DIGITAL WAREHOUSE USA, INC. LOCATED AT 989 AVE OF AMERICAS, NY, NY 10018, ("DW") is A RESELLER OF NETWORKING EQUIPMENT ("EQUIPMENT"). ACCEPTANCE OF DW PO BY SUPPLIER IS EXPRESSLY LIMITED TO THE TERMS AND CONDITIONS CONTAINED IN THIS ORDER. ANY TYPEWRITTEN OR HANDWRITTEN PORTIONS OF THIS ORDER SHALL SUPERSEDE AND CANCEL ANY CONTRARY OR INCONSISTENT PRINTED PORTIONS OF THIS ORDER. ANY ADDITIONAL OR DIFFERENT TERMS IN SUPPLIER'S INVOICES, BILLING STATEMENTS, ACKNOWLEDGMENT FORMS OR OTHER DOCUMENTS ARE DEEMED TO BE MATERIAL AND ARE OBJECTED TO WITHOUT FURTHER NOTIFICATION BY DW, AND SHALL BE OF NO FORCE OR EFFECT UNLESS SPECIFICALLY AGREED TO IN WRITING.
1. Price and Delivery
A. Supplier shall furnish the items ("Equipment") called for by DW PO (the "PO") in accordance with the prices and delivery schedule specified on the face of the PO. This is a not-to-exceed PO. Advance written approval from DW is required to exceed the amount referenced by "PO Total Not to Exceed:" (reasonable freight and sales tax, if applicable, as additions are allowed.) DW reserves the right to reject Supplier invoices exceeding the approved total. If price is not stated in any PO, it is agreed that the Equipment shall be billed at the price last quoted, or billed at the prevailing market price, whichever is lower. No Equipment shall be sent at a higher price than the last quoted price by Supplier or changed without DW Written Authorization.
B. Time is of the essence for DW POs, and the delivery schedule specified on the PO must be strictly observed by Supplier both as to time and quantities. DW Reserves the right to cancel any PO without penalties of any kind should the supplier fail to deliver the Equipment in accordance with the DW time frame specified in the PO. DW is not obligated to accept partial deliveries and/or excess deliveries. In addition to its right to terminate pursuant to Paragraph 13 (Termination), DW may require Supplier, at Supplier's sole cost and expense, to ship any of the items covered by this Order by air or ground or by such other means as may be designated by DW if Supplier fails to meet the specified delivery schedule. Acceptance by DW of all or part of the items shall not constitute a waiver by DW of its claims arising from delays in delivery.
2. Changes to Scope of Equipment/Services
DW shall have the right at any time to make changes in specifications, materials, packaging, time and place of delivery, quantity and method of transportation. If any such changes cause an increase or decrease in the cost, or the time required for the performance, an equitable adjustment shall be made and this Order shall be modified in writing accordingly. Acknowledgment of agreed-upon changes will be issued in writing in a timely fashion.
3. Condition and Warranty
A. DW only purchases the following categories of equipment
Factory New: (FN) - this is equipment which is SEALED in its Original Manufacture Equipment box, complete with all accessories, documentation, warranties and has never been demoed or used for any period of time.
OEM Refurbished (RF) - this is equipment which has been refurbished by the Original Equipment Manufacturer (OEM) Factory and has been Certified as such by the OEM. This equipment is Like-New and comes complete with all accessories, documentation, warranties and has never been demoed or used for any period of time.
New-Open-Box (NB) - meaning, not factory sealed and/or used very briefly for demo purposes- complete in the original box with manufacturer's original serial number, manuals, cables, power cord, mounting brackets and all other options and accessories unless specified otherwise in our PO.
Used Tested (UT) - this is equipment which has been tested by the seller and certified to be working to manufacturers specs, cosmetically in good condition free of dents, scratches, discoloration, etc., complete with manufacturer's original serial number, manuals, cables, power cord, mounting brackets and all other options and accessories unless otherwise specified in our PO.
B. DW DOES NOT PURCHASE untested and "AS-IS" equipment, scrap equipment, equipment without OEM Serial Number and/or missing components, cosmetically damaged repaired, non-working and/or defective equipment, and equipment not legally owned by the Supplier. Supplier agrees to a 90 Day Exchange/Refund Warranty on equipment being purchased by DW, should DW determines (a) the equipment to be defective, (b) has missing serial number and/or components, (c) is cosmetically in poor condition and/or is not resalable.
Supplier warrants that all Equipment furnished hereunder shall be
(a) remarket able and free from any defects in workmanship or material;
(b) shall not infringe any patent, copyright, mask work, trademark, trade secret or other intellectual property, proprietary or contractual right of any third party.
In addition, Supplier warrants that DW shall have good and marketable title to all Equipment (including all components thereof) purchased by DW pursuant to the PO, free of all liens and encumbrances and that no licenses are required for DW to use such Equipment. Supplier shall indemnify and save DW harmless from any breach of this warranty, and no limitations on DW's remedy in Supplier's documents shall operate to reduce this indemnification. Supplier shall extend all warranties it receives from its vendors to DW. This warranty is in addition to all warranties contained under the law. All warranties will survive acceptance of and payment for any Equipment under this Order
C. Payment for all Equipment shall be subject to DW's final inspection and testing on DW's premises of purchased equipment. In the event DW wishes to inspect or test any Equipment covered by this Order on Supplier's premises, DW shall give Supplier reasonable notice and Supplier shall provide, without additional charge, reasonable facilities and assistance for such inspections and tests. If DW and/or its customers determine the Equipment to be defective or otherwise not in conformity with the requirements of this Order, DW, by written notice to Supplier, may (a) rescind this Order as to such Equipment, (b) accept such Equipment at an agreed reduction in price, (c) retain and correct the defects or non-conforming aspects of such Equipment or (d) reject such Equipment and require the delivery of replacements. Rejected Equipment will be returned to Supplier at Supplier's risk of loss, with or without a return authorization within 90 days from the DW PO date. Delivery of replacements shall be accompanied by written notice specifying that items are replacements. If Supplier fails to deliver required replacements in accordance with a reasonable delivery date specified by DW, DW may terminate this Order. No inspection, tests, approval or acceptance of Equipment ordered shall relieve Supplier from liability for (i) defects or other failure to meet the requirements of this Order, (ii) latent defects, (iii) fraud (iv) such gross mistakes as may amount to fraud, or (v) failure by Supplier to meet its warranty obligations hereunder. The rights granted to DW under this paragraph are in addition to any other rights or remedies provided elsewhere in this Order or by law.
Supplier is responsible for properly packaging the Equipment using bubble wrap, foam, etc. in order to insure that the equipment is not damaged in transit. All Equipment shall be appropriately packaged, marked and otherwise prepared in a manner to obtain the lowest reasonable shipping rates unless contrary instructions are received in writing from DW. Each box must have a packing slip indicating what is in the box. Damage to the Equipment due to improper packing is at Supplier's risk. Suppliers are REQUIRED to email the tracking information to DW as well as the COD check amount for each box as soon as the carrier picks up the shipment.
5. Delivery, Title & Risk of Loss
Title shall pass to DW on delivery of the conforming Equipment to DW's designated location in Oklahoma City, OK, USA or otherwise specifically directed by DW PO. Notwithstanding any agreement to pay freight, express or other transportation charges, the risk of loss or damage in transit shall be upon the Supplier. Delivery shall not be complete until the Equipment have been actually received, inspected and accepted by DW.
Digital Warehouse USA, Inc.
7720 N. Robinson Suite B7
Oklahoma City, OK 73116
Digital Warehouse USA, Inc.
Accounts Payable Dept.
989 Avenue of the Americas, 4th Floor New York, NY 10018
7. Tax Exemption
DW represents, and Supplier acknowledges, that DW is a registered reseller in the States of New York and Oklahoma. When applicable, DW will include appropriate tax exemption documentation with their Order.
8. Statutory Compliance
Supplier shall comply with all applicable federal, state, and local laws and ordinances and all lawful orders, rules and regulations there under.
ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER PREEXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT AND EQUITABLE CLAIMS) BETWEEN SUPPLIER AND DW, its agents, employees, principals, successors, assigns, affiliates (collectively for purposes of this paragraph, "DW") arising from or relating to this Agreement, its interpretation, or the breach, termination or validity thereof, the relationships which result from this Agreement (including, to the full extent permitted by applicable law, relationships with third parties who are not signatories to this Agreement), or any related purchase SHALL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION under its Code of Procedure then in effect in the State of New York. In the event of any inconsistency or conflict between AAA Code of Procedure and this Agreement, this Agreement shall control. The arbitration will be limited solely to the dispute or controversy between Supplier and DW. NEITHER SUPPLIER NOR DW SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER SUPPLIERS, OR ARBITRATE ANY CLAIM AS A REPRESENTATIVE OR CLASS ACTION OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. The individual (non-class) nature of this dispute provision goes to the essence of the parties' arbitration agreement, and if found unenforceable, the entire arbitration provision shall not be enforced. Any award of the arbitrator(s) shall be final and binding on each of the parties, and may be entered as a judgment in any court of competent jurisdiction. If either party prevails on any claim that affords the prevailing party attorneys' fees, or if there is a written agreement providing for fees, the Arbitrator may award reasonable fees to the prevailing party, under the standards for fee shifting provided by law. Otherwise, each party shall pay for its own costs and attorneys' fees, if any. Information may be obtained and claims may be filed with the American Arbitration Association at http://www.adr.org/.
10. Force Majeure
Neither party to this Order will be liable to the other for any failure or delay in performance under this Order due circumstances beyond its reasonable control including, without limitation, Acts of God, accident, labor disruption, acts, omissions and defaults of third parties, and official governmental and judicial action not the fault of the party failing or delaying in performance. If an event of force majeure lasts for more than 10 days, DW shall be entitled, at its option, to terminate all outstanding orders without obligation or liability to Supplier.
A. Supplier shall indemnify, defend and hold DW harmless against all claims, liabilities, losses, damages, costs and expenses (including legal fees) resulting from or arising in connection with any actual or claimed infringement of any patent, copyright, mask work, trademark, trade secret or other intellectual property including software licenses, proprietary or contractual right of any third party, with respect to the Equipment provided under the Order.
B. Supplier and DW shall indemnify and hold each other from and against all liabilities arising out of the indemnifying party's negligence or failure to perform or comply with any of the terms and conditions of this Agreement, including liability for personal injury or product liability. In the event a claim is instituted by a third party, the indemnifying party agrees to undertake, at its expense, the defense of both parties. Each party agrees to cooperate fully with the other in defending against such claims.
12. Order Cancellation
The occurrence of any one or more of the following events shall constitute an "Event of Default," which shall entitle DW to terminate the Order:
A. Any failure by Supplier to deliver, when and as specified in DW PO.
B. Any failure by Supplier to perform or comply with any obligation set forth herein and such failure shall continue un-remedied for a period of five (5) days or more following receipt by Supplier of notice from DW specifying such failure; or
C. (1) the suspension or dissolution of Supplier's business
(2) Supplier's insolvency, or its inability to pay debts, or its nonpayment of debts, as they become due,
(3) the institution of reorganization, liquidation or other such proceedings by or against Supplier or the appointment of a custodian, trustee, receiver or similar Personfor Supplier's properties or business,
(4) an assignment by Supplier for the benefit of its creditors, or
(5) any action of Supplier for the purpose of effecting or facilitating any of the foregoing.
In the event of Cancellation of the PO by DW for reasons specified above, Supplier agrees to hold DW harmless of any financial losses and/or legal consequences resulting from such cancellation. Furthermore, the Supplier agrees to promptly refund in full any and all down-payment deposits made by DW to the Supplier with regard to the cancelled PO.
13. Assignment and Subcontracting
The Order may not be assigned or transferred in whole or in part, without the written permission of DW, nor may any rights to any monies due or to become due hereunder be assigned.
14. LIABILITY RESTRICTION
NEITHER SUPPLIER NOR DW SHALL BE LIABLE OR OBLIGATED TO EACH OTHER UNDER ANY SECTION OF THESE TERMS AND CONDITIONS OR UNDER CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, LOST PROFITS, CONSEQUENTIAL OR PUNITIVE DAMAGES. THIS LIMITATION SHALL NOT IN ANY WAY LIMIT THE OBLIGATION OF EITHER SUPPLIER OR DW TO FULLY INDEMNIFY THE OTHER WITH RESPECT TO THIRD PARTY CLAIMS AS PROVIDED FOR IN PARAGRAPH 12.
(A) No course of dealing of DW nor any delay or omission of DW to exercise any right or remedy granted under this Order shall operate as a waiver of any right of DW, and every right and remedy of DW provided herein shall be cumulative and concurrent, unless otherwise expressly provided herein, and shall be in addition to every other right or remedy provided for herein or now or hereafter existing in law or in equity or by statute or otherwise. (B) If any provision of this Order is found to be illegal or otherwise unenforceable by any court or other judicial or administrative body, such provision shall be limited to the extent necessary so that it will not render this Order unlawful or otherwise unenforceable and the remaining provisions of this Order shall remain in full force and effect. (C) This Order shall be governed by the laws of the State of New York. (D) This Order contains the entire agreement of the parties. No claimed change, modification, rescission or waiver shall be binding on DW unless in writing and signed by a duly authorized representative of DW.
16. Paragraph Headings
All paragraph headings used are for the convenience of the parties only and shall not be considered a part of this Order nor used to interpret or construe the intent of the parties hereunder.
Neither DW nor Supplier shall disclose any details of this Order or the terms and conditions herein to any outside party without securing the prior written consent of the other.
18. Entire Agreement
This Order and all resultant Orders, supplements, attachments, and incorporations constitute agreement between DW and Supplier. No conversations, understandings, or agreements varying, extending, or affecting in any way the terms or provisions of this Order will be binding on either party unless reduced to writing and duly executed by an authorized representative of each party.