THESE TERMS AND CONDITIONS OF PRODUCT PURCHASE ("TERMS AND CONDITIONS" OR "AGREEMENT") ARE AGREED BETWEEN SOFTLINE USA, INC., OR ITS AFFILIATE, WHICHEVER IS THE BUYER ("BUYER") AND THE ENTITY ("SUPPLIER") FROM WHICH BUYER IS MAKING A PURCHASE ("PURCHASE") OF ONE OR MORE "SALES OFFERINGS" (MEANING PRODUCTS, PRODUCT SUPPORT AND SERVICES) UNDER A "TRANSACTION DOCUMENT" (MEANING A PURCHASE ORDER OR ANY OTHER SIGNED CONTRACT GOVERNING THE SPECIFIC PURCHASE) AND FORM AN AGREEMENT, EXCLUSIVELY GOVERNING SUCH PURCHASE EFFECTIVE ON THE DATE WHEN SUCH TRANSACTION DOCUMENT IS "EXECUTED" (MEANING, WITH RESPECT TO A PURCHASE ORDER, THE DATE ON WHICH SUCH PURCHASE ORDER IS ACCEPTED BY SUPPLIER, AND WITH RESPECT TO ANY OTHER CONTRACT GOVERNING THE SPECIFIC PURCHASE, THE DATE THAT IS IDENTIFIED AS THE EFFECTIVE DATE OF SUCH CONTRACT, OR IN THE ABSENCE OF SUCH IDENTIFIED EFFECTIVE DATE, WHEN SUCH CONTRACT IS COUNTERSIGNED) AND THE DATE WHEN SUPPLIER INITIATES PERFORMANCE HEREUNDER AT BUYER'S REQUEST ("AGREEMENT EFFECTIVE DATE"). THESE TERMS AND CONDITIONS MAY BE UPDATED FROM TIME TO TIME BY BUYER WITHOUT PRIOR NOTICE; PROVIDED THAT THE VERSION OF THESE TERMS AND CONDITIONS POSTED ON THIS WEBSITE AT THE TIME THE TRANSACTION DOCUMENT IS EXECUTED SHALL BE THE AGREEMENT THAT GOVERNS SUCH TRANSACTION DOCUMENT. NOTWITHSTANDING THE FOREGOING, IF THE PARTIES HAVE ENTERED INTO A SEPARATE, EFFECTIVE AGREEMENT APPLICABLE TO SUCH TRANSACTION DOCUMENT ("SEPARATE AGREEMENT"), THEN THESE TERMS AND CONDITIONS SHALL NOT APPLY TO SUCH TRANSACTION DOCUMENT AND SHALL NOT GOVERN SUCH SALE, AND INSTEAD SUCH SEPARATE AGREEMENT SHALL GOVERN SUCH SALE.
IN THE EVENT OF A CONFLICT BETWEEN THESE TERMS AND CONDITIONS AND A SEPARATE AGREEMENT, THE SEPARATE AGREEMENT SHALL PREVAIL. IN THE EVENT OF A CONFLICT BETWEEN THE TRANSACTION DOCUMENT AND THESE TERMS AND CONDITIONS, THESE TERMS AND CONDITIONS SHALL PREVAIL, AND ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS IN ANY FORM ASSOCIATED WITH THE TRANSACTION DOCUMENT OR OTHERWISE PROVIDED BY SUPPLIER, OTHER THAN THE "TRANSACTION SPECIFICS" (MEANING THE NUMERICAL AND OTHER IDENTIFYING INFORMATION NECESSARY FOR THE PURCHASE, INCLUDING WITHOUT LIMITATION PRICE, QUANTITY, SALES OFFERING NAMES AND/OR CODES, AND ADDRESSES FOR DELIVERY AND/OR INVOICES), ARE HEREBY DEEMED TO BE MATERIAL ALTERATIONS OF THESE TERMS AND CONDITIONS, ARE HEREBY REJECTED, AND ARE NULL AND VOID.
AS USED HEREIN, "PARTY" MEANS BUYER OR SUPPLIER INDIVIDUALLY, AND "PARTIES" MEANS BUYER AND SUPPLIER COLLECTIVELY.
SALES OFFERING PURCHASES.
Product and Product Support Purchasing. Buyer shall be entitled to purchase hereunder for resale to Customers: (a) hardware, software, and other items that are commercially available from Supplier ("Products"); (b) warranties, maintenance, and other services that are performed by Supplier under the terms of a separate contract exclusively between Customer and Supplier ("Product Support"); and (c) standard, non-customized, commercially available services associated with Products ("Services"). With respect to Product Support, Supplier acknowledges and agrees that Supplier is the contracting party and that Supplier is exclusively responsible for performing the Product Support, and Supplier hereby indemnifies and holds harmless Buyer from any third party claims for loss, costs, or damages arising from the Product Support.
Pricing. Supplier may change the price charged to Buyer for any Sales Offerings not yet ordered by Buyer, so long as Supplier gives Buyer at least thirty (30) days' prior written notice of such change and provides Buyer with the effective date of such change. If Supplier increases the price of any Sales Offering, such increased price shall only apply to Transaction Documents Executed after the effective date or such price increase.
Price Protection. If Supplier reduces the price of any Sales Offering, Supplier shall credit Buyer the difference between the invoice price and the reduced price for each unit of Sales Offerings held in Buyer's inventory and all Sales Offerings in transit from Supplier to Buyer or any Customer on the date the reduced price is first offered to the marketplace. With regard to any Sales Offerings returned as unsatisfactory by a Customer, Supplier shall credit Buyer the difference between the invoice price and the new price.
Delivery. Supplier shall meet all agreed delivery dates. For all hardware Products, shipments shall be FOB destination (freight prepaid and added). Supplier shall be responsible for all standard freight charges, and incorrect shipments shall be returned to Supplier at Supplier's expense. Except as otherwise agreed by the Parties, software Products shall be delivered electronically, and any end user license agreement shall be between Customer and Supplier directly, and Buyer shall have no responsibility related thereto.
Product Returns. Buyer or the applicable Customer shall have the right to return any Product(s) in each Product's original packaging to Supplier for either cash, full credit, or replacement at the sole option of the entity returning the Products, in the amount of each Product's Purchase price. Supplier shall be responsible for all freight charges and for risk of loss relating to returns under this section. Neither termination of the Agreement, nor discontinuation of Products shall affect Buyer's return rights.
Payment Terms. Payment terms for all Purchases shall be 2% 30, net 45 days from the later of the date that Buyer or Buyer's customer ("Customer") receives the applicable Sales Offering(s) and the date that Buyer receives the applicable invoice. Buyer will pay Supplier for Purchased Sales Offerings after deducting any amounts Supplier owes Buyer.
INDEMNIFICATION AND WARRANTIES.
Indemnification. Supplier agrees to defend, indemnify, and hold harmless Buyer, Buyer's affiliates, Customers, and end users from and against any and all claims, including without limitation liabilities, actions, judgments, costs, and expenses and reasonable attorneys' fees (each, a "Claim"), asserted by a third party arising out of or related to: (a) any breach or alleged breach of any of Supplier's representations and warranties hereunder; (b) Supplier's failure to comply with any applicable federal, state, local, or international laws or regulations; (c) injury, death, or damage resulting in any way from Product defect or malfunction; (d) misrepresentation by Supplier, its employees, agents, or representatives; (e) any alleged infringement or violation of any third party's copyright, trade secret, trademark, or patent, or other intellectual property right by any Sales Offering(s).
Warranties. Supplier warrants that the Products will be free from defects in design, materials, and workmanship for a minimum of one (1) year from the date of Purchase by Customer.
TERM AND TERMINATION.
Term. The "Term" (meaning the period of time during which, as applicable, the Transaction Document or this Agreement is in full force and effect) of each Transaction Document shall commence on the Agreement Effective Date. Both the Transaction Document and this Agreement shall expire upon the completion of the Parties' performance and payment obligations thereunder.
Termination of Purchase Order for Convenience. Buyer may cancel within three (3) "Business Days" (meaning Monday through Friday, excluding Holidays) after receipt by Supplier of any Purchase Order for Products. Any such cancellation shall not relieve Buyer of its obligations to pay for all Products shipped, Product Support initiated, and Services performed hereunder. Supplier may terminate any Executed Purchase Order for Products or Product Support that are not commercially available; Buyer's sole remedy, and Supplier's sole obligation with respect to any such terminated Purchase Order is to refund Buyer any amounts paid for such unavailable Products or Product Support.
Amendments. These Terms and Conditions may be amended only in a writing executed by authorized representatives of both Parties ("Amendment").
Assignment. Supplier may not assign the Transaction Document, these Terms and Conditions, or any of its rights or responsibilities without Buyer's prior written consent. Buyer may assign the right to receive payment or may resell for resale to any Buyer affiliate. Any attempted assignment other than as expressly authorized hereunder shall be void and of no force or effect. This Agreement shall inure to the benefit of and be binding upon the Parties hereto and their permitted successors, assigns, heirs, and legal representatives.
Compliance with Laws. Supplier, at its own expense, shall comply with all applicable, foreign, federal, state, county, and local laws, ordinances, rules, regulations and codes in the performance of its obligations hereunder (which are now or may become applicable to the transactions covered by this Agreement or arising out of the performance of such transactions), including, but not limited to, the procurement of any necessary permits and licenses and practicing the principles of equal employment and non-discrimination in all its business activities.
Compliance with Foreign Corrupt Practices Act. Supplier agrees that neither it nor its subcontractors, agents, or employees are engaged in or will engage in any conduct that constitutes bribery of foreign officials, including conduct in violation of the U.S. Foreign Corrupt Practices Act (or conduct that, if engaged in by Supplier, would place Supplier in violation of the U.S. Foreign Corrupt Practices Act) or any applicable foreign anti-bribery laws, in connection with any business conducted for the benefit of, connected to, or in the name of Supplier, including but not limited to the sale of Sales Offerings under this Agreement.
Entire Agreement. Unless the Parties have executed a Separate Agreement, in which case such Separate Agreement shall control, as set forth herein, and constitute the Parties' entire Agreement, these Terms and Conditions, the Transaction Document, and any amendments thereto together set forth the entire understanding of the Parties with respect to the subject matter hereof and thereof and supersede and replace in their entirety any and all other prior and contemporaneous agreements and understandings, whether oral, written or implied, if any, between the Parties with respect to the subject matter hereof.
Governing Law. The Transaction Document, these Terms and Conditions, and any disputes, litigation, arbitration, or enforcements directly or indirectly related thereto shall be construed and interpreted in accordance with, and the rights of the Parties shall be governed by, the substantive laws of the State of Washington, without giving effect to any conflict-of-laws rules. The United Nations Convention on Contracts for the International Sale of Goods will not apply to any Purchase hereunder.
Forum. The Parties hereby agree that any suit, legal claim, or other court action arising out of the Transaction Document or these Terms and Conditions shall be brought exclusively in either the Superior Court or Federal Court in Dade County, Miami, Florida, and both Parties consent and submit to the jurisdiction thereof and waive any rights to change venue.
Independent Contractors. Each Party is an independent contractor, not an employee or employer of the other Party, and not a joint venture or partner with the other Party.
Posted Descriptions. Any descriptions of Products, Product Support, or Services displayed or posted other than in a Transaction Document, including without limitation on this or any other website or mobile application, are excluded from and do not constitute a part of this Agreement or, except as expressly specified in the Transaction Document, the Transaction Document.
Preparation of Agreement. There will be no presumption against either Party on the ground that such Party was responsible for preparing all or any part of the Transaction Document or these Terms and Conditions.
Severability. If any provision of the Transaction Document or these Terms and Conditions or the application thereof is found to be invalid, illegal, or unenforceable, such finding shall not have any effect on any other provision of the Transaction Document or these Terms and Conditions, it being the intent and agreement of the Parties hereto that in the event of such finding, the Transaction Document or these Terms and Conditions shall be deemed amended either by modification of such provision to the extent necessary to render such provision valid, legal, and enforceable, while preserving its intent, or, if such modification is not possible, by substitution of such provision with another provision that is valid, legal, and enforceable and that achieves the same objective.
Survival. In the event of the expiration or termination of the Transaction Document or these Terms and Conditions, those provisions whose nature, meaning or intent indicate an expectation of survival shall survive.
Third Party Beneficiaries. These Terms and Conditions and the Transaction Document are not intended to benefit any party except the Parties.
Waiver of Remedies. No delay or failure by either Party to exercise or enforce any right hereunder shall be considered a waiver of such right or of any other right under the Transaction Document or these Terms and Conditions. No claim may be asserted by either Party against the other Party with respect to any event, act, omission or otherwise that occurred more than one (1) year prior to the assertion of such claim.