Standard Terms and Conditions of Sale For Goods and Third-Party Services

Acceptance of a Quotation, a verbal order to proceed with a purchase in response to a Quotation, and/or submission of a formal Purchase Order constitutes a contract between VENDOR (“VENDOR”) and the CUSTOMER (as named in “To”, “Bill To” or “Sold To” on the Quotation, Statement of Work or Purchase Order; hereafter “CUSTOMER”) and is subject to the following Terms and Conditions of Sale for Goods and Third-Party Services (these “Terms and Condition of Sale” and sometimes this “Agreement”).

1. Entire Agreement – Except as otherwise expressly permitted herein, these Terms and Conditions of Sale and any attachments hereto constitute the entire understanding between VENDOR and CUSTOMER relating to CUSTOMER’s purchase of the products listed in the Quotation and/or Services (as defined below). CUSTOMER’s order shall be deemed to incorporate the terms and conditions of the Master Services Agreement without reference in the order to the Master Services Agreement. In no event shall preprinted terms and conditions on a of CUSTOMER document (e.g., purchase orders, confirmations, acceptances or other document) modify or add to the terms of an order or the Master Services Agreement. CUSTOMER’s order is subject to VENDOR’ acceptance requirements. VENDOR may accept an order by providing CUSTOMER a written confirmation of acceptance, sent by mail, facsimile or other electronic means; by shipping the Product; or by beginning performance of any Service.

These Terms and Conditions of Sale shall apply to all sales of tangible goods, software products or licenses, and any tangible goods provided or license granted therewith (“Goods” or “Products”); and the sale of third-party services and service contracts (“Services”). Statement of Work by VENDOR and/or its agents or subcontractors shall be governed by the separate VENDOR’ Master Services Agreement and the applicable Scope of Work thereunder.

2. Price
a) Unless otherwise stated in writing by VENDOR, all prices quoted expire thirty (30) days after the date of the quotation. All quoted prices accepted by CUSTOMER within thirty (30) days after the date of the quotation are binding on VENDOR only if delivery is scheduled to commence within three (3) months of the date on which the order is placed, and if any delay in delivery beyond that date is solely the fault of VENDOR and/or the Manufacturer. VENDOR may, at its discretion, honor quoted prices beyond the stated deadlines without obligation to do likewise in any future instance.

b) Unless otherwise stated in writing by VENDOR, all prices quoted are exclusive of transportation, insurance, and state and local use, sales, property (ad valorem), and similar taxes. All applicable taxes shall be assumed and paid by CUSTOMER, and shall be included in the invoice unless an alternate method of payment is agreed upon in advance.

c) The prices offered to a given CUSTOMER reflect the consideration of credit terms, service levels, and other criteria which vary among CUSTOMERs. For this reason, the prices reflected in the attached Quotation are extended solely to the named CUSTOMER. VENDOR is in no way obligated to provide similar pricing to other CUSTOMERs. The offer(s) extended herein shall be deemed confidential information between VENDOR and the CUSTOMER, except as otherwise required by law.

3. Payment Terms – Unless otherwise stated in writing by VENDOR, CUSTOMER shall pay, without offset or deduction, all invoices issued under the Master Services Agreement, including without limitation any invoices from VENDOR for shipping and other charges pursuant to paragraphs 2.b and 6.a, prior to the shipment of goods, or within 20 days of the receipt of the invoice if credit terms are extended in advance. VENDOR reserves the right to change or rescind the payment terms for subsequent purchases when, in the opinion of VENDOR, the financial condition or previous payment record of CUSTOMER so warrants. If VENDOR extends credit terms to the CUSTOMER, the CUSTOMER hereby grants VENDOR a security interest, for the purpose of securing CUSTOMER’s obligations to VENDOR, in the product or products purchased on such credit terms. CUSTOMER shall execute and deliver to VENDOR an Application for Credit, Form UCC-1, Financing Statement, and/or any other documents necessary or appropriate to perfect, or to maintain the perfection of, the security interest granted herein. Should the CUSTOMER become delinquent in the payment of any sum due hereunder, VENDOR shall not be obligated to continue performance.

4. Remittance of Payment – Unless otherwise specified on an Invoice or Statement presented to CUSTOMER, payment shall be remitted to:

VENDOR
2028 E. Ben White Blvd
Suite 240-2048
Austin, TX 78741

5. Force Majeure – The estimated delivery date will be provided to CUSTOMER within 5 business days from the date VENDOR accepts CUSTOMER’s order. Should there be a delay in delivery beyond the then currently scheduled delivery date, CUSTOMER may terminate an order by providing written notice to VENDOR, which references this Section 5; provided however, (i) the Product has not shipped, (ii) the Product is not custom or Non-cancelable Non-returnable (NCNR), which in such events shall be identified as “NCNR” in VENDOR System’s quotation, (iii) VENDOR has the right to terminate its contract with its supplier, and (iv) CUSTOMER agrees to pay VENDOR charges VENDOR incurs as a result of termination of its order with its supplier, which may include without limitation, shipping charges to obtain and return the Product, integration and de-integration charges, and cancellation charges, such as restocking fees. In all other events, CUSTOMER requires VENDOR prior written consent to cancel an order and such cancellations shall be subject to Section 7 below. In no event shall VENDOR be liable for its failure to fulfill its obligations under the Master Services Agreement, including not meeting any estimated or agreed-upon delivery and/or or shipment dates due to unforeseen circumstances or to causes beyond its reasonable control, including without limitation, failure of the Manufacturer to manufacture or provide sufficient quantities to meet market demand, discontinuance of manufacture, recall due to defect, or obsolescence of a product, acts of God, acts or omissions of the other party, Government priorities, man-made or natural disasters, strikes, war, or acts of terrorism. The time for performance of any such obligation shall be extended for the time period lost by reason of the delay. In the event a product cannot be provided as quoted due to Product availability limitations, VENDOR’ obligation to provide product by the delivery is delayed due to Product availably limitations, the parties may agree in writing to substitution of the Product for a product of equal or greater value and similar in functionality to the originally stated Product, if such substitute product is available and if the CUSTOMER consents to the substitution.

6. Shipment
a) F.O.B. Origin. All prices are F.O.B. Point of Shipment unless otherwise agreed to by the parties in writing. CUSTOMER shall pay all shipping charges, including without limitation rigging, drayage, transportation, and reasonable and commensurate insurance charges.

b) Method of Shipment – VENDOR will make a reasonable effort to ship in accordance with CUSTOMER’s reasonable shipping instructions. In the absence of specific instructions or if CUSTOMER’s instructions are unreasonable, VENDOR reserves the right to ship by methods deemed by VENDOR to be reasonable and appropriate.

c) Title and Risk of Loss – Title to the products and risk of loss and damage shall pass to the CUSTOMER upon delivery to a common carrier, the carrier acting as CUSTOMER’s agent, or if there is no common carrier, upon delivery to CUSTOMER, notwithstanding the security interest perfected in Section 3 above.

7. Changes and Cancellations – Except for cancellations occurring due to a delay in delivery under Section 5 above, If VENDOR consents to CUSTOMER’s request for order cancellation or request for changes to an order, for products at any time after receipt of the order by VENDOR, such cancellation and/or changes shall be subject to the following terms:

a) CUSTOMER shall pay to VENDOR any additional costs actually incurred by VENDOR as a result of the change or cancellation, including, but not limited to, distributors’ or manufacturers’ restocking fees.

b) In the event of cancellation, CUSTOMER shall have no rights in the canceled products.

c) A change order or cancellation must be in writing, and its date of receipt will determine whether any charges will apply.

d) Any products returned after initial shipment are subject to the conditions of return imposed by manufacturers and/or distributors, if the provision of the product in error was not a direct result of an error on the part of VENDOR’ personnel.

e) No product will be accepted for return unless prior arrangements are made with VENDOR for the return and processing of said product.

8. Installation of Products – If installation of products by VENDOR is included in the quotation, VENDOR shall install such products and will demonstrate that such products work as described in the Scope of Work provided with the quotation, and according to the terms of VENDOR’ standard Master Services Agreement.

9. Software – CUSTOMER may not use any software products (including, without limitation, any associated documentation) listed in the quotation unless and until CUSTOMER has executed the applicable license agreement(s), which license agreement shall govern CUSTOMER’s use of such software products. With respect to any software products listed in the Quotation, the word “purchase” or similar words or derivative words shall be construed to mean “license,” and “CUSTOMER” or any similar words or derivative words mean “Licensee,” in accordance with the terms of the software publisher’s Master Services Agreement. In addition, title to the software products shall remain with the licenser, notwithstanding any term to the contrary contained herein.

10. Warranties and Maintenance
a) The products are provided to the CUSTOMER without warranty by VENDOR of any kind, either express or implied, including without limitation any implied warranty of merchantability or fitness for a particular purpose, or any warranty that the functions of the product will meet the CUSTOMER’s requirement(s).

b) Paragraph 10.a does not affect any warranties or maintenance service agreements made available by manufacturers of products, acquisition or purchase of which VENDOR encourages, and will exercise due diligence in assisting the CUSTOMER in obtaining.

c) VENDOR represents and warrants that: (i) it has the right to enter into the Master Services Agreement, and (ii) it will carry out its obligations under the Master Services Agreement in compliance with all laws, regulations, or ordinances to which it is or becomes subject.

11. Limitation of Liability – Except for breaches of the confidentiality provisions of the Master Services Agreement, for which there shall be no limitation, In no event shall VENDOR be liable to CUSTOMER or any other party for any claim, loss, cost, damage, or expense, including without limitation lost profits or any other direct, indirect, special, incidental, or consequential damages, whether based on contract, tort, or any other theory of law or equity, unless such loss occurs as a result of gross negligence on the part of VENDOR.

12. Insolvency – In the event of any proceedings, whether voluntary or involuntary, in bankruptcy or insolvency by or against CUSTOMER, or in the event of the appointment, with or without CUSTOMER’s consent, of an assignee for the benefit of creditors or of a receiver, VENDOR may elect to cancel any unfilled part of CUSTOMER’s order.

13. Miscellaneous

a) Provision of Notice – Any notices required to be given hereunder shall be given in writing at the address of each party listed in the quotation, or to such other address as either party may designate by written notice to the other.

b) Assignment – CUSTOMER shall not assign the Master Services Agreement or transfer any of the rights, duties, or obligations herein without the prior written consent of VENDOR. VENDOR may assign without notice all or part of the payments together with all the rights of an unpaid VENDOR but without the assignee’s assumption of VENDOR obligations under such order. In the event an assignment of all or part of the payments under any order, VENDOR remains the VENDOR to CUSTOMER.

c) Non-enforcement – Failure by either party to exercise any of its rights hereunder shall not constitute or be deemed a waiver or forfeiture of such rights.

d) No rules or regulations required to be included herein by any governmental agency or authority shall be binding on either party unless specifically agreed to in writing.

14. Substitutions – VENDOR shall have the right to make substitutions and modifications in the specifications of products, provided that overall product performance is not materially and adversely affected in form, fit, and function, unless this right is specifically excluded by the customer on the Purchase Order.

15. Covenant Not to Recruit Personnel
a) The parties recognize that the employees of both parties (including employees and independent contractors) are highly-trained individuals whose talents are important and valuable assets of their respective employers. The loss of such personnel would cause serious damage to each party, including, without limitation, costs of hiring and training replacement personnel.

b) The CUSTOMER agrees that, during the term of the Master Services Agreement and for a period of twelve (12) months thereafter, the CUSTOMER shall not, either directly or indirectly, (through any affiliate, related party, or otherwise), hire, retain, or employ, or contact or solicit for employment or the provision of services, any employee (or independent contractor) of the other party, or any person who during the term of the Master Services Agreement or such twelve (12) month period is or was an employee (or independent contractor) of the other party.

c) While the losses to a party from a breach by the other party of the provisions of Section b) would be substantial, proving such damages would be costly, impractical and extremely difficult. Accordingly, the parties have agreed that, if during the term of the Master Services Agreement or the six (6) month period thereafter either party, either directly or indirectly (through any affiliate, related party or otherwise) breaches the provisions of Section b), then the breaching party will pay to damaged party a replacement and retraining fee in an amount equal to 50 percent (50%) of the total annualized compensation paid to or to be paid to such employee (or independent contractor). The parties agree that the replacement and retraining fee set forth above is a reasonable sum considering all of the circumstances existing on the date of the Master Services Agreement. Except for injunctive relief to enforce provisions of Section b) and c), the recovery of the replacement and retraining fee shall be the sole entitlement of either party under this Section 15.

d) The provisions of this Section 15 shall survive the termination of the Master Services Agreement.

16. Jurisdiction – the Master Services Agreement between VENDOR and CUSTOMER shall be governed by the laws of the State of Texas.

17. Rules of Export – CUSTOMER understands that VENDOR may be subject to regulation by agencies of the U.S. Government, including the U.S. Department of Commerce, which prohibit export or diversion of certain products to certain countries. CUSTOMER agrees that it shall not knowingly assist or participate in any such export or diversion or other violation of applicable U.S. laws and regulations. CUSTOMER warrants that it will not sell products in countries or to users not approved to receive classified technical equipment under applicable U.S. laws and regulations and that it will abide by such laws and regulations. CUSTOMER shall hold harmless and indemnify VENDOR for any damages resulting to VENDOR from a breach of CUSTOMER’s obligations under this paragraph. CUSTOMER shall, where possible, include in all purchase orders the name and location of the end user customer. In the event CUSTOMER purchases products for its own inventory, CUSTOMER shall identify to VENDOR the name and location of the end user customer when such products are sold from inventory. If VENDOR is not notified otherwise, it shall be assumed for the purposes of this paragraph that the person(s) or agency(ies) specified in the “Ship To” field of the Purchase Order represent the end customer of the product(s).

18. Inclusion by Reference – As used herein, the word “quotation” refers to the Quotation on the reverse side of these Terms and Conditions of Sale or to which these Terms and Conditions are attached or are incorporated by reference. As used herein, the words “product” or “products” refer to the item or items listed in the “Description” portion of the quotation.

19. Severability – In the event any of the foregoing provisions is determined to be invalid or unenforceable in whole or in part, the remaining provisions and any partially enforceable provision shall, nevertheless, be binding and enforceable.

IN WITNESS WHEREOF, the parties hereto have caused the Master Services Agreement to be signed by their respective duly authorized representatives.

Revised 01/01/2017