Digital Warehouse - Sales Terms and Conditions
Last Updated: June 2017
Acceptance by Digital Warehouse USA, Inc., ("DW") a New York Corporation with its principal offices at 589 8th Avenue, 22nd Floor, New York City, New York - 10018 of Customer's Purchase Order is subject to the following terms and conditions. These terms and conditions ("Agreement") apply to your purchase of products and/or services and support ("Products") sold in the United States by Digital Warehouse, including its affiliates or subsidiaries.
BY PLACEMENT OF AN ORDER, AND/OR BY ACCEPTANCE OF PRODUCTS ORDERED, CUSTOMER SIGNIFIES AGREEMENT THAT NO TERMS, CONDITIONS OR WARRANTIES OTHER THAN THOSE STATED IN THESE TERMS, AND NO AGREEMENT OR UNDERSTANDING, ORAL OR WRITTEN, IN ANY WAY PURPORTING TO MODIFY THESE TERMS, CONDITIONS AND/OR WARRANTIES, WHETHER CONTAINED IN CUSTOMER'S PURCHASE ORDER OR ELSEWHERE, SHALL BE BINDING ON DW, UNLESS MADE IN WRITING AND SIGNED BY AN APPROPRIATE OFFICER OF DW. DW EXPRESSLY OBJECTS TO ANY TERMS INCONSISTENT WITH THOSE EXPRESSLY STATED HEREIN.
Digital Warehouse reserves the right to modify these Terms at its sole discretion at any time. Any such modification will be effective upon Digital Warehouse sending notice to you by email, text message, or postal mail.
This Agreement may NOT be altered, supplemented, or amended by the use of any other document(s) unless otherwise agreed to in a written agreement signed by both Customer and DW.
1. Payment Terms; Orders; Quotes; Interest: Terms of payment are within DW's sole discretion, and unless otherwise agreed to by DW, payment must be received by DW prior to DW's acceptance of an order. Payment for the Products will be made by credit card (Visa, MC, Amex), wire transfer, or some other prearranged payment method unless credit terms have been agreed to by DW. Invoices are due and payable within the time period noted on your invoice, measured from the date of the invoice. Past due invoices are assessed an 18% APR finance charge beginning with day 40 from the invoice date. DW may invoice parts of an order separately. Your order is subject to cancellation by DW, at DW's sole discretion and without prior notice due to reasons beyond its control such as product unavailability and pricing changes, etc. DW is not responsible for pricing, typographical, or other errors in any offer by DW and reserves the right to cancel any orders resulting from such errors.
2. Security Interest and Repossession: The Title to the Products shall remain with DW until the full payment for the invoice of the Products sold is received. Until full payment has been made for the Products, DW shall have a security interest in Products shipped to Customer and the Products shall remain personal property. Upon request, Customer shall execute and deliver to DW security agreements and financing statements or statements further evidencing DW's security interest. Customer authorizes DW to file a financing statement or statements relating to the Products, without Customer's signature thereon, as DW may deem appropriate and appoints DW as Customer's attorney-in-fact for the limited purpose of executing (without requiring DW to do so) financing statements in Customer's name and performing other acts which DW deems appropriate to perfect and continue its security interest and to protect and preserve the Products. In the event Customer defaults in making any payment due DW, DW in addition to any other rights or remedies provided by law, shall have the right, with or without legal process, to enter the place where said Products are located and to repossess the Products in accordance with the Uniform Commercial Code. Customer shall not sell, exchange, transfer, convey, mortgage, pledge, hypothecate, or grant a security interest in any Products or the proceeds thereof (including cash, accounts, contract rights, instruments and chattel paper) which are the subject to this Agreement if payment therefore shall not have been made in full to DW. Customer shall pay DW all costs incurred to collect any past due account from Customer, including, but not limited to, all court costs and attorney's fees to the maximum extent permitted by law.
3. Shipping Charges; Sales Taxes; Title; Risk of Loss: Shipping and handling are additional unless otherwise expressly indicated at the time of sale. Title to products passes from DW to Customer on shipment from DW's facility. Unless you provide DW with a valid and correct tax exemption certificate applicable to your purchase of Product and the Product ship-to location, you are responsible for sales and other taxes including VAT and import duties associated with the order. Oklahoma and New York Customers are subject to Sales Tax. Shipping dates are estimates only. Time is not of the essence. DW may ship all the goods at one time or in installments from time to time. DW will have the right to determine the method of shipment and routing of the goods unless otherwise mutually agreed upon by Customer and DW. DW shall not be liable for loss or damage because of delays occasioned by labor disputes, damage to facilities, or failure of suppliers or subcontractors to meet scheduled deliveries or any other cause beyond DW's reasonable control or making its performance commercially impracticable. Loss or damage that occurs during shipping by a carrier selected by DW is DW's responsibility. Loss or damage that occurs during shipping by a carrier selected by the Customer is the Customer's responsibility. Each box contains a packing slip indicating what is in the box. It is the Customer's responsibility to check the items received against the packing slip, and report to DW any discrepancies immediately.
4. Returns for Exchange and/or Credit; Refunds; Cancelled Orders: Except for defective Products under warranty which are provided for in Section 5 below, purchased refurbished equipment may be returned for exchange and/or credit within 30 days after the invoice date provided the following criteria are met:
a)You must obtain a Return Merchandise Authorization (RMA) from DW Technical Assistance Center (TAC) by contacting the number below prior to returning any Products.
b) Products must be returned within 10 calendar days from the day you received the RMA. If RMA Product is not received at our OK facility within 10 days after the issuanceof an RMA, the RMA is automatically cancelled and the Customer is billed for the full amount of any replacement Products sent to replace the non-returned item.
c) The RMA Products must be in resalable condition in its original packaging, complete with all modules, flash memory and accessories.
d) New and Non-stock Products are designated as Special Orders. Special Orders are non-cancelable and non-returnable unless defective. All Special Order sales arefinal.
d) Orders may not be cancelled unless the product is defective or the return is a direct result of a DW error.
e) A Restocking Fee of 20% of the purchase price paid, plus anyapplicable sales tax and shipping charges applies to all cancelled orders prior to any refund beingissued.
f) RMA Products must be shipped by a Common Carrier (UPS/FedEx/USPS) at the Customer's expense to DW Returns Dept. at the following address:
Digital Warehouse USA, Inc.
Returns Dept.
7720 N. Robinson Suite B/7
Oklahoma City, OK 73116
Phone: (405) 308-4109
Before you return the Products to DW, make sure to back-up any data on the hard drive(s) and on any other storage device in the Product, if applicable. Remove any and all confidential, proprietary, and personal information as well as removable media such as floppy disks, CDs, and PC Cards. DW is not responsible for any confidential, proprietary, or personal information; lost or corrupted data; or damaged or lost removable media that may be included with your return.
5. LIMITED LIFETIME WARRANTY:
Subject to the terms and conditions described below, selected products carry a limited lifetime warranty for the original purchaser of the product.
a) To provide piece of mind to our customers, Digital Warehouse offers a limited lifetime warranty on all used, refurbished or pre-owned equipment purchased. Although rare, should you experience an equipment failure within the first year of purchase, our expert technicians will troubleshoot your issue via phone and email to resolve the issue or send out an advanced replacement unit. After the first year, should you experience equipment failure, simply send the equipment back to our warehouse facility and we will repair and/or exchange the equipment under warranty with the exact model or a like unit with the same functionality within 10 working days following its receipt.
All Pre-owned (A+ Certified) or New-Open-Box (NOB) network equipment is covered by a Limited Lifetime Warranty to the original end-user. Digital Warehouse USA Inc. limited lifetime warranty covers DOA equipment or equipment failing to perform to manufacturers specs during the first year. This lifetime warranty does not apply to failure of the product resulting from misuse, abuse, accident, neglect or mishandling, improperly adjusted or maintained product, incorrect environment, improper installation or configuration, accident, flood or physical damage, electrical issues such as lightning, power surges, incorrect electrical voltages or other electrical stress, modification, or force majeure.
Digital Warehouse will, for a period of one (1) year from the date of purchase, provide an advanced replacement for any covered item determined to be defective by Digital Warehouse. Our expert technical support staff is available to assist with any hardware issues during normal business hours. After one (1) year from the date of purchase, Digital Warehouse will repair or replace any item found to be defective by our Digital Warehouse staff. Shipping costs to the Digital Warehouse USA Operations facilities are borne by the purchaser after the first year of purchase. Additionally, technical support is limited to determining if the hardware is defective.
If a product covered by this warranty is claimed to be defective, you, the purchaser, must follow the return procedure described to you via email by our Technical Assistance Team. Upon receipt of returned product(s), Digital Warehouse will determine if the product(s) is defective and, at its sole discretion, will either choose to repair or replace the device with a comparable or like unit.
An RMA is issued when the equipment received is determined to have a specific cosmetic or functional defect. No item can be returned without an RMA. To obtain an RMA, contact your Sales Representative. The customer is responsible for returning the defective item within 10 calendar days after the issuance of the RMA in its original box with all cables, manuals, and accessories, etc. freight pre-paid. Collect shipments will not be accepted. Customer will be charged for any missing items.
Customer is responsible for payment of any repair/replacement cost for damages to the returned equipment due to improper packing. Customer is responsible for payment of any import/export duties and taxes for products received or products returned. RMAs not returned within 10 days will be cancelled. DW will repair and/or exchange and return the RMA Product under warranty within 10 working days following its receipt. No other implied or explicit warranty of any kind is offered. Customer is responsible to pre-pay freight for RMA shipments to our Oklahoma facilities. Customer is responsible for risk of loss, shipping and handling fees for returning or exchanging RMA Products. Additional fees may apply. If you fail to follow the return or exchange instructions and policies provided by DW, DW is not responsible for Product that is lost, damaged, modified or otherwise processed for disposal or resale. DW is responsible for any return freight costs of the replacement or repaired items to customer location.
b) DW sells refurbished (A+) networking hardware and NOT any software licenses. Software licenses are the intellectual property of their respective Original Equipment Manufactures (OEM). It is common for OEMs to require re-licensing of hardware and software during a transfer, and Customer is responsible for ensuring that it is properly licensed to use the hardware purchased from DW. Further, hardware and software service contracts may be supplied to Customer through DW by a third-party affiliate or service provider, is provided “as is,” and is done solely as a convenience service for Customers. DW does not warranty that a service contract will be eligible for use in connection with the equipment being purchased, and it is Customer’s responsibility to arrange for and ensure that any service contracts purchased through DW are eligible for use in connection with the products being purchased. Customer is responsible for and shall bear any and all re-licensing costs.
c) DW does NOT guarantee that the equipment it sells can be placed under OEM (Original Equipment Manufacturer) Service Contracts.
d) Digital Warehouse provides its own service contracts branded as Netcare. Sales and servicing of Netcare service contracts are performed by Digital Warehouse. Sales and registration of manufacturer’s service contracts are done by an authorized manufacturer’s partner. By Quoting manufacturer’s service contracts and acting as a one-stop shop for its customers, Digital Warehouse facilitates the purchase and does not represent itself to be an authorized reseller of manufacturer’s service contracts.
e) The Customer has the option to purchase an Extended 2-Year or 3-Year Annual Warranty for products purchased directly from Digital Warehouse. For a detailed quote on specific items, please contact your account representative.
Certain exceptions and limitations to this warranty apply including, but not limited to the following:
a) This warranty is for the original purchaser ONLY.
b) This warranty covers pre-owned, used or refurbished products only. Items labeled New-in-Box (NIB) or New-out-of-Box will carry the manufacturers specified warranty.
c) This warranty does not cover products purchased in wholesale transactions.
d) This warranty does not cover software products, batteries, licenses, SMARTnet contracts or other Service Agreements.
WARRANTIES AND SERVICES ARE EFFECTIVE ON PAYMENT IN FULL, AND DW IS NOT OBLIGATED TO HONOR ANY WARRANTY OR PROVIDE SERVICE UNTIL DW RECEIVES PAYMENT IN FULL.
6. Disclaimer of Warranties, Limitation of Liability: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PRODUCTS ARE PROVIDED "AS IS" AND "AS AVAILABLE" FOR YOUR USE WITHOUT WARRANTIES OR CONDITIONS, EITHER EXPRESS, IMPLIED OR STATUTORY. WITHOUT LIMITING THE FOREGOING, DW EXPRESSLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, QUIET ENJOYMENT OR NON-INFRINGEMENT. DW DOES NOT ACCEPT LIABILITY BEYOND THE REMEDIES SET FORTH HEREIN, INCLUDING BUT NOT LIMITED TO ANY LIABILITY FOR PRODUCT NOT BEING AVAILABLE FOR USE, LOST PROFITS, LOSS OF BUSINESS OR FOR LOST OR CORRUPTED DATA OR SOFTWARE, OR THE PROVISION OF SERVICES AND SUPPORT EXCEPT AS EXPRESSLY PROVIDED HEREIN, DW WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY. CUSTOMER AGREES THAT FOR ANY LIABILITY RELATED TO THE PURCHASE OF PRODUCT, DW IS NOT LIABLE OR RESPONSIBLE FOR ANY AMOUNT OF DAMAGES ABOVE THE AMOUNT INVOICED FOR THE APPLICABLE PRODUCT. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, THE REMEDIES SET FORTH IN THIS AGREEMENT SHALL APPLY EVEN IF SUCH REMEDIES FAIL THEIR ESSENTIAL PURPOSE.
7. Not For Re-Export: The Customer shall not engage in any transaction with respect to the Products, by way of resale, lease, shipment or otherwise, which violates any statute or regulation of the United States of America. Customer agrees to comply with all applicable laws and regulations of the various states and of the United States. Customer represents that it is buying the Products only for its own internal use only, and not re-export to countries sanctioned by the US Treasury Office of Foreign Assets Controls (OFAC).
8. Governing Law: THE PARTIES AGREE THAT THIS AGREEMENT, ANY SALES THERE UNDER, OR ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER PREEXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, AND EQUITABLE CLAIMS) BETWEEN CUSTOMER AND DW arising from or relating to this agreement, its interpretation, or the breach, termination or validity thereof, the relationships which result from this agreement, DW's advertising, or any related purchase SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAW.
9. Binding Arbitration: 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 CUSTOMER 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), DW's advertising, 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 wilt be limited solely to the dispute or controversy between customer and DW. NEITHER CUSTOMER NOR DW SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS, 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. This transaction involves interstate commerce, and this provision shall be governed by the Federal Arbitration Act 9 U.S.C, sec. 1-16 (FAA), 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 any Customer 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/. Upon the filing of a demand for arbitration by DW or Customer, the Customer shall deposit with the arbitrator(s) the unpaid balance of the purchase price to be held in an interest bearing account. If such deposit is not made, the arbitrator(s) shall enter a final award against the Customer in the amount of the unpaid purchase price and other amounts owed by Customer to DW under the Agreement.
10. Time for Bringing Action: Any proceeding by the Customer for breach of this Agreement or any other right against DW arising from or in connection with this transaction cannot be filed nor maintained unless: (i) it is commenced within one (1) year after the cause for action has accrued; (ii) Customer has given timely written notice to DW of its claim at the address set forth in paragraph 5 above by certified mail, return receipt requested; and (iii) Customer deposits the unpaid portion of the purchase price with the tribunal pending final adjudication. An action shall accrue no later than shipment of the Products.