TEGO DATA SYSTEMS LLC.
TERMS AND CONDITIONS
CONDITIONS OF SALE
1. DEFINITIONS. For purposes hereof, unless otherwise provided herein:
(i) “Company” means Tego Data Systems, LLC., a North Carolina limited liability company; (ii) “Conditions of Sale” means the following conditions of sale which are hereby incorporated by reference in, and made a part of, the Order Confirmation to which these Conditions of Sale are affixed or attached; (iii) “Customer” means the individual or entity whose name appears on the face of the Order Confirmation; (iv) “Goods” means the equipment and products described on the face of the Order Confirmation; (v) “Invoice” means any invoice sent by Company to Customer pursuant to an Order Confirmation; and (vi) “Order Confirmation” means Company’s Sales Order Confirmation, which is an agreement between Company and Customer.
2. PAYMENT TERMS. Company will issue invoice when order ships. Customer shall pay to Company the amount listed on the face of the Order Confirmation or Invoice in the manner and in accordance with the terms provided on the face of the Order Confirmation or Invoice, but in any event no later than thirty (30) days after order date of the Goods to Customer. If Customer fails to pay the amount listed on the Order Confirmation or Invoice as required, Company may, in its sole discretion, without prejudice to any other remedy, do any one or more of the following: (i) postpone shipments, (ii) alter payment terms, (iii) terminate shipments, (iv) recover the Goods; (v) recover reasonable attorneys’ fees associated with collecting the amount due and payable; and (vi) charge interest on all overdue amounts at the rate of 1.5% per month compounded monthly (or such lesser rate as is required by applicable law). Any and all taxes imposed by federal, state or other governmental authorities on the sale of the Goods shall be paid by Customer in addition to the prices listed (and whether or not itemized) on the Order Confirmation or Invoice. Customer may not hold back, delay or set-off any amounts owed to Company in satisfaction of any claims asserted by Customer against Company.
3. DELIVERY TERMS. The Company agrees to delay shipment of the entire order for up to 30 days from order date. Goods may be delivered in part or all at one time as determined by Company. Related software may be delivered separately. Company will use reasonable diligence to meet the scheduled delivery dates provided herein, which are estimates and not guarantees of when the Goods will actually be delivered. Customer’s acceptance of delivery shall constitute a waiver of any claim of damage for delay.
4. SECURITY INTEREST. To secure the payment of the purchase price of the Goods and all other amounts due to Company from Customer, Customer hereby grants to Company a purchase money security interest in the Goods and in all equipment and goods hereafter sold by Company to Customer, all accounts resulting from the sale or other disposition thereof by Customer and in all instruments, documents, general intangibles, attachments and accessions related thereto and all proceeds of the foregoing, as such terms are defined in the Uniform Commercial Code in effect from time to time in the State of North Carolina. Customer hereby authorizes Company to file with the appropriate filing offices such UCC-1 financing statements and other instruments and documents as Company deems necessary to evidence and perfect the above-described security interest.
5. TITLE. Upon delivery of the Goods as provided in Section 3, the Goods shall become the property of Customer, subject to a reservation of a security interest herein granted to Company and any losses or damage thereto shall be borne by Customer. Customer shall obtain appropriate risk insurance for fire, theft and extended coverage including vandalism, which recognizes Company’s interest.
6. PRODUCT SPECIFICATIONS. Notwithstanding anything contained herein to the contrary, Company may, without notice to
Customer, make changes to the specifications of the Goods which do not materially affect the quality of the Goods.
7. WARRANTY. COMPANY SPECIFICALLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER STATUTORY, EXPRESS, OR IMPLIED, INCLUDING ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND OF MERCHANTABILITY, EXCEPT AS TO TITLE. Company shall not be liable for any consequential or special damages or lost profits resulting directly or indirectly from the Goods or their design, operation or installation, and Company neither assumes nor authorizes any other person to assume for it any other liability in connection herewith. Company does not represent or warrant that the Goods comply with any local laws or ordinances and Customer shall assume complete responsibility for compliance with local laws and ordinances and obtain all permits, licenses, authorizations or certificates required by any regulatory body for installation or use of the Goods.
8. REMEDIES UPON BREACH. If Customer breaches this contract due to nonpayment (after being given a 30 day cure period), Company shall be entitled, in addition to any other remedy at law or equity, to recover the Goods and all costs and expenses incurred by Company in connection herewith. Such costs and expenses shall include, without limitation, Company’s reasonable attorney’s fees, costs of any materials applied to or ordered for this contract, and any charges imposed on Company by its suppliers or subcontractors. If Company breaches this contract, in addition to any other remedy at law or in equity, Customer shall be permitted to terminate this contract, after written notice to Company of the breach and reasonable time to cure, which time shall be no less than thirty (30) days, by written notice thereof to Company. Customer’s remedies include, without limitation, the ability to receive a refund of the Order Confirmation amount, if previously paid, for any Goods that have not been shipped or otherwise identified to this contract as of the date of such termination.
9. CANCELLATIONS. Cancellation of this contract must be in writing signed by Customer and Company. Such cancellation will be deemed to occur on the date that both parties sign the notice of cancellation.
10. COSTS. Customer shall pay all of Company’s actual and direct costs and expenses, including reasonable attorney’s fees, of collecting any amount not paid when due hereunder in breach of this contract.
11. EXCUSE FOR NON-PERFORMANCE. Company shall not be liable for damages of any kind, caused by delays in shipment,
delivery, or any other nonperformance of this contract, directly or indirectly resulting from or contributed to by any circumstances beyond Company’s reasonable control, including without limitation, riots, wars, earthquakes or national emergencies, labor disputes of every kind however caused, embargoes, non-delivery by suppliers, inability to obtain supplies through normal sources of supplies, delays of carriers or postal authorities, or governmental restrictions, prohibitions or diversions. The occurrence of any such circumstance shall operate to extend Company’s time of performance hereunder for a period not less than the period of such delay, provided, however, if such delay last more than 15 days, Customer shall be entitled to terminate this contract and receive a refund for all prepaid amounts for undelivered equipment. In the event of any such circumstance, Company may allocate its production and deliveries among its customers as it may decide in its sole discretion.
12. INSOLVENCY OF CUSTOMER. Company may cancel this contract and suspend any further deliveries hereunder without any liability to Customer, and, if the Goods have been delivered but not paid for, the price therefore shall become immediately due and payable despite any other agreement to the contrary, if: (i) any proceedings in bankruptcy, insolvency, receivership or liquidation are taken against Customer; (ii) Customer makes an assignment for the benefit of creditors or commits an act of bankruptcy or insolvency; (iii) Customer ceases, or threatens to cease, to carry on the ordinary course of its business, or transfers all or substantially all of its property; (iv) the Goods are seized under any legal process or confiscated; or (v) Company in good faith believes that the ability of Customer to pay or perform any provision of this contract is impaired, or that the Goods are in danger of being lost, or that any of the events mentioned above is about to occur.
13. LIMITATION ON DAMAGES. Each party’s contractual liability for failure to fulfill its obligations hereunder or any other liability in connection with the Goods shall be limited to the amount of the purchase price of the Goods. Even if a party has been advised of the possibility of the following, a party shall not be liable for any indirect, incidental, special or consequential damages, including lost profits and revenues.
14. NOTICES. All requests, instructions and notices from one party to the other must be in writing and may be given via mail or facsimile transmission to the address of the parties shown on the face of the Order Confirmation.
15. GOVERNING LAW; ARBITRATION. This contract shall be governed by the laws of the state of North Carolina, without reference to its conflict of laws provisions. All disputes arising out of or in connection with this contract shall be finally settled under the commercial arbitration rules of the American Arbitration Association (“AAA”) by one or more arbitrators appointed in accordance with the AAA rules. Any and all arbitration proceedings, whether brought and maintained by Company or Customer, shall be administered by the office of the AAA in North Carolina located nearest to Company, and all hearings shall be held in Raleigh, North Carolina. The parties agree to abide and be bound by all decisions and awards rendered by the arbitrator(s). Judgment upon such decisions and awards may be entered in any court having jurisdiction. Notwithstanding the laws of North Carolina, the arbitrator(s) shall in no event award punitive, treble or exemplary damages. Any cause of action arising under this contract must be commenced within one (1) year after such cause of action arose.
16. MISCELLANEOUS. The terms and conditions stated herein constitute the complete and exclusive statement of the terms and conditions of the sale of the Goods. There are no other promises, conditions, understandings, representations or warranties of any kind with respect to the subject matter hereof. This contract may be modified only by a writing referencing this contract signed by Company and Customer. The failure of a party to enforce any right hereunder will not be construed as a waiver of its right to performance in the future. Any provision of this contract which is, or is deemed to be, unenforceable in any jurisdiction shall be severable from this contract in that jurisdiction without in any way invalidating the remaining provisions of this contract, and that unenforceability shall not make that provision unenforceable in any other jurisdiction. The rights which accrue to a party by virtue of this contract shall inure to the benefit of its successors and assigns.