These Terms & Conditions (“Terms”) govern the attached offer in whatever form it may take (“Order”) by NetEquity.com, or its affiliated business (the “BUYER”) for the purchase of the goods (the “Goods”) specified, from the party to whom the Order is addressed (the “SELLER”). Any conduct by SELLER which recognizes the existence of a contract pertaining to the subject matter hereof shall constitute acceptance by SELLER of this Order, including all of its terms and conditions (“Terms”). This Order, together with any documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the Order and supersedes any and all prior agreements. The Order expressly limits SELLER’s acceptance to the terms of the Order and expressly excludes any of SELLER’s terms and conditions of sale or any other document issued by SELLER in connection with this Order. This Order relates to the sale/purchase of Goods only.
PRICES AND TERMS OF PAYMENT:
The prices and terms stated on this Order and stated herein apply to all shipments made hereunder. No charge of any kind not stated on this Order will be allowed unless specifically agreed to in advance by BUYER in writing, but damage to any good because of packing which fails to protect such goods will be charged to SELLER, unless otherwise agreed to by the parties. All payments are made conditional upon inspection and acceptance by BUYER of the Goods and shall be subject to adjustment for failure of SELLER to meet the requirements of this Contract. BUYER, at its sole option, may reject all or any portion of the Goods if it determines the Goods are defective or nonconforming, and shall return the Goods at SELLER’s expense and subject to reasonable adjustment of payment.
Unless specified otherwise on the face of this Order, the prices are inclusive of, and SELLER shall be solely responsible for and pay, all federal, state, and local taxes, including, but not limited to, value added tax, goods and services tax, sales, use or consumption tax. No sales or use tax shall be added when a valid tax exemption is indicated on the face of this Order by the BUYER.
PACKING, MARKING AND DELIVERY:
Delivery shall be made in accordance with the Terms of and to the location (“Delivery Location”) set forth in the Order. SELLER shall route shipments in accordance with instructions issued by BUYER’s purchasing department and, in the absence of specific shipping and/or routing instructions, SELLER shall ship all goods by most economical means of transportation. No charges shall be allowed for transportation, storage, boxing, crating or other packaging unless otherwise stated herein. Unless otherwise agreed to by the parties, SELLER shall be solely responsible for and pay, all costs of delivering the Goods to the Delivery Location, including, without limitation, all shipping and freight costs and all duties, fees, tariffs or similar analogous taxes on export of the Goods (“Customs Duties”). Shipments in greater or lesser quantity than ordered may be returned at the SELLER’s expense, unless written authorization is issued by BUYER. If SELLER’s deliveries fail to meet schedule, BUYER, without limiting its other rights or remedies, may either direct expedited routing and charge excess cost incurred thereby to SELLER, or cancel all or part of this order in accordance with the default provisions hereof.
TITLE AND RISK OF LOSS:
Unless otherwise specified in the Order, risk of loss of the Goods remains with SELLER and title will not pass to BUYER until the Goods are delivered to and accepted by BUYER at the Delivery Location.
No substitution of materials or accessories may be made without BUYER’s written consent. No charges for extras will be allowed unless such extras have been ordered in writing by BUYER and the price agreed upon.
EXCUSABLE DELAY FOR NONPERFORMANCE:
BUYER may delay delivery and/or acceptance by causes or events beyond BUYER’s control. SELLER shall hold such goods at the direction of BUYER and shall deliver them when BUYER notifies SELLER that the cause or event affecting the delay has been removed. BUYER shall be responsible only for SELLER’s direct additional costs resulting from holding goods or delaying performance of the Contract at BUYER’s request. In the event that causes or events beyond SELLER’s reasonable control and without its fault or negligence, including but not limited to labor disputes of any kind, prevent SELLER from performing its obligations hereunder, such obligations shall be suspended, subject to the conditions that time is (of?) the essence of this Contract.
SELLER expressly warrants that all goods provided hereunder will conform in all respects to this Order and be fit and sufficient for the purposes for which BUYER intends them. SELLER also warrants that the goods provided for under this Order shall be free and clear of any lien or other adverse claim against title and will not infringe or misappropriate any third party’s intellectual property rights or otherwise violate any law, rule, regulation or ordinance applicable to the transportation, delivery or sale of the Goods covered by this Contract. Seller represents and warranties that the Goods shall not contain any Personally Identifiable Information or Sensitive Personal Information, including without limitation, personal, confidential or non-public information, and expressly accepts sole responsibility for wiping said data or information from the Goods, without limitation, prior to delivery of the Goods to Buyer. These warranties survive any delivery, inspection, acceptance or payment. These warranties are cumulative and in addition to any other warranty provided by law or equity and shall inure to the benefit of BUYER and its customers. Any applicable statute of limitations runs from the date of BUYER’s discovery of the noncompliance.
COMPLIANCE WITH APPLICABLE LAWS:
SELLER agrees that in the performance of this Purchase Order it will comply with all applicable federal, state, county and local laws, ordinances, regulations and codes. SELLER furthers warrants and represents that no goods subject to this Contract are forfeit, stolen or otherwise counterfeit and that it delivered to BUYER such goods free and clear of any liens or encumbrances and with sole right and title.
SELLER shall defend, indemnify, and hold harmless BUYER and BUYER’s parent company, its subsidiaries, affiliates, successors or assigns and its respective directors, officers, shareholders, and employees (collectively, “Indemnitees”) against any and all loss, injury, death, damage, liability, claim, action, judgment, interest, penalty, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder (collectively, “Losses”) arising out of or occurring in connection with SELLER’s performance of its obligations or SELLER’s negligence, willful misconduct or breach of the Terms of this Order or possession of the Goods infringes or misappropriates the patent, copyright, trade secret or other intellectual property right of any third party. SELLER shall not enter into any settlement without BUYER’s or Indemnitee’s prior written consent.
Neither party shall be liable to the other for any delay or failure in performing its obligations under the Order to the extent that such delay or failure is caused by an event or circumstance that is beyond the reasonable control of that party, without such party’s fault or negligence, including but not limited to, acts of God or the public enemy, government restrictions, floods, fire, earthquakes, war, terrorist acts, civil unrest, national emergency, labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers telecommunication breakdown or power outage. If a Force Majeure Event prevents SELLER from performance for a continuous period of more than fifteen (15) business days, BUYER may terminate this Order immediately by giving written notice to SELLER.
LIMITATIONS OF BUYER’S LIABILITY:
IN NO EVENT SHALL BUYER BE LIABLE FOR ANTICIPATED PROFITS OR FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES: BUYER’S LIABILITY ON ANY CLAIM OF ANY KIND FOR ANY LOSS OR DAMAGE ARISING OUT OF, CONNECTED WITH OR RESULTING FROM THIS CONTRACT, OR FROM THE PERFORMANCE OF BREACH HEREOF, SHALL IN NO CASE EXCEED THE PRICE ALLOCABLE TO THE GOODS OR UNIT THEREOF WHICH GIVE RISE TO THE CLAIM.
WAIVER AND RELEASE OF LIENS:
Upon SELLER’s receipt of amounts properly invoiced, SELLER waives and releases all rights to, for itself and its subcontractors, and at its sole cost shall obtain prompt removal of any lien fixed against BUYER, for Goods sold under this Order.
In addition to any remedies provided herein, BUYER may terminate this Order with immediate effect, either before or after acceptance of Goods, if SELLER has breached any of the Terms herein. If the SELLER becomes insolvent, commences or has commenced by it or against it bankruptcy proceedings, receivership, reorganization or assignment for the benefit of creditors, then the BUYER may terminate this Order. If BUYER terminates the Order for any reason, SELLER’s sole and exclusive remedy is payment for the Goods received and accepted by BUYER prior to the termination.
CHOICE OF LAW:
This Contract shall be governed by the internal laws of the State of New York without regard to principles of conflict of laws.
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 York, and each party irrevocably submits to the jurisdiction of such courts in any such suit, action or proceeding.
All notices, consents, claims, demands, waivers and communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of this Order 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 (all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (return receipt requested, postage prepaid). A Notice is effective only upon receipt of the receiving party, and if the party giving the Notice has complied with the requirements of this Section.
If any term or provision of this Order is found invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term of this Order or invalidate or render unenforceable such term in any other jurisdiction.
No modification, alteration or amendment of the Order shall be binding unless agreed to in writing and signed by BUYER. No waiver by any party of any of the provisions of the Order shall be effective unless explicitly set forth in writing and signed by the party so waiving. No failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from the Order by BUYER shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, or privilege hereunder preclude any other exercise of any additional right, remedy, or privilege.