Terms and Conditions of Sale

 
These terms and conditions of sale (“Terms”) establish a binding contract between Buyer and Consiliant Technologies LLC (“Company”). Upon placing an order with Company or otherwise accepting delivery of any Products from Company, Buyer agrees to be bound by and accepts these Terms of Sale, as in effect at the time of order placement.

These Terms of Sale constitute the entire agreement between Buyer and Company relating to the Terms of Sale of products and services. Buyer consents to receiving electronic records, which may be provided by a Web browser or e-mail connected to the Internet; individual consumers may withdraw consent to receiving electronic records or have the record provided in another form by contacting Company at the address provided below.

Buyer may issue a purchase order for administrative purposes only. Any additional or different terms and conditions contained in any such purchase order will be null and void. Buyer agrees that the Terms of Sale contained herein and in Company’s invoice or other documentation is controlling. No course of prior dealings between the parties and no usage of trade will be used to determine the meaning of these Sales Terms or any purchase order or invoice related thereto.

PRICE |Quoted prices are valid only for the period of time specified in the quote. Unless expressly noted on a quote or invoice, prices do not include, and Buyer is responsible for, any and all taxes, handling, shipping, transportation, duties or other charges or fees relating to the sale and delivery of Products. Exemption certificates, valid in the place of delivery, must be presented to Seller prior to shipment if they are to be honored. Seller’s acceptance of Buyer’s order occurs at time of shipment, except for non-standard products.

PAYMENT | Payment terms are specified when an account is established by buyer, which terms are subject to change from time to time. Company has the right to modify, increase, decrease or terminate Buyer’s credit privileges and terms at any time without prior notice to Buyer. Invoices are due and payable within the time period specified on the invoice, measured from the date of invoice. Company may invoice parts of an order separately. Buyer agrees to pay interest on all past-due sums at the lower of one and one-half percent (1 1/2%) per month or at the highest rate allowed by law. Buyer may not deduct any amounts owing from any invoice. Any sales, use or other applicable tax is based on the location to which the order is shipped. In the event of a payment default, Buyer will be responsible for all of Company’s costs of collection, including court costs, filing fees and attorney’s fees.

SHIPMENT | Shipment and transportation charges shall be in accordance with Company’s shipping policy at time of shipment. Title and risk of loss transfer to Buyer upon delivery of Products to the carrier. If Buyer tells Company to bill transportation to a third-party account number or to ship “freight collect,” Buyer is responsible for all transportation and accessorial charges associated with the order, and is responsible for product loss and damage in transit claims with the Buyer’s carrier. Company is not liable for any Buyer requirements not stated in these Sales Terms. Within three days of delivery Buyer must provide detailed notification to Company of any visible damage. Buyer will notify Company of any claimed shortages or discrepancies within 30 days of invoice or waives its right to such claim.

EXPORT | Buyer agrees that it will not export, re-export, either directly or indirectly, any United States origin commodities, technology/technical data or software acquired from Company, or any direct product of that technical data: a) in violation of the export laws and regulations of the United States, including but not limited to, the Bureau of Industry and Security Export Administration Regulations and the regulations of the Treasury Department’s Office of Foreign Assets Control or any other relevant national government authority; b) to any country for which an export license or other governmental approval is required at the time of export, without first obtaining all necessary export licenses or other approvals; c) to any country or national or resident of a country to which trade is embargoed by the United States; d) to any person or firm on any government agencies Restricted Party List, including, but not limited to the U.S. Department of Commerce’s Table of Denial Orders or Entities list, or U.S Treasury Department’s list of Specially Designated Nationals; or e) for use in any sensitive nuclear, chemical or biological weapons, or missile technology end-uses unless authorized by the U.S. Government by regulation or specific license. In addition, manufacturers’ warranties for exported products may vary or may be null and void for products exported outside the United States. Company makes no representations regarding warranty coverage, compatibility or serviceability for Products that are used outside the United States.

WARRANTIES |

(a) With respect to Products. Company is a reseller of information technology products, which includes hardware, software and firmware (“Products”). Buyer understands that Company is not the manufacturer of the Products purchased by Buyer hereunder, and the only warranties offered are those of the manufacturer, not Company. In purchasing the Products, Buyer is relying on the manufacturer’s specifications and services descriptions only and is not relying on any statements, specifications in brochures, photographs or other illustrations representing the Products that may be provided by Company.

(b) With respect to Services. With respect to any services provided by Company, Company represents and warrants that the services will be performed in a professional and workmanlike manner, in accordance with industry standards. Buyer acknowledges and agrees that, at times, Company may act as a reseller of specific original equipment manufacturer (“OEM”) services, such as maintenance, support and advanced services (“OEM Services”).  Company is not the provider of the OEM Services, and OEM Services are purchased pursuant to the terms and conditions offered by the provider of such services. Upon Buyer’s request, Company will obtain a copy of such terms from the provider. The OEM Services providers are not agents of Company. The third party service provider is the only party responsible for providing OEM Services to Buyer. Buyer will look solely to the third party service provider for any loss, claims or damages arising from or relating to the purchase or provision of the OEM Services. Buyer hereby releases Company and affiliates from any and all claims arising from or relating to the purchase or provision of any OEM Services. Services may be subject to tax.

(c) Company EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EITHER EXPRESS, IMPLIED, OR STATUTORY WITH RESPECT TO ANY PRODUCT OR SERVICE, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WHATSOEVER. ALL INFORMATION IS PROVIDED TO BUYER “AS IS.”

INDEMNIFICATION | Company is not responsible for and has no duty to defend, indemnify, or hold harmless Buyer, its affiliates or any other party, from or against any claims for breach of security, loss of data, or infringement of intellectual property rights related to the manufacture, sale or use of the Products or Services by Company or its vendors. Buyer will indemnify, defend and hold harmless Company and its vendors from and against any claim, demand, liability, cost or expense arising from: (a) Buyer’s use, marketing, distribution or sale of products in a manner other than as specified in product/service descriptions or specifications; (b) Company’s or its vendor’s compliance with designs, specifications, or instructions provided by Buyer; or (c) Buyer’s breach of these sales terms.

SOFTWARE & LICENSING | Software Product resold under these Sales Terms, as well as related maintenance or support services, will be governed by either the license agreement between Buyer and the original equipment manufacturer (OEM) or, if no such agreement exists, the OEM’s standard license and support agreements, which Company will forward to Buyer at the time of delivery of the Product, when provided to Company by the OEM. Company acknowledges that all such separate terms and conditions, rights and responsibilities by and between OEM and Buyer will pass to any order placed by Buyer hereunder, provided that Buyer acknowledges that Company is not a party to any such terms between Buyer and OEM and Buyer agrees to look solely to the OEM for satisfaction of any and all license support claims or obligations related to that OEM’s Product, but may request assistance from Company with their claim, which assistance Company shall use commercially reasonable efforts to provide.

LIMITATION OF LIABILITY | Neither Company nor its affiliates will 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. Neither Company nor its affiliates will be liable for products not being available for use or for lost or corrupted data or software or the provision of OEM services. In no event will Company’s liability with respect to the purchase and sale of products, Company services, OEM services, or otherwise under these sales terms exceed the dollar amount paid by customer for the product(s), Company service(s) or OEM service(s) giving rise to the claim.

FORCE MAJEURE | Company will not be responsible for any delays in delivery which result from any circumstances beyond its control, including without limitation, product unavailability, carrier delays, delays due to fire, severe weather conditions, failure of power, labor problems, acts of war, terrorism, general insurrection, acts of God or acts of any government or agency.

RETURN PRIVILEGES | To request a Return Merchandise Authorization (RMA) number for a return and/or exchange, contact your Company Sales Representative.

In order to expedite a return, please have the following information on hand when requesting an RMA number: Buyer number, invoice number, serial number, reason for return, action to take (replacement/repair/return/credit) and whether the box has been opened or is manufacturer sealed.

Company will not accept any return without a valid RMA number and will be refused at the sender’s expense.

Requests for RMA numbers must be made within 30 days of the invoice date.

Please return all products 100% complete including all original manufacturer boxes with the UPC code and packing materials, all manuals, blank warranty cards, accessories and any other documentation included with the original shipment. RMA approval is contingent upon, among other things, the products being 100% complete. All opened products are subject to denial.

All opened yet authorized returns, are subject to a 15% restocking fee.

Buyer is responsible for shipping charges to Company’s headquarters for all products being shipped for return, exchange or replacement. Products exchanged or replaced will be shipped by Company to Buyer, at Company’s expense, using the same shipping method as was used by Buyer to ship the original products back to Company.

Buyer is responsible for all risk of loss and damage to products being shipped for return, exchange or replacement. Please fully insure return shipment in case of loss or damage. Please use a carrier that is able to provide you with proof of delivery.

Return privileges vary by manufacturer. Please contact Company Sales Representative for details.

Failure to return a product within the applicable return period will be deemed to be an acceptance of the product.

GOVERNING LAWS | These Terms of Sale (and any agreement into which they are incorporated) will be construed, interpreted and enforced exclusively under and in accordance with the laws of the State of California. The parties agree to and submit to personal jurisdiction and venue in the state courts of Orange County, California or the United States District Court for the Southern District of California.

NOTICES | All notices, requests, demands, and other communications must be in writing and may be given by a) personal delivery, b) registered or certified mail, return receipt requested, or via nationally recognized courier services to the party at the address of the party, at its official corporate address, or c) email to Company subsequently to be confirmed in writing (including by email). Notices to Company will be sent to:

Consiliant Technologies LLC
27 Mauchly Ste. 208
Irvine, CA 92618
Attn: Legal Department

ASSIGNMENT | Buyer may not assign or delegate its rights or duties under these Sales Terms, by operation of law or otherwise, in whole or in part, without the prior written consent of Company. Any change of control of Buyer will be deemed an assignment. Any attempted assignment without that consent will be null and void without any force or effect.

VALIDITY | If any provision of these Sales Terms is held to be unenforceable, the enforceability of the remaining provisions will not in any way be affected. Failure or delay of either party to exercise a right under these Sales Terms will not operate as a waiver, nor will any single or partial exercise of a right preclude any other future exercise of that right. The parties agree to use electronic signatures and that their respective electronic signatures will be legally enforceable.

SURVIVAL | No termination of these Sales Terms will affect any rights or obligations of either party: a) which are vested pursuant to these Sales Terms as of the effective date of such termination; or b) which, by their sense and context are intended to survive completion of performance or termination of these Sales Terms, including, without limitation, Confidentiality, Warranties / Indemnities, and Limitation of Liability, all of which will survive.

COMPLETE AGREEMENT | These Terms are intended to be the sole and complete statement of the obligations and rights of the parties as to all matters covered hereunder, and supersede all previous understandings, agreements, negotiations, and proposals relating thereto. These Terms may only be amended by written agreement of Buyer and Company.

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