All sales made by System Management Planning Inc. (SMP) to its customers with SMP U.S. resale accounts ("Purchaser") are subject to these terms and conditions. Purchaser's acceptance of these terms and conditions shall be made by either (i) Purchaser providing a purchase order number to SMP or (ii) Purchaser's acceptance of any Product from SMP, whichever occurs first. These terms and conditions shall apply to sales of all products. The term "Special Order Product" as used herein shall mean products that are configured to Purchaser's specifications. Electronic Software Distribution (ESD) product sales are subject to additional terms.
Prior to placing an order, Purchaser must have an active SMP sales account number and Purchaser's account must be in good standing. Purchaser must provide SMP with complete Product order information as required by SMP. The Product order information will include without limitation the (i) Product description, (ii) unit quantity, (iii) SMP SKU number and/or vendor part number, (iv) current unit price as provided by SMP and (v) correct shipping address. For government or educational orders, Purchaser will provide the above Product order information as well as (i) end user name and zip code and (ii) government or educational contract number. Purchaser personnel will identify, for each Product order, the ship-to destination as either Purchaser, Purchaser's customer, or to some other specified third party. SMP reserves the right to require additional information based on the requirements of the manufacturer or publisher of the Product. Purchaser shall not disclose any confidential information when ordering from SMP. Purchaser may place orders over telephone, via facsimile, and via SMP approved electronic order in methods only through persons who identify themselves as Purchaser personnel and provide their SMP customer number prior to placing the order. Orders for direct shipment to Purchaser's customers or Special Order Products may require prepayment and may be subject to additional fees. SMP will have no obligation to hold Product for future sale to Purchaser if Purchaser's order is incomplete, on hold, or if Purchaser does not confirm within 48 hours of notification from SMP that backordered Product is available for shipment.
All prices are subject to change without notice and will be established at time of order acceptance by SMP. Order acceptance and sale by SMP occurs at time of shipment. Prices for backordered Products are not guaranteed.
For Product shipments to an address within the fifty (50) United States or the District of Columbia, shipment will be according to the purchase order. Product title will transfer to Purchaser based on the stated shipment terms on the purchase order. If Purchaser requests special shipping or handling including without limitation, expedited shipment, third-party billing, or freight collect, Purchaser shall bear all risk of loss in transit and is responsible for filing claims with the carrier and all freight and handling costs. COD and additional fees may also apply. Purchaser shall examine all Products upon receipt and shall notify SMP, as specified herein, of all discrepancies or if rejection is intended. Such notice shall be reasonably detailed and shall specify the discrepancy or reason for rejection. Failure to give such notice within the time specified hererin shall be deemed an acceptance of the Products as of the date of shipment.
Purchaser shall furnish to SMP all financial information reasonably requested by SMP from time to time for the purpose of establishing or continuing Purchaser's credit limit. Purchaser agrees that SMP shall have the right to decline to extend credit to Purchaser and to require that the applicable purchase price be paid prior to shipment. Purchaser shall promptly notify SMP of all changes to Purchaser's name, address, or of the sale of substantially all of its assets. SMP shall have the right from time to time, without notice, to change or revoke Purchaser's credit limit on the basis of changes in SMP's credit policies or Purchaser's financial condition and/or payment record. Purchaser shall not deduct any amounts owing from any SMP invoice without SMP's express written approval, which approval shall be contingent upon Purchaser providing all supporting documentation for such deduction as required by SMP. A service charge of the lesser of one and one-half percent (1 ½ %) per month or the maximum amount allowed by law will be charged on all past due balances commencing on the date payment is due. Credit cards (MasterCard, VISA and Discover Card) will only be accepted at the time of order. No cash payments will be accepted. Payment by money orders or travelers check will be allowed only if the money order or travelers check is made out in the exact amount of the invoice; payment of one invoice through multiple money orders or travelers checks will not be permitted. SMP retains (and Purchaser grants to SMP by submitting a purchase order) a security interest in the Products to secure payment in full, and Purchaser agrees to execute any additional documents necessary to perfect such security interest. If Purchaser fails to make timely payment of any amount invoiced hereunder, SMP shall have the right, in addition to any and all other rights and remedies available to SMP at law or in equity, to immediately revoke any or all credit extended, to delay or cancel future deliveries and/or reduce or cancel any or all quantity discounts extended to Purchaser. Purchaser shall pay all costs of collection including reasonable attorneys' fees. Any obligation of SMP under these terms and conditions to deliver Products 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 statue is filed against Purchaser, or if a receiver or trustee is appointed to take possession of the assets of Purchaser.
Purchaser shall bear applicable federal, state, municipal, and other government taxes (such as sales, use, etc.). Unless otherwise specified, prices do not include such taxes. Exemption certificates, valid in the place of delivery, must be presented to SMP prior to shipment if they are to be honored.
Product warranties, if any, are provided by the manufacturer or publisher of the Products. SMP makes no warranties whatsoever. SMP's sole obligation (and Purchaser's sole remedy) in the event of breach of any warranty shall be the repair or replacement of defective Products. IN NO EVENT SHALL SMP BE LIABLE FOR ANY CONSEQUENTIAL DAMAGES OR DAMAGES OF ANY KIND OR NATURE ALLEGED TO HAVE MERCHANTABLITY OF THE PRODUCTS OR THEIR FITNESS FOR ANY PARTICULAR PURPOSE. SMP MAKES NO WARRANTY, EXPRESS OR IMPLIED, OTHER THAN THOSE SPECIFICALLY SET FORTH HEREIN.
SMP SHALL HAVE NO DUTY TO DEFEND, INDEMNIFY, OR HOLD HARMLESS PURCHASER FROM AND AGAINST ANY OR ALL DAMAGES AND COST INCURRED BY PURCHASER ARISING FROM THE INFRINGEMENT OF PATENTS OR TRADEMARKS OR THE VIOLATION OF COPYRIGHTS BY PRODUCTS.
SMP SHALL NOT BE LIABLE TO PURCHASER, PURCHASER'S CUSTOMERS, OR ANY OTHER PARTY FOR ANY LOSS, DAMAGE, OR INJURY THAT RESULTS FROM THE USE OR APPLICATION BY PURCHASER, PURCHASER'S CUSTOMER, OR ANY OTHER PARTY, OF PRODUCTS DELIVERED TO PURCHASER, UNLESS THE LOSS OR DAMAGE RESULTS DIRECTLY FROM THE INTENTIONALLY TORTIOUS OR FRAUDULENT ACTS OR OMISSIONS OF SMP. IN NO EVENT SHALL SMP BE LIABLE TO PURCHASER OR ANY OTHER PARTY FOR LOSS, DAMAGE, OR INJURY OF ANY KIND OR NATURE ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND CONDITIONS, OR ANY AGREEMENT INTO WHICH THEY ARE INCORPORATED, OR ANY PERFORMANCE OR NONPERFORMANCE UNDER THESE TERMS AND CONDITIONS BY SMP, ITS EMPLOYEES, AGENTS OR SUBCONTRACTORS, IN EXCESS OF THE NET PURCHASE PRICE OF THE PRODUCTS OR SERVICES ACTUALLY DELIVERED TO AND PAID FOR BY PURCHASER HEREUNDER. IN NO EVENT SHALL SMP 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 SMP'S BREACH OF, OR FAILURE TO PERFORM IN ACCORDANCE WITH ANY OF THESE TERMS AND CONDITIONS, OR THE FURNISHING, INSTALLATIOIN, SERVICING, USE OR PERFORMANCE OF ANY PRODUCTS OR INFORMATION SMP SHALL PROVIDE HEREUNDER, EVEN IF NOTIFCATION HAS BEEN GIVEN AS TO THE POSSIBLITY OF SUCH DAMAGES. PURCHASER HEREBY EXPRESSLY WAIVES ANY AND ALL CLAIMS FOR SUCH DAMAGES. IN NO EVENT SHALL SMP HAVE ANY LIABILITY FOR ANY PRODUCTS USED FOR AVIATION, MEDICAL, LIFFESAVING, LIFE-SUSTAINING OR NUCLEAR APPLICATIONS.
All notices, requests, demands, and other communications that either party may desire to give the other party must be in writing and may be given by (i) personal delivery to an officer of the party, (ii) mailing the same by registered or certified mail, return receipt requested, or via nationally recognized courier services to the party at the address of such party as set forth herein, at the official corporate address of such party, or such other address as the parties may hereinafter designate, or (iii) facsimile subsequently to be confirmed in writing pursuant to item (ii) above. Notices to SMP shall be sent to: SMP, 75 Goodway Drive, Suite 2, Rochester, New York 14623, Attn: Legal Department.
This Agreement shall be deemed made in the State of New York and will be governed by and construed in accordance with the laws of the State of New York excluding its conflicts or choice of law rule or principles which might refer to the law of another jurisdiction. The state and federal courts situated in Monroe County, New York will have exclusive jurisdiction and venue over any dispute or controversy which arises out of this Agreement. The parties agree that service of process may be made by service under the laws of the State of New York at the place of business for each party set forth herein.
These terms and conditions shall be binding upon and shall insure to the benefit of the parties hereto and their respective representatives, successors and permitted assigns. Neither party may assign its rights and/or duties under these terms and conditions without the prior written consent of the other party given at the other party's sole option. Any such attempted assignment shall be void. Notwithstanding the foregoing, SMP may assign any purchase order received from Purchaser to a subsidiary or affiliate upon notice to Purchaser.
If any provision of these terms and conditions shall be held to be invalid, illegal or unenforceable, such provision shall be enforced to the fullest extent permitted by applicable law and the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Failure or delay of SMP to exercise a right or power under these terms and conditions shall not operate as a waiver thereof, nor shall any single or partial exercise of a right or power preclude any other future exercise thereof.
The captions used herein are for reference purposes only and shall have no effect upon the construction or interpretation of any provisions herein.