TERMS AND CONDITIONS OF SALE
These terms and conditions of sale which appear on all invoices are the terms and conditions upon which SpeySide IT Consulting Inc., a California corporation, and its U.S. subsidiaries (together “SPEYSIDE IT”) make all product sales with any purchaser (hereinafter referred to as “Buyer”). The acceptance of all orders and all sales by SPEYSIDE IT are made subject to and expressly conditioned upon the terms and conditions contained herein. Any of Buyer’s terms and conditions, whether express or implied, which are different from or in addition to those contained herein is hereby objected to and shall be of no effect unless specifically agreed to in writing by SPEYSIDE IT. SPEYSIDE IT’s silence or failure to respond to any such subsequent or different term, condition or proposal shall not be deemed to be SPEYSIDE IT’s acceptance or approval thereof. The parties agree that the terms and conditions set forth herein constitute the sole agreement between the parties with respect to any transactions between Buyer and SPEYSIDE IT herein. SPEYSIDE IT is not responsible for any typographical, clerical, or other error or omission in any sales literature, quotation, price list, acceptance offer, invoice or other document.
- ACCEPTANCE OF PURCHASE ORDERS
Buyer’s acceptance of these terms and conditions shall be indicated by any of the following, whichever occurs first: (a) Buyer’s making of an offer to purchase any one or more items specified for delivery from SPEYSIDE IT (the “Products”); (b) Buyer’s written acknowledgment hereof; (c) Buyer’s acceptance of any shipment of any part of the Products; or (d) any other act or expression of acceptance by Buyer. SPEYSIDE IT’s acceptance is expressly limited to these terms and conditions in their entirety without addition, modification or exception.
- PRICE AND PAYMENT TERMS
Orders are not binding upon SPEYSIDE IT until expressly accepted by SPEYSIDE IT. Terms of payment are within Seller’s sole discretion. Buyer agrees to pay the total purchase price for the Products, plus applicable tax and shipping charges including, without limitation, import or custom duties, licensing fees, and other similar charges. SPEYSIDE IT’s prices set forth on the front side of the invoice do not include such taxes, fees and charges. Exemption certificates must be presented to SPEYSIDE IT prior to shipment if they are to be honored. Unless specified otherwise, invoices are due and payable upon delivery (“COD”). SPEYSIDE IT may invoice parts of an order separately.
SPEYSIDE IT, at its discretion, may require reasonable advance assurances of payment through irrevocable bank letters of credit or otherwise. All unpaid invoices shall bear interest at an amount equal to 1-1/2% of the outstanding balance per month (or the maximum rate of interest allowed to be contracted for by law, whichever is less), commencing upon the date payment is due. Buyer’s failure to make timely payment may result in such action as commencement of proceedings for collection, revocation of credit, stoppage of shipment, delay or cessation of future deliveries, repossession of unpaid delivered goods and termination of any one or more sales agreements. Notwithstanding any “net” payment provisions specified on the invoice, SPEYSIDE IT shall have no continuing obligation to deliver Products on credit, and any credit approval may be withdrawn by SPEYSIDE IT at any time and without cause or prior notice.
Upon the submission of a purchase order to SPEYSIDE IT for delivery of any Products, Buyer grants to SPEYSIDE IT and SPEYSIDE IT retains a security interest in the Products to secure payment in full and compliance with these terms and conditions of sale. Buyer agrees to execute any additional documents necessary to perfect such security interest.
In the event the sales invoice shall be placed by SPEYSIDE IT in the hands of an attorney or collection agency for the purpose of collection, with or without litigation, or for the purpose of enforcing SPEYSIDE IT’s security interest in the Products, the Buyer agrees to pay any and all costs associated with such placement, including, without limitation, attorney’s fees and costs incurred prior to, during, or subsequent to litigation, and including, without limitation, collection, bankruptcy, or other creditor’s rights proceedings.
All U.S. Sales are to be conducted negotiated and paid in U.S. Dollars. If a sale is to occur, or the Product is to be shipped outside of the United States, Buyer acknowledges and agrees that the amount due SPEYSIDE IT is contracted in U.S. Dollars and that payment in U.S. Dollars is of the essence. Any payment by Buyer in local currency or the receipt by SPEYSIDE IT of local currency as a consequence of enforcement procedures against Buyer will be deemed an authorization for SPEYSIDE IT to use that local currency to purchase U.S. Dollars or, if such purchase is prohibited by local law, an authorization to purchase appropriate bonds or other instruments and export them from the Buyer’s jurisdiction in order to convert the currency into U.S. Dollars and apply the proceeds to the payment of any amounts owed to SPEYSIDE IT by Buyer. Any deficiency as a result of conversion of payment into U.S. Dollars shall be the responsibility of Buyer.
- DELIVERY/RISK OF LOSS
Unless otherwise agreed in writing, delivery shall be made in accordance with SPEYSIDE IT’s shipping policy in effect on the date of shipment. The current SPEYSIDE IT shipping policy can be located at www.Speyside IT.com.
Any delivery date given to the Buyer is approximate only and SPEYSIDE IT shall not be liable to Buyer for failure to deliver any particular date or dates. SPEYSIDE IT reserves the right to make deliveries in installments. Delay in delivery of one installment shall not give rise to a right of cancellation by Buyer.
Domestic: For all domestic transactions, unless otherwise stated on the front of the invoice, title to the Products and all risk of loss or damage with respect to the Products shall pass to Buyer upon delivery by SPEYSIDE IT to the carrier or Buyer’s representative at SPEYSIDE IT’s logistics center.
International: SPEYSIDE IT assumes no responsibility for charges related to customs clearance in the country of delivery, customs duties, VAT or any other charges or taxes within the country designated for delivery by the Buyer. Title shall pass to the Buyer upon delivery to the Buyer or Buyer’s representative at SPEYSIDE IT’s logistics center.
Product or parts damaged in shipment cannot be returned and all claims for such damage should be directed immediately to the carrier. Delivery is subject to the payment provisions set forth herein and to SPEYSIDE IT’s receipt of all necessary information and documentation from Buyer including all import certificates, exemption and/or resale certificates, licenses and other documents as may be required from Buyer for delivery or export of the Product. Buyer agrees that any employee or representative of Buyer may sign for and receive the Products sold to Buyer herein.
If Buyer fails to take delivery of the Goods or fails to give Seller adequate delivery instructions at the time stated for delivery (other than by cause beyond the reasonable control of the Buyer) then without limiting any other right or remedy available to the Seller, the Seller may: (a) store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or (b) sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Agreement or charge the Buyer for any shortfall below the price under the Agreement.
Buyer shall promptly notify SPEYSIDE IT, in no event later than five (5) business days after delivery, of any claimed shortages or rejection as to any delivery. Such notice shall be in writing and shall be reasonably detailed, stating the grounds for any such rejection. Failure to give any such notice within such time shall be deemed an acceptance in full of any such delivery. SPEYSIDE IT shall not be liable for any shipment delays beyond the reasonable control of SPEYSIDE IT which affect SPEYSIDE IT or any of SPEYSIDE IT’s suppliers, including, but not limited to, delays caused by unavailability or shortages of Products from SPEYSIDE IT’s suppliers; natural disasters, acts of war; acts or omissions of Buyer; fire, strike, riot, or governmental interference; unavailability or shortage of materials, labor, fuel or power through normal commercial channels at customary and reasonable rates; failure or destruction of plant or equipment arising from any cause whatsoever; or transport failures.
Any return of the Products purchased hereunder, whether for stock balancing purposes or because such Products are claimed to be defective, shall be governed by SPEYSIDE IT’s Product Return policies in effect on the date of the invoice, or as otherwise provided by SPEYSIDE IT to Buyer in writing. SPEYSIDE IT’s Product Return policies are located at www.techdata.com.
SPEYSIDE IT reserves the right to modify or eliminate such policies at any time. Although SPEYSIDE IT’s policies may permit Buyer to return Products claimed to be defective under certain circumstances, SPEYSIDE IT makes no representations or warranties of any kind with respect to the Products. SPEYSIDE ID OFFERS PRODUCTS ON AN “AS IS” BASIS ONLY. SPEYSIDE IT HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, AS TO THE PRODUCTS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. SPEYSIDE IT WILL NOT BE LIABLE FOR ANY DAMAGE, LOSS, COST OR EXPENSE FOR BREACH OF WARRANTY. The right to return defective Products, as previously described, shall constitute SPEYSIDE IT’s sole liability and Buyer’s exclusive remedy in connection with any claim of any kind relating to the quality, condition or performance of any Products, whether such claim is based upon principles of contract, warranty, negligence or other tort, breach of any statutory duty, principles of indemnity or contribution, the failure of any limited or exclusive remedy to achieve its essential purpose, or otherwise. In the event SPEYSIDE IT issues a return authorization to Buyer allowing Buyer to return Product to SPEYSIDE IT, Buyer will deliver the Product to SPEYSIDE IT’s address in the United States, if so required by SPEYSIDE IT, and Buyer shall bear all applicable federal, state, municipal and other government taxes (such as sales, use and similar taxes) as well as import or customs duties, license fees and similar charges, however designated or levied, on any replacement Product to be shipped by SPEYSIDE IT to Buyer.
- LIMITATION OF LIABILITY
SPEYSIDE IT SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT TO SELL PRODUCTS TO BUYER OR IN ANY WAY RELATED TO THE PRODUCT, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOST PROFITS, LOSS OF USE, LOST DATA OR FOR ANY DAMAGES OR SUMS PAID BY BUYER TO THIRD PARTIES, EVEN IF SPEYSIDE IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY WHETHER ANY CLAIM IS BASED UPON PRINCIPLES OF CONTRACT, WARRANTY, NEGLIGENCE OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, PRINCIPLES OF INDEMNITY OR CONTRIBUTION, THE FAILURE OF ANY LIMITED OR EXCLUSIVE REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE, OR OTHERWISE.
Buyer acknowledges, represents and warrants that it currently complies with, and at all times shall comply with, and shall not act to contravene, any relevant laws, codes, and regulations applicable to the purchase and sale of Products under these terms and conditions. Buyer further acknowledges and agrees that the goods, software, and technology subject to these terms and conditions are subject to the export control laws and regulations of the United States, including, but not limited to, the Export Administration Regulations (“EAR”), and sanctions regimes of the U.S. Department of Treasury, Office of Foreign Asset Controls. Buyer shall not, without prior U.S. government authorization, export, reexport, or transfer any goods, software, or technology subject to these terms and conditions, either directly or indirectly, to any country subject to a U.S. trade embargo or to any resident or national of any such country, or to any person or entity listed on the “Entity List” or “Denied Persons List” maintained by the U.S. Department of Commerce or the list of “Specifically Designated Nationals and Blocked Persons” maintained by the U.S. Department of Treasury. In addition, any goods, software or technology subject to these terms and conditions may not be exported, re-exported, or transferred to an end-user engaged in activities related to weapons of mass destruction. Such activities include, but are not necessarily limited to, activities related to: (1) the design, development, production, or use of nuclear materials, nuclear facilities, or nuclear weapons; (2) the design, development, production, or use of missiles or support of missiles projects; and (3) the design, development, production, or use of chemical or biological weapons.
Buyer recognizes that some Products sales are limited to a specified territory and shall not sell Products outside that territory. Such sales may constitute copyright or trademark infringement. Products purchased by Buyer may also be subject to additional usage restrictions or authorizations imposed by the Product manufacturer or publisher. Buyer is responsible for ensuring compliance with any such restrictions or authorizations.
Buyer shall defend and indemnify SPEYSIDE IT from all liabilities and costs resulting from any suit or proceeding based upon a claim that the Products infringe upon the right of a third party to the extent such claim arises from SPEYSIDE IT’s compliance with Buyer’s designs, specifications or instructions. This indemnity shall survive the termination of this transaction and/or the completion of the transaction contemplated herein.
These terms and conditions shall constitute the final, complete and exclusive agreement of the parties with respect to all sales by SPEYSIDE IT to Buyer and shall supersede all prior offers, negotiations, understandings and agreements. Unless Buyer and SPEYSIDE IT have executed a written agreement which specifically modifies, supersedes and/or replaces these terms and conditions, it is expressly agreed that no prior or contemporaneous agreement or understanding, whether written or oral, shall contradict, modify, supplement or explain these terms and conditions. No additional or different terms or conditions, whether material or immaterial, shall become a part of any sales agreement unless expressly accepted in writing by an authorized officer of SPEYSIDE IT in the United States. Any waiver by SPEYSIDE IT of one or more of these terms and conditions or any defaults hereunder shall not constitute a waiver of the remaining terms and conditions or of any future defaults. No failure or delay by either party in exercising or enforcing any right hereunder shall operate as a waiver thereof or preclude any other exercise or enforcement of its rights. Any provision of these terms and conditions that is prohibited or unenforceable under the laws of the State of California shall be ineffective to the extent of such prohibition or unenforceability, without impairing or invalidating the remaining provisions of these terms and conditions. All sales agreements shall be deemed made in, and shall be governed by, the laws of the State of California. The venue for any disputes arising out of any sales agreement shall be, at SPEYSIDE IT’s sole and exclusive option, San Diego County, California or the courts with proper jurisdiction at Buyer’s location. ALL SALES TRANSACTIONS EXCLUDE THE APPLICATION OF THE 1980 UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE.