Buyer expressly agrees that these terms and conditions govern its purchase of any Products from Netsky Store, ("Netsky."), and the provision of any and all other materials, goods and services from and by Netsky, and any of its divisions, subsidiaries and affiliates as well as by third party vendors and/or service providers of Netsky. Buyer further agrees that these terms and conditions, whether printed on a purchase order or otherwise, supersede and take precedence over Buyer's supplemental or conflicting terms and conditions to which notice of objection is hereby given. Any conflicting statements or terms on Buyer's purchase orders, invoices, confirmations or other Buyer-generated documents are negated by this Agreement. Netsky performance of any obligation to Buyer is expressly made conditional on Buyer's acceptance and agreement to Netsky terms and conditions of sale herein, unless otherwise agreed to in writing by Netsky. In the absence of such agreement, Netsky commencement of performance and/or delivery of Product shall be for Buyer's convenience only, and shall not be deemed or construed to be acceptance of Buyer's terms and conditions or any of them. Buyer's acceptance of any Product or Products shall be deemed acceptance of the terms and conditions stated herein. Acceptance by Buyer is limited to and conditioned upon Buyer's assent to these terms and conditions. Neither Netsky commencement of performance or delivery shall be deemed or constituted as acceptance of Buyer's supplemental or conflicting terms and conditions. Buyer's acceptance of the Products and/or Services from netsky shall be deemed to constitute acceptance of the terms and conditions contained herein. THESE TERMS AND CONDITIONS MAY ONLY BE WAIVED OR MODIFIED IN A WRITTEN AGREEMENT SIGNED BY A DULY AUTHORIZED OFFICER OF NETSKY.
Quotations and Pricing
Unless otherwise indicated, all price quotes are based on a cash discount offered to all buyers for payment by cash or check as permitted by law. The prices for Products are set forth in Netsky quotation which may be increased, decreased or otherwise changed at any time upon prior notice to BUYER. Prices quoted are exclusive of and will be increased by all applicable federal, state, municipal or other government excise, sales, use, occupational or like tax, tariffs, customs, duties and import fees, applicable at the time of sales or thereafter enacted, all of which Buyer shall be responsible for paying. Netsky has the legal obligation to collect tax or taxes added by Netsky to the sales price, which will be paid by BUYER, unless BUYER delivers to Netsky with the purchase order a proper tax exception certificate applicable to Netsky and the applicable taxing authority. Netsky, at its discretion, reserves the right to accept or reject any such claims. Unless otherwise noted in the quotation, published or quoted prices are net F.O.B. Netsky facilities located in Ponce, Puerto Rico.
Buyer's Financial Condition
This Agreement and all shipments made hereunder shall at all times be subject to the approval by Netsky of Buyer's financial condition. If the financial condition of BUYER at any time becomes unsatisfactory to Netsky, in Netsky sole discretion, or if BUYER fails to make any payment when due, in addition to any other rights Netsky may have, Netsky may defer or decline to make any shipment or shipments hereunder or may condition any such shipment upon receipt of satisfactory security or cash payments in advance.
Except as otherwise specified, all payments are due and payable in U.S. dollars within approved term by Netsky Credit Department. Netsky reserves the right to require alternative payment terms, including, without limitation, a letter of credit or payment in advance. Payments not made by the due date may incur, at the sole discretion of Netsky, a late payment service charge of the lesser of one and one-half percent (1-1/2%) per month or the maximum rate permitted by law, computed from the date payment was due. All payments, including deposits, shall be non-refundable.
Netsky warrants to the BUYER that supplied standard Products sold will meet or exceed advertised specifications as published at the time of order acceptance, and be free from defects in Product and workmanship for the specified Product warranty period from date of original shipment. Netsky will repair or replace any defective Product with the exception of any items identified as "not refundable" or "non-refundable" on the product detail page. The BUYER must contact the manufacturer for repair or replacement for products identified as "not refundable" or "non-refundable" on the product detail page. The warranty period of the repaired or replaced Product shall be for the remainder of the original Products warranty or thirty (30) days, whichever is greater. The warranty does not cover any Products which have been opened, misused, modified (without the prior written consent of Netsky), have been subjected to unusual stress, have been improperly maintained or on which any original serial numbers or other identification marks have been removed or destroyed, all of which are subject to the determination of Netsky in its discretion. In any event, Netsky liability shall be limited to the replacement value of any damaged or defective part.
A Return Product Authorization (RMA) number must be obtained from Netsky Customer Service Department prior to the return of any Product for warranty repair. The following information is required to obtain a RMA number: Netsky Item Number, serial number, Qty, Invoice Date, Invoice Number, Problem Description, shipping information, shipping instruction, including carrier information. The Buyer will be solely responsible for loss or misplacement of Product returned without an RMA number. Insufficient packaging may result in loss of warranty. All warranty will be void if inspection finds that the Product has been abused, misused, or altered without authorization. Product received more than 15 days after the RMA was assigned are subject to refusal at the discretion of the RMA Department.
Return Product Authorization (RMA)
A Return Product Authorization (RMA) number must be obtained from Netsky Customer Service Dept. prior to the return of any Product. RMA is acceptable within 30 days from the invoice date. The following information is required to obtain a RMA number: Netsky Item Number, serial number, Oty, Invoice Date, Invoice Number, Problem Description. The Buyer will be solely responsible for loss or misplacement of Product returned without a RMA number. Product received more than 15 days after the RMA number is assigned is subject to refusal at the discretion of the RMA Department.
Neither this Agreement nor any release hereunder is subject to cancelation by BUYER except upon (a) written request of BUYER and (b) written approval of Netsky. Because Netsky expenses related to canceling firm orders are dependent upon (i) Netsky inventory carrying costs, (ii) the likelihood of Netsky quickly selling the subject Products to other Buyers, (iii) Netsky other related out-of-pocket costs, and (iv) administrative costs, Netsky may charge BUYER a cancelation fee.
Cancelation of Standard Product
If Netsky determines the Product being cancelled to be Standard Product, Netsky may charge a cancelation charge according to the (a) quantity being cancelled, (b) time frame between Buyer's request to Netsky to cancel and the order's scheduled ship date, and (c) dollar amount of order being cancelled. The calculation of the exact cancellation charge will be at Netsky discretion. Any orders that constitute twenty-five percent (25%) of the previous six (6) month usage of a particular Product and Option will be deemed "custom" and will follow the cancellation condition of Custom Product, set forth below.
Cancelation of Custom Product
If Netsky determines the Product being cancelled to be Custom Product, as defined above, or if any Product developed by Netsky under special contract or requiring conformal coating, extended temperature components, or any type of customization as requested by the BUYER, Netsky may deny Buyer's cancellation request. If Netsky permits the cancellation of Custom Product, BUYER agrees to pay Netsky for all of Netsky out-of-pocket costs associated with the cancellation of the order including, but not limited to: (i) raw Products, (ii) work in process, (iii) inventory carrying costs, (iv) scrapping and disposal fees, and (v) a reasonable and equitable profit for Netsky, which shall not be less than twenty percent (20%) of such costs. In no case will the cancellation charge be less than Netsky actual costs (including overhead and other indirect costs). The amount of cancellation charge to be charged to BUYER shall be determined at the sole discretion of Netsky and may equal 100% of the amount of the order at the time of Netsky receipt of Buyer's request for cancellation. BUYER is entitled to receive a written notice from Netsky setting forth how the cancellation charge was calculated. Upon payment of the cancellation charge, BUYER shall be entitled to receive all raw Products and work in process, and Netsky agrees to ship such goods to BUYER at Buyer's expense. Netsky reserves the right, by written notice of default, to cancel any order, without liability to BUYER, in the event of the happening of any of the following: insolvency of BUYER, the filing of a voluntary petition in bankruptcy by BUYER, the filing of an involuntary petition to have BUYER declared bankrupt, the appointment of a receiver or trustee for BUYER, the execution by BUYER of an assignment for the benefit of creditors, the discontinuance of business by BUYER, or the sale by BUYER of the bulk of its assets other than in the usual course of business.
BUYER acknowledges that Products, software, and technical information provided under this Agreement are subject to United States Export Administration Act and other export laws, rules and regulations. BUYER agrees not to export, re-export, directly or indirectly, transfer, or transmit the Products, software, or technical information except in compliance with any and all such laws, rules and regulations This sale is subject to any applicable governmental approvals and, at Netsky request, BUYER agrees to sign written assurances and other export-related documents (and to obtain same at its own expense) as may be required for Netsky to comply with any and all export laws, rules and regulations. Buyer agrees to hold harmless and indemnify Netsky from any claim or damage arising out of or relating to any alleged violation of any export law, rule or regulation, including payment of attorneys' fees and costs.
Limitation of Liability
IN NO EVENT SHALL NETSKY BE LIABLE FOR ANY COSTS OR PROCUREMENT OF SUBSTITUTE PRODUCT(S) OR MATERIALS, OR FOR ANY GENERAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, SPECIAL OR OTHER DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF GOOD WILL, AND LOSS OF USE OF DATA, RESULTING FROM NETSKY PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT OR THE FURNISHING, PERFORMANCE OR USE OF ANY PRODUCTS, GOODS OR SERVICES SOLD PURSUANT HERETO, WHETHER DUE TO BREACH OF CONTRACT, BREACH OF WARRANTY, STRICT LIABILITY, PRODUCT LIABILITY, THE NEGLIGENCE OF NETSKY OR ANY OTHER THEORY OF LAW OR EQUITY, EVEN IF ON NOTICE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL NETSKY LIABILITY EXCEED THE U.S. DOLLAR AMOUNT EQUAL TO THE PURCHASE PRICE PAID BY BUYER FOR SUCH PRODUCTS, GOODS OR SERVICES GIVING RISE TO SUCH LIABILITY. THE DAMAGE LIMITATIONS PROVIDED IN THESE TERMS AND CONDITIONS SHALL BE EXCLUSIVE AND SHALL BE BUYER'S SOLE REMEDY. THE ABOVE DISCLAIMERS AND EXCLUSIONS INCLUDE ANY LIABILITY THAT MAY ARISE OUT OF THIRD PARTY CLAIMS AGAINST BUYER. THIS ALLOCATION OF RISK IS REFLECTED IN THE PRICE OF THE PRODUCTS. THIS LIMITATION SHALL SURVIVE FAILURE OF ANY ESSENTIAL PURPOSE. BUYER ASSUMES ALL LIABILITY FOR ANY AND ALL DAMAGES ARISING FROM OR IN CONNECTION WITH, THE USE OR MISUSE OF THE PRODUCTS BY BUYER, ITS EMPLOYEES, OR OTHERS. NETSKY LIABILITY SHALL TERMINATE UPON THE EXPIRATION OF THE WARRANTY PERIOD OF SAID PRODUCT.
Netsky shall solely own and have exclusive worldwide right, title and interest in and to all United States and foreign patents, trademarks, service marks, copyrights, mask works, trade secrets, software and all other intellectual and industrial property rights in any way related to the Products and all modifications, improvements and derivative works related thereto ("Product Intellectual Property Rights" or "Product IPR"). Title to all such Product IPR shall at all times remain with Netsky.
Netsky shall have no liability of any kind with respect to any actual or alleged infringement of any United States or foreign patent, trademark, copyright, deskwork right, trade secret or other intellectual property or proprietary right. Buyer agrees to look solely to the manufacturer or licensor of the Products with respect to any claim of infringement. Furthermore Buyer agrees to protect, defend, indemnify, and hold harmless Netsky from all sums, costs, expenses, and attorney's fees, which Netsky may incur or be obligated to pay as a result of any and all claims, demands, causes or action, or judgments arising out of or relating to any use, modification, or enhancement of the Products purchased by the Buyer unless such use, modification, or enhancement is approved in writing by the manufacturer or licenser of the Products.
The parties agree that Netsky is not responsible or liable for any delay or failure in performance arising as a result of fire, accident, acts of God, acts of public enemy, war, labor disputes, failure or delays, transportation, inability to secure Product, raw Products or machinery for the manufacturing process, requirements or acts of any government or agency thereof, judicial action or other causes beyond Netsky reasonable control. In such event, Netsky may defer performance for a period equal to the time lost by reason of the delay.
This Agreement shall be construed, governed and enforced in accordance with the laws of the State of California, including the provisions of the California Uniform Commercial Code but excluding its conflicts of laws provisions. The parties expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods, if applicable.
The parties agree that any legal action between them arising out of or in connection with this Agreement or any Purchase Order shall be commenced and maintained only in the state or federal courts located in Santa Clara County, State of California, and that such courts shall have exclusive jurisdiction of and shall provide the exclusive venue for any such action. BUYER HEREBY UNCONDITIONALLY AGREES THAT IT IS PERSONALLY SUBJECT TO AND HEREBY CONSENTS TO THE JURISDICTION OF SUCH COURTS AND AGREES THAT IT WILL NOT CONTEST THE JURISDICTION, VENUE OR CONVENIENCE OF SUCH COURTS IN ANY ACTION COMMENCED BY NETSKY RELATING TO THIS AGREEMENT OR ANY PURCHASE ORDER.
Typographical Or System Errors
In the event a Netsky product is listed at an incorrect price due to typographical error or systems error, Netsky shall have the right to refuse or cancel any orders placed for product listed at the incorrect price. Netsky shall have the right to refuse or cancel any such orders whether or not the order has been confirmed and your credit card charged. If your credit card has already been charged for the purchase and your order is cancelled, Netsky shall issue a credit to your credit card account in the amount of the original charge.
Service and Support
Netsky does not offer any technical assistance or support for any products or services with the exception of build-to-order PC systems assembled by Netsky. Technical assistance and supports requests for all other products and services must be submitted to the product manufacturer or service provider.
Netsky is not liable for any damages that may result from incorrect order information including customer name, address, phone number, credit card number, shipping method selection, or other payment information entered into the system by the customer.
All returns for refund are subject to a 15% restocking fee unless waived by Netsky.
Lost or Stolen Packages
BUYER must notify Netsky about lost or stolen packages within 14 days of invoice date in order to begin the claims process with the shipping carrier.
Orders will be delivered to the address specified by the BUYER. Netsky does not control the recipient at the designated address. Netsky is not responsible for orders that are stolen after they are delivered. Proof of dispatch of merchandise will bind the BUYER.