STANDARD SALES TERMS AND CONDITIONS
ClarkConsultants Services or their designees or their affiliates or subsidiaries (“ClarkConsultants”) agrees to supply and you agree to purchase/license/sublicense certain products and/or services (“Products and/or Services”) quoted herein are subject to these terms and conditions, which shall supersede any terms and conditions on any purchase order form or document you submit to ClarkConsultants (“Agreement”). You also agree that the Products and/or Services will not be used for, or in the design of any ultrahazardous activities, including but not limited to, air traffic control, critical care operations, mining, nuclear installations, and the like.
PAYMENT TERMS: Our payment terms are defaulted to “upon Receipt” and/or net thirty (15) days from our invoice date. Each shipment will have a separate invoice. A late payment fee of the lesser of 1.5%, or the maximum interest rate allowed by law, of the invoice total will be charged for each month (or portion thereof ) that an invoice remains unpaid by you. You are also responsible for any costs, including attorneys’ fees, incurred by ClarkConsultants in the collection of any invoice balance not paid within the previously stated time period. SHIPPING AND HANDLING: A shipping and handling charge will be added to each order.
TAXES: Based on your Cities current Rates.
Unless otherwise expressly agreed to by ClarkConsultants, Products shipped by ClarkConsultants to you will be shipped at your expense F.O.B. origin, via ground freight. Freight charges will be prepaid and added to the ClarkConsultants invoice.
MEDIA & DOCUMENTATION: By placing an order for additional media or duplication services, Customer acknowledges and warrants that it has the right to such in the quantities requested. Further, Customer agrees to defend and indemnify ClarkConsultants against and hold ClarkConsultants harmless from any and all claims, damages and expenses (including reasonable attorney’s fees and cost of litigation) by any party resulting from any claim of unauthorized copying or use of any such ordered product(s).
Intellectual Property: ClarkConsultants shall have no liability for, and no duty to defend, indemnify, or hold Customer harmless from and/or against any damages and costs incurred by Customer arising from the infringement or other violation of patents, trademarks, copyrights or other intellectual or proprietary rights by Products which were not manufactured by ClarkConsultants or Services which are not provided directly by ClarkConsultants.
DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY:
CLARKCONSULTANTS IS A RESELLER, NOT THE MANUFACTURER OF THE PRODUCT(S) OR PROVIDER OF SERVICES. THEREFORE, CLARKCONSULTANTS ONLY PROVIDES THE WARRANTIES AS SET FORTH EXPLICITLY HEREIN. YOU ACKNOWLEDGE AND AGREE THAT THE USE OF THE PRODUCT(S) AND/OR SERVICES IS AT YOUR SOLE RISK. YOU RECOGNIZE THAT THE USE AND SERVICING OF COMPUTER PRODUCTS INVOLVES A SUBSTANTIAL RISK OF LOSS OF STORED DATA AND COMPUTING AND COMMUNICATION FUNCTIONS, AND THAT INDUSTRY STANDARDS DICTATE YOUR SYSTEMATIC USE OF PRODUCTS, SYSTEMS, AND PROCEDURES WHICH PROVIDE COMPREHENSIVE PROTECTION AND BACK-UP OF DATA, COMMUNICATION, AND COMPUTING FUNCTIONS SO AS TO PREVENT ANY LOSS OR DOWNTIME.
CLARKCONSULTANTS MAKES NO WARRANTY, EXPRESSED OR IMPLIED. IN NO EVENT SHALL CLARKCONSULTANTS BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES (INCLUDING, AMONG OTHER THINGS, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTIONS, LOSS OF BUSINESS INFORMATION, AND THE LIKE) ARISING FROM THE PRODUCT(S) SOLD/LICENSED/SUBLICENSED HEREUNDER, THE SERVICES PROVIDED HEREUNDER, OR ANY ACTIONS TAKEN BY YOU BASED ON THE PRODUCTS AND/OR SERVICES SOLD/LICENSED/SUBLICENSED OR PROVIDED HEREUNDER, EVEN IF CLARKCONSULTANTS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ADDITIONALLY CLARKCONSULTANTS SHALL NOT BE LIABLE FOR LOSSES, COSTS, EXPENSES, OR DAMAGES OF ANY KIND OR NATURE ALLEGED TO HAVE RESULTED FROM ANY BREACH OF WARRANTY OR FAILURE OF THE PRODUCT OR SERVICE OF ANY KIND. CLARKCONSULTANTS DOES NOT WARRANT THE MERCHANTABILITY OF THE PRODUCT(S) OR THEIR FITNESS FOR ANY PARTICULAR PURPOSE OR THAT THEIR OPERATION WILL BE UNINTERRUPED OR ERROR-FREE. CLARKCONSULTANTS HAS EXPRESSED NO OPINION AS TO THE SUITABILITY OF THE PRODUCT PURCHASED FOR YOUR PARTICULAR PURPOSE.
THE ACTUAL MANUFACTURER OF THE PRODUCT(S) OR PROVIDER OF THE SERVICES MAY OFFER ADDITIONAL WARRANTIES, AND INFORMATION. PLEASE READ THE DOCUMENTATION INCLUDED WITH THE PRODUCT(S) BY THE MANUFACTURER FOR MORE SPECIFIC INFORMATION.
UNDER NO CIRCUMSTANCES WILL THE TOTAL LIABILITY OF CLARKCONSULTANTS TO YOU OR ANY OTHER PERSON OR ENTITY IN CONNECTION WITH, BASED UPON, OR ARISING FROM THE PRODUCTS, SERVICES OR ANY OTHER MATERIALS OFFERED IN CONNECTION THEREWITH EXCEED THE PRICE PAID BY YOU FOR THE APPLICABLE PRODUCTS AND/OR SERVICES. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IF ANY PART OF THIS LIMITATION ON LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN THE TOTAL LIABILITY OF CLARKCONSULTANTS SHALL NOT EXCEED TEN DOLLARS ($10).
ERRORS, PRICE CHANGES & AVAILABILITY: ClarkConsultants shall not be held liable for mistakes or typographical errors. Prices are subject to change without notice. Products and/or Services listed are subject to availability and may change without notice.
LEASING: ClarkConsultants is not a leasing or financing company. Any lease or financing terms contained within this Agreement are merely estimates and should not be relied on as an actual offer. All leasing or financing options are contingent upon credit approval by the selected leasing or financing company and successful execution of a leasing or financing agreement between yourself and that leasing or financing company.
RETURNS: Manufacturers/publishers have imposed stricter policies with regard to the return of Products. Unless otherwise expressly specified, ClarkConsultants offers the following guidelines with regard to Product returns:
Opened Software or Hardware products cannot be returned. Software or Hardware products that have been opened will not be accepted and will be returned to you at your expense. Customer agrees to pay a fee of $35.00 for all opened Software or Hardware products returned to ClarkConsultants (“Refused Return Fee”).
Unopened Software or Hardware Product can be returned within ten (10) days of the invoice date subject to the manufacturer/publisher’s prior approval. Product must be 100% complete and contain all original manufacturer boxes with the original UPC code. Such returns will be charged a 15% restocking fee.
Defective Hardware Products are to be returned directly to the manufacturer. Refer to the specific manufacturer’s documentation provided with the product for their return procedures. Certainly, your ClarkConsultants Sales representative will assist you with any questions, but you should consult the warranty information provided by the product manufacturer. Since all warranty policies are not the same, please be sure to discuss the Product return specifications with your sales representative prior to purchase. Perhaps they can offer your assistance with additional extended warranty protection.
The return of Software Product purchased through a Volume License Program (“VLP”) is subject to publisher approval. Each software publisher has separate and distinct rules for the return of VLP license-only products. If the publisher approves the request, you may return the license(s) for credit (defined as price actually paid by customer, less any applicable manufacturer or publisher restocking fees).
In all cases a Return Authorization (“RA”) number must be obtained from ClarkConsultants prior to any returns. The RA number should be clearly noted on the return ship to label only. Do not write on the outside of the actual product box. Manufacturers will refuse the return when writing is noted on the actual product box. ClarkConsultants must receive the
Product within 10 days of the date the RA is provided by ClarkConsultants. RA numbers cannot be extended or re-issued. No returns will be accepted without a valid RA number. You are responsible for shipping charges and risk of loss on all return shipments. ClarkConsultants recommends that all returned merchandise be returned via a traceable shipping carrier who will provide proof of delivery. You should insure that the return shipment is properly packed and fully insured.
FORCE MAJEURE: ClarkConsultants shall not be liable for any failure to perform under this Agreement resulting from any cause beyond the reasonable control of ClarkConsultants, including, but not limited to, an act of God; accident; telephone service provider problem; war; fire; lockout; strike or labor dispute; riot or civil commotion; act of the public enemy; enactment, rule, order or act of civil or military authority; or acts or omissions of any other party, including ClarkConsultants's Vendor.
APPLICABLE LAW, CHOICE OF VENUE: This Agreement is entered into in Santa Clara, CA -PROVIDED, HOWEVER, THAT THE TERMS OF ANY APPLICABLE LAW NOW OR HEREAFTER ENACTED THAT IS BASED ON, DERIVED FROM, SIMILAR TO, OR CONNECTED WITH THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT DRAFTED BY THE NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS SHALL NOT APPLY EXCEPT TO THE EXTENT THAT THE LAW EXPRESSLY PROHIBITS ALTERATION BY THESE TERMS OF THE APPLICABILITY OF ONE OR MORE SECTIONS OF THE LAW. You agree that any lawsuit filed to enforce this Agreement shall be properly filed only in the Santa Clara, CA Courts, you irrevocably waive the right to trial by jury and any jurisdictional and venue defenses otherwise available.
TERMINATION: ClarkConsultants has the right to terminate or change this Agreement without notice. ClarkConsultants has the right to deny credit to any company or entity that does not meet the then current ClarkConsultants credit standards.
ASSIGNMENT & SURVIVAL: This Agreement, including, all of its underlying obligations, may not be assigned by you without the express, written consent of an officer of ClarkConsultants. The provisions of the Intellectual Property, Disclaimer of Warranties and Limitation of Liability, Assignment and Survival, and Applicable Law, Choice of Venue sections of this Agreement shall survive any termination of this Agreement.
MISCELLANEOUS: In the event any term, provision or covenant of this Agreement shall be judged by any court of competent jurisdiction to be unenforceable, then the validity of the remaining terms, provisions and covenants shall be unaffected and this Agreement shall be construed as if the unenforceable provision had never been a part of it. If any term, provision or covenant of this Agreement shall be judged unenforceable by a court of competent jurisdiction by reason of its duration, scope or a combination thereof, such covenant shall be adjusted to the extent necessary to cure such lack of enforceability, and this Agreement shall be construed as if such provision had originally been agreed to in its adjusted form. This Agreement may only be modified or amended in writing under the signature of ClarkConsultants’s President or Chief Executive Officer. The waiver or failure of Simitar to exercise in any respect any right provided hereunder shall not be deemed a waiver of such right in the future or a waiver of any of other rights established under these Terms. The headings herein are for organizational purposes and ease of reading only and shall not be binding upon the parties. No person or entity not party to this agreement will be deemed to be a third party beneficiary of this agreement or any provision hereof.
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