TERMS AND CONDITIONS
Seller/Service Provider and Customer agree that the following terms and conditions will govern your order for equipment and software (“Product(s)”) purchased from Seller/Service Provider and the installation, warranty and related services (“Service(s)”) listed on an invoice or other agreement between us.
1. PRICE; PAYMENT; TAXES. Customer agrees to pay the unit price of each item, Product or Service described on an invoice or other agreement between Customer and Seller/Service Provider (collectively an “Agreement”) together with all other charges, fees, and costs. Termination of an Agreement for any reason shall not affect Customer’s continuing obligation to pay all fees and costs invoiced or to be invoiced by Seller/Service Provider for a Purchase.
Interest on any past due payment(s) shall accrue at the rate of one and one-half percent (1½%) per month or at the maximum rate allowed by law. All prices are exclusive of applicable taxes or other charges imposed by law and are F.O.B. Seller/Service Provider’s place of business or another specified site. All taxes or other charges will be added to the price and itemized or invoiced separately. The price, together with any accrued interest, taxes, or other charges, is due upon receipt of invoice unless provided otherwise in writing.
2. TITLE; RISK OF LOSS; SECURITY INTEREST; REMEDIES UPON DEFAULT. Title to and ownership of each Purchase invoiced or sold pursuant to an Agreement shall remain in the Seller/Service Provider until payment is made in full, including any additional charges provided for therein or herein. Risk of loss to any Purchase shall pass to the Customer upon delivery to a carrier or delivery agent.
Seller/Service Provider reserves a purchase money security interest to the extent allowed by law in and to each Purchase sold hereunder as security for the performance of the Customer’s obligations and may file an invoice or sales agreement providing a description thereof as notice of such interest.
In the event Customer fails to pay according to an invoice or perform any of its obligations pursuant to an Agreement, including failure to pay any charges due thereunder, Seller/Service Provider may, at its option, do any of the following: (i) terminate an Agreement, or any other agreement between Seller/Service Provider and Customer, upon notice to Customer; (ii) whether or not an Agreement is terminated, suspend further performance under the Agreement and any other agreement between the parties; (iii) retain all or a portion of the security deposit, if any, previously paid by Customer as an offset to Customer’s liability for such default. Customer shall in any event remain fully liable for damages resulting from breach including, but not limited to, all costs and expenses incurred by Seller/Service Provider on account of such breach including costs of arbitration and reasonable attorneys’ fees. The rights afforded Seller/Service Provider hereunder shall not be deemed to be exclusive, but shall be in addition to any rights or remedies provided by law.
3. WARRANTIES; DISCLAIMERS. The Seller/Service Provider represents and warrants that, at the time of each Purchase, the Seller/Service Provider will be the lawful owner thereof, free and clear of any liens and encumbrances (other than those which may arise from an Agreement) and will have full right, power, and authority to sell, deliver or provide the same to Customer.
Software: Customer will receive the benefit of the manufacturer’s new Product warranty which shall be Customer’s sole and exclusive remedy in the event of nonconformity.
SELLER/SERVICE PROVIDER IS NOT RESPONSIBLE FOR THE QUALITY OR CORRECTNESS OF THE DATA. FIELDS THAT CAN NOT BE CONVERTED AND REQUIRE MANUAL ENTRY ARE THE RESPONSIBILITY OF THE CUSTOMER.
Hardware/Firmware: Unless otherwise stated in writing on an Agreement: (i) New hardware or firmware sold under an Agreement is subject to the original product manufacturer’s written warranty only; and (ii) Used hardware or firmware sold under an Agreement is sold “AS IS.”
IN-SERVICE-DATE:
(a) For Customer Installed Equipment – The “In-Service-Date” is the date the customer takes delivery of a Product.
(b) For Seller/Service Provider installed Product(s) – The “In-Service-Date” is the date, Seller/Service Provider notifies you that the Product(s) are installed or the Customer assumes actual use of the Products whichever is earlier.
SELLER/SERVICE PROVIDER DOES NOT WARRANT THE FOLLOWING: (i) UNINTERRUPTED OR ERROR-FREE OPERATION OF THE PRODUCTS OR SERVICES; (ii) THAT THE PRODUCTS INDIVIDUALLY OR IN COMBINATION WITH OTHER FACILITIES WILL PREVENT TOLL FRAUD; OR (iii) THAT NEITHER THE PRODUCTS NOR THE SERVICES WILL BE FREE FROM ELECTRONIC NETWORK INVASION OR UNAUTHORIZED USE OR COMMON CARRIER CHARGES ARISING THEREFROM, DUE TO TOLL FRAUD.
THE EXPRESS WARRANTIES HEREIN CONTAINED ARE IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY. CUSTOMER ACKNOWLEDGES THAT IT IS NOT RELYING ON SELLER/SERVICE PROVIDER’S SKILL OR JUDGMENT TO SELECT OR FURNISH ANY PARTICULAR ITEM OF SOFTWARE FOR ANY PARTICULAR PURPOSE AND THAT THERE ARE NO WARRANTIES THAT ARE NOT CONTAINED IN THIS SALES AGREEMENT. SELLER/SERVICE PROVIDER SHALL NOT BE LIABLE FOR DAMAGES, INCLUDING SPECIAL AND INCIDENTAL OR CONSEQUENTIAL DAMAGES, NETWORK DOWNTIME, INTERRUPTION OF BUSINESS ARISING OUT OF OR IN CONNECTION WITH PERFORMANCE OF THE SOFTWARE OR ITS USE BY CUSTOMER.
4. SOFTWARE LICENSE: Customer agrees to abide by the terms of the manufacturer’s software license issued upon delivery of the Product and to refrain from taking any steps to derive a source code or equivalent or to develop other software and to use its best efforts to ensure that Customer’s employees and users licensed under an Agreement comply with the terms of said license. If the licensed software sold pursuant to an Agreement is sold or assigned to another party, Customer understands and acknowledges that the subsequent owner or assignee may be required to execute a new license and pay the then current license fee, if any.
5. SERVICES AND TIMING. Services not specifically itemized are not provided. Fee estimates for services to be rendered are for planning purposes only. CUSTOMER IS RESPONSIBLE FOR SYSTEM BACK-UP PRIOR TO COMMENCEMENT OF SERVICES OR INSTALLATION OF A PURCHASE. The Customer is responsible for all data validation and existing system or program modification acceptance and testing. Schedules provided by Seller/Service Provider are for planning and scheduling purposes only and are not meant or intended as firm commitments.
6. FEES. Customer shall pay for all reasonable travel, food and lodging expenses incurred by Seller/Service Provider’s personnel in connection with the performance of their duties hereunder. Estimates of fees provided by Seller/Service Provider hereunder are for planning purposes only and are not meant or intended as a fixed fee bid unless stated otherwise in writing on the face of an Agreement. Seller/Service Provider shall not be liable for any failure to maintain estimated fees unless otherwise specified.
7. INDEPENDENT CONTRACTOR. Seller/Service Provider shall conduct its business as an independent agent with respect to Customer. Seller/Service Provider agrees that it will, at all times, represent to third persons and to the public generally and to all governmental bodies, including, but not limited to, federal, state or local authorities that the business conducted by Seller/Service Provider with respect to Customer is that of an independent agent and that such is the sole relationship between the parties. It is expressly understood that Seller/Service Provider is not in any way constituted the legal representative of Customer for any purpose whatsoever with respect to the Purchase. Customer shall deduct no income tax or other withholdings whatsoever from payments due Seller/Service Provider.
8. CUSTOMER COOPERATION. Customer shall cooperate fully with Seller/Service Provider following a Purchase to facilitate performance of Seller/Service Provider’s obligations hereunder including the rendition of services or installation of hardware and/or software. Customer shall dedicate such time, personnel and resources as may be necessary to complete the implementation or installation. Cooperation shall include the following:
Customer shall designate a coordinator at Customer’s site with the knowledge and authority to make such decision with respect to all of Customers operations in order for Seller/Service Provider to meet its obligations hereunder.
Customer shall make available such data as is necessary to adequately test a Purchase.
If Customer is purchasing an application software solution, Customer shall be responsible for the operation of the entire system, including back up, in addition to contacting all third-party vendors to confirm that existing hardware and software will be compatible with the new software and process any necessary changes.
9. FORCE MAJEURE. Seller/Service Provider shall not be liable for any loss, failure or delay in furnishing a Purchase or labor resulting from fire, explosion, flood, storm, act of God, governmental acts, orders or regulations, hostilities, civil disturbance, strike, labor difficulties, machinery breakdown, transportation contingencies, difficulty in obtaining parts, supplies, shipping facilities, delay of carriers, or any other cause beyond the control of Seller/Service Provider.
10. ARBITRATION. Seller/Service Provider and Customer agree to submit all disputes of whatever kind or nature, whether in law or equity, arising out of this or any other agreement between the parties or their affiliates, to binding arbitration only, to be conducted pursuant to the rules of the American Arbitration Association, such arbitration to be held in the City of Minneapolis, State of Minnesota, only. Provided, however, in the event third parties are necessary to achieve a just adjudication of the issues, Seller/Service Provider may commence a civil action in a court of competent jurisdiction having jurisdiction over all such parties including the Customer. The parties agree that the nonprevailing party shall be liable for all costs, including the prevailing party’s attorneys’ fees and costs in addition to the costs of arbitration. The parties are entitled to limited discovery under the local rules of civil procedure for courts of general jurisdiction. The parties further agree that any monetary award may be reduced to judgment and docketed in any court of competent jurisdiction without objection and execution had thereon. This provision shall survive the termination or cancellation of an Agreement. No arbitration or action, regardless of form, arising out of a Purchase may be brought or commenced by either party more than one (1) year after the dispute or cause of action arose.
11. MISCELLANEOUS.
(a) Choice of Law – Neither an Agreement nor any consent or approval provided for herein or therein shall be binding upon Seller/Service Provider unless signed on its behalf by a duly authorized officer. An Agreement shall be deemed to have been made in the State of Minnesota and shall be governed in all respects by the laws of the State of Minnesota.
(b) Merger – An Agreement constitutes the entire agreement between the Seller/Service Provider and the Customer with respect to a Purchase described herein, superseding all prior correspondence between the parties (including, without limitation, any purchase orders submitted by the Customer to Seller/Service Provider). No provision of an Agreement shall be deemed waived, amended, or modified by either party unless such waiver, amendment, or modification be in writing signed by the party against whom enforcement is sought.
(c) No Assignment – An Agreement shall not be assignable by the Customer without the prior written consent of the Seller/Service Provider, and any attempted assignment without such consent shall be void.
(d) Notices – All notices herein shall be in writing and shall be delivered in person or sent by facsimile or U.S. Mail, postage prepaid, to the address of the other party as set forth on an Agreement or to such other address as a party shall designate.
(e) Acknowledgment and Authority – By execution hereof, the signer hereby certifies that he/she has read the Agreement and these terms, understands them, and agrees to all terms and conditions stated herein and therein and that he/she is duly authorized to execute an Agreement on behalf of the Customer.
(f) Secrecy and Confidentiality – Seller/Service Provider covenants and agrees on behalf of itself, its officers, directors, employees, and agents as follows: (i) all information obtained from Customer including, but not limited to, customers lists, customer sensitive information, business upon termination of an Agreement. This provision is limited to the extent such information was in the possession of Seller/Service Provider before disclosure, becomes a matter of public record through no fault of Seller/Service Provider or is released by or at the direction of Customer. Practices and operations and pricing and financial information is secret, proprietary and confidential; (ii) such information shall not be disclosed to others nor used for any unauthorized; and (iii) Seller/Service Provider shall use its best efforts to return such information to Customer upon termination of an Agreement. This provision is limited to the extent such information was in the possession of Seller/Service Provider before disclosure, becomes a matter of public record through no fault of Seller/Service Provider or is released by or at the direction of Customer.
(g) Indemnification – Customer warrants to Seller/Service Provider that it has full right and authority to enter into the obligations described in an Agreement and that the work to be performed by Seller/Service Provider will not infringe any patent or other rights of third-parties arising out of a Purchase or the rendition of services described herein. Customer shall be required to protect, indemnify, and save Seller/Service Provider harmless against, or be liable to Seller/Service Provider for, any liabilities, losses, expenses, or damages which may be suffered or incurred by Seller/Service Provider as a result of such infringement or allegation thereof by a third party or work to be performed.