Terms and Conditions
1. General. Expert Server Group is a trade name used by Cloud-Strategy, L.L.C. All sales of goods (including parts and accessories) and/or services provided by Cloud-Strategy, L.L.C. ("Expert Server") are subject to these terms and conditions unless otherwise expressly agreed to in writing by Expert Server. The prices and performance specifications quoted to Customer are based upon the warranty limitations, exclusions and other terms stated herein. Any additional, inconsistent or different terms or conditions contained in Customer's purchase order or other documents supplied by Customer are hereby rejected.
2. Delivery. Unless otherwise stated by Expert Server in writing, all merchandise is sold F.O.B. place of shipment. Expert Server reserves the right to make delivery in installments.
3. Title and Risk of Loss. Notwithstanding any delivery terms or the payment of transportation charges, title and risk of loss and/or damage shall pass to Customer, and delivery shall be deemed to be complete, upon delivery to a private or common carrier at the point of shipment.
4. Limited Warranty on Sales. Expert Server represents and warrants to Customer: (i) that it has the right to sell the goods sold by it, and that goods are sold to Customer free of any encumbrances, (ii) goods shipped shall conform to the specification of manufacturer or source, make and model number or other identification set forth in the applicable quote, and (iii) unless otherwise agreed in writing, goods shall been provided by the manufacturer or vendor to Expert Server as new goods. When title to the merchandize passes from Expert Server to Customer, any of the manufacturers respective warranties that are assignable to customer that are applicable to the end-user thereof and to which Expert Server is entitled, shall pass from Expert Server to customer. All manufacturer warranty claims on merchandise sold by Expert Server shall be handled in accordance with the applicable provisions of paragraph 7 hereof.
5. Limited Warranty on Service. Services provided by Expert Server are warranted for a period of thirty (30) days from the date of such services to Customer to be "good and workmanlike" when performed. Expert Server makes no other warranties with respect to its services. Expert Server makes no warranties with respect to the quality, performance or other characteristics of any equipment serviced, including, without limitation, "year 2000 compliance," so-called. All manufacturer warranty claims on equipment serviced by Expert Server shall be handled in accordance with the applicable provisions of paragraph 8 hereof. Without limiting the foregoing, in the event a service order includes back up or retrieval of Customer's data absolutely no representations or warranties are made with respect to this type of service.
6. Warranty Disclaimers. THE FOREGOING WARRANTIES CONTAINED IN PARAGRAPHS 4 AND 5 HEREOF ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WRITTEN, ORAL OR IMPLIED. FURTHER, ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY DISCLAIMED. EXPERT SERVER MAKES NO WARRANTY WITH RESPECT TO ANY GOODS OR SOFTWARE, SOLD, LEASED, LICENSED, SERVICED OR OTHERWISE PROVIDED THAT THE INFORMATION TECHNOLOGY CONTAINED OR PROVIDED THEREIN ACCURATELY PROCESSES DATES/TIME DATA (INCLUDING, BUT NOT LIMITED TO, CALCULATING, COMPARING, AND SEQUENCING) FROM, INTO, AND BETWEEN THE TWENTIETH AND TWENTY-FIRST CENTURIES, AND THE YEARS 1999 AND 2000 AND LEAP YEARS. WITHOUT LIMITING THE FOREGOING, EXPERT SERVER MAKES NO REPRESENTATION OR WARRANTY AS TO WHETHER GOODS OR THIRD PARTY SOFTWARE ARE COMPRISED OR WILL PERFORM AS CLAIMED BY THE MANUFACTURER OR SUPPLIER OF SUCH GOODS OR THIRD PARTY SOFTWARE, OR WHETHER THEIR USE WILL VIOLATE ANY PUBLICITY OR PRIVACY RIGHT, PATENT, COPYRIGHT, TRADE SECRET OR OTHER PROPRIETARY OR INTELLECTUAL PROPERTY RIGHT OR CONFIDENTIAL RELATIONSHIP OF ANY THIRD PARTY. PRODUCTS SOLD BY EXPERT SERVER ARE NEITHER DESIGNED NOR INTENDED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, INCLUDING, WITHOUT LIMITATION, THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, WEAPONS SYSTEMS, DIRECT LIFE-SUPPORT MACHINES, OR ANY OTHER APPLICATION IN WHICH THE FAILURE OF THE PRODUCT COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR PROPERTY DAMAGE (COLLECTIVELY, HIGH RISK ACTIVITIES). WITHOUT LIMITING ANY OF THE FOREGOING, EXPERT SERVER EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES.
7. Merchandise Returns and Refunds on Merchandise Sold. Expert Server shall not be obligated to accept the return of any merchandise sold by it or refund any portion of the price paid for any merchandise except as provided in this paragraph 7. Merchandise returned within 7 days of purchase which is still factory sealed, unopened and where neither the merchandise nor the packaging is damaged or defaced will be accepted for a full refund of the price paid only if Expert Server may return the merchandise to its original vendor or manufacturer for full value. Computer hardware returned within 7 days of purchase which is not damaged or defective but has been opened will be accepted for a refund of 85 percent of the price paid provided that all merchandise packaging, manuals, warranty registration cards and accessory items are in original condition and only if Expert Server may return the merchandise to its original vendor or manufacturer for full value. In the case of defective goods, Customer shall follow any manufacturer or vendor warranty procedure as its exclusive remedy. No return, replacement or refund shall be allowed until after Expert Server has fully inspected the merchandise to ensure compliance with this paragraph. All returns are at the risk and expense of Customer. Replaced goods become the property of Expert Server. No returns are allowed without a sales receipt as proof of purchase from Expert Server. No product will be accepted for return without an Expert Server Return Authorization Number. To obtain a Return Authorization Number, contact Customer-Returns-Processing. NO RETURNS ARE ALLOWED FOR COMPUTER SOFTWARE WHICH HAS BEEN OPENED. All refunds are further subject to a credit if purchased with the use of a credit card or the clearing of Customer's check, if applicable. Nothing contained herein in any way modifies any warranty provided to Customer by any manufacturer.
8. Procedure on Service Warranty. If given written notice by Customer promptly after a failure appears which is covered by the Expert Server service warranty provided in Section 5 above, and, in any event, before the end of the specified limited warranty period, Expert Server will, at its option, (i) perform conforming services, or (ii) refund of that portion of the price paid to Expert Server by Customer relating to the non- conforming services, as Customers sole and exclusive remedy.
9. Payment; Security Agreement. Unless otherwise specified in writing by Expert Server, payment is due upon receipt of invoice. Expert Server reserves the right to require payment in advance. If payment in full is not made when due, Customer shall pay, in addition to the overdue amount, the lesser of: (1) a late charge of 1 1/2% of the overdue amount per month (18% per annum) and (2) the maximum amount allowed by the law. Customer grants to Expert Server a security interest in the merchandise identified in this sale document to secure all sums due from Customer to Expert Server.
10. Customer's Duty to Inspect. Customer shall inspect all merchandise within 7 days after shipment. If Customer should fail to notify Expert Server immediately after any such inspection of any non-conformity or defect discovered during such inspection and return the merchandise all within 7 days, then such defect or non-compliance shall be deemed to constitute a permitted exception to Expert Server's limited warranty.
11. Limitation of Liability. Expert Server shall not be liable for the loss or damage of Customer's data or software. IN NO EVENT, INCLUDING ANY FAILURE BY EXPERT SERVER TO REPAIR, REPLACE OR GIVE A REFUND REGARDING ANY DEFECTIVE MERCHANDISE OR TO REMEDY DEFECTIVE SERVICE, SHALL EXPERT SERVER BE LIABLE FOR PERSONAL INJURY, PROPERTY DAMAGE OR FOR SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE as a result of any defect, deficiency, or breach of warranty, or from any other act or omission relating to Expert Server's performance under any contract for the sale of merchandise or the providing of services. These special, indirect, incidental, or consequential damages include, but are not limited to, loss of profits or revenue, loss of use of the merchandise or any associated merchandise, cost of capital, cost of substitute merchandise, facilities or services, downtime costs, delays, or liability to Customer's employees, customers, or unrelated parties for personal injury or other damages.
12. Limitation of Action. Any cause of action against Expert Server arising out of, in connection with or relating to this contract or the performance or breach hereof shall expire unless brought within one year of the time of accrual thereof.
13. Personal Injury Indemnity. Customer shall indemnify and hold harmless Expert Server from and against any liability for personal injury resulting, in whole or in part, from any failure of Customer or its employees or other persons (except for Expert Server's employees) to use due care and to follow the manufacturer's and Expert Server's instructions in installing, maintaining, or operating any merchandise sold or serviced by Expert Server.
14. Hiring Away. Customer agrees that for a period of two (2) years following the supplying of any goods or the rendering of any services by Expert Server to Customer, that Customer will not, directly or indirectly, alone or in association with anyone else: (1) engage as an employee, independent contractor or otherwise, the services of any (i) Expert Server employee with whom Customer has communicated with respect to any goods or services supplied to Customer, or (ii) employee of Expert Server, the identity of whom was learned, directly or indirectly, through an Expert Server employee with whom Customer has so communicated, or (2) purchase or lease any computer related goods or services through or with the assistance of any person identified in part "(i)" of this sentence unless such person is employed by Expert Server at the time of the purchase or lease. Nothing herein contained shall be construed to limit or restrict the application of any applicable non-competition agreement between Expert Server and any of Expert Server's employees.
15. Contract Price. The price of merchandise or service does not include any federal, state, or local property, license, privilege, sales, service, use, excise, value added, gross receipts, or other like taxes which may now or hereafter be applicable to, measured by, imposed upon or with respect to the merchandise, its purchase, sale, replacement, value or use or any services performed in connection therewith. Customer shall pay or reimburse Expert Server, its subcontractors or suppliers any such taxes which Expert Server, its subcontractors, or its suppliers are required to pay or collect, or which are required to be withheld by Customer, and shall indemnify Expert Server for any fines or penalties resulting, directly or indirectly, from failure to collect or pay such taxes.
16. Assignment. Customer's rights under contracts for the sale or service of merchandise by Expert Server may not be assigned without Expert Server's prior written consent.
17. Partial Invalidity. If any provision herein or portion hereof shall for any reason be held invalid or unenforceable, such invalidity or unenforceability shall not affect any other provision or portion hereof, but these terms and conditions shall be construed as if such invalid or unenforceable provision or portion hereof had never been contained herein.
18. Accord and Satisfaction Requirements. All communications concerning disputed debts, including an instrument tendered as full satisfaction of a debt, are to be sent to "EXPERT SERVER, OFFICE OF THE PRESIDENT, 318 SOUTH RIVER ROAD, BEDFORD, NEW HAMPSHIRE 03110."
19. Costs and Attorneys' Fees. Customer shall be liable to reimburse Expert Server for any expenses, including court costs and reasonable attorneys' fees, that may be incurred in order to collect any sums due hereunder to enforce any of the terms of this contract, or to defend itself against any invalid claim asserted by Customer in connection with the sale of the merchandise or service.
20. Choice of Law and Venue. This Agreement and the rights and remedies of the parties in regard to or arising out of the sale of merchandise or the providing of services shall be governed by the laws of the State of New Hampshire. Any cause of action regarding same shall be brought in New Hampshire at Hillsborough County Superior Court, Northern District.
21. Entire Agreement and Subsequent Changes. Orders for merchandise or service may only be accepted by an authorized person on behalf of Expert Server at its office at Bedford, New Hampshire. The provisions hereof together with those of any accompanying documents will constitute the entire agreement between Expert Server and Customer with respect to the sale of such merchandise and/or service, and supersedes all other printed and/or oral representations or agreements concerning such sale. All changes in merchandise description, including specifications, design or change in any other terms of sale, subsequent to Expert Server's original proposal or order acceptance, shall be ineffective unless presented in documents signed by an authorized person on behalf of Expert Server.