Terms and Conditions of Sale
THESE TERMS AND
CONDITIONS APPLY WHEN WE SELL GOODS/SERVICES TO YOU.
QED, Inc. d/b/a Quality Electrical Distribution (“Seller”) is a
distributor primarily engaged in the business of selling third-party
manufactured goods and providing certain limited ancillary services (referred
to in this paragraph as our “Traditional Sales”). From time to time, Seller
also provides, within premises owned, leased, subleased, and/or licensed by
Seller or its affiliates, certain more technical or space or labor intensive
services, such as storage, kitting, assembly, staging, modification, and
fabrication services, in each case, to the extent agreed to in writing between
Seller and its customer (referred to in this paragraph as our “Warehousing
Sales”). These Terms and Conditions of
Sale (“T&Cs”) govern both Traditional Sales and Warehousing Sales,
excluding Section 13, which only applies to Warehousing Sales. If there is a
conflict between Section 13 and the remainder of these T&Cs: (i) the remainder of these T&Cs shall
control for Traditional Sales; and (ii) Section 13 shall control for
Warehousing Sales.
1. Governing
Terms. By accessing, browsing, or otherwise using our website, requesting a
quote, establishing a line of credit, placing an order, issuing a release, or
accepting products or services, including Warehousing Services, from Seller,
you acknowledge and agree that all products and services provided by or on
behalf of Seller to you and/or your subsidiaries or affiliates (collectively,
“Customer”) shall be governed exclusively by:
(i) these T&Cs; and (ii) the additional terms of any credit
application provided by Seller and executed by Customer (each a “Credit
Application”), which shall together control regardless of any additional or
conflicting legal terms and/or conditions contained on or referenced in any
quotation, order, acknowledgement, invoice, website, release, correspondence,
request, proposal, or other document or form issued by or on behalf of
Customer, including, but not limited to, at any time in the course of dealing
or performance, all of which are hereby rejected and deemed void and of no
force or effect. Seller’s acknowledgment and/or acceptance of an order shall
not be deemed an acceptance of any such other terms and/or conditions or a
waiver of the provisions hereof; instead, these T&Cs may only be modified,
waived, supplemented, or superseded with the express prior written consent of
an authorized officer of Seller (i.e., with title of Vice President or President
or their designee). While the terms and conditions set forth in these T&Cs
and a Credit Application are intended to supplement one another, in the event
of a conflict between the terms and conditions set forth in these T&Cs and
a Credit Application (if any), the terms and conditions that are more onerous
on Customer, as determined by Seller in its sole discretion, shall control.
Notwithstanding the foregoing, Seller reserves the right, in its sole
discretion, to periodically revise these T&Cs on our website without
further notice. Seller reserves the right to accept or reject any order.
2. Payment
Terms. Payment terms are thirty (30) days from date of invoice (the
“Payment Date”) unless otherwise expressly agreed by Seller and Customer in
writing; provided, however, Seller may, in its sole discretion, require full
payment in cash before order entry, shipment, or delivery. Payments not
received when due will be subject to a service charge of 1.5%, or the maximum
lawful rate, whichever is lower, of the outstanding invoice balance for each
30-day period or portion thereof past due. All costs of collecting monies due
from Customer, including, but not limited to, legal expenses, legal interest,
attorneys’ fees and collectors’ expenses, shall be paid by Customer to Seller
upon demand. When Seller deems itself insecure with respect to Customer’s
ability to pay, Seller may, in its sole discretion: (a) withhold, defer, or
cancel shipments and/or orders; (b) require cash in advance; and/or (c) demand
immediate payment of all amounts then owed and pursue collection actions
(including attorneys’ fees and costs of collection). Seller may also impose,
revoke, or revise Customer’s credit limits, if any, at any time and for any
reason. Customer agrees to give Seller current credit information, current
annual financial statements, and proper authorizations for Seller to request
financial information on Customer (including its subsidiaries and affiliates)
from third parties, in each case, within five (5) days of request from Seller
as a condition to beginning and/or continued credit extension or for any other
reasonable purpose. All amounts and payments are in U.S. dollars. Seller may
set-off and/or deduct for any sums owed by Customer (including its subsidiaries
and affiliates). Customer has no right to withhold or set-off amounts against
Seller or its affiliates.
3. Returns.
Orders that were factory special orders or otherwise fabricated and altered to
accommodate Customer are not returnable; otherwise, returns will be accepted
prior to the Payment Date if prior authorization is obtained from Seller, which
authorization shall be in Seller’s sole discretion, and only if the product is
in resalable condition and in the original, undamaged manufacturer’s package
with sales receipt or invoice. Credit will be issued, if at all, based on
Customer’s purchase price for the returned product less any vendor restocking
charges, freight, insurance, and other expenses of disposal.
4. Deliveries.
Customer shall accept partial or pro rata deliveries in commercial units as
full performance under Customer’s order if Seller is unable to fill Customer’s
entire order. All goods shall be shipped FCA SHIPPING POINT, prepaid and
billed, unless otherwise agreed by Seller in writing. Title and risk of loss pass
to Customer on tender of delivery to the carrier. If goods are damaged in
transit, Customer’s sole recourse is to file a claim with the carrier. Customer
understands that delivery dates are estimates only and Seller shall not be
liable for any late or delayed delivery.
5. Warranties
and Disclaimer. Customer acknowledges that Seller is a distributor and not
a manufacturer and that Seller is not, except as otherwise expressly provided
in Section 13 below, responsible for the design, fabrication, or manufacture of
any materials, equipment, tools, or other goods provided by or on behalf of
Seller, including for any defects therein. Seller is also not liable for
defects in information, labeling, instructions, or packaging provided by the
manufacturer or other secondary sources. Any warranty issued by the
manufacturer shall be solely that of the manufacturer and not of Seller. Seller
warrants good title to Customer and otherwise Seller shall assign to Customer,
effective upon transfer of title, all assignable warranties of the
manufacturer. Seller authorizes Customer to make or settle any claims under
such manufacturer’s warranties directly with any such manufacturer. Each
jurisdiction’s laws, regulations, codes, and standards may vary regarding
product labeling, warnings, instructions, specifications, manufacture, and
installation, as well as regarding construction, zoning, and/or use of products
for a specific purpose; thus, Customer agrees that certain products may not be
appropriate for all areas or applications and Customer hereby agrees that
Customer is solely responsible for ensuring proper compliance with all such
laws, rules, regulations, codes, and standards. Customer shall comply with all
applicable laws, rules, codes, standards, and regulations including, but not
limited to, those concerning exports, imports, anti-corruption, anti-bribery,
child labor, affirmative action, conflict minerals, trade, economic or
financial restrictions or trade embargoes and any amendments thereto
(collectively, the “Laws”) imposed by any applicable governmental authority,
including, where applicable, the United States and the European Union. Customer
agrees to indemnify, defend, and hold harmless Seller, for any breach of Laws
by Customer or its affiliates, subsidiaries, officers, directors, managers,
shareholders, members, employees, contractors, or agents. Customer agrees that
it shall not, except as otherwise permitted under applicable Laws, transship,
re-export, or otherwise divert goods purchased from Seller. If applicable,
Customer undertakes to timely provide all information and documentation
necessary for export, shipment and import. Seller shall not be liable, and
Customer shall hold Seller harmless, for delays or any other losses resulting
from Customer’s failure to timely provide accurate information and
documentation, export/import reviews, or any related permitting procedures. To
the extent permitted by law, Customer shall, promptly upon becoming aware,
provide to Seller details of any claim, action, suit, proceedings or
investigation against it with respect to the Laws brought by any enforcement
authority. In the event that Seller should believe, acting in good faith, that
Customer has violated, or is under investigation for violating, any Laws, or if
Customer is identified on any applicable sanctions list, Seller shall have the
immediate right to terminate its relationship and/or any contract with Customer
without liability.
EXCEPT FOR THE WARRANTIES OF TITLE ABOVE, SELLER MAKES NO
WARRANTY, EXPRESS OR IMPLIED, AND DISCLAIMS ALL OTHER WARRANTIES, INCLUDING,
WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR PARTICULAR
PURPOSE, OR NON-INFRINGEMENT, ANY WARRANTY AGAINST DEFECTS IN DESIGN, MATERIALS
OR WORKMANSHIP, AND ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING,
OR COURSE OF PERFORMANCE. CUSTOMER’S EXCLUSIVE REMEDIES AGAINST SELLER FOR
BREACH OF WARRANTY ARE REPAIR OR REPLACEMENT OF GOODS, REPERFORMANCE OF
SERVICES, OR CREDIT OF THE PURCHASE PRICE PAID, AT SELLER’S OPTION, WHICH MAY
ONLY BE EXERCISED WITHIN ONE (1) YEAR OF PERFORMANCE (FOR SERVICES) OR SHIPMENT
(FOR GOODS). SELLER’S OBLIGATIONS UNDER THIS SECTION SHALL BE VOID UNLESS
CUSTOMER PROVIDES SELLER WITH WRITTEN NOTICE OF THE NON-CONFORMITY IN THE GOOD
OR SERVICE WITHIN THIRTY (30) DAYS OF DISCOVERY.
6. LIMITATIONS
OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE
PARTIES AGREE THAT IN NO EVENT SHALL SELLER BE LIABLE TO CUSTOMER OR ITS OWNERS
OR AFFILIATES, OR ITS/THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, CUSTOMERS,
AGENTS, CONTRACTORS, ASSIGNEES, OR REPRESENTATIVES, FOR: (A) ANY SPECIAL,
CONSEQUENTIAL, EXEMPLARY, PUNITIVE, LIQUIDATED, INCIDENTAL, OR INDIRECT
DAMAGES, INCLUDING, WITHOUT LIMITATION, FOR LOSS OF PROFITS, USE, TIME, DATA,
OR INCOME, WHETHER IN CONTRACT, TORT, OR OTHERWISE RESULTING FROM ITS
PERFORMANCE, NON PERFORMANCE, OR DELAY HEREUNDER, AND WHETHER OR NOT SELLER HAD
NOTICE OF THE POSSIBILITY THEREOF; AND/OR (B) CLAIMS ARISING FROM ORDINARY WEAR
AND TEAR, MISUSE, ABUSE, MISREPAIR, MISAPPLICATION, MODIFICATION, UNAUTHORIZED
COMBINATION, IMPROPER SELECTION, FAILURE TO MAINTAIN, AND/OR IMPROPER
INSTALLATION OF GOODS.
7. SELLER’S
MAXIMUM LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,
CUSTOMER EXPRESSLY AGREES THAT UNDER NO CIRCUMSTANCE SHALL SELLER’S TOTAL
LIABILITY TO CUSTOMER EXCEED THE AMOUNT PAID FOR THE GOOD(S) OR SERVICE(S)
GIVING RISE TO THE CLAIM(S) AT ISSUE.
8. Governing
Law; Limitations; Dispute Resolution. SOME STATES DO NOT ALLOW LIMITATIONS
ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF
THESE LAWS APPLY, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, AND/OR
LIMITATIONS MAY NOT APPLY AND OTHER RIGHTS MAY BE AVAILABLE. The validity,
interpretation, and performance hereof, and any dispute connected herewith,
shall be governed and construed in accordance with the laws of the State of
Colorado, without regard to its conflict of laws principles. The provisions of
the Uniform Commercial Code as adopted by the State of Colorado shall apply,
with no application of the 1980 United Nations Convention on Contracts for the
International Sale of Goods. The parties shall exercise their best efforts to
resolve by negotiation any and all disputes, controversies, or differences
arising out of or relating to these T&Cs or the goods or services provided
by or on behalf of Seller to Customer in connection herewith. All disputes,
controversies or differences between the parties that are not settled by
negotiation shall be decided by litigation in the appropriate State or Federal
Courts located in Colorado. Notwithstanding the foregoing, any legal action by
Customer concerning these T&Cs and/or any goods or services provided by or
on behalf of Seller must be commenced within one (1) year after the cause of
action has arisen.
9. Taxes and
Other Governmental Amounts. Customer shall pay all taxes, duties, tariffs,
import fees, export fees, penalties, and similar charges levied by any
government authority or agency in connection with goods and/or services
provided by or on behalf of Seller to Customer. Unless otherwise expressly
agreed by Seller in writing, such charges are not included in the price of
goods or services and will be added to amounts due by Customer. Customer is
responsible for all additional taxes, fees, tariffs, duties, charges, and
penalties from taxing or other governmental authorities or agencies, and all
legal expenses incurred by Seller, where arising due to changes in such amounts
between the date of order and shipping or from incorrect or incomplete
documentation or other information furnished by or on behalf of Customer.
10. Force
Majeure. Seller shall not be liable for any delay, impairment, or
prevention of Seller’s performance, in whole or in part, due to any event,
circumstance, or occurrence that is not within Seller’s control, including, but
not limited to, acts of God, labor disruptions, acts of war, acts of terrorism
(actual or threatened), governmental decrees or controls, imposition of or
changes to tariffs or duties, changes to commodity markets, insurrections,
epidemics, quarantines, shortages, communication or power failures, fires,
accidents, explosions, inability to procure or ship products or obtain permits
or licenses, inability to procure supplies or raw materials, severe weather,
catastrophic events, or any other event, circumstance, or cause beyond Seller’s
control within the normal conduct of its business (collectively, “Force
Majeure”). If Seller’s performance is so delayed, impaired, or prevented by
Force Majeure, Customer agrees that Seller may, at Seller’s option: (i) suspend
or terminate performance; and/or (ii) increase pricing and/or schedules for
delivery or performance, in each case, without liability or penalty to Seller.
11. Hazardous
Substances. Customer acknowledges that Seller has neither created nor
contributed to the creation or existence of any hazardous or otherwise
dangerous substances or conditions at Customer’s or its client’s sites, and
Seller’s compensation hereunder is not commensurate with the potential risk of
injury or loss that may be caused by exposure to, contamination by, or the
presence of such substances or conditions.
12. Product-Specific
Clauses.
(a) ELECTRONIC AND PHOTOGRAPHIC CLEANING FLUIDS CUSTOMERS — It
is a violation of federal law to sell, distribute, or offer to sell or
distribute any chlorofluorocarbon (CFC) containing cleaning fluid for
electronic and photographic equipment or aerosol hydrochlorofluorocarbon (HCFC)
containing cleaning fluid for electronic and photographic equipment to anyone
who is not a commercial user of this product. The penalty for violating this
prohibition can be up to $25,000 per unit sold. Customers purchasing such
products must present proof of their commercial status in accordance with 40
CFR 82.68(a) or (c). A "Commercial User," as defined in the
regulation, means a person that uses the product in the purchaser's business,
or sells it to another person and has one of the following identification
numbers: (i) a Federal employer identification number; (ii) a State sales tax
exemption number; (iii) a Local business license number; or (iv) a Government
contract number.
(b) MOLD RELEASE AGENT CUSTOMERS – It is a violation of federal
law to sell mold release agents containing hydrochlorofluorocarbon (HCFC) as
propellants to anyone, except for use in applications where no other
alternative except a class I substance is available. The penalty for violating
this prohibition can be up to $25,000 per unit sold.
(c) WASP AND HORNET SPRAY CUSTOMERS – It is a violation of federal
law to sell or distribute wasp and hornet sprays containing
hydrochlorofluorocarbon (HCFC) as solvents to anyone, except for use near
high-tension power lines where no other alternative except a class I substance
is available. The penalty for violating this prohibition can be up to $25,000
per unit sold.
(d) REFRIGERANT CUSTOMERS — Effective November 14, 1994, in
accordance with the Federal Clean Air Act, sale of class I (CFC) and class II
(HCFC) refrigerant will be restricted to resale purchases and/or to certified
professional service technicians. To purchase regulated refrigerant products,
Customer must present a certification card or sign a statement of resale to
complete the purchase.
(e) OSHA HAZARDOUS SUBSTANCE & CALIFORNIA PROPOSITION 65
PRODUCT INFORMATION— MSDS for OSHA-defined hazardous substances are available
at your local Seller branch, or by contacting Seller's U.S. corporate
headquarters. Seller makes no warranty with respect to the accuracy of the
information or the suitability of the recommendations in the MSDS, all of which
are provided by the manufacturers at issue, and, to the maximum extent
permitted by applicable law, Seller disclaims any and all liability to Customer
or any user or consumer with respect thereto. Proposition 65 is a California
law requiring the state to maintain a list of chemicals that may cause cancer,
birth defects, or reproductive harm. There are over 850 listed chemicals and
Seller will attempt to provide a reasonable warning before potentially exposing
Californians to such chemicals, but Customer acknowledges and agrees that
Seller is a distributor and not a manufacturer of such goods and that Seller
thus makes no warranty with respect to the accuracy, reasonableness, or
suitability of the information or warnings provided in connection therewith, it
being understood and agreed that such information and warnings are provided by
the manufacturers at issue. Thus, to the maximum extent permitted by applicable
law: (i) Seller disclaims any and all liability with respect thereto; and (ii)
Customer releases Seller and its parents and affiliates from and for any and
all claims, fines, penalties, and damages arising from or in connection
therewith, it being agreed that Customer’s sole recourse under Proposition 65
shall be against the manufacturer at issue. To learn more about Proposition 65,
please visit www.oehha.ca.gov.
(f) MATERIALS OF TRADE — Customer represents that if it is
purchasing goods as its "materials of trade" as defined in the
Hazardous Materials Regulations in Title 49 of the Code of Federal Regulations,
that the goods will be used in direct support of its business, which is not
transportation, and that such goods shall not be resold or transported in a
vehicle other than one owned by itself.
13. Warehousing
Terms and Conditions. THIS SECTION SHALL ONLY APPLY WHEN AND TO THE EXTENT
SELLER IS PROVIDING, WITHIN PREMISES OWNED, LEASED, SUBLEASED, AND/OR LICENSED
BY SELLER OR ITS AFFILIATES (AS APPLICABLE, THE “SPACE”), STORAGE, KITTING,
ASSEMBLY, STAGING, MODIFICATION, FABRICATION AND/OR RELATED SERVICES
(COLLECTIVELY, “WAREHOUSING SERVICES”) INVOLVING EQUIPMENT, INVENTORY,
MATERIALS, TOOLS, AND/OR OTHER GOODS THAT ARE OWNED BY CUSTOMER OR A
THIRD-PARTY THAT HAS AUTHORIZED CUSTOMER TO POSSESS AND PROVIDE SAME TO SELLER
FOR THE PROVISION OF WAREHOUSING SERVICES (COLLECTIVELY, “WAREHOUSED
GOODS”). The scope, duration, and extent
of the Warehousing Services, as well as the quantities and descriptions of the
Warehoused Goods and, except as otherwise set forth in this Section, the
commercial (i.e., non-legal) terms associated therewith, shall be agreed to in
writing between Customer and Seller (e.g., through a Quote or Proposal from
Seller that is accepted by Customer). This
Section shall be read to compliment and supplement the other sections of these
T&Cs, which shall also apply to Warehousing Services, but with the
provisions of this Section controlling over any conflicting provisions in any
other Section(s) of these T&Cs solely when and to the extent concerning
Warehoused Goods and/or Warehousing Services.
Accordingly, solely with respect to the Warehoused Goods and/or
Warehousing Services:
(a) Customer Warranties.
Customer warrants that: (i) it
owns and has good and clear title to the Warehoused Goods or, if a third-party
owns the Warehoused Goods, is otherwise entitled to possess and provide same to
Seller for the provision of Warehousing Services; and (ii) the Warehoused Goods
are non-hazardous, non-explosive, and not highly flammable and will not require
refrigeration or other specialized storage unless otherwise expressly agreed by
Seller in writing.
(b) Rates for Warehousing Services. Rates and charges for Warehousing Services
may be changed from time to time by: (i) Seller’s provision of at least thirty
(30) days’ written notice to Customer; or (ii) the mutual written agreement of
the parties. Unless otherwise agreed in writing, rates for Warehousing Services
shall cover only Seller’s reasonable and ordinary labor involved in receiving
the Warehoused Goods at the Space, placing the Warehoused Goods into storage in
the Space (if applicable), and returning Warehoused Goods to the loading door
or dock of the Space for pick-up by the Customer or its carrier. Unless
otherwise agreed in writing, Customer shall be solely liable for all shipping,
packaging, cargo insurance, and other charges, as well as any demurrage and/or
detention charges incurred in connection with loading, unloading, packaging,
receipt, and/or delivery of the Warehoused Goods. Customer shall reimburse
Seller on demand for all other costs incurred by Seller in connection with
performing the Warehousing Services, including non-routine labor and other
special services (i.e., other than ordinary handling and storage) at Seller’s
then prevailing rates, which shall include reasonable overhead and profit.
(c) Warehousing Services Warranties; Disclaimer and Exclusive
Remedies. Seller warrants that it
will perform the Warehousing Services with a reasonable degree of care. Claims
for breach of such warranty must be submitted to Seller in writing, along with
photographs and other reasonable supporting documentation, no more than three
(3) business days after Customer first becomes aware or first reasonably should
have become aware of such claim, but in no event more than ten (10) calendar
days after the conclusion of the Warehousing Service(s) at issue. Seller’s good
faith determination of the validity of any such warranty claim shall control
and Customer shall comply with Seller’s instructions regarding the use, return,
and/or disposal of any such Warehoused Goods as part of the warranty process.
EXCEPT AS EXPRESSLY PROVIDED IN THIS SUBSECTION IMMEDIATELY ABOVE, SELLER MAKES
NO WARRANTIES, EXPRESS OR IMPLIED, RESPECTING WAREHOUSED GOODS OR WAREHOUSING
SERVICES, AND SELLER SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY,
FITNESS FOR PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTY ARISING BY
USAGE OF TRADE, OR COURSE OF DEALING OR PERFORMANCE. CUSTOMER’S EXCLUSIVE
REMEDIES FOR BREACH OF SUCH LIMITED WARRANTY ARE REPAIR OR REPLACEMENT OF THE
WAREHOUSED GOOD(S), CORRECTION OR RE-PERFORMANCE OF THE WAREHOUSING SERVICE(S),
OR REFUND OR CREDIT FOR THE ORIGINAL PURCHASE PRICE PAID BY CUSTOMER TO SELLER
FOR THE WAREHOUSED GOOD(S) AND/OR WAREHOUSING SERVICE(S) AT ISSUE, AT SELLER’S
OPTION.
(d) Title and
Risk of Loss; Care, Custody, and Control.
Title to and ownership of the Warehoused Goods shall, as between
Customer and Seller, remain exclusively with Customer. Except to the extent of
Seller’s limited warranty and exclusive remedy obligations, Customer is solely
responsible for all risk and actual loss of, damage to, or destruction of the
Warehoused Goods. Care, custody, and control over the Warehoused Goods shall at
all times, as between Customer and Seller, remain exclusively with Customer,
except that Seller shall be deemed to have care and custody solely when and to
the extent the Warehoused Goods are in Seller’s physical possession in the
Space for purposes of the Warehousing Services, in which case Seller’s
obligations are limited to the fulfillment of its limited warranty and
exclusive remedy obligations. For the avoidance of doubt, and notwithstanding
anything herein to the contrary, Customer is solely responsible and shall
release, defend, and indemnify Seller, its affiliates, and its/their employees,
agents, officers, directors, and insurers from and against all loss of, damage
to, or destruction or costs of or resulting from the Warehoused Goods in
connection with any latent defects in the Warehoused Goods or any event or
occurrence outside of Seller’s reasonable control, including, but not limited
to, as a result of theft, vandalism, riot, pandemic, flood, fire, earthquake,
hurricane, war, tornado, major storm, government takings, or other “force
majeure” events or occurrences.
(e) Relocation of Warehoused Goods. Customer shall be responsible for ensuring
that the Warehoused Goods are safely and securely loaded and transported away
from the Space on or before the termination or expiration of the Warehousing
Services at issue. Except in the event
of an emergency or Customer’s failure to load and transport away all Warehoused
Goods on or before termination or expiration of Warehousing Services at issue,
Seller will not relocate the Warehoused Goods away from the Space without the
Customer’s consent, which consent shall not be unreasonably withheld,
conditioned, or delayed. If Seller relocates the Warehoused Goods to a location
other than the Space due to emergency or Customer’s failure to load and
transport such Warehoused Goods away on or before the termination or expiration
of the applicable Warehousing Services, all risk of loss shall immediately
transfer back to Customer, including during such relocation, and all costs and
expenses related thereto, including, but not limited to, packaging and
transportation costs, cargo insurance, additional storage costs, legal fees and
court costs, plus reasonable overhead and profit, shall be immediately
reimbursed to Seller by Customer on demand.
(f) Insurance Requirements for Warehoused Goods. Customer is solely responsible for insuring
the Warehoused Goods, at all times, including, without limitation, while in the
Space and through and including handling, packaging, loading, unloading, and
transport to and from all locations. Customer and its insurers shall waive all
rights of subrogation and recovery against Seller and its affiliates and its
and their insurers, officers, directors, and employees with respect to the
Warehoused Goods. At a minimum,
Customer, at its sole cost, shall procure and maintain throughout the duration
of the Warehousing Services, and for at least three (3) years thereafter, the
following types and amounts of insurance:
(1) Commercial General Liability Insurance on an occurrence basis, with
coverage for premises liability, personal and advertising injury, products and
completed operations, bodily injury, property damage and contractual liability,
in limits of at least $2,000,000 per occurrence; (2) Worker’s Compensation
& Employer’s Liability (stop gap) Insurance as required by statute and with
benefits in all states in which Warehousing Services are performed; (3) Auto
Liability Insurance for Customer’s
owned, leased, hired or non-owned vehicles with a combined single limit of at
least $1,000,000 for any one loss; (4) Umbrella Liability Insurance with limits
of at least $3,000,000 per occurrence and coverage to apply in excess of
underlying Commercial General and Auto Liability policies; and (5) All-Risk
Property Insurance at no less than full replacement cost for all Warehoused
Goods and all of Customer’s real and other personal property, machinery,
equipment, fixtures and any other property owned or leased by Customer and in
any way related to the Warehousing Services and/or Warehoused Goods. Such policy shall be on an “all-risks” basis
(i.e., providing coverage for all-risks, including, but not limited to, fire,
theft, flood, water damage, etc.), endorsed to name Seller and its parent and
affiliates and each of their officers, directors, and employees as additional
insureds, and endorsed to provide a Waiver of Subrogation in favor of Seller
and its parents and affiliates and each of their insurers, officers, directors,
and employees. All insurance required to
be maintained in this subsection shall be written with insurers having A.M.
Best Ratings of A- VII or better and Customer shall be solely responsible for
all premiums, deductibles, and self-insured retentions.
14. Intellectual
Property. Customer shall have no right, title, or interest in, to, or under
Seller’s trademarks, tradenames, patents, copyrights, domain names, trade
dress, product names, catalogs, or other intellectual property rights, or to
any such intellectual property rights of the manufacturers or sub-suppliers of
products provided by or on behalf of Seller pursuant hereto.
15. Independent
Contractor. The status of Seller and its personnel and any subcontractors
is and will be that of independent contractors, and no such personnel or
subcontractors will, at any time or for any purpose, be deemed Customer’s
employees or agents.
16. Security
Interest. Customer hereby grants Seller a first priority purchase money
security interest and/or chattel mortgage in the products and any accounts
receivable, cash, or other proceeds resulting from insurance or the resale
thereof until full and final payment is made to Seller. Customer shall file,
and it hereby permits and authorized Seller to file, all financing statements
and other applicable documentation necessary to perfect, confirm and continue
the validity, priority and enforceability of such liens and/or security
interests. Customer further authorizes Seller to notify any creditor asserting
a security interest in Customer’s assets that Seller has been granted a
purchase money security interest and/or chattel mortgage in the products.
17. Assignment.
Customer shall not assign any order, or interest therein, without Seller’s
express prior written authorization. Actual or attempted assignment without
Seller’s prior written consent shall be void and unenforceable and shall
entitle Seller to cancel such order upon notice to Customer.
18. Third Parties.
These T&Cs are solely for the benefit of Customer and Seller and no other
person or party is conferred any rights, benefits or claims.
19. Severability.
If any term, provision, or subsection in these T&Cs is to any extent found
illegal, invalid or unenforceable, the same shall be excluded to the extent of
such illegality, invalidity or unenforceability and all other terms,
provisions, and subsections hereof shall remain in full force and effect. To
the extent permitted and possible, the illegal, invalid or unenforceable term,
provision, or subsection shall be deemed replaced by one that is legal, valid,
and enforceable and that comes closest to expressing the intent of such
illegal, invalid, or unenforceable term, provision, or subsection. If such
replacement is not permitted and possible, the illegal, invalid, or
unenforceable term, provision, or subsection shall be severed from these
T&Cs and the remainder of these T&Cs shall be valid and fully enforced
as written.
20. Entire
Agreement. These T&Cs, together with the Credit Application (if any),
and the commercial and technical terms of Seller’s forms, acknowledgements,
quotations and invoices, constitute the entire and exclusive agreement between
Seller and Customer, with any conflict therein being resolved in favor of the
terms and conditions that are more onerous on the Customer, as determined by
Seller in its sole discretion. All typographical or clerical errors made in
these T&Cs or by Seller in any quotation, acknowledgement, or publication
are subject to correction by Seller, in its sole discretion.
Terms of Use
THESE TERMS OF USE APPLY WHEN ACCESSING OR USING THIS WEB SITE.
1/ Acceptance of Terms
Use of this website is offered to you on your acceptance of
these Terms of Use, our Privacy Policy, and any additional terms and conditions
set forth on this Web Site. If you do not agree to be bound by and comply with
all of the foregoing, you may not access or use the information or services in
this Web Site. If you do not agree to any additional specific terms which apply
to particular Content (as defined below) or to particular transactions
concluded through this Web Site, then you should NOT use the part of the Web
Site which contains such Content or through which such transactions may be
concluded and you should not use such Content or conclude such transactions. In
addition, as a condition of your use of this Web Site, you represent and
warrant to QED, Inc. that you will not use this Web Site for any purpose that
is unlawful, immoral or prohibited by these Terms of Use. You represent and
warrant that you possess the legal right and authority to agree to these Terms
of Use on your behalf and that you are at least eighteen (18) years old. As
used in these Terms of Use, the term “you” refers to you individually, and if
applicable, your employer or such other entity on whose behalf you may access
this Web Site.
2/ Revisions
These Terms of Use may be amended by QED, Inc. at any time. Such
amended Terms of Use shall be effective upon posting on this Web Site. You
agree to review the Terms of Use published on this Web Site regularly to ensure
that you are aware of all terms governing your use of this Web Site. QED, Inc.
reserves the right, at its sole discretion, to modify, disable, restrict
access, or discontinue, temporarily or permanently, any part or all of this
website or any information contained thereon without liability or notice to
you.
3/ Other Sonepar web sites
Other Sonepar web sites may have their own terms of use which
apply to such web sites.
4/ Specific terms
Separate terms and conditions may apply to specific content,
products, materials, services or information contained on or available through
this Web Site (the "Content") or transactions concluded through this
Web Site, including, but not limited to our standard terms and conditions of
sale and terms and conditions of purchase. Such terms may be in addition to
these Terms of Use or, where and then only to the extent the content or intent
of such specific terms is inconsistent with the terms contained in these Terms
of Use, such specific terms will supersede these Terms of Use.
5/Products
QED, Inc. endeavors to provide current and accurate information
on the Web Site. However, misprints, errors, inaccuracies, omissions (including
incorrect specifications for products) or other errors may sometimes occur. You
should independently evaluate the accuracy of the information and the usefulness
for your particular needs of any product or service available through the Web
Site. QED, Inc. cannot guarantee that products and services advertised on the
Web Site will be available when ordered or thereafter. Specifications for
products and services are subject to change without notice, and QED, Inc.
reserves the right to make changes to processing, materials or configuration
without notice. QED, Inc. does not warrant that the content of the Website
including, without limitation, product descriptions or photographs, is accurate
or complete.
QED, Inc. reserves the right to reject any order you place with
us, and/or or to limit quantities on any order, without giving any reason. If
we reject your order, we will generally attempt to notify you using the e-mail
address you gave us when you placed the order, although we make no guarantee to
do so. If your credit card has been charged for the purchase and your order is
cancelled by QED, Inc., QED, Inc. shall issue a credit to your credit card.
6/ Limitation of damages
Although care has been taken to ensure the accuracy of the
information on this Web Site, QED, INC. assumes no responsibility therefore ALL
CONTENT IS PROVIDED "AS IS" AND "AS AVAILABLE". QED, INC.
HEREBY EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND,
EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY,
FITNESS FOR ANY PARTICULAR PURPOSE, NON-INFRINGEMENT, OR AS TO THE OPERATION OF
THIS WEB SITE OR THE CONTENT. QED, INC. DOES NOT WARRANT OR MAKE ANY
REPRESENTATIONS AS TO THE SECURITY OF THIS WEB SITE. YOUR USE OF THIS WEB SITE
IS AT YOUR OWN RISK YOU ACKNOWLEDGE ANY INFORMATION SENT MAY BE INTERCEPTED. QED,
INC. DOES NOT WARRANT THAT THE WEB SITE OR THE SERVERS WHICH MAKE THIS
WEB SITE AVAILABLE OR ELECTRONIC COMMUNICATIONS SENT BY QED, INC. ARE FREE FROM
VIRUSES OR ANY OTHER HARMFUL ELEMENTS.
IN NO EVENT SHALL QED, INC., ITS PARENT COMPANY OR ANY OF ITS
AFFILIATES BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, PUNITIVE, SPECIAL
OR INCIDENTAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF
BUSINESS, CONTRACT, REVENUE, DATA, INFORMATION OR BUSINESS INTERRUPTION)
RESULTING FROM, ARISING OUT OF OR IN CONNECTION WITH THE USE OF, OR INABILITY
TO USE THIS WEB SITE OR THE CONTENT, EVEN IF QED, INC. HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. ANY ACTION BROUGHT AGAINST QED, INC. PERTAINING TO
OR IN CONNECTION WITH THIS WEB SITE MUST BE COMMENCED AND NOTIFIED TO QED, INC.
IN WRITING WITHIN ONE (1) YEAR AFTER THE DATE THE CAUSE FOR ACTION AROSE.
7/ Indemnification
YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS QED, INC., AND
ITS OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, SUBSIDIARIES AND AFFILIATES, AND
THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, FROM AND AGAINST ANY AND ALL LOSSES, COSTS,
LIABILITIES, OBLIGATIONS, DAMAGES, DEFICIENCIES, EXPENSES, ACTIONS, SUITS,
PROCEEDINGS, DEMANDS, ASSESSMENTS AND/OR JUDGMENTS, INCLUDING REASONABLE
ATTORNEYS' FEES, THAT ARE CAUSED BY, OR RESULT OR ARISE FROM (I) YOUR USE OF
THE SITE; (II) ANY BREACH BY YOU OF ANY OF THESE SITE TERMS; (III)
COMMUNICATIONS BETWEEN YOU, OTHER USERS, AND/OR OTHER THIRD PARTIES; AND (IV)
INTELLECTUAL PROPERTY INFRINGEMENT VIOLATIONS AND VIOLATION OF LAWS BY YOU.
8/ Linking to this web site
This Web Site may provide links to other web sites that are not
under the control of QED, Inc. QED, Inc. shall not be responsible in any way
for the content of such other web sites. QED, Inc. provides such links only as
a convenience to the user of this Web Site, and the inclusion of any link to
any such web sites does not imply endorsement by QED, Inc. of the content of
such web sites or, unless expressly disclosed otherwise, any sponsorship,
affiliation or association with its owner, operator or sponsor, nor does QED,
Inc.'s inclusion of the links imply that QED, Inc. is authorized to use any
trade name, trademark, logo, legal or official seal or copyrighted symbol that
may be reflected in the linked web site. You may not link to this Web Site
without QED, Inc.’s prior written permission. Anyone linking to this Web Site
must comply with all applicable laws and other requirements of QED, Inc. for
linking to this Web Site.
9/ Trademarks and service marks
Unless otherwise explicitly stated, copyright and all other
proprietary rights in the Content (including but not limited to software,
audio, video, text and photographs) rests with Sonepar USA or any of its
affiliates or their licensees, irrespective of whether a copyright symbol or
statement is present. There are a number of proprietary logos, service marks,
trademarks, slogans and product designations found on this Site. By making them
available on this Site, Sonepar USA or any of its affiliates are not
granting you a license to use in any fashion. Access to this Site does not
confer upon you a license under any of Sonepar's USA or any of its affiliates
or any third party's intellectual property rights. Except as otherwise
provided, the Content published on this Web Site may be reproduced or
distributed in unmodified form for personal non-commercial use only. Any other
use of the Content, including without limitation distribution, reproduction,
modification, display or transmission without the prior written consent of
Sonepar USA or any of its affiliates is strictly prohibited. All copyright and
other proprietary notices shall be retained on all reproductions. Our policy is
to comply with all intellectual property laws, and to act expeditiously upon
receiving any notice of claimed infringement. If you believe that your work has
been reproduced on this website in a manner that constitutes copyright
infringement, please provide a notice of copyright infringement identifying the
original copyrighted work and the portions of the QED, Inc. site that is
claimed to be infringing such copyright. Any material or information sent
through or in connection with this Web Site by you ("User Materials")
will be treated as non-confidential and non-proprietary, and immediately become
the property of QED, Inc. or any of its affiliates, subject to any privacy
policies posted on this Web Site. QED, Inc. may use such User Materials as it
deems fit, anywhere in the world, without obligation for compensation, and free
of any moral rights, intellectual property rights and/or other proprietary
rights in or to such User Materials.
The Web Site may contain references to specific products and
services that may not be (readily) available in a particular country. Any such
reference does not imply or warrant that any such products or services shall be
available at any time in any particular country. Please contact your local QED,
Inc. business contact for further information.
Software made available for downloading from or through this Web
Site is licensed subject to the terms of the applicable license agreement.
Except as set forth in the applicable license agreement, the software is made
available for use by end users only and any further copying, reproduction or
redistribution of the software is expressly prohibited. WARRANTIES, IF ANY,
WITH RESPECT TO SUCH SOFTWARE SHALL ONLY APPLY AS EXPRESSLY SET FORTH IN THE
APPLICABLE LICENSE AGREEMENT. QED, INC. HEREBY EXPRESSLY DISCLAIMS ALL FURTHER
REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING
WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE OR
NON-INFRINGEMENT WITH RESPECT TO THE SOFTWARE.
10/User Conduct and Information
The user agrees a) not to use this Web Site in any manner which
could damage, disable, overburden or impair this Web Site; b) not to interfere
with the security of, or otherwise abuse, this Web Site, or any services,
system resources, accounts, servers or networks connected to or accessible
through this Site or affiliated or linked sites; c) not to disrupt or interfere
with any other person's use and enjoyment of this Site or affiliated or linked
sites; d) not to upload, post or otherwise transmit on this Web Site any
viruses or other harmful, disruptive or destructive files or computer programs;
e) not to use any robot, spider or other automatic device, or manual process to
monitor or copy the web pages or the content contained at this Site without
written permission; f) not to use or attempt to use another's account, service
or system without authorization from QED, Inc., or create or use a false
identity on this Web Site; g) not to transmit on this Site spam, chain letters,
junk mail or any other type of unsolicited mass e-mail; and h) not to attempt
to obtain unauthorized access to this Site or portions of this Site which are
restricted from general access. In addition, you agree that you are solely
responsible for actions and communications undertaken or transmitted to or for
your account, and that you will comply with all applicable laws that relate to
your use or activities on this Web Site.
QED, Inc. may handle user information that you submit within the
Web Site. While QED, Inc. will make commercially reasonable efforts to protect
your information, QED, Inc. cannot and does not guarantee that any information
you provide through this Web Site will not be intercepted by others and/or used
for unauthorized purposes.
11/ Jurisdiction and Choice of Law
These Terms of Use shall be governed by and construed in
accordance with the laws of the State of Colorado, and the federal laws of the
United States of America, without giving effect to conflict of laws provisions.
You agree to submit to the personal and exclusive jurisdiction of the state or
federal courts located within the State of Colorado for any disputes arising
from or related to the Site or these Terms of Use.
Terms and Conditions of Purchase
THESE TERMS AND
CONDITIONS APPLY WHEN WE BUY GOODS/SERVICES FROM YOU.
1. Either of the
following constitutes your (“Seller’s”) acceptance of these Terms and
Conditions of Purchase (“T&Cs”): (a) Seller’s execution or acknowledgement
of a purchase or work order ("Order"); or (b) Seller’s commencement
of performance of the Order (e.g., promising or commencing performance);
provided, however, we (“Buyer”) may treat the offer made by the Order as having
lapsed before acceptance if Seller fails to so accept within a reasonable
period of time. Except as provided in Section 3 (only as to an extended
warranty period) and Section 10 below, Orders are subject to and governed
exclusively by, and Seller's acceptance thereof is expressly limited to, these
T&Cs. Buyer hereby expressly rejects and objects to any prior or
subsequently proposed term, condition or alteration. No modification or waiver
of these T&Cs shall be binding on Buyer unless expressly accepted in
writing by Buyer’s authorized officer. Any reference to Seller’s quote, bid or
proposal does not constitute acceptance of any legal terms or condition
thereof.
2. Orders may be issued
electronically or in writing. The purchase price for goods (“Products”) and
services sold to Buyer shall be as listed on the Order or as otherwise agreed
in writing by the parties. Buyer will pay undisputed portions of valid invoices
within sixty (60) days of Buyer’s receipt. Buyer may cancel or change Orders
without penalty upon at least ten (10) days’ notice. If Seller believes any
such change will affect the price or delivery date, Seller shall so notify
Buyer in writing (with reasonable supporting documentation) within three (3)
days of receiving said written direction or the change shall be deemed accepted
without modification to the price or date of delivery. Any such modification to
price and/or delivery date must be pre-approved by Buyer in writing. No
substitutions shall be made without Buyer’s prior written consent. Products
shall be tendered by Seller in a single delivery unless otherwise agreed.
Shipments shall be F.O.B. (INCOTERMS 2010) Buyer’s designated destination or
otherwise in accordance with shipping terms on the Order. No charge will be allowed
for packing, shipping or handling unless stated in the Order. Seller shall pay
for damaged Products resulting from improper packing or marking. Itemized
packing lists must accompany each shipment. Buyer’s count will be final and
conclusive on shipments not accompanied by Seller’s itemized packing list. Time
is of the essence. Seller shall promptly notify Buyer of any actual or
anticipated delay and shall take all commercially reasonable steps to avoid or
end delays without additional cost to Buyer.
3. Seller represents,
warrants, and covenants that: (i) it has and will transfer good title to
Products upon delivery, free and clear of all liens, claims and encumbrances of
any kind; (ii) Products will conform to Seller's standard technical
specifications and to all specifications, descriptions, drawings and standards
provided by Buyer or otherwise agreed to by Seller, and they will be new, meet
the highest industry standards, fit for the purpose(s) normally intended (or
specifically intended if such intent is communicated to Seller in the Order or
otherwise), and Products and services will be free from defects in design,
materials and workmanship; (iii) Products and their use, sale, lease and
distribution will not infringe, misappropriate, or violate trademarks, service
marks, copyrights, patents, patent rights, trade secrets or other intellectual
property rights of a third party; (iv) it will utilize all necessary or
desirable protective equipment and devices, whether suggested or required by
safety associations, government agencies, municipalities or otherwise; (v) that
all services shall be done with the utmost skill, care and diligence, in a good
and workmanlike manner, in accordance with the terms hereof and good industry
standards of performance and in a timely manner; (vi) it and the Products and
services provided to Buyer will comply with all applicable laws, codes,
standards and regulations (including, but not limited to anti-corruption and
anti-bribery, child labor, affirmative action and conflict minerals); and (vii)
it will comply with all aspects of Buyer’s Cyber Security Requirements outlined
in Appendix 1 as applicable. The foregoing warranties are enforceable by Buyer
and its direct and indirect customers receiving such Products (together, “Customers”),
and each shall remain valid for the longer of: (1) eighteen (18) months from
the date of shipment from Seller; (2) such longer period as is offered by
Seller in its then standard warranty; or (3) such longer period as is required
by applicable law. If Seller breaches any of the foregoing warranties, Seller
shall, at Buyer’s election and at Seller’s sole cost and expense (including,
but not limited to, all transport, packaging, removal, testing, re-install and
other labor costs): (a) repair or replace Products or services to Buyer's
complete satisfaction; (b) reimburse Buyer for the purchase price paid for such
Products or services; or (c) reimburse Buyer for the cost of substitute
products or services obtained by Buyer from third-parties. Warranties shall
begin anew on the date of repair or replacement pursuant to this Section 3.
4. Seller shall
indemnify, defend and hold harmless Buyer, its parent, subsidiaries, Customers
and affiliates, and its/their officers, directors, employees, agents, contractors
and representatives, from and against any and all actual or asserted claims,
actions, damages, injuries, fines, penalties, settlements, judgments, losses,
costs and expenses (including court costs and attorneys' fees) (collectively
"Losses") arising out of, in connection with, or resulting directly
or indirectly from: (i) Seller's breach of any representation, warranty or
covenant hereunder; (ii) the use, sale, lease or distribution of Products
(including, without limitation, for Losses that are attributable, in whole or
in part, to contamination, pollution or environmental damage (including
clean-up costs), data or security breaches, or any inaccurate or misleading
representations or omissions from any Product literature, communication,
packaging, warning or instruction relating thereto); (iii) recall of Product
initiated or required by Seller, a governmental agency or applicable laws,
rules, orders or regulations; or (iv) negligence, gross negligence,
recklessness, fraud, strict liability, fault, violation of law, or willful
misconduct of Seller, its employees, suppliers, manufacturers, contractors,
officers, directors, guests, invitees or agents. Seller acknowledges and agrees
that its indemnity obligations under this Section 4 shall be enforceable against
Seller regardless of whether or not insurance Seller maintains covers such
indemnity obligations. The foregoing shall not be construed to negate, abridge,
or otherwise reduce any other right or obligation that would otherwise exist as
to any party or person described herein. In the event that any indemnity
provisions herein are contrary to applicable law, then such indemnity
obligations shall be construed to apply to the fullest extent allowed by
applicable law.
5. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT
SHALL EITHER PARTY, OR ITS PARENT OR AFFILIATES, OR ANY OF ITS/THEIR DIRECTORS,
OFFICERS, EMPLOYEES OR AGENTS, BE LIABLE HEREUNDER FOR ANY SPECIAL, RELIANCE,
CONSEQUENTIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR INDIRECT DAMAGES, INCLUDING,
WITHOUT LIMIT, FROM DAMAGES TO PROPERTY, FOR LOSS OF PROFITS, INCOME, USE OR
TIME, WHETHER IN TORT, CONTRACT, OR OTHERWISE RESULTING FROM PERFORMANCE OR
NON-PERFORMANCE HEREUNDER, AND WHETHER OR NOT IT/THEY KNEW OF THE POSSIBILITY
THEREOF; PROVIDED, HOWEVER, THIS SECTION 5 SHALL NOT LIMIT SELLER'S OBLIGATIONS
UNDER SECTIONS 4 OR 12.
6. Unless otherwise
expressly agreed in writing by Buyer, Seller shall not, and shall not authorize
any other party to, use, modify, reproduce or replicate any trademark, logo or
trade name owned or claimed by Buyer ("Buyer Marks") in any way.
Seller shall not contest Buyer's right of exclusive use of any Buyer Mark. Upon
expiration or termination of the Order, Seller will remove and not thereafter
use any sign, catalogue, brochure or other material (whether print or
electronic) containing any Buyer Mark and Seller will, at Buyer’s option,
immediately destroy or return to Buyer such material in its possession or under
its control containing Buyer Marks. In addition, Seller agrees not to use any
Buyer Marks in any promotional material, including without limitation, customer
lists, advertisements, or press releases, without Buyer's advance written
authorization.
7. The occurrence of any
one or more of the following shall constitute an “Event of Default”: (i)
delivery of services or Products failing to conform to any provision hereof
(“Non-Conforming Products”); (ii) Seller’s breach or failure to perform its
obligations hereunder; or (iii) Seller’s breach or misrepresentation of any
representation or warranty herein. Upon an Event of Default, Buyer shall be
entitled, but not required, to exercise any or all of the following: (i) for
late delivery or performance, Buyer may extend the time therefore and/or
require expedited shipping/services, and such Products/services shall be
provided in the manner and per the timelines specified by Buyer, at Seller's
sole cost; (ii) with respect to Non-Conforming Products, Buyer shall have all
of the rights and remedies available under Sections 3 and 4 above; (iii) reject
or revoke acceptance, as the case may be, of all or any portion of the shipment
of Products containing any Non-Conforming Products; and/or (iv) exercise any
other rights and remedies specified in the Order or otherwise available under
applicable law. Buyer may exercise any one or more of the foregoing rights and
remedies by notifying Seller of such intent. Buyer shall not be liable to
Seller on account of exercising any such rights or remedies. Seller
acknowledges and agrees that the occurrence of an Event of Default constitutes
a substantial impairment of value to Buyer of the shipment at issue, the entire
Order, and any other then pending Orders, so as to entitle Buyer to exercise
any and/or all of the remedies specified herein, in the Order, and at law, and
Seller hereby waives its right to cure the default in question, unless
otherwise agreed in writing by Buyer. The making of or failure to make any
inspection of or payment for the Products shall in no way impair Buyer’s right
to reject Non-Conforming Products, nor be deemed acceptance by Buyer of the
Products, nor affect in any way Seller’s obligations hereunder, notwithstanding
Buyer’s opportunity to inspect the Products, Buyer’s knowledge of the
non-conformity or defect, its substantiality or the ease of its discovery, nor
Buyer’s earlier failure to reject the Products.
8. All questions
pertaining to the validity, construction, execution and performance of the
Order and the relationship of the parties hereto shall be construed and
governed by the laws of Colorado and the USA, without giving effect to the
principles of (i) comity of nations; or (ii) conflicts or choice of law
provisions thereof, and the Order shall not be governed by the U.N. Convention
on Contracts for the International Sale of Goods. Exclusive jurisdiction shall
be in the appropriate state or federal court in the state of Buyer's principal
place of business.
9. Seller certifies that
it has an affirmative action policy ensuring equal employment opportunity without
regard to, and that it maintains no employee facilities segregated on the basis
of, race, color, national origin, sex, age, sexual orientation, religion or
handicap, and that it is not debarred or suspended from being awarded Federal
or Federally assisted contracts. If applicable, the following laws, orders and
regulations, as amended, are hereby incorporated: Executive Order 11246;
Vietnam Era Veterans Readjustment Act; Rehabilitation Act of 1973; Veterans
Compensation, Education and Employment Act; 41 CFR 60-1.4 (Equal Employment
Opportunity); 41 CFR 60-250.4 ¾(Veterans
Affirmative Action); 41 CFR 60-741.4 (Handicap Affirmative Action); 41 CFR
601.40 (Affirmative Action Plans); 41 CFR 601.7 (EE01 Reports); 41 CFR 61650
(Veterans Employment Reports). Seller certifies and warrants that it is and
shall remain in compliance with all applicable anti-corruption and anti-bribery
laws and that the Products are produced in compliance with the Fair Labor
Standards Act of 1938, as amended, and the regulations and orders of the U.S.
Department of Labor issued thereunder, and that each invoice it submits is
correct and authentic and the only one issued for the Products at issue, and
that all Products comply with the Occupational Safety and Health Act of 1970, as
amended, and the applicable state plans approved under same, and the
regulations thereunder, to the extent applicable. Seller shall notify Buyer in
writing if Products are subject to laws or regulations relating to hazardous or
toxic substances, or when disposed of, to regulations governing hazardous
wastes, or to any other health, safety and/or environmental regulations. Seller
shall furnish all appropriate shipping certifications, labeling in compliance
with the Workplace Hazardous Materials Information System, Material Safety Data
Sheets in compliance with the Workplace Hazardous Materials Information System,
and instructions for shipping, safety, handling, exposure and disposal in a
form sufficiently clear for use and actions to be taken by Buyer’s and its
Customer’s non-technical personnel.
10. Without limiting
Seller’s obligations or liabilities hereunder, Seller shall, on the date an
Order is accepted and for a period of two (2) years thereafter, at its sole
expense, purchase and maintain the following insurance coverage with carriers
that have A.M. Best ratings of not less than A- and with a minimum financial
rating of Class VII: (a) Commercial General Liability Insurance that covers all
liabilities for bodily injury and property damages arising from the Products,
services and/or the performance of an Order, with limits of liability of at
least $5,000,000 for each occurrence and in the aggregate. Coverage must
include Products/Completed Operations, Personal and Advertising Injury and
Blanket Contractual Liability (CG 20 10 or its equivalent must be provided).
Such CGL insurance may be maintained through any applicable combination of CGL
and Excess/Umbrella Coverage; (b) Automobile Liability Insurance that covers
all liabilities for bodily injury and property damages arising from the use of
all owned, hired or non-owned vehicles, with limits of liability of at least
$1,000,000 for each occurrence and in the aggregate; (c) Workers Compensation
Insurance shall be statutory by state law and Employer's Liability Insurance
with limits of liability of at least $1,000,000; (d) Product Liability
Insurance that covers the Products with limits of liability of at least
$5,000,000 in the aggregate; and (e) Technology Errors & Omissions
Liability Insurance, with a minimum limit of $5,000,000 per claim and in the
aggregate, covering all Products including failure of information technology
security, data privacy breach and software copyright infringement (if coverage
is on a claims-made basis, the policy must contain a retro date which precedes
the effective date of the Order and continuity must be maintained for 1 (one)
year following termination or expiration of the Order). All insurance coverage
required herein for Seller shall extend to and protect Buyer and its subsidiaries,
parent company and/or affiliates to the full amount of such coverage, and all
deductibles and/or self-insured retentions (if any), including those related to
defense cost, are the sole responsibility of Seller and, upon Buyer’s request,
Seller shall disclose the same to Buyer. All policies, except the Workers'
Compensation insurance, shall be endorsed to name Buyer, its parent and
affiliated entities, and its/their directors, officers, employees,
representatives, and agents, as an additional insured and such policies shall
be endorsed to waive all express or implied rights of subrogation against
Buyer, its parent and affiliated entities. The insurance coverage set forth
above shall be primary to any liability insurance or other insurance carried by
Buyer, its affiliates or parent and Buyer's, its affiliate’s and parent’s other
insurance shall be excess and non-contributory for claims and losses arising
out of the performance of an Order. Seller shall provide a coverage endorsement
for each category of insurance required above, except for Workers'
Compensation, which includes a cross liability clause, stating that the Seller
and Buyer shall each be considered as a separate entity. The policies shall not
be canceled, terminated or materially reduced without thirty (30) days' advance
written notice to Buyer. Seller shall provide Buyer with a Certificate of
Insurance evidencing the above-required types and amounts of insurance coverage
and other requirements prior to selling Products and providing services to
Buyer and on an annual basis thereafter. Failure of the Seller to provide Buyer
the Certificate of Insurance or failure of Buyer to specifically request such
certificate, shall in no way limit or release the Seller of its obligations or
liabilities under this Section 10. In the event the Seller or its insurance
carrier defaults on any obligation hereunder, Seller agrees that it will be
liable for all reasonable expenses and attorneys' fees incurred by Buyer or its
affiliates to enforce the provisions hereunder.
11. Unless Buyer and
Seller are currently entered into a separate, written agreement that
specifically governs their business relationship and the subject matter of the
Order, and unless that written agreement specifically contains a merger clause
that addresses conflicting terms and conditions in purchase orders, invoices,
etc., then these T&Cs constitute the entire agreement and understanding
between the parties, and supersede and replace all prior negotiations and
agreements, proposed or otherwise, whether written or oral, concerning the
subject matter hereof. No course of dealing, usage of trade or course of
performance shall be relevant to explain, supplement or modify any express
provision of these T&Cs.
12. Buyer may disclose
Confidential Information (as defined below) to Seller in connection with its
purchase of Products and services from Seller. Seller shall not disclose any
Confidential Information or any portion thereof to any person or entity and
shall only use such Confidential Information to fulfill its obligations
hereunder, it being understood that such Confidential Information provides
Buyer with a competitive advantage in its trade because it is not generally
known or available to the public. In that regard, Seller acknowledges and
agrees that Buyer has taken and is taking reasonable steps to protect the
confidentiality of, and its legitimate interests in, the Confidential
Information. The term "Confidential Information" means information
concerning Buyer’s business, personnel, data, financial and marketing plans,
intellectual property rights (including, without limitation, patents,
trademarks, copyrights and trade secrets), forecasts, strategies and
statements, and Customer related information. To the extent allowed by law,
Seller shall notify Buyer in writing in advance of any disclosure of
Confidential Information required by law, court or administrative order.
13. All notices
permitted, required or provided for herein shall be made in writing, and shall
be deemed adequately delivered if delivered by hand, certified mailing in the
U.S. mail with return receipt requested, or by a recognized courier service
that regularly maintains records of its pick-ups and deliveries, to the parties
at their respective addresses, as set forth on the face of the Order or as
otherwise designated by a party hereto. Any waiver of any of the provisions
herein or of any inaccuracy in or non-fulfillment of any of the
representations, warranties or obligations hereunder or contemplated hereby,
shall not be effective unless made in writing and signed by the party against
whom the enforcement of such waiver is sought. Any provision of these T&Cs
that is deemed invalid or unenforceable in any jurisdiction shall, as to such
jurisdiction only, be ineffective only to the extent of such invalidity or
unenforceability, without rendering invalid or unenforceable or otherwise
affecting the remaining terms and provisions hereof. Neither party may assign
or otherwise delegate any of its rights or obligations hereunder without the
prior written consent of the other party, which consent will not be
unreasonably withheld, delayed or conditioned; provided, however, Buyer shall
have the right to assign Orders without Seller’s consent to an affiliate of
Buyer. The provisions hereof that by their nature are intended to survive the
termination, cancellation, completion or expiration of the Order shall continue
as valid and enforceable obligations of the parties notwithstanding any such
termination, cancellation, completion or expiration. To the maximum extent
permitted by applicable law: (i) Seller's warranties are fully-enforceable by
Buyer and its Customers (as intended third-party beneficiaries); and (ii) the
indemnities provided hereunder are fully-enforceable by Buyer and/or any or all
of the other indemnitees identified above in Section 4.
14. Seller represents and warrants that it will at all times comply
with all applicable laws and regulations, including trade, economic, and
financial restrictions, trade embargoes, and any amendments thereto (for
purposes of this Section 14, collectively the “Laws”) imposed by any applicable
governmental authority, including where applicable, the United States and the
European Union. Buyer shall not be
liable, and Seller agrees to indemnify, defend, and hold harmless Buyer, for
any breach of such Laws and for all claims, liabilities, costs (including
attorneys’ and experts’ fees and court costs), damages, and penalties
associated therewith or arising therefrom.
Seller shall take all actions necessary to ensure that its suppliers,
subcontractors, materialmen, and other business partners (i) comply with
applicable Laws; and (ii) do not cause Buyer to violate applicable Laws. If applicable, Seller undertakes to timely
provide all information and documentation necessary for export, shipment, and
import. Buyer shall not be liable, and
Seller shall indemnify, defend, and hold Buyer harmless, for delays and any
other losses, including liquidated damages assessed against Buyer, arising or
resulting from Seller’s failure to timely deliver
Products and/or provide accurate information and documentation, export/import
reviews, or any related permitting procedures.
To the extent permitted by law, Seller shall, promptly upon becoming
aware, provide to Buyer details of any claim, action, suit, proceedings or
investigation against it with respect to Laws brought by any enforcement
authority. In the event that Buyer
should believe, acting in good faith, that Seller has violated, or is under
investigation for violating, any Laws, or if Seller is identified on any
applicable sanctions list, Buyer shall have the immediate right to terminate
its relationship and/or any contract with Seller without liability.
Appendix
1
Cyber
Security Requirements
1. Seller shall ensure
all Products have been developed in accordance with principles of secure
software development consistent with software development industry best
practices, including, but not limited to, security design review, secure coding
practices, risk based testing and remediation requirements. Seller must use
reasonable measures to secure the software development environment of the
Products from unauthorized access.
2. Seller shall include
cyber security guidance in the Product documentation provided to Buyer. This
documentation shall include guidance on how to configure the Products and/or
the surrounding environment to best ensure security. It shall also include
guidance on which logical or physical ports are required for the Product to
function. If authentication is used to protect access to any service or
capability of the Products, regardless of the intended user of that
service/capability, the Seller shall ensure:
2.1 the Products shall
not provide access to that service or capability using a default
account/password;
2.2 the Products shall
not provide access to that service or capability using a “Backdoor” account or
password;
2.3 the Products’
associated authentication and password change processes shall be implemented
with an appropriately secure cryptographic level; and
2.4 Buyer shall be able
to change any passwords supported by the Products.
3. In the event that any
wireless technology is incorporated in any Product, Seller shall document that
the wireless technology complies with standard operational and security
requirements specified in applicable wireless standard(s) or specification(s)
(e.g., applicable IEEE standards, such as 802.11).
4. In the event that any
cryptographic systems are contained in the Product, Seller shall only use
cryptographic methods that are “Approved” as defined in the Federal Information
Processing Standard (FIPS) Security Requirements for Cryptographic Modules
(FIPS 140-2), and Seller shall provide an automated remote key-establishment
(update) method that protects the confidentiality and integrity of the
cryptographic keys.
5. Seller must develop
and maintain an up-to-date Cyber Security Susceptibility management plan
designed to promptly identify, prevent, investigate, and mitigate any Cyber
Security Susceptibilities and perform any required recovery actions to remedy
the impact. “Cyber Security Susceptibility(ies)” is defined as any bug,
software defect, design flaw, or other issue with software associated with a
Product that could adversely impact the confidentiality, integrity or
availability of information or processes associated with the Product.
6. Seller shall notify
Buyer within a reasonable period, in no event to exceed five (5) business days
after discovery, or shorter if required by applicable law or regulation, of any
potential Cyber Security Susceptibility. Seller shall report any Cyber Security
Susceptibility to Buyer. Within a reasonable time thereafter, Seller shall
provide Buyer, free of charge, with any upgrades, updates, releases,
maintenance releases and error or bug fixes necessary to remediate any Cyber
Security Susceptibility. Seller shall reasonably cooperate with Buyer in its
investigation of a Cyber Security Susceptibility, whether discovered by Seller,
Buyer, or a third party, which shall include providing Buyer a detailed
description of the Cyber Security Susceptibility, the remediation plan, and any
other information Buyer reasonably may request concerning the Cyber Security
Susceptibility, as soon as such information can be collected or otherwise
becomes available. Buyer or Buyer’s agent shall have the right to conduct a
cyber security assessment of the applicable Products, and the Product
development lifecycle, which includes tests intended to identify potential
Cyber Security Susceptibilities. Seller shall designate an individual
responsible for management of the Cyber Security Susceptibility, and shall
identify such individual to Buyer promptly.
7. Seller represents,
warrants and covenants that all open source software contained within the
Products are and shall be in material compliance with the terms and conditions
of the applicable licenses governing their use, and the Products or the use
thereof by Buyer shall not cause Buyer or Buyer’s intellectual property rights
to be subject to the terms or conditions of a copyleft license, or require
Buyer to fulfill any open source license obligations for any open source
software contained within the Products.
8. Seller represents,
warrants, and covenants that the Products shall be free of viruses, malware,
and other harmful code (including, without limitation, time-out features) which
may interfere with the use of the Products regardless of whether Seller or its
personnel purposefully placed such code in the Products. In addition to
exercising any of Buyer’s other rights and remedies under the Order or otherwise
at law or in equity, Seller shall provide Buyer, free of charge, with any and
all new versions, upgrades, updates, releases, maintenance releases, and error
or bug fixes of the Products (collectively, “Revised Code”) which prevents a
breach of any of the warranties provided under the Order or corrects a breach
of such warranties. Revised Code contained in the Products constitutes Products
for purposes of the Order.
