SALES TERMS AND CONDITIONS
All sales made by DataWest ("DataWest") to its customers with DataWest resale accounts ("Purchaser") are subject to these terms and conditions. Purchaser's acceptance of these terms and conditions shall be made by either (i) Purchaser providing a purchase order number to DataWest or (ii) Purchaser's acceptance of any Product from DataWest, whichever occurs first.
These terms and conditions shall apply to sales of all products described in DataWest's current comprehensive product listing including special order product except as otherwise noted below ("Product"). The term "Special Order Product" as used herein shall mean products that are not listed in DataWest's current comprehensive product listing or have been configured to Purchaser's specifications. Electronic Software Distribution (ESD) product sales are subject to additional terms.
1. ORDERING: Prior to placing an order, Purchaser must have an active DataWest sales account number and Purchaser's account must be current and in good standing. Purchaser must provide DataWest with complete Product order information as required by DataWest. The Product order information will include without limitation the (i) Product description, (ii) unit quantity, (iii) DataWest SKU number and/or vendor part number, (iv) current unit price as provided by DataWest, and (v) correct shipping address. For government or educational orders, Purchaser will provide the above Product order information as well as (i) end user name and zip code and (ii) government or educational contract number. Purchaser personnel will identify, for each Product order, the ship-to destination as either Purchaser, Purchaser's customer, or to some other specified third party. DataWest reserves the right to require additional information based on the requirements of the manufacturer or publisher of the Product. Purchaser shall not disclose any confidential information when ordering from DataWest. Purchaser may place orders over telephone, via facsimile, and via DataWest- approved electronic ordering methods only through persons who identify themselves as Purchaser personnel and provide their DataWest customer number prior to placing the order. DataWest will have no obligation to confirm the validity of any order placed or the authority of the person placing an order in this manner. Purchaser will disclose its DataWest customer number only to its personnel with a need to know. DataWest's acceptance of any order from Purchaser is limited to these terms and conditions in their entirety without addition, modification, or exception. Any additional or different terms in Purchaser's purchase order or submitted by Purchaser in any form are hereby deemed to be material alterations hereto and notice of objection to them is hereby given. All orders below the applicable minimum order value are subject to additional fees. Orders for direct shipment to Purchaser's customers or Special Order Products may require prepayment and may be subject to additional fees. DataWest will have no obligation to hold Product for future sale to Purchaser if Purchaser's order is incomplete, on hold, or if Purchaser does not confirm it within 48 hours of notification from DataWest that backordered Product is available for shipment. All Products sold to Purchaser hereunder are for resale only. Additional fees may apply. All Product pricing, description and availability information ("Information") provided by DataWest, in any form, is the property of DataWest. DataWest hereby grants Purchaser a limited, non-exclusive, non-transferable license to use the Information for Purchaser's internal use only for purposes of Purchaser's sales and purchases of Products sold by DataWest. If DataWest provides Information to Purchaser electronically, Purchaser agrees to update such Information regularly to ensure its accuracy. Purchaser agrees to hold in confidence and not to directly or indirectly use, reveal, report, publish, disclose or transfer to any other person or entity any of the Information or utilize the Information for any purpose except as permitted herein. DATAWEST MAKES NO WARRANTY, EITHER EXPRESS OR IMPLIED ON THE INFORMATION. ALL INFORMATION IS PROVIDED TO PURCHASER "AS IS." DATAWEST HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, RELATING TO INFORMATION INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY AND THE IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
2. PRICE: All prices are subject to change without notice and will be established at time of order acceptance by DataWest. Order acceptance and sale by DataWest occurs at time of shipment. Prices for backordered Products are not guaranteed. Additional fees may apply in accordance with DataWest's policies in effect on the date of shipment
3. SHIPMENT AND DELIVERY: A. U.S. Shipments - All Product shipments will be made FOB origin. For Products owned by DataWest, title and risk of loss will transfer to Purchaser upon DataWest tendering the Product for delivery to the carrier. DataWest will ship Products using DataWest's carrier of choice in accordance with DataWest's shipping policies at the time of shipment. Additional fees and charges may also apply. If Purchaser requests DataWest prepay and bill Purchaser for freight charges, Purchaser agrees that DataWest retains the right to choose the carrier. Purchaser shall examine all Products upon receipt and shall notify DataWest, as specified herein, of all discrepancies and refusal to accept delivery of purchased Product. Such notice shall be reasonably detailed and explain the discrepancy or why the purchased Product was refused. If Purchaser does not give DataWest such notice as stated herein, Purchaser agrees that such Products have been accepted by Purchaser as of the date of shipment.
International Shipments: All shipments by DataWest to Purchaser or Purchaser's customers at an address outside of the United States or the District of Columbia are subject to additional terms and will not be made unless Purchaser and DataWest have entered into DataWest's International Fulfillment Agreement (IFA). Under certain circumstances, DataWest may choose to ship Product to Purchasers located at an address outside of the United States or the District of Columbia. These shipments will be made FCA, DataWest's warehouse via DataWest's carrier of choice. Title and risk of loss will transfer to Purchaser upon DataWest tendering the Product for delivery to the carrier. Purchaser will bear all the costs related to shipment and delivery. Purchaser shall examine all Products promptly upon receipt and shall notify DataWest of all discrepancies or if rejection is intended within five (5) calendar days after receipt. Such notice shall be reasonably detailed and shall specify the discrepancy or reason for rejection. Failure to give such notice within such time shall be deemed an acceptance of the Products as of the date of shipment. If the approval of any government or governing organization is required with respect to these terms and conditions or the distribution of the Products including without limitation, giving legal effect to these terms and conditions, protecting intellectual property and other rights in the Products or compliance with exchange regulations, Purchaser will, at its expense, immediately take whatever steps may be necessary to secure such approvals. If any such approval requires or results in the deletion or amendment of any provision of these terms and conditions, then DataWest will have the right to immediately terminate these terms and conditions.
4. CREDIT AND PAYMENT TERMS: Purchaser shall furnish to DataWest all financial information reasonably requested by DataWest from time to time for the purpose of establishing or continuing Purchaser's credit limit. Purchaser agrees that DataWest shall have the right to decline to extend credit to Purchaser and to require that the applicable purchase price be paid prior to shipment. Purchaser shall promptly notify DataWest of all changes to Purchaser's name, address, or of the sale of substantially all of its assets. DataWest shall have the right from time to time, without notice, to change or revoke Purchaser's credit limit on the basis of changes in DataWest's credit policies or Purchaser's financial condition and/or payment record. Purchaser shall not deduct any amounts owing from any DataWest invoice without DataWest's express written approval, which approval shall be contingent upon Purchaser providing all supporting documentation for such deduction as required by DataWest. A service charge of the lesser of one and one-half percent (1 ½%) per month or the maximum amount allowed by law will be charged on all past due balances commencing on the date payment is due. Credit cards (MasterCard, VISA and Discover Card) will only be accepted at the time of order. No cash payments will be accepted. Payment by money orders or travelers check will be allowed only if the money order or travelers check is made out in the exact amount of the invoice; payment of one invoice through multiple money orders or travelers checks will not be permitted. Additional restrictions regarding third-party payments apply to Purchasers located in Colombia, Panama, or Venezuela. DataWest retains (and Purchaser grants to DataWest by submitting a purchase order) a security interest in the Products to secure payment in full, and Purchaser agrees to execute any additional documents necessary to perfect such security interest. If Purchaser fails to make timely payment of any amount invoiced hereunder, DataWest shall have the right, in addition to any and all other rights and remedies available to DataWest at law or in equity, to immediately revoke any or all credit extended, to delay or cancel future deliveries and/or to reduce or cancel any or all quantity discounts extended to Purchaser. Purchaser shall pay all costs of collection including reasonable attorneys' fees. Any obligation of DataWest under these terms and conditions to deliver Products on credit terms shall terminate without notice if Purchaser files a voluntary petition under a bankruptcy statute, or makes an assignment for the benefit of creditors, or if an involuntary petition under a bankruptcy statute is filed against Purchaser, or if a receiver or trustee is appointed to take possession of the assets of Purchaser.
5. TAXES: Purchaser shall bear applicable federal, state, municipal, and other government taxes (such as sales, use, etc.). Unless otherwise specified, prices do not include such taxes. Exemption certificates, valid in the place of delivery, must be presented to DataWest prior to shipment if they are to be honored.
6. WARRANTY: Product warranties, if any, are provided by the manufacturer or publisher of the Products. DataWest makes no warranties whatsoever. DataWest's sole obligation (and Purchaser's sole remedy) in the event of breach of any warranty shall be the repair or replacement of defective Products. IN NO EVENT SHALL DATAWEST BE LIABLE FOR ANY CONSEQUENTIAL DAMAGES OR DAMAGES OF ANY KIND OR NATURE ALLEGED TO HAVE RESULTED FROM ANY BREACH OF WARRANTY. DATAWEST DOES NOT WARRANT THE MERCHANTABILITY OF THE PRODUCTS OR THEIR FITNESS FOR ANY PARTICULAR PURPOSE. DATAWEST MAKES NO WARRANTY, EXPRESS OR IMPLIED, OTHER THAN THOSE SPECIFICALLY SET FORTH HEREIN.
7. PRODUCT RETURNS:
A. Requirements - Purchaser must obtain a valid Return Material Authorization ("RMA") number from DataWest for all returns. RMAs will be issued, at DataWest's sole discretion, in accordance with these terms and conditions. Purchaser must provide its account number and all other information as required by DataWest for all returns. RMAs are valid for twenty (20) calendar days from the date of issuance. Purchaser must allow for in-transit time for Products to be returned to DataWest, as DataWest must physically receive Products within the twenty (20) calendar days. RMAs will be issued for authorized returns under one of the following categories: (i) defective Products, (ii) stock balancing, (iii) billing or shipping discrepancies, or (iv) damaged Product. Purchaser is responsible for ensuring that the RMA number is clearly visible on the address label of the Product packaging when it is returned to DataWest. DataWest will refuse delivery of any boxes without a valid, clearly visible RMA number as noted above. Overgoods are unauthorized returns. Any Products received by DataWest (i) without a valid RMA number, including Product shipments refused by Purchaser or Purchaser's customer except those damaged in transit from DataWest to Purchaser or from DataWest to Purchaser's customer, (ii) later than twenty calendar (20) days from the RMA date, or (iii) in a condition unsuitable for resale (excluding defective Products), will be considered Overgoods. DataWest will return Overgoods to Purchaser or Purchaser's customer, and will charge Purchaser a $50 processing fee per shipment plus related freight charges. If Purchaser refuses the shipment of Overgoods from DataWest or returns the Overgoods to DataWest a second time without DataWest's prior authorization, Purchaser agrees to relinquish all right and title to and waives all claims against DataWest for credit related to such Products. Notwithstanding anything to the contrary, DataWest reserves the right not to authorize the return of Products that are no longer in production or are being produced or published by a manufacturer or publisher that (i) is insolvent, (ii) has declared bankruptcy, or (iii) will not accept returns from DataWest.
B. Defective Product Returns - Defective returns are only for Products purchased from DataWest that are inoperable or do not function in accordance with the specifications published by the manufacturer or publisher and are covered under the manufacturer's or publisher's warranty. All defective returns are subject to more restrictive manufacturer or publisher policies. Purchaser may request an RMA for the return of defective Products, excluding Special Order Products, within forty-five (45) calendar days of invoice date. Purchaser's defective returns will be limited to a maximum of 15% of the value of Purchaser's Product purchases within the same vendor code as the defective Product during the forty-five (45) calendar days prior to the RMA date, less any prior defective returns during that period. Upon receipt of the defective Product for which the RMA was issued, DataWest may test the Products and may return to Purchaser, at Purchaser's expense, any Products found not to be defective. Upon verification that the returned Product is defective, DataWest may, at DataWest's sole discretion, either (i) ship Purchaser a replacement Product, or (ii) provide Purchaser a credit equal to the lesser of the Product's invoice price or current replacement value less any applicable charges or fees. DataWest reserves the right to require Purchaser to return defective Products directly to the manufacturer or publisher for replacement according to its defective Products return policy. DataWest shall not be obligated to repair, replace, or issue credit to Purchaser for Products rendered defective, in whole or in part, by causes external to the Products, including, but not limited to, catastrophe, power failure or transients, overvoltage on interface, environment extremes, improper use, maintenance or application of the Products or use of unauthorized parts. Purchaser shall bear all risks of loss when returning defective Products.
C. Stock Balance Returns - Stock balance returns are only for Products purchased from DataWest that are unopened and unused and can be re-sold as new. All stock balance Products returned must be in the manufacturer's original packaging and in condition suitable for resale including, but not limited to, without price tags or stickers or additional shrink wrapping, clean, undamaged and complete ("Stock Balance Condition"). All stock balance returns are subject to more restrictive manufacturer or publisher policies. Purchaser may request an RMA for the return of Products in Stock Balance Condition, except for Special Order Products, within ninety (90) calendar days of invoice date. Purchaser's stock balance returns will be limited to a maximum of 15% of the value of Purchaser's Product purchases within the same vendor code as the Product to be returned during the ninety (90) calendar days prior to the RMA date, less any prior stock balance returns during that period. Upon receipt of the Product for which the RMA was issued, DataWest will verify the condition of the Product. Any Products that are not in Stock Balance Condition will be considered Overgoods. DataWest will return Overgoods to Purchaser and will charge Purchaser a $50 processing fee per shipment returned to Purchaser plus related freight charges. Additional fees may apply to returned Products; e.g., re-box, label removal, re-shrink, etc., that are not in Stock Balance Condition. Upon verification that the returned Product is in Stock Balance Condition, DataWest will issue a credit to Purchaser equal to the lesser of the Product's invoice price or current replacement value less any applicable charges or fees. If DataWest elects to restore returned Product to Stock Balance Condition instead of returning it to Purchaser, the credit to Purchaser will be net of DataWest's costs to return the Product to Stock Balance Condition. Purchaser shall pay all costs and bear all risks of loss when returning Products to DataWest.
D. Damaged Product Returns - Damaged Product returns are only for Products purchased from DataWest and shipped via DataWest's carrier of choice that are damaged in transit from DataWest to the Purchaser or from DataWest to the Purchaser's customer. Purchaser or Purchaser's customer shall refuse any Product delivered in damaged condition. If the Product is received in damaged condition, Purchaser shall notify DataWest and request an RMA within three (3) business days of receipt of such Product. Failure to notify DataWest and request an RMA within such time shall be deemed an acceptance of the Product as of the date of shipment.
8. BILLING AND SHIPPING DISCREPANCIES: Billing and shipping discrepancies are for Products purchased from DataWest that were invoiced or shipped incorrectly. These include lost shipments, short shipments, wrong sales, wrong shipments and pricing/invoice errors. Purchaser may request an RMA for verified billing and shipping discrepancies within thirty (30) calendar days of invoice date. In addition, Purchaser must notify DataWest of any billing discrepancies related to Purchaser's authorized returns within ninety (90) calendar days of RMA date. Such notice shall be reasonably detailed and shall specify the discrepancy. Failure to give such notice within the time specified herein shall be deemed a waiver of Purchaser's rights to claim such discrepancy.
9. PATENT AND TRADEMARK INDEMNITY: DATAWEST SHALL HAVE NO DUTY TO DEFEND, INDEMNIFY, OR HOLD HARMLESS PURCHASER FROM AND AGAINST ANY OR ALL DAMAGES AND COST INCURRED BY PURCHASER ARISING FROM THE INFRINGEMENT OF PATENTS OR TRADEMARKS OR THE VIOLATION OF COPYRIGHTS BY PRODUCTS.
10. LIMITATION OF LIABILITY: DATAWEST SHALL NOT BE LIABLE TO PURCHASER, PURCHASER'S CUSTOMERS, OR ANY OTHER PARTY FOR ANY LOSS, DAMAGE, OR INJURY THAT RESULTS FROM THE USE OR APPLICATION BY PURCHASER, PURCHASER'S CUSTOMER, OR ANY OTHER PARTY, OF PRODUCTS DELIVERED TO PURCHASER, UNLESS THE LOSS OR DAMAGE RESULTS DIRECTLY FROM THE INTENTIONALLY TORTIOUS OR FRAUDULENT ACTS OR OMISSIONS OF DATAWEST. IN NO EVENT SHALL DATAWEST BE LIABLE TO PURCHASER OR ANY OTHER PARTY FOR LOSS, DAMAGE, OR INJURY OF ANY KIND OR NATURE ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND CONDITIONS, OR ANY AGREEMENT INTO WHICH THEY ARE INCORPORATED, OR ANY PERFORMANCE OR NONPERFORMANCE UNDER THESE TERMS AND CONDITIONS BY DATAWEST, ITS EMPLOYEES, AGENTS OR SUBCONTRACTORS, IN EXCESS OF THE NET PURCHASE PRICE OF THE PRODUCTS OR SERVICES ACTUALLY DELIVERED TO AND PAID FOR BY PURCHASER HEREUNDER. IN NO EVENT SHALL DATAWEST BE LIABLE TO PURCHASER OR ANY OTHER PARTY FOR INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO LOSS OF GOOD WILL, LOSS OF ANTICIPATED PROFITS, OR OTHER ECONOMIC LOSS ARISING OUT OF OR IN CONNECTION WITH DATAWEST'S BREACH OF, OR FAILURE TO PERFORM IN ACCORDANCE WITH ANY OF THESE TERMS AND CONDITIONS, OR THE FURNISHING, INSTALLATION, SERVICING, USE OR PERFORMANCE OF ANY PRODUCTS OR INFORMATION DATAWEST SHALL PROVIDE HEREUNDER, EVEN IF NOTIFICATION HAS BEEN GIVEN AS TO THE POSSIBILITY OF SUCH DAMAGES. PURCHASER HEREBY EXPRESSLY WAIVES ANY AND ALL CLAIMS FOR SUCH DAMAGES. IN NO EVENT SHALL DATAWEST HAVE ANY LIABILITY FOR ANY PRODUCTS USED FOR AVIATION, MEDICAL, LIFESAVING, LIFE-SUSTAINING OR NUCLEAR APPLICATIONS.
11. COMPLIANCE WITH U.S. EXPORT LAWS: If Purchaser delivers the Products to its customer who may use the Products outside the United States, Purchaser acknowledges and shall advise its customer that the Products are controlled for export by the U.S. Department of Commerce and that the Products may require authorization prior to export from the United States or re-export. Purchaser agrees that it will not export, re-export, or otherwise distribute Products, or direct products thereof, in violation of any export control laws or regulations of the United States. Purchaser warrants that it will not export or re-export any Products with knowledge that they will be used in the design, development, production, or use of chemical, biological, nuclear, or ballistic weapons, or in a facility engaged in such activities, unless Purchaser has obtained prior approval from the Department of Commerce. Purchaser further warrants that it will not export or re-export, directly or indirectly, any Products to embargoed countries or sell Products to companies or individuals listed on the Denied Persons List published by the Department of Commerce.
12. RELATIONSHIP OF THE PARTIES: Purchaser's relationship with DataWest will be that of an independent contractor. Purchaser will not have, and will not represent that it has, any power, right or authority to bind DataWest, or to assume or create any obligation or responsibility, express, implied or by appearances, on behalf of DataWest or in DataWest's name, except as herein expressly provided. Nothing stated in these terms and conditions will be construed as constituting Purchaser and DataWest as partners or as creating the relationships of employer/employee, franchisor/franchisee, or principal/agent between the parties. Purchaser will make no warranty, guarantee or representation, whether written or oral, on DataWest's behalf.
13. ANTI-CORRUPTION: Purchaser has not made, and will not make, any direct or indirect payment, offer to pay, or authorization to pay, any money, gift, promise to give, or authorization of the giving, of anything of value to any government official, or the immediate family of any such official, for the purpose of influencing an act or decision of the government or such individual in order to assist, directly or indirectly, Purchaser in obtaining or retaining business, or securing an improper advantage.
14. MANUFACTURER, PUBLISHER, AND SUPPLIER RESTRICTIONS: If authorization for resale is required by the manufacturer or publisher of any Product, then DataWest will not be obligated to sell such Product to Purchaser unless DataWest has received notification of such authorization from the manufacturer or publisher. All Products delivered to Purchaser hereunder may have additional restrictions on their use required by the manufacturer or publisher. Purchaser is solely responsible for ensuring its adherence to any and all such restrictions and requirements. If any supplier prohibits DataWest from selling specific Products to Purchaser, then DataWest reserves the right not to sell such Products to Purchaser.
15. CHOICE OF LAW/CHOICE OF FORUM: These terms and conditions (and any agreement into which they are incorporated) shall be construed, interpreted and enforced under and in accordance with the internal laws of the State of California, excluding its conflicts or choice of law rule or principles which might refer to the law of another jurisdiction. Purchaser agrees to exercise any right or remedy in connection with these terms and conditions exclusively in, and hereby submits to the jurisdiction of the State of California, Courts of Orange County, California, or the United States District Court at Santa Ana, California. The state and federal courts situated in Orange County, California will have non-exclusive jurisdiction and venue over any dispute or controversy that arises out of these terms and conditions. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these terms and conditions.
16. NOTICES: All notices, requests, demands, and other communications that either party may desire to give the other party must be in writing and may be given by (i) personal delivery to an officer of the party, (ii) mailing the same by registered or certified mail, return receipt requested, or via nationally recognized courier services to the party at the address of such party as set forth herein, at the official corporate address of such party, or such other address as the parties may hereinafter designate, or (iii) facsimile subsequently to be confirmed in writing pursuant to item (ii) above.
17. BINDING EFFECT/ASSIGNMENT: These terms and conditions shall be binding upon and shall inure to the benefit of the parties hereto and their respective representatives, successors and permitted assigns. Neither party may assign its rights and/or duties under these terms and conditions without the prior written consent of the other party given at the other party's sole option. Any such attempted assignment shall be void. Notwithstanding the foregoing, DataWest may assign any purchase order received from Purchaser to a subsidiary or affiliate upon notice to Purchaser.
18. PARTIAL INVALIDITY: If any provision of these terms and conditions shall be held to be invalid, illegal or unenforceable, such provision shall be enforced to the fullest extent permitted by applicable law and the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
19. NO WAIVER: Failure or delay of DataWest to exercise a right or power under these terms and conditions shall not operate as a waiver thereof, nor shall any single or partial exercise of a right or power preclude any other future exercise thereof.
20. CAPTIONS: The captions used herein are for reference purposes only and shall have no effect upon the construction or interpretation of any provisions herein.
21. GENERAL: These terms and conditions, as published on DataWest's Web site located at www.DataWestOnline. com at the time of sale, are the official terms and conditions of sale between DataWest and Purchaser and may be amended from time to time without notice at DataWest's sole discretion.