TERMS AND CONDITIONS OF SALE
PLEASE READ THESE TERMS AND CONDITIONS OF SALE VERY CAREFULLY.
THE TERMS AND CONDITIONS OF SALE ARE LIMITED TO THOSE CONTAINED HEREIN. ANY ADDITIONAL OR DIFFERENT TERMS IN ANY FORMS DELIVERED BY CUSTOMER ARE HEREBY DEEMED TO BE MATERIAL ALTERATIONS AND NOTICE OF OBJECTION TO THEM AND REJECTION OF THEM IS HEREBY GIVEN. BY ACCEPTING DELIVERY OF THE PRODUCTS AND SERVICES DESCRIBED IN SANDIRECT'S INVOICE OR OTHER SANDIRECT DOCUMENTATION, CUSTOMER AGREES TO BE BOUND BY AND ACCEPTS THESE TERMS AND CONDITIONS OF SALE UNLESS CUSTOMER AND SANDIRECT HAVE SIGNED A SEPARATE AGREEMENT, IN WHICH CASE THE SEPARATE AGREEMENT WILL GOVERN.
IMPORTANT INFORMATION ABOUT THESE TERMS AND CONDITIONS OF SALE
These terms and conditions of sale constitutes a binding contract between you ("Customer") and SANDirect. Customer accepts these terms and conditions of sale by making a purchase, placing an order or otherwise shopping on SANDirect's website (the "Site"). These terms and conditions of sale are subject to change without prior notice, except that the terms and conditions of sale posted on the Site at the time Customer initially places or modifies an order will govern the order in question.
These terms and conditions of sale constitute the entire agreement between Customer and SANDirect relating to the terms and conditions of sale of products and services on the Site. Customer consents to receiving electronic records, which may be provided via a Web browser or e-mail application connected to the internet; individual consumers may withdraw consent to receiving electronic records or have the record provided in non-electronic form by contacting SANDirect at:
212 South Tryon Street
Charlotte, NC 28281
Customer may issue a purchase order for Customer's administrative purposes only. Additional or different terms and conditions contained in any such purchase order will be null and void. Customer agrees that the terms and conditions of sale contained herein and in SANDirect's invoice or other documentation will control. No course of prior dealings between the parties and no usage of trade will be relevant to determine the meaning of these terms and conditions of sale or any purchase order or invoice related thereto.
THESE TERMS AND CONDITIONS OF SALE AND ANY SALE HEREUNDER WILL BE GOVERNED BY THE LAWS OF THE STATE OF NORTH CAROLINA, WITHOUT REGARD TO CONFLICTS OF LAWS RULES. ANY ARBITRATION, ENFORCEMENT OF AN ARBITRATION OR LITIGATION WILL BE BROUGHT IN MECKLENBURG COUNTY, NORTH CAROLINA AND CUSTOMER CONSENTS TO THE JURISDICTION OF THE FEDERAL AND STATE COURTS LOCATED IN MECKLENBURG COUNTY, NORTH CAROLINA AND SUBMITS TO THE JURISDICTION THEREOF AND WAIVES THE RIGHT TO CHANGE VENUE. CUSTOMER FURTHER CONSENTS TO THE EXERCISE OF PERSONAL JURISDICTION BY ANY SUCH COURT WITH RESPECT TO ANY SUCH PROCEEDING.
TITLE; RISK OF LOSS
Title to products and risk of loss or damage during shipment passes from SANDirect to Customer upon shipment from SANDirect, its distribution partner or manufacturer. Notwithstanding the foregoing, title to software will remain with the applicable licensor(s) and Customer's rights therein are contained in the license agreement between such licensor(s) and Customer. SANDirect retains a purchase money security interest in the products until payment in full is received. Customer will be responsible for all shipping and related charges.
In the absence of prior agreement as to shipping, SANDirect’s distribution partner may select a carrier. SANDirect is not responsibility for any loss or damage and will flow through to Customer SANDirect’s distribution partner responsibility for any loss or damage, and title passes, when products are delivered to the carrier, to Customer, or to Customer's agent, whichever occurs first. Customer will pay for storage charges if products are held by SANDirect or SANDirect’s distribution partners at Customer's request pending instructions or rescheduled delivery.
Any software included in or relating to products is supplied by the manufacturer. SANDirect or its distribution partners make no representation or warranty with respect thereto and will have no liability in connection therewith. Customer agrees to comply with the manufacturer's or other requirements with regard to proprietary and similar rights in and to such software (including any requirement to enter into a separate license agreement and prohibitions against duplicating or disclosing the same), even if the seal on any "shrink wrapped" software has been broken by SANDirect or its distribution partners, and will indemnify SANDirect and its distribution partners against and hold it harmless from any and all liability, cost or expense arising from a breach or purported breach of such requirements.
If this transaction involves an export under the Export Administration Regulations, the commodities, technology and/or software sold or distributed under these terms and conditions of sale exported from the United States by SANDirect were exported in accordance with the Export Administration Regulations. SANDirect makes no representation to Customer with respect to exported products except as stated herein. Diversion, use, export or re-export contrary to United States law is prohibited. The commodities, technology and/or software sold or distributed under these terms and conditions of sale may not be exported or re-exported to entities and persons that are ineligible under United States law to receive United States commodities, technology and/or software. In addition, manufacturers' warranties for exported products may vary or may be null and void for products exported outside the United States.
Any or all products may be subject to export or resale restriction or regulation, and Customer acknowledges that it will comply with such regulations or restrictions. Any or all products may have been imported. Country of origin information is as provided to SANDirect by its suppliers and is, where applicable, located on the products themselves or the supplier's innermost packaging thereof.
Customer understands that SANDirect is not the manufacturer of the products purchased by Customer hereunder and the only warranties offered are those of the manufacturer, not SANDirect. In purchasing the products, Customer is relying on the manufacturer's specifications only and is not relying on any statements, specifications, photographs or other illustrations representing the products that may be provided by SANDirect or its affiliates. In connection with services; neither affiliates of SANDirect nor third party service providers are agents of SANDirect and SANDirect has no obligation or liability arising from any services performed by or any warranty, if any, made by, such service providers. SANDIRECT AND ITS AFFILIATES HEREBY EXPRESSLY DISCLAIM ALL WARRANTIES EITHER EXPRESS OR IMPLIED, RELATED TO PRODUCTS SOLD OR SERVICES PROVIDED BY THIRD PARTIES OR AFFILIATES OF SANDIRECT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTY OF NONINFRINGEMENT. THIS DISCLAIMER DOES NOT AFFECT THE TERMS OF THE MANUFACTURER'S WARRANTY, IF ANY.
The performance of any value-added service may void the manufacturer's warranty and render products non-returnable. Orders incorporating such services are, accordingly, non-cancelable and the products are non-returnable. Any third party value-added service provider is deemed to be an agent of Customer.
PRICING INFORMATION; AVAILABILITY DISCLAIMER
All pricing is subject to change. SANDirect reserves the right to make adjustments to pricing, products and service offerings for reasons including, but not limited to, changing market conditions, product discontinuation, product unavailability, manufacturer price changes and errors in advertisements. All orders are subject to product availability. Therefore, SANDirect cannot guarantee that it will be able to fulfill Customer's orders.
SANDirect quotes are valid for 30 days or until the validity date of SANDirect quotes from SANDirect’s distribution partners or manufacturers and whichever is sooner.
LIMITATION OF LIABILITY
NEITHER SANDIRECT NOR ITS AFFILIATES WILL BE LIABLE FOR LOST PROFITS, LOSS OF BUSINESS OR ANY CONSEQUENTIAL, SPECIAL, INDIRECT OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY. NEITHER SANDIRECT NOR ITS AFFILIATES WILL BE LIABLE FOR PRODUCTS NOT BEING AVAILABLE FOR USE OR FOR LOST OR CORRUPTED DATA OR SOFTWARE OR THE PROVISION OF SERVICES BY THIRD PARTIES. CUSTOMER AGREES THAT FOR ANY LIABILITY RELATED TO THE PURCHASE OF PRODUCTS OR SERVICS PROVIDED BY SANDIRECT OR ITS AFFILIATES, NEITHER SANDIRECT NOR ITS AFFILIATES WILL BE LIABLE OR RESPONSIBLE FOR ANY AMOUNT OF DAMAGES IN EXCESS OF THE LESSER OF: (A) THE DOLLAR AMOUNT PAID BY CUSTOMER FOR THE PRODUCT(S) OR SERVICE(S) GIVING RISE TO THE CLAIM; OR (B) $50,000.
SANDirect will not be responsible for any delays in delivery which result from any circumstances beyond its control, including without limitation, product unavailability, carrier delays, delays due to fire, severe weather conditions, failure of power, labor problems, acts of war, terrorism, general insurrection, acts of God or acts of any government or agency, or delay in delivery by SANDirect’s distribution partners or suppliers or any other cause or causes beyond SANDirect’s or SANDirect’s distribution partner’s reasonable control. SANDirect and its distribution partners reserve the right to cancel without liability any order, the shipment of which is or may be delayed for more than 30 days by reason of any such cause. SANDirect or its distribution partners reserve the right to allocate in their sole discretion among Customers or potential Customers, or defer or delay the shipment of, any product which is in short supply.
Unless specifically otherwise agreed in writing by SANDirect, Customer acknowledges that products sold by SANDirect are not intended for and will not be used in life support systems, human implantation, nuclear facilities or systems or any other application where product failure could lead to loss of life or catastrophic property damage. Customer will indemnify and hold SANDirect, SANDirect’s distribution partners and manufacturers harmless from any loss, cost or damage resulting from Customer's breach of the provisions of this paragraph.
THIRD PARTY SERVICES
Customer acknowledges and agrees that, in some instances, SANDirect and its affiliates are resellers of services and are not the provider of those services. In those cases, the third party service provider is the only party responsible for providing services to Customer. In those cases, Customer will look solely to the third party service provider for any loss, claims or damages arising from or relating to the purchase or provision of such services. Customer hereby releases SANDirect and its affiliates from any and all claims arising from or relating to the purchase or provision of any such services by third party service providers. Services may be subject to tax.
Any claim, dispute, or controversy (whether in contract, tort or otherwise, whether preexisting, present or future, and including statutory, common law, intentional tort and equitable claims) arising from or relating to the products or services sold pursuant to these terms and conditions of sale, the interpretation or application of these terms and conditions of sale or the breach, termination or validity thereof, the relationships which result from these terms and conditions of sale (including, to the full extent permitted by applicable law, relationships with third parties who are not signatories hereto), or SANDirect's advertising and marketing (collectively, a "Claim") WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION. If arbitration is chosen, it will be conducted pursuant to the Rules of the American Arbitration Association, with offices in Chicago, Illinois. If arbitration is chosen by any party with respect to a Claim, neither SANDirect nor Customer will have the right to litigate that Claim in court or to have a jury trial on that Claim or to engage in pre-arbitration discovery, except as provided for in the applicable arbitration rules or by agreement of the parties. Further, Customer will not have the right to participate as a representative or member of any class of claimants pertaining to any Claim. Notwithstanding any choice of law provision included in these terms and conditions of sale, this arbitration agreement is subject to the Federal Arbitration Act (9 U.S.C. §§ 1-16). The arbitration will take place in Charlotte, North Carolina. Any court having jurisdiction may enter judgment on the award rendered by the arbitrator(s). Each party will bear its own cost of any legal representation, discovery or research required to complete arbitration. The existence or results of any arbitration will be treated as confidential. Notwithstanding anything to the contrary contained herein, all matters pertaining to the collection of amounts due to SANDirect arising out of sales hereunder will be exclusively litigated in court rather than through arbitration.
ORDERS; PAYMENT TERMS; INTEREST; TAXES
Except as otherwise set forth on the front a quote: Terms of payment are net 30 days from invoice date; prices are FOB SANDirect’s distribution partners’ locations. Prices may include estimated taxes, freight, handling, duty or other similar charges, and payment of actual expenses will be the sole responsibility of Customer and may be invoiced separately by SANDirect. Prices are conditioned upon timely payment and any past due balance will accrue interest at the monthly rate of one and one-half percent. Freight charges may be constructed on the basis of standard carrier tariffs and may not reflect actual transportation costs. SANDirect reserves the right to modify terms prior to shipment, require payment in advance, or delay or cancel any shipment or order by reason of Customer's creditworthiness or should Customer fail to fulfill any obligation when due.
Payments for invoices less than US$ 5,000.00 and for all maintenance or support agreement renewals are to be transacted via Customer credit card at the time of order.
Any shipping dates provided by SANDirect are estimates only.
No order may be cancelled, rescheduled or reconfigured without SANDirect’s prior written authorization and, in such event, Customer will be liable to SANDirect for any additional costs and expenses incurred by SANDirect. Prices are subject to change by SANDirect upon Customer rescheduling or reconfiguration of orders. Prices are also subject to change in response to supplier price increases, whereupon, Customer may cancel the undelivered portion of any affected order by delivering written notice to SANDirect prior to the shipment thereof and within 10 days of its receipt of notice of the price increase.
Orders are not binding upon SANDirect until accepted by SANDirect. Terms of payment are within SANDirect's sole discretion. Invoices are due and payable within the time period specified on the invoice, measured from the date of invoice. SANDirect may invoice Customer separately for partial shipments. Customer agrees to pay interest on all past-due sums at the lower of one and one-half percent (1 1/2%) per month or the highest rate allowed by law. Customer is responsible for, and will indemnify and hold SANDirect harmless from, any applicable sales, use, transaction, excise or similar taxes (but not taxes imposed or measured by SANDirect's net income), and from any federal, state or local fees or charges (including, but not limited to, environmental or similar fees), imposed on, in respect of, or otherwise associated with the order. Customer must claim any exemption from such taxes, fees or charges and must provide SANDirect with the necessary supporting documentation at the time of purchase. Any sales, use or other applicable tax or fees or assessments is based on the location to which the order is shipped. In the event of a payment default, Customer will be responsible for all of SANDirect's costs of collection, including court costs, filing fees and attorney's fees.
SANDirect may assign accounts receivable to a SANDirect distribution partner. In order to defray the cost of Customer account administration, any credit balance or other sum owed to Customer which remains unclaimed by Customer for a period of eighteen months will become the property of SANDirect or its distribution partner.
SANDirect retains a purchase money security interest in the products until payment in full is received. SANDirect’s distribution partner may also retain a purchase money security interest in all products sold by SANDirect to Customer, and in the proceeds of any resale of such products, until the purchase price and any other charges due to SANDirect’s distribution partner have been paid in full. Customer agrees to execute any financing statements SANDirect or its distribution partner may request in order to protect SANDirect and SANDirect distribution partner's security interest and hereby authorizes SANDirect’s distribution partner to execute and irrevocably appoints SANDirect’s distribution partner its attorney in fact for the execution of such financing statements. Upon any breach by Customer of these terms and conditions, SANDirect or SANDirect’s distribution partner will have all rights and remedies of a secured party under the Uniform Commercial Code, which rights and remedies will be cumulative and not exclusive. Customer is responsible for all costs and expenses incurred by SANDirect or SANDirect’s distribution partner in collecting any sums owing by Customer (which may include, but are not limited to, collection agency and reasonable attorneys' fees). If SANDirect or its distribution partner incurs costs collecting on any judgment arising out of Customer's breach, Customer will be responsible for them, and this provision will survive the entry of any such judgment. SANDirect or its distribution partner shall have the right to offset any sum owed by SANDirect or its distribution partner to Customer against any sum owed by Customer. All transactions are governed by the laws of the State of North Carolina. The parties waive any right to trial by jury.
If Customer's order is placed under a contract with the United States Government, SANDirect agrees to comply with those contract provisions and regulations with which, pursuant to law, it must comply and of which Customer has, at the time of order placement, placed SANDirect on notice. In no event will United States Government Cost Accounting Standards apply. All rights in technical data and software owned or licensed by SANDirect, its distribution partner or the manufacturer are hereby reserved and deemed restricted or limited. No provision of Customer's contract with the government will be binding on SANDirect, its distribution partner, or the manufacturer except as expressly set forth in this paragraph.
ACCEPTANCE OF PRODUCTS AND DEFECTIVE PRODUCT RETURNS:
SANDirect provides no refunds and no returns once product is ordered and shipped. There is no right of return. Manufacturers do not allow for a credit once a product is shipped. Product cannot be returned if ordered in error. Product cannot be returned if next generation product has been released.
Inspection and acceptance of all other Products shall be Customer’s responsibility. Customer is deemed to have accepted the Products unless written notice of rejection is received by Seller within ten (10) days after delivery of the Products. Customer waives any right to revoke acceptance thereafter. Customer shall report any discrepancy in shipment quantity or any damage within ten (10) days after delivery. If Customer refuses to accept tender or delivery of any products or returns any products without authorization from SANDirect, such products will be held by SANDirect’s distribution partner awaiting Customer's instruction for 20 days, after which SANDirect may deem the products abandoned and dispose of them as it sees fit, without crediting Customer's account.
No returns may be made for any reason without a Return Authorization Form issued by SANDirect’s distribution partner or manufacturer. All returns for Defective Products must have a valid Return Material Authorization ("RMA") Number issued by SANDirect's distribution partner in accordance with the terms of the Manufacturer’s Warranty. Shipping instructions will be provided at the time of RMA request.
Return of Defective Product: If returned Products are claimed to be defective, a complete description of the nature of the defect must be provided at the time of RMA Number request. Returned Products must be in original manufacturer's shipping cartons complete with all packing materials. Customer's exclusive remedy, if any, under these warranties is limited, at SANDirect or SANDirect's distribution partner election, to either of (a) repair by the distribution partner or the manufacturer of any products found to be defective, or (b) replacement of any such product.
Neither party will issue any press release concerning the sale of products to Customer without the other Party's consent. However, SANDirect may identify Customer as a SANDirect Customer using Customer’s logo.
All quotations and sales are made only upon these terms and conditions and those included this document. This document, and not any purchase order or other Customer document (which, if construed to be an offer is hereby rejected), will be deemed an offer or counter-offer and is a rejection of any other terms or conditions. Customer, by accepting any products, making any payments or ordering any products having previously received these terms and conditions, will be deemed to have assented to these terms and conditions, notwithstanding any terms contained in any prior or later communication from Customer and whether or not SANDirect will specifically or expressly object to any of Customer's terms. SANDirect’s failure to object to any document, communication or act of Customer will not be deemed a waiver of any of these terms and conditions. Any addition or change to these terms and conditions must be specifically agreed to in writing by a duly authorized officer of SANDirect before becoming binding on SANDirect.