Netrix, LLC (Seller) agrees to supply, and Purchaser agrees to purchase, computer related products (“goods”) and services subject to the following terms and conditions:
1. SHIPMENT AND DELIVERY: Delivery of goods will be made FOB origin and Purchaser is responsible for insuring goods during transport. Seller will comply with all reasonable written shipping and handling instructions received prior to shipment. Seller may require COD payment.
Purchaser shall examine all goods promptly upon receipt thereof. No later than five days (5) days after receipt, Purchaser shall notify Seller of all claimed shortages or defective goods, and shall specify with particularity all grounds for rejection. Failure to give such notice shall be deemed and acceptance of the goods as of the date of shipment.
2. CREDIT AND PAYMENT TERMS: Purchaser shall furnish Seller all reasonably requested financial information for the purpose of establishing or continuing Purchaser’s credit limit, it being understood that Seller shall have the right to decline credit to Purchaser and to require that the goods and services shall be paid for prior to shipment or performance, as applicable. Seller shall have the right in its sole discretion and without notice to change or revoke Purchaser’s credit limit on the basis of changes in Seller’s credit policies or Purchaser’s financial condition and/or payment record.
Payment terms for goods and services shall be as stated on Seller’s invoice. A service charge of the lesser of one and one-half percent (1 1/2%) per month or the maximum amount allowed by law may be charged on all past due balances. Credit card (MasterCard and VISA) are only accepted at the time of order. Payment for all other orders must be made in accordance with the terms in effect at the time the order was placed.
In the event Purchaser fails to make timely payment of any amount invoiced hereunder, Seller shall have the immediate right, in addition to any and all other rights and remedies available to Seller at law or in equity, to revoke any credit extended, to delay or cancel future deliveries and services and/or to reduce or cancel any discounts extended to Purchaser. Purchaser shall reimburse Seller for all costs of collection, including reasonable attorneys’ fees. Any obligations of Seller under this Agreement to deliver goods or services 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.
3. TAXES: Purchaser shall bear and pay applicable federal, state, municipal and other government taxes and duties, and shipping charges. Unless otherwise specified, list prices or price quotations do not include such expenses, and they will appear, if applicable, as additional items on the invoice. Exemption certificates, valid in the place of delivery, must be presented to Seller prior to shipment.
4. NONDEFECTIVE RETURN SHIPMENTS: Returns are not accepted on all goods. Goods that have been opened or used cannot be returned. Goods missing original packaging cannot be returned. Memory products and opened software cannot be returned. All items returned must be complete, unopened, unused, and in resalable condition. At Seller’s sole discretion, select opened items may be returned with a minimum of a 20% restocking fee plus return freight to our distributor. All service charges including but not limited to configuration charges, delivery charges, and freight will not be credited and must be paid. Seller requires preauthorization for the return of all products. In all events, Purchaser shall bear the risk of loss or damage during transit. Products not preauthorized for return shall be refused or returned to Purchaser at Purchaser’s expense.
5. DEFECTIVE RETURNS: Purchaser shall promptly (within 30 days) advise Seller of any defect in goods delivered and, without deduction or offset, upon obtaining proper authorization of Seller, ship defective goods to such location as directed by Seller. Seller may bear the expense of shipping the defective goods to its warehouse and the expense of shipping the repaired or replaced goods to Purchaser, unless such goods were not defective, in which case Purchaser shall bear all reasonable expenses incurred in inspecting, testing, and returning the goods. In all events, Purchaser shall bear the risk of loss of damage during transit. Seller reserves the right to require Purchaser to return defective goods directly to the goods’ manufacturer for replacement according to the manufacturer’s defective goods return policy. Seller shall not be obligated to repair or replace goods rendered defective, in whole or in part, by causes external to the goods, such as, but not limited to, catastrophe, power failure or transients, over voltage on interface, environmental extremes, improper use, maintenance and application of the goods, or use of unauthorized parts.
6. ORDER CANCELLATION POLICY: Purchaser may be responsible for cancellation charges if an order is canceled prior to shipment or delivery to Purchaser. Charges including, but not limited to return freight to Seller’s distributors and configuration charges will be billed to Purchaser upon order cancellation if Seller has performed the service or the products or goods have already been shipped from Seller’s distributors.
7. WARRANTIES: Goods are covered only by the original manufacturer’s warranty, if any, and Seller shall pass through any available manufacturer warranties to Purchaser. All services, including “break-fix” services, are provided “as is.” Purchaser acknowledges that break-fix services are provided in emergency situations only at Purchaser’s request, and Purchaser agrees that any conflicting terms in other any agreement between Purchaser and Seller shall not apply to “break-fix” services. SELLER HEREBY DISCLAIMS ALL WARRANTIES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL SELLER BE LIABLE FOR DAMAGES OF ANY KIND ALLEGED TO HAVE RESULTED FROM ANY BREACH OF WARRANTY.
8. LIMITATION OF LIABILITY: SELLER SHALL NOT BE LIABLE TO PURCHASER OR ANY OTHER PARTY FOR ANY LOSS, DAMAGE, CLAIM OR INJURY WHICH RESULTS FROM THE USE OR APPLICATION BY PURCHASER OR ANY OTHER PARTY OF GOODS AND/OR SERVICES PROVIDED HEREUNDER, UNLESS THE LOSS, DAMAGE, CLAIM OR INJURY RESULTS DIRECTLY FROM THE GROSSLY NEGLIGENT, INTENTIONALLY TORTIOUS OR FRAUDULENT ACTS OR OMISSIONS OF SELLER. IN NO EVENT SHALL SELLER BE LIABLE TO PURCHASER OR ANY OTHER PARTY FOR LOSS, DAMAGE, CLAIM OR INJURY OF ANY KIND OR NATURE ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND CONDITIONS, OR ANY OTHER AGREEMENT WHICH APPLIES TO THE GOODS AND SERVICES, OR ANY PERFORMANCE OR NONPERFORMANCE UNDER THESE TERMS AND CONDITIONS BY SELLER, ITS EMPLOYEES, AGENTS OR SUBCONTRACTORS, IN EXCESS OF THE NET PURCHASE PRICE OF GOODS AND/OR SERVICES PAID FOR BY PURCHASER CAUSING THE LOSS, DAMAGE, CLAIM OR INJURY. IN NO EVENT SHALL SELLER 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 SELLER’S BREACH OF, OR FAILURE TO PERFORM IN ACCORDANCE WITH, ANY OF THESE TERMS AND CONDITIONS OR ANY OTHER TERMS COVERING THE GOODS AND/OR SERVICES EVEN IF NOTIFICATION HAS BEEN GIVEN AS TO THE POSSIBILITY OF SUCH DAMAGES. PURCHASER HEREBY EXPRESSLY WAIVES ANY AND ALL CLAIMS FOR SUCH DAMAGES.
10. SEVERABILITY: A judicial determination that any provision hereunder is invalid in whole or in part shall not affect the enforceability of all other provisions.
11. GOVERNING LAW AND VENUE: This instrument is subject to, and shall be construed and governed by, the laws of the State of Illinois. Proper venue for any litigation arising out of this instrument shall be Cook County, Illinois.
12. NOTICES: Any notices which any party may be required, or may desire, to give hereunder shall be deemed to have been given if delivered by confirmed and prepaid overnight courier addressed:
In the case of the Seller:
2801 Lakeside Drive – 1st Floor
Bannockburn, IL 60015
Attn: Tony Donato and General Counsel with a copy to Notice@netrixllc.com.
In the case of the Purchaser: to the most recent address the Seller has on file for the Purchaser. Purchaser agrees to notify Seller of any and all address changes as soon as they occur.
13. PARAGRAPH HEADINGS DESCRIPTIVE ONLY: Seller and Purchaser acknowledge that this instrument consists of multiple paragraphs each of which is preceded by a heading. The parties understand that the characterizations of such paragraphs are for general descriptive purposes only and are not definitive in nature.
14. ENTIRE AGREEMENT: Each of the parties hereto specifically acknowledge by the execution hereof that this document embodies the whole agreement of the parties for the purchase of goods and services on this order, and that no other communication or agreement between the parties shall apply. The parties agree that there are no promises, terms, conditions, or obligations other than those contained herein, and that this agreement shall supersede all previous communications, representations, or agreements either verbal or written, between the parties hereto for the goods and services in the attached order.
The parties specifically acknowledge and agree that neither this agreement nor any provisions hereof may be amended waived, discharged or terminated orally, but only by an instrument duly acknowledged and executed in writing by the party against whom enforcement of the change is sought.