT. IF ANY SERVICES ARE NON-CONFORMING, SELLER SHALL RE-PERFORM THE NON-CONFORMING SERVICES AT NO ADDITIONAL COST TO BUYER. THE PASSAGE OF THE THIRTY (30) DAY PERIOD AFTER COMPLETION OF THE SERVICES WITHOUT THE
NOTIFICATION DESCRIBED HEREIN SHALL CONSTITUTE BUYER’S FINAL ACCEPTANCE OF THE SERVICES. (e) THE REMEDIES SET FORTH IN SECTION 9 SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 9(A).
10. Limitation of Liability.
(a) IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE PRODUCTS OR SERVICES SOLD HEREUNDER.
(c) The limitation of liability set forth in Section 10(b) above shall not apply to (i) liability resulting from Seller’s gross negligence or willful misconduct and (ii) death or bodily injury resulting from Seller’s acts or omissions.
11. Compliance with Law.
Buyer shall comply with all applicable laws, regulations and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement.
In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement and such failure continues for 5 days after Buyer’s receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
14. Amendment and Modification.
These Terms may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each party.
15. Force Majeure.
Seller shall not be liable nor in breach or default of its obligations under any contract to the extent its performance of such obligations is delayed, hindered, or prevented, in whole or in part, directly or indirectly, due to causes beyond its reasonable control, whether foreseeable or unforeseeable, including, but not limited to, acts of God, fires, floods, or other natural disasters (declared or undeclared), terrorism, war (declared or undeclared), armed conflict (or the serious threat of same), plagues, epidemics, pandemics, quarantines, or other public health risks and/or responses thereto, insurrection, civil disturbances, insurrection, riots, mob violence, acts or omissions of Buyer or Buyer’s suppliers or agents, any act (or omission) by any governmental authority (including any change of law or regulation), strikes, lock-outs, differences with workers, accidents, labor disputes, transportation shortages, the unavailability or shortage(s) of labor, energy, materials, production facilities, transportation, or shipping, cyber-attacks, viruses, ransomware, failures or interruptions to network systems, data breaches, vendor non-performance, or any other cause, casualty, or excusable delay beyond Seller’s reasonable control, whether similar or dissimilar to any of the foregoing. Upon the occurrence of a force majeure or other excusable delay, Seller’s performance or delivery date shall be extended for a period equal to the duration of the force majeure event or time lost by reason of delay, plus such additional time as may be reasonably necessary to overcome the effect of the delay. If the delay is due to any acts or omissions of Buyer, or Buyer’s agents, contractors or suppliers, Seller shall be entitled to both an equitable performance and price adjustment. If Seller incurs increased cost by reason of delay not attributable to any act or omission of Buyer (including but not limited to extended warehouses and storage fees, labor wages, etc.), the increased cost shall be distributed equitably between Seller and Buyer, or the Agreement shall be cancellable at Seller’s election.
Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
17. Relationship of the Parties.
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
18. No Third-Party Beneficiaries.
This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
19. Governing Law.
All matters arising out of or relating to this Agreement is governed by and construed in accordance with the internal laws of the State of New Hampshire without giving effect to any choice or conflict of law provision or rule (whether of the State of New Hampshire or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of New Hampshire.
20. Submission to Jurisdiction.
Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of New Hampshire, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Quotation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
23. Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Compliance with Laws, Governing Law, Submission to Jurisdiction and Survival.
24. Recruitment of Employees.
Buyer shall not, without Seller’s prior written consent, directly or indirectly, solicit for employment or hire any Restricted Personnel (as defined herein) while such person is employed or engaged by Seller and for the 12-month period starting on the later of: (i) termination of such Restricted Personnel’s employment or engagement with Seller, or (ii) termination or expiration of this Agreement. “Restricted Personnel” means any former or current employee, worker or independent contractor of Seller that Buyer became aware of or came into contact with during Seller’s performance of its obligations under this Agreement. If Buyer breaches this Section 24, Buyer shall, on demand, pay to Seller a sum equal to one (1) year’s basic salary or the annual fee that was payable by Seller to that employee, worker or independent contractor plus the recruitment costs incurred by Seller in replacing such person. This Section 24 shall not apply to the hiring of any Restricted Personnel who applied pursuant to a general solicitation that is not directed specifically to any employees of Seller, unless such solicitation is undertaken as a means to circumvent the restrictions contained in or conceal a violation of this Section 24.