PRODUCT GENERAL TERMS AND CONDITIONS OF SALE
SCHEDULE D-MASTER MANAGED SERVICES AGREEMENT
1. Acceptance of Terms and Conditions
Buyer's acceptance of these Terms shall be indicated by any of the following, whichever first occurs: (a) Buyer's submission of a purchase order to PCNet in connection with a Sale; (b) Buyer's written acknowledgment of these Terms; (c) Buyer's acceptance of any shipment of any product or the delivery of any service in connection with a Sale; or (d) any other act or expression of acceptance by Buyer. All terms, conditions or proposals submitted by Buyer before or after these Terms (whether oral or in writing) that are inconsistent with or in addition to these Terms are objected to and are hereby rejected by PCNet. PCNet's silence or failure to respond to any such term, condition or proposal shall not be deemed to be PCNet's acceptance or approval thereof.
2. Delivery
Unless otherwise agreed in writing by PCNet, delivery of products in connection with a Sale ( "Products") shall be made in accordance with PCNet's shipping policy in effect on the date of shipment. The current PCNet shipping policy is located at www.pcnet-inc.com.Domestic. For all domestic transactions, unless otherwise stated on the front of the PCNet Quotation and Sales Order Form, title to all Products and all risk of loss or damage with respect to Products shall pass to Buyer upon delivery by PCNet to the carrier or Buyer's representative at PCNet's logistics center. Unless otherwise agreed in writing by PCNet, delivery of services in connection with a Sale ("Services") shall be made in accordance with the PCNet invoice .
3. Price and Payment
Buyer shall be responsible for paying all applicable federal, state, municipal and other government taxes (such as sales, use and similar taxes), as well as export, import and customs duties, license fees and any other similar charges, however designated or levied on a Sale, the delivery of the Products and/or Services or measured by the purchase price paid for the Products and/or the Services. In addition to the Products and Services prices set forth on the PCNet invoice , PCNet includes applicable taxes, duties, fees and charges for payment to PCNet by Buyer. Such inclusion shall in no way vary or limit Buyer's payment responsibility for all such taxes, duties, fees and charges. Buyer is also responsible for paying PCNet for all shipping charges included on the PCNet invoice. Tax exemption certificates must be presented by Buyer to PCNet before shipment of any Products and/or the delivery of any Services in order for such exemption to be honored by PCNet.
4. Payment Terms
Unless otherwise specified in a written agreement between Buyer and PCNet, the payment terms are COD. PCNet, at its discretion, may require reasonable advance assurances of payment through irrevocable bank letters of credit or otherwise. All unpaid invoices shall bear interest at an amount equal to 1-1/2% of the outstanding balance per month (or the maximum rate of interest allowed by law, whichever is less), commencing upon the date payment is due. Buyer's failure to make timely payment may, at the discretion of PCNet, result in the commencement of proceedings for collection, revocation of credit, stoppage of shipment, cessation of services, delay or cessation of future deliveries of Products and/or Services, repossession of unpaid delivered Products and termination of any one or more agreements in connection with a Sale. Notwithstanding any "net" payment provisions specified on the invoice, PCNet shall have no continuing obligation to deliver Products and/or Services on credit, and any credit approval may be withdrawn by PCNet at any time and without prior notice to Buyer. PCNet retains (and Buyer grants to PCNet by submitting a purchase order) a security interest in the Products to secure payment in full therefor and compliance with these Terms. Upon notice from PCNet, Buyer agrees to execute and deliver to PCNet any additional documents necessary to perfect such security interest. If PCNet places any outstanding invoice with an attorney or collection agency for the purpose of collection, with or without judicial proceedings, or for the purpose of enforcing PCNet's security interest in the Products, Buyer agrees to pay any and all costs associated with such collection effort, including, without limitation, court costs and expenses and attorney and collection agency fees and costs, paid or incurred by PCNet including, without limitation, collection, bankruptcy and/or other creditor's rights proceedings. If a Sale requires Products to be shipped and/or Services to be delivered outside of the United States, Buyer acknowledges and agrees that the amount due PCNet shall be paid in United States Dollars. Any payment by Buyer in local currency or the receipt by PCNet of local currency as a consequence of any collection or enforcement actions against Buyer will be deemed an authorization for PCNet to use such local currency to purchase United States Dollars. Any deficiency as a result of the conversion of such local currency into United States Dollars shall be the responsibility of Buyer, and Buyer shall immediately pay the amount of any such deficiency to PCNet upon demand.
5. Product Returns; Disclaimer
Any return of Products by Buyer shall be governed by PCNet's product return policies in effect on the date of the PCNet Quotation and Sales Order Form, or as otherwise provided by PCNet to Buyer in writing. PCNet's product return policies are located at www.pcnet-inc.com. PCNet reserves the right to modify or eliminate such policies at any time. Although PCNet's policies may permit Buyer to return Products claimed to be defective under certain circumstances, PCNet makes no representations or warranties of any kind with respect to the Products or the Services. PCNET HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, AS TO THE PRODUCTS AND THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT OR FITNESS FOR A PARTICULAR PURPOSE. PCNET WILL NOT BE LIABLE FOR ANY DAMAGE, LOSS, COST OR EXPENSE ARISING FROM A SALE OR THE PURCHASE AND/OR USE OF ANY PRODUCTS AND/OR SERVICES. The right to return defective Products, as previously described, shall constitute PCNet's sole liability and Buyer's exclusive remedy in connection with any claim of any kind relating to the quality, condition or performance of any Product, whether such claim is based upon principles of contract, tort or otherwise. If PCNet issues a return authorization to Buyer allowing Buyer to return Product to PCNet, Buyer will deliver the Product to PCNet's address in the United States at its cost and expense, if so required by PCNet, and Buyer shall be responsible for all applicable federal, state, municipal and other government taxes (such as sales and similar taxes) as well as export, import or customs duties, license fees and similar charges, however designated or levied, on any replacement Products to be shipped by PCNet to Buyer. In addition to the replacement Products prices set forth on the PCNet invoice, PCNet includes applicable taxes, duties, fees and charges for payment to PCNet by Buyer. Such inclusion shall in no way vary or limit Buyer's payment responsibility for all such taxes, duties, fees and charges. Buyer is also responsible for the payment to PCNet for all shipping charges that are included on the PCNet invoice for replacement Products to be shipped by PCNet to Buyer.
6. Limitation of Liability
PCNET SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH A SALE OF ANY PRODUCTS OR SERVICES TO BUYER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR ANY LOST PROFITS OR CONSEQUENTIAL, SPECIAL OR INDIRECT DAMAGES OR ANY SUMS PAID BY BUYER TO THIRD PARTIES EVEN IF PCNET IS INFORMED OR IS OTHERWISE AWARE OR SHOULD BE AWARE OF THEIR LIKELIHOOD, POSSIBILITY OR PROBABILITY WHETHER ANY CLAIM IS BASED UPON PRINCIPLES OF CONTRACT, TORT OR OTHERWISE.
7. Force Majeure
PCNet shall not be liable for any delay or failure to perform any Sale due to events beyond its control including, without limitation, natural disasters, power outages, accidents, labor strikes or shortages and governmental laws and regulations. If due to any such event, PCNet is unable to ship all the Products or deliver all the Services to Buyer and other customers of PCNet in connection with a Sale, PCNet may allocate the available supply of products and services among Buyer and PCNet's other customers as PCNet shall deem reasonable.
8. General
Unless Buyer and PCNet have executed a written agreement that specifically modifies, supersedes and/or replaces these Terms, these Terms and the PCNet Quotation and Sales Order Form shall constitute the final, complete and exclusive agreement of the parties with respect to all Sales by PCNet to Buyer and shall supersede all prior offers, negotiations, understandings and agreements. No additional or different terms or conditions shall become a part of any agreement for any Sale unless expressly accepted in writing by an authorized officer of PCNet. Any waiver by PCNet of one or more of these Terms or any default hereunder shall be in a writing executed by a duly authorized officer of PCNet and shall not constitute a waiver of any other of these Terms or of any prior or future default. No failure or delay by either party in exercising or enforcing any right hereunder shall operate as a waiver thereof or preclude any other exercise or enforcement of its rights. Any provision of these Terms that is determined to be invalid or unenforceable by a court of competent jurisdiction shall not impair or invalidate the remaining provisions of these Terms. All Sales shall be deemed made in, and shall be governed by, the laws of the State of Connecticut without regard for its conflict of laws principles. Buyer hereby irrevocably and unconditionally submits to the jurisdiction of the federal and state courts located within the State of Connecticut for the purpose of any suit, action or other proceeding arising out of or based upon these Terms or any Sale.
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