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 Sysorex USA (“Sysorex USA”) and the Buyer (as named in “To”, “Bill To” or “Sold To” on the Quotation or Purchase Order; hereafter “Client” or “Buyer”) 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 Sysorex USA and Buyer relating to Buyer’s purchase of the products listed in the Quotation and/or Services (as defined below). Buyer’s order shall be deemed to incorporate the terms and conditions of this Agreement without reference in the order to this Agreement. In no event shall preprinted terms and conditions on a of Buyer document (e.g., purchase orders, confirmations, acceptances or other document) modify or add to the terms of an order or this Agreement. Buyer’s order is subject to Sysorex USA’ acceptance requirements. Sysorex USA may accept an order by providing Buyer 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”). Provision of Services by Sysorex USA and/or its agents or subcontractors shall be governed by the separate Sysorex USA’ Consulting Services Agreement and the applicable Scope of Work thereunder.
a) Unless otherwise stated in writing by Sysorex USA, all prices quoted expire thirty (30) days after the date of the quotation. All quoted prices accepted by Buyer within thirty (30) days after the date of the quotation are binding on Sysorex USA 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 Sysorex USA and/or the Manufacturer. Sysorex USA 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 Sysorex USA, 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 Buyer, 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 Buyer reflect the consideration of credit terms, service levels, and other criteria which vary among Buyers. For this reason, the prices reflected in the attached Quotation are extended solely to the named Buyer. Sysorex USA is in no way obligated to provide similar pricing to other Buyers. The offer(s) extended herein shall be deemed confidential information between Sysorex USA and the Buyer, except as otherwise required by law.
3. Payment Terms – Unless otherwise stated in writing by Sysorex USA, Buyer shall pay, without offset or deduction, all invoices issued under this Agreement, including without limitation any invoices from Sysorex USA 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. Sysorex USA reserves the right to change or rescind the payment terms for subsequent purchases when, in the opinion of Sysorex USA, the financial condition or previous payment record of Buyer so warrants. If Sysorex USA extends credit terms to the Buyer, the Buyer hereby grants Sysorex USA a security interest, for the purpose of securing Buyer’s obligations to Sysorex USA, in the product or products purchased on such credit terms. Buyer shall execute and deliver to Sysorex USA 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 Buyer become delinquent in the payment of any sum due hereunder, Sysorex USA shall not be obligated to continue performance.
4. Remittance of Payment – Unless otherwise specified on an Invoice or Statement presented to Buyer, payment shall be remitted to:
PO Box 740109
Los Angeles, CA 90074-0109
5. Force Majeure – The estimated delivery date will be provided to Buyer within 5 business days from the date Sysorex USA accepts Buyer’s order. Should there be a delay in delivery beyond the then currently scheduled delivery date, Buyer may terminate an order by providing written notice to Sysorex USA, 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 Sysorex System’s quotation, (iii) Sysorex USA has the right to terminate its contract with its supplier, and (iv) Buyer agrees to pay Sysorex USA charges Sysorex USA 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, Buyer requires Sysorex USA prior written consent to cancel an order and such cancellations shall be subject to Section 7 below. In no event shall Sysorex USA be liable for its failure to fulfill its obligations under this 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, Sysorex USA’ 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 Buyer consents to the substitution.
a) F.O.B. Origin. All prices are F.O.B. Point of Shipment unless otherwise agreed to by the parties in writing. Buyer shall pay all shipping charges, including without limitation rigging, drayage, transportation, and reasonable and commensurate insurance charges.
b) Method of Shipment – Sysorex USA will make a reasonable effort to ship in accordance with Buyer’s reasonable shipping instructions. In the absence of specific instructions or if Buyer’s instructions are unreasonable, Sysorex USA reserves the right to ship by methods deemed by Sysorex USA 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 Buyer upon delivery to a common carrier, the carrier acting as Buyer’s agent, or if there is no common carrier, upon delivery to Buyer, 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 Sysorex USA consents to Buyer’s request for order cancellation or request for changes to an order, for products at any time after receipt of the order by Sysorex USA, such cancellation and/or changes shall be subject to the following terms:
a) Buyer shall pay to Sysorex USA any additional costs actually incurred by Sysorex USA as a result of the change or cancellation, including, but not limited to, distributors’ or manufacturers’ restocking fees.
b) In the event of cancellation, Buyer 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 Sysorex USA’ personnel.
e) No product will be accepted for return unless prior arrangements are made with Sysorex USA for the return and processing of said product.
8. Installation of Products – If installation of products by Sysorex USA is included in the quotation, Sysorex USA 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 Sysorex USA’ standard Consulting Services Agreement.
9. Software – Buyer may not use any software products (including, without limitation, any associated documentation) listed in the quotation unless and until Buyer has executed the applicable license agreement(s), which license agreement shall govern Buyer’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 “Buyer” or any similar words or derivative words mean “Licensee,” in accordance with the terms of the software publisher’s License 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 buyer without warranty by Sysorex USA 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 buyer’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 Sysorex USA encourages, and will exercise due diligence in assisting the buyer in obtaining.
c) Sysorex USA represents and warrants that: (i) it has the right to enter into this Agreement, and (ii) it will carry out its obligations under this 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 Consulting Services Agreement, for which there shall be no limitation, In no event shall Sysorex USA be liable to Buyer 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 Sysorex USA.
12. Insolvency – In the event of any proceedings, whether voluntary or involuntary, in bankruptcy or insolvency by or against Buyer, or in the event of the appointment, with or without Buyer’s consent, of an assignee for the benefit of creditors or of a receiver, Sysorex USA may elect to cancel any unfilled part of Buyer’s order.
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 – Buyer shall not assign this Agreement or transfer any of the rights, duties, or obligations herein without the prior written consent of Sysorex USA. Seller may assign without notice all or part of the payments together with all the rights of an unpaid seller but without the assignee’s assumption of Sysorex USA obligations under such order. In the event an assignment of all or part of the payments under any order, Sysorex USA remains the seller to Buyer.
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 – Sysorex USA 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 parties agree that, during the term of this Agreement and for a period of six (6) months thereafter, neither party shall, 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 this Agreement or such six (6) 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 this 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 this 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 this Agreement.
16. Jurisdiction – This Agreement between Sysorex USA and Buyer shall be governed by the laws of the State of California.
17. Rules of Export – Buyer understands that Sysorex USA 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. Buyer 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. Buyer 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. Buyer shall hold harmless and indemnify Sysorex USA for any damages resulting to Sysorex USA from a breach of Buyer’s obligations under this paragraph. Buyer shall, where possible, include in all purchase orders the name and location of the end user customer. In the event Buyer purchases products for its own inventory, Buyer shall identify to Sysorex USA the name and location of the end user customer when such products are sold from inventory. If Sysorex USA 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 this Agreement to be signed by their respective duly authorized representatives.
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