TERMS AND CONDITIONS OF SALE
This Agreement
contains the terms and conditions that apply to your ("Buyer")
purchase from Seller (Tech Hardware Deals) of the Goods
sold by Seller pursuant to this Agreement.
1. DEFINITIONS
1.1 In this Agreement the following terms are
defined as follows:
“Branded” – any new original condition product bearing a Brand Name.
“Bulk”
– bulk packed goods, in original condition but not in original packaging, in
new or refurbished condition, any of which may be available with manufacturer’s or Seller’s warranty.
“Configured
to Order” – goods containing retail or used parts
configured with any of new, refurbished or OEM parts and customized based on
the agreement between the Buyer and Seller, with identification of “retail” or
“used” determined at time of Order, which may be available with manufacturer’s or Seller’s warranty..
“Goods‟ - goods supplied by Seller, including but
not limited to Branded or OEM, Bulk, new, New Bulk, Open Box, refurbished, Retail
Configured to Order, Retails, Spares, and used goods, such as servers or other
parts, array controllers, server options, hard drives, hubs, portables,
switches, storage and networking Goods, which may contain all, or a combination
of, new, Branded or OEM or used parts, and any computer software and any
configuration work performed with respect to the Goods before delivery.
“Loss‟ - means any indirect or consequential loss
including without limitation pure economic loss, loss of profits, loss of
business, depletion of goodwill or similar loss.
“New Bulk” – to the best of Seller’s knowledge, primarily new goods, not in
factory sealed packaging and sold as is or refurbished with parts and Seller’s
labeling, which may be available with manufacturer’s
or Seller’s warranty.
“OEM” – third-party equivalent to manufacturer’s part, which may be available
with Seller’s warranty.
“Open Box” - open boxed product which is either new, partially used or ex demo and
is in the original box, which may be available with manufacturer’s
or Seller’s warranty.
“Refurbished
by Seller” - a used product which may include a combination of used, new,
refurbished and/or OEM parts sold “As Is” without warranties unless Seller, in
its sole discretion, supplies a Seller warranty.
“Retail” - retail distribution parts which may be available with manufacturer’s or Seller’s warranty.
“Spares” - spare part(s) from the manufacturer with a spare part manufacturer
warranty typically ranging from 0-3 months and which also may be available with
Seller’s warranty.
2. PURCHASE AND SALE. By placing an order with the
Seller or accepting the Seller’s quotation, the Buyer accepts and agrees to be
bound by these Terms and Conditions.
3. ORDERS AND SPECIFICATIONS
3.1 Each order or acceptance of a written
quotation for Goods by the Buyer or a phone order by the Buyer shall be deemed
to be an offer by the Buyer to purchase the Goods subject to these Terms and Conditions
which shall be binding on the Buyer. No order submitted by the Buyer shall be
deemed to be accepted by the Seller until acceptance has been confirmed in writing
by the Seller’s authorized representative. Seller shall send a tracking number
to the Buyer with the order confirmation.
3.2 Any quotation is valid for a period of thirty
(30) minutes or such shorter period as the Seller may specify in writing and is
always subject to modification based on availability.
3.3 The Seller reserves the right to make any
changes in the specification of the Goods which are required to conform to any
applicable federal, state or other requirements or,
where the Goods are to be supplied to the Seller’s specification, which changes
do not materially affect the quality or performance of the Goods.
3.4 No order which has been accepted by the
Seller or written quotation which has been accepted by the Buyer may be
cancelled in whole or part by the Buyer except with the agreement in writing of
the Seller and in such circumstances the Buyer shall indemnify and hold the
Seller harmless in full against all Losses, costs (including the cost of all
labor and materials used), damages, charges and expenses incurred by the Seller
including a re-stocking fee of 20% of the price of the Goods.
4. PRICE OF THE GOODS
4.1 The price of the Goods shall be the
Seller’s quoted price at the date of its acceptance of the order.
4.2 Shipping and handling fees will be paid
by the Buyer subject to the payment terms stated on the sales invoice.
4.3 The Seller and Buyer agree that all
prices quoted are exclusive of insurance.
It is the Buyer’s responsibility to insure the Goods as soon as they
leave the possession of the Seller. Seller shall bear no responsibility for
lost or damaged Goods after they have left its possession.
4.4 Unless the Buyer provides a valid tax
exemption certificate, the price is exclusive of any applicable federal or
state or other taxes, which shall be the responsibility of the Buyer.
5. TERMS OF PAYMENT
5.1 The Buyer shall make payment of all
amounts due under the Agreement (free from any right of set-off, counterclaim,
withholding or deduction of any kind, those rights being expressly excluded) on
the “due date” stipulated on the front of the sales invoice. Sales invoices are
governed by this Agreement and are incorporated by reference herein. Where no
date is specified, the Buyer shall pay Seller within 30 days of the invoice
date.
5.2 Payments shall be made by the method set
forth in the sales invoice.
5.3 If the Buyer fails to make any payment on
the due date then, without prejudice to any other right or remedy available to
the Seller, the Seller shall be entitled to: cancel the Agreement or suspend
any further deliveries to the Buyer and require the immediate return to the
Seller of all Goods agreed to be sold by the Seller to the Buyer in which legal
title has not passed to the Buyer in accordance with the provisions of Section 7
below. The Buyer agrees to reimburse to the Seller on demand the Seller’s costs
or expenses in recovering such Goods, including reasonable attorney’s fees and
costs if Seller is the prevailing party in any final, non-appealable action.
6. DELIVERY
6.1 The place and means of delivery shall be
designated on the sales invoice.
6.2. Once the Goods leave the Seller’s
premises, Seller shall not be liable for any Loss, costs, damages, charges or expenses caused directly or indirectly by any reasonable
delay in the delivery of the Goods, nor shall any delay entitle the Buyer to
terminate or rescind the Agreement. Buyer’s sole remedy for shipping delays is
a claim against the shipping carrier, whether the carrier was retained by the
Seller or the Buyer.
6.3 If the Buyer fails to take delivery of
the Goods or fails to give the Seller adequate delivery instructions at the
time stated for delivery (other than due to a cause beyond the Buyer’s
reasonable control or by reason of the Seller’s sole material fault) then,
without prejudice to any other right or remedy available to the Seller, the
Seller may: store the Goods until actual delivery and charge the Buyer for the
reasonable costs (including insurance) or storage; and/or sell the Goods at the
best price readily obtainable and (after deducting all reasonable storage and
selling expenses) charge the Buyer for any shortfall below the price under the Agreement.
6.4 Any claim by the Buyer which is based on
a shortfall in the quantities of Goods delivered shall (whether
or not delivery is refused) be reported to the Seller in writing within
48 hours from the time of delivery (or, if the Buyer collects the Goods at the
Seller’s premises, within 48 hours from the time of collection). Where the
Buyer fails to notify the Seller of any shortfall, the Seller shall be deemed
to have supplied the Goods in accordance with the quantities specified in the Agreement,
and Seller shall have no liability to the Buyer in respect of any such
shortfall claim.
6.5. If the Goods are damaged (and such
damage is visible) on delivery and the Seller retained the carrier and shipped
the Goods, unless the Buyer notifies the Seller or the carrier in writing
(otherwise than on the delivery note) within 24 hours of delivery, no claim against
the Seller may be made in respect of damage to such Goods.
7. TITLE, RISK OF LOSS
7.1 Title to the
products sold hereunder will be deemed to pass to the Buyer upon delivery to
the Buyer or collection by the Buyer.
7.2 Upon any default by the Buyer hereunder, the Seller shall have all
rights and remedies of a secured party under the Uniform Commercial Code, which
rights and remedies shall be cumulative and not exclusive. In
the event that the Buyer defaults in paying for the Goods, the Buyer
shall be responsible for all reasonable costs and expenses incurred by the
Seller in collecting any sums owed by the Buyer. Such reasonable costs and
expenses shall include, but not be limited to, reasonable attorney's fees, collection
fees and court costs.
7.3 If, prior to 30 days from delivery, the Buyer resells the Goods
prior to paying the Seller in full for the Goods, the warranty set forth in
Section 9.2 shall apply to the Goods. If, 30 days or more after delivery, the
Buyer resells the Goods prior to paying the Seller in full for the Goods, the
warranty set forth in Section 9.2 shall not apply to the Goods. The warranty is personal to the Buyer.
8. LAWS AND REGULATIONS
8.1 Buyer warrants and represents that its
use and resale of the Goods shall be in compliance with
all local, state, federal and foreign law, rules and regulations.
8.2 Where any Goods are subject to any license
agreement, the Buyer agrees that it will and will procure that any person using
or in possession of the Goods will comply with, and not breach, the terms of
any such license agreement.
9. WARRANTIES, LIMITATION OF LIABILITY AND DISCLAIMERS
9.1 Subject to the Conditions set out in
Section 7.3 or unless stated otherwise in writing, all of
the foregoing warranties become effective only as of both the full payment for
the Goods by the Buyer and the transfer of title from the Seller to the Buyer.
9.2 For the period of thirty (30) days from
the delivery date, the Seller shall follow its RMA Policy. If the Seller
provides its own warranty, the terms of the warranty shall be set forth
therein. If there is a manufacturer’s warranty, the terms of the warranty shall
be set forth therein.
9.3. The
Seller disclaims all liability for (i) any defect arising from normal wear and
tear, willful damage, negligence, abnormal working conditions, failure to
follow the Seller’s instructions (whether oral or in writing), misuse or
alteration or repair of the Goods without the Seller’s approval; (ii) Goods not being available for use; for lost
or corrupted data; (iii) for the operating system (if any), software (if any),
and pre-loaded software (if any); (iv) for external causes such as accident,
abuse, misuse, problems with electrical power, riot, vandalism, theft, fire,
flood, wind, lightning, freezing, acts of God; (v) for problems caused by
installation, removal or re-installation of the Goods or a portion of the
Goods; (vii) for usage not in accordance with instructions; (vi) for failure to
perform maintenance; (vii) for problems caused by using incompatible
accessories, software, parts or components; (viii) for batteries, cartridges,
bulbs, and any other supplies; for cosmetic damages to the Goods. Seller will
not be liable for lost profits, loss of business or other consequential,
special, indirect or punitive damages, even if advised
of the possibility of such damages, or for any claim by any third party except
as expressly provided herein.
9.4 The Seller does not give any warranty
that the Goods shall be suitable for any particular purpose for which the Buyer
intends to use them save where the Seller has expressly accepted responsibility
for such suitability in writing. The Seller does not accept responsibility for
defects resulting from the location in which the Goods are to be used, or for
their method of installation, use or maintenance, nor for any failure to
correspond with any specification where that results from a failure to use the
Goods in a suitable location (as reasonably determined by the Seller) or by
competent operators or from improper installation, use or maintenance.
9.5 Where any valid claim is notified to the
Seller in respect of the Goods or otherwise in accordance with these
Conditions, the Seller shall be entitled at its sole discretion to either:
replace the Goods (or the part in question) free of charge; or refund to the
Buyer the price of the Goods (or a proportionate part of the price). Seller's sole liability for any claims,
whether based in contract or tort, at law or in equity, for any loss or damages
arising, resulting from, or connected with the Goods, shall be limited to the
foregoing replacement or refund.
9.6 It is a condition of any alleged claim
made by the Buyer that the Goods must be returned to the Seller within 7 days
of the claim being notified to the Seller, with the Buyer using a valid return
number, failing which the Buyer shall be bound to pay the price as if the Goods
had been delivered in accordance with the Agreement or, if the price has
already been paid to the Seller, the Seller shall be deemed to have supplied
the Goods in accordance with the Agreement.
9.7 The Seller shall not be liable to the
Buyer or be deemed to be in breach of the Agreement by reason of any delay in
performing, or any failure to perform any of the Seller’s obligations in
relation to the Goods, if the delay or failure was due to any cause beyond the
Seller’s reasonable control including without limitation: Acts of God, explosion, flood, tempest, fire
or accident; war or threat of war, sabotage, insurrection, epidemic, pandemic, civil
disturbance or requisition; acts, restrictions, regulations, bye-laws,
prohibitions or measures of any kind on the part of the governmental, or local
authority; import on export regulations or embargoes; strikes, lock-outs or
other industrial actions or trade disputes (whether involving employees of the
Seller or a third party); difficulties in obtaining raw materials, labor, fuel,
parts or machinery; power failure or breakdown in machinery.
9.8 The Seller has no right, title, or
interest in any software that may be contained in or a part of the Goods. Title
to software will remain with the applicable licensor(s). Any rights that Buyer
may have with respect to the software shall arise only pursuant to license
agreements ("Licenses") between Buyer and the licensor(s), which
Licenses may be contained within the packaging associated with the Goods. Buyer
agrees to use all software in accordance with the Licenses.
9.9 SOME STATES DO NOT ALLOW THE EXCLUSION OR
LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR
EXCLUSION MAY NOT APPLY TO YOU.
10. TERMINATION
10.1 The Seller shall be entitled to
terminate this Agreement forthwith by notice in writing to the Buyer if: the
Buyer commits a material breach of the Agreement (including failure to pay any
sum due to the Seller), commits any remediable breach and fails to remedy it
within 14 days of receipt of notice of the breach requiring remedy of the same;
if the Buyer becomes bankrupt or goes into liquidation, or a receiver is
appointed, of any other property or assets of the Buyer; or the Buyer ceases,
or threatens to cease, to carry on business.
10.2 If the Seller terminates the Agreement
pursuant to Section 10.1 then, without prejudice to any other right or remedy
available to the Seller, the Seller shall be entitled to suspend any further
deliveries under the Agreement without any liability to the Buyer, and if the
Goods have been delivered but not paid for the price shall become immediately
due and payable notwithstanding any previous agreement or arrangement to the
contrary.
11. EXPORT TERMS
11.1 For the purposes of this section, the
use of 'export' shall mean the transfer of Goods outside of the continental
United States. Buyer acknowledges that the exportation of Goods is subject to
compliance under the United States Export Control Administration Act of 1979
and the Export Administration Act of 1985, as they may be amended from time to
time, and the rules and regulations promulgated thereunder (collectively, the
"Act"). If Buyer exports the Goods, Buyer agrees to comply with the
terms and restrictions of the Act, along with any anti-boycott laws and
regulations related to the Goods. Buyer confirms that it will not unlawfully
export or re-export the Goods, directly or indirectly, to (i) any countries
that are subject to U.S. export restrictions, (ii) any subsequent purchasers
located in the territory of the European Economic Area, (iii) the European
Economic Area, or (iv) any end user who has been prohibited from participating
in U.S. export transactions by any agency of the U.S. government. Buyer
warrants that the Goods will not be used to develop or produce weapons of mass
destruction or sold to an end user who, Buyer knows or has reason to know, may
utilize the Goods directly or indirectly in connection with weapons of mass
destruction or nuclear activities listed in U.S. EAR 778.3(b)(1), (2) &
(3), whether or not the item is specifically designed
or modified for such activities. If Buyer is not the ultimate end user, Buyer
agrees to screen the reliability of each end user so that the Goods will not be
used in a manner which is prohibited. Upon our request, Buyer agrees to
execute, acknowledge, deliver and to cause to be duly filed all such further
instruments and documents and take actions as we may from time
to time reasonably request to assure that the necessary export
requirements have been met. If required, Buyer will obtain prior authorization
for export of the Goods in accordance with the Export Administration
Regulations of the Department of Commerce. If applicable, Buyer will be
responsible for assuring that the appropriate import permits and licenses with
respect to the Goods, including any markings needed for import are obtained.
Buyer shall indemnify and hold Seller harmless against any claims, damages or
losses incurred as a result of Buyer's failure to
comply with the Act or terms contained herein. Seller reserves the right to
terminate any sale if Buyer fails to comply with the Act or the terms contained
herein.
11.2 Unless otherwise agreed in writing
between the Buyer and the Seller, the Seller shall always deliver to the
address of the Buyer stipulated on the sales invoice.
12. CONFIDENTIALITY. All communications in connection with the Agreement or any intended
Agreement between the parties and all details of the Agreement including the
Seller’s involvement with it shall be regarded as strictly confidential and the
Buyer shall not divulge the same to any person, firm or company without the
Seller’s prior written consent except to the extent that any relevant
information is in or comes into the public domain other than due to the Buyer’s
breach of this Condition. Nothing in this section shall prevent either party
from disclosing the terms of this Agreement to their respective attorneys and
accountants or as required by law.
13. GENERAL
13.1 The headings in these Conditions are for
convenience only and shall not affect their interpretation.
13.2 No waiver by the Seller of any breach of
the Agreement by the Buyer shall be considered as a waiver of any subsequent
breach of the same or any other provision.
13.3 The Buyer shall indemnify and hold the
Seller and its officers, agents, employees and
affiliates harmless in full against any Losses, costs, damages, charges or
expenses suffered or incurred by the Seller arising from the Buyer’s
negligence, non-compliance or breach of any provision of the Agreement or its
warranties.
13.4 This Agreement and
all related documents, and all matters and disputes arising out of or relating
to this Agreement, are governed by, and construed in accordance with, the laws
of the State of Connecticut, United States of America (including Connecticut’s choice
of law statutes, without regard to the conflict of laws
provisions thereof to the extent such principles or rules would require or
permit the application of the laws of any jurisdiction other than those of the
State of Connecticut. . Each party
hereby irrevocably submits to the exclusive jurisdiction and venue of the state
court in Stamford, Connecticut federal court in Bridgeport, Connecticut.
Neither the United Nations Convention on the International Sale of Goods nor
the Uniform Computer Information Transactions Act shall have any application to
this Agreement.
13.5 All notices under this Agreement shall
be in writing and shall be delivered to the other party at the address set
forth above or such other address as the party may advise in writing from time
to time.
13.6 This Agreement supersedes all prior oral
or written representations or communications between the parties and
constitutes the entire understanding between the Seller and Buyer, regarding
the subject matter of this Agreement.
This Agreement may not be changed, modified, waived
or amended except by express written agreement of the Seller and Buyer executed
by their authorized representatives.
13.7 This Agreement and any attachments including
but not limited to the purchase order may be executed by means of facsimile,
.pdf via email or original copies, and may be executed in counterparts, each of
which shall constitute an original but when taken together shall constitute one
agreement.
13.8 If one or more provisions of this
Agreement are held to be unenforceable under applicable law, the parties agree
to renegotiate such provision in good faith.
In the event that the parties cannot reach a
mutually agreeable and enforceable replacement for such provision, then (a)
such provision shall be excluded from this Agreement, (b) the balance of the
Agreement shall be interpreted as if such provision were so excluded and (c)
the balance of the Agreement shall be enforceable in accordance with its terms.
13.9 The parties’ representations and warranties and any other provision
that, in order to give proper effect to its intent,
should survive expiration or termination, will survive the expiration and/or
termination of this Agreement.