NETDIVERSE, LLC PURCHASE TERMS AND CONDITIONS FOR EQUIPMENT, SOFTWARE, CABLING AND RELATED INSTALLATION
Customer (“Buyer”) establishes an account with NetDiverse LLC , a Montana Limited Liability Company (“NetDiverse” or “Company”) upon the first accepted order(“Sales Order”) for purchase of Equipment, Software, Licensing, Cabling, and/or Installation by Buyer in accordance with NetDiverse’s requirements.
These terms and conditions (“Sales Terms”), as published on NetDiverse’s Web site located at www.netdiverse.com (“NetDiverse Website”) at the time of sale, govern all purchases of Equipment, Software, Licensing, Cabling and Installation as indicated on the order (“Products”) by Buyer from NetDiverse.
Credit:
Payment terms are specified on an individual Sales Order and if not specified, payment is due to NetDiverse immediately upon acceptance by NetDiverse of a valid Sales Order. Payment terms are subject to change from time to time. NetDiverse has the right to modify, increase, decrease or terminate Buyer’s credit privileges and terms at any time without prior notice to Buyer. NetDiverse’s then current service charge will be charged on all past due balances commencing on the date payment is due. Buyer may not deduct any amounts owing from any invoice. Buyer’s obligation to make timely payment is a material element of these Sales Terms and if breached will cause NetDiverse damage. Buyer is responsible for all costs of collection including reasonable attorneys’ fees.
Sales Order:
Signed or Emailed Sales Orders are offers to purchase Products subject to these Sales Terms. NetDiverse may decline any order for any reason.
NetDiverse’s acceptance of Buyer’s order is limited to these Sales Terms without any modification, or exception. Additional terms and conditions on any Buyer document will have no effect i.e. will not change or add to these Sales Terms whether or not NetDiverse specifically objects to those terms and conditions. These Sales Terms may only be modified by a written agreement signed by Buyer and an authorized NetDiverse representative. Buyer, on behalf of itself and the customer for whom the Product is purchased, consents to the transfer of Buyer’s and customer’s email addresses, when such transfer is required to complete a transaction. Buyer will not disclose any confidential information when ordering from NetDiverse. Buyer will protect the confidentiality of its account number(s) and password(s) and not transfer them to any third party. Buyer may only place orders via any NetDiverse approved ordering method by using Buyer’s account number or a NetDiverse provided Sales Order.
When an order is placed electronically, NetDiverse has no obligation to confirm the validity of any order placed or the authority of the person placing an order in this manner. Buyer bears all risk of unauthorized purchases by third parties using Buyer’s account number or password.
Orders for non-standard products including products configured to Buyer’s specifications are non-cancelable and non-returnable. Buyer may not change, cancel or reschedule any orders without NetDiverse’s written consent.
Price:
Quoted prices are subject to change without notice and, unless specifically included in a quote or invoice, do not include any taxes, handling, shipping, transportation, duties or other charges or fees. Buyer is responsible for all applicable fees and all federal, state, municipal, and other government taxes on the sale and delivery of Products. Exemption certificates, valid in the place of delivery, must be presented to NetDiverse prior to shipment if they are to be honored. NetDiverse’s acceptance of Buyer’s order occurs at time of shipment, except for non-standard products.
Shipment:
Shipment and transportation charges will be in accordance with NetDiverse’s shipping policy at the time of shipment.
Title and risk of loss transfer to Buyer upon delivery of Products to the carrier. If Buyer directs NetDiverse to bill transportation to a third party account number or to ship ‘freight collect’ Buyer is responsible for all transportation and accessorial charges associated with the order, and is responsible for product loss and damage in transit claims with the Buyer’s carrier. NetDiverse is not liable for any Buyer requirements not stated in these Sales Terms. Within three days of delivery Buyer must provide detailed notification to NetDiverse of any visible damage. Buyer will notify NetDiverse of any claimed shortages or discrepancies within 30 days of invoice or waives its right to such claim.
Returns:
Buyer must obtain a valid return authorization number (“RMA”) from NetDiverse for all returns prior to returning Product.
NetDiverse has no obligation to issue RMAs. Buyer is responsible for ensuring that the RMA is clearly visible on the address label of the Product packaging and for complying with all other NetDiverse requirements provided to Buyer when the RMA is issued. NetDiverse may refuse delivery of any package without a valid, clearly visible RMA. Credit, if any, will be provided for Product returned in accordance with NetDiverse’s return policies at the time the RMA was issued, provided Buyer is not in breach of any of these Sales Terms. If Buyer returns any Products without NetDiverse’s authorization or does not comply with NetDiverse’s return requirements, those Products may be subject to return to the shipping location and, if refused, NetDiverse may consider the Products abandoned and dispose of them, without crediting Buyer’s account.
Warranties / Indemnities:
Product warranties, if any, are provided by the manufacturer or publisher (“Vendor”) of the Products.
NETDIVERSE EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EITHER EXPRESS, IMPLIED, OR STATUTORY WITH RESPECT TO ANY PRODUCT, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WHATSOEVER. ALL INFORMATION IS PROVIDED TO BUYER “AS IS.” To the extent authorized, NetDiverse will pass through to Buyer any transferable Product warranties, indemnities, and remedies provided to NetDiverse by the Vendor, if any, including any warranties and indemnities for intellectual property infringement. Buyer’s sole remedy is limited to NetDiverse reasonably assisting Buyer in its efforts to have the Vendor either: replace the Product; repair the Product; or refund Buyer’s purchase price for the Product. NetDiverse warrants value-added work performed by NetDiverse on Products for 30 days from invoice date.
NETDIVERSE IS NOT RESPONSIBLE FOR AND HAS NO DUTY TO DEFEND, INDEMNIFY, OR HOLD HARMLESS BUYER, ITS AFFILIATES OR ANY OTHER PARTY, FROM OR AGAINST ANY CLAIMS FOR BREACH OF SECURITY, LOSS OF DATA, OR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS RELATED TO THE MANUFACTURE, SALE OR USE OF THE PRODUCTS BY NETDIVERSE OR ITS VENDORS. Buyer warrants that it has all necessary legal rights to all intellectual property provided by Buyer to NetDiverse. BUYER WILL INDEMNIFY, DEFEND AND HOLD HARMLESS NETDIVERSE AND ITS VENDORS FROM AND AGAINST ANY CLAIM, DEMAND, LIABILITY, COST OR EXPENSE ARISING FROM: (A) BUYER’S USE, MARKETING, DISTRIBUTION OR SALE OF PRODUCTS IN A MANNER OTHER THAN AS SPECIFIED IN PRODUCT/SERVICE DESCRIPTIONS OR SPECIFICATIONS; (B) NETDIVERSE’S OR ITS VENDOR’S COMPLIANCE WITH DESIGNS, SPECIFICATIONS, OR INSTRUCTIONS PROVIDED BY BUYER; OR (C) BUYER’S BREACH OF THESE SALES TERMS.
Limitation of Liability:
NetDiverse will have no liability for failure to allocate or reserve any Product for Buyer or for failure to deliver Products within a specified time period. BUYER AGREES THAT NETDIVERSE’S LIABILITY FOR DAMAGES ARISING UNDER THESE TERMS AND CONDITIONS, WHETHER IN CONTRACT, TORT,OR OTHERWISE, WILL BE LIMITED TO ACTUAL, PROVEN, DIRECT DAMAGES AND WILL NOT EXCEED THE NET AMOUNT PAID TO NETDIVERSE BY BUYER FOR THAT PRODUCT OR SERVICE WHICH IS THE SUBJECT OF THE CLAIM.
EXCEPT FOR INDEMNITY OBLIGATIONS AND BREACHES OF CONFIDENTIALITY, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO LOSS OF GOOD WILL, LOSS OF ANTICIPATED PROFITS, LOSS OF DATA OR SECURITY BREACH OR OTHER ECONOMIC LOSS ARISING OUT OF OR IN CONNECTION WITH BREACH OF, OR FAILURE TO PERFORM IN ACCORDANCE WITH THE SALES TERMS, OR ANY PRODUCTS OR INFORMATION, EVEN IF NOTIFICATION HAS BEEN GIVEN AS TO THE POSSIBILITY OF THOSE DAMAGES. THE PARTIES EXPRESSLY WAIVE ALL CLAIMS FOR THOSE DAMAGES.
Compliance:
NetDiverse and Buyer agree to abide by all laws and regulations applicable to the performance of their respective obligations under these Sales Terms. Neither party has made, and will not make, any direct or indirect payment, offer to pay, or authorization to pay, any money, gift, promise to give, or authorization of the giving, of anything of value to any government official, or the immediate family of any such official, for the purpose of influencing an act or decision of the government or such individual in order to assist, directly or indirectly, Buyer or NetDiverse in obtaining or retaining business, or securing an improper advantage. If Buyer delivers the Products to its customer who may use the Products outside the United States, Buyer will advise its customer that the Products are controlled for export by the U.S. Department of Commerce and that the Products may require authorization prior to export from the United States or re-export.
E-Rate (Universal Service Fund – Schools and Libraries Division) Eligible Sales Orders:
Customer may cancel E-Rate Service Order without penalty if prior to shipment and if the FCC denies funding for Customer’s Form 471 request for funding.
CUSTOMER IS RESPONSIBLE TO ENSURE NETDIVERSE RECEIVES FULL PAYMENT FOR ANY PRODUCTS OR SERVICES LISTED ON A SALES ORDER WHEN SHIPPED OR PROVIDED. If NetDiverse Invoices Customer and the FCC separately using the Service Provider Invoicing process, and the FCC does not pay NetDiverse in a timely fashion, Customer is responsible to pay NetDiverse for the FCC portion.
NETDIVERSE IS NOT LIABLE IF CUSTOMER IS NOT APPROVED FOR FUNDING FROM THE FCC OR IF FUNDING IS FOR ANY REASON REVOKED. IF FCC UNIVERSAL SERVICE FUND FUNDING FOR SALES ORDER IS REVOKED AT ANY TIME REQUIRING NETDIVERSE TO RETURN FUNDS TO FCC, CUSTOMER WILL BE LIABLE TO NETDIVERSE FOR THIS AMOUNT.
NetDiverse Complies with the Lowest Corresponding Price rules required by the FCC for our E-Rate Eligible Services.
Restrictions:
Buyer may not alter or modify the Products in any way or combine the Products with any other product or material not authorized by NetDiverse and the applicable Product Vendor. All Products delivered to Buyer may have additional restrictions on their distribution or use. Buyer is solely responsible for ensuring its adherence to any and all such restrictions.
Relationship:
Buyer and NetDiverse are independent contractors. Nothing stated in these Sales Terms will be construed as creating the relationship of employer/employee, franchisor/franchisee, partners or principal/agent between the parties. Neither party will make any warranty, guarantee or representation, whether written or oral, on the other party’s behalf.
Governing Law:
These Sales Terms (and any agreement into which they are incorporated) will be construed, interpreted and enforced exclusively under and in accordance with the laws of the State of Utah, excluding its conflicts of law rules. The parties agree to and submit to personal jurisdiction and venue in the State and Federal courts of Salt Lake County, UT The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Sales Terms.
Notices:
All notices, requests, demands, and other communications must be in writing and may be given by (i) personal delivery, (ii) registered or certified mail, return receipt requested, or via nationally recognized courier services to the party at the address of the party, at its official corporate address, or (iii) email to gary@netdiverse.com subsequently to be confirmed in writing (including by email). Notices to NetDiverse will be sent to: NetDiverse LLC, 885 Sandhurst Drive, Salt Lake City, UT 84103.
Publicity:
Except for any announcement intended solely for internal distribution by either party or any disclosure required by legal, accounting, or regulatory requirements, all media releases, public announcements, or public disclosures by either party or its employees or agents relating to these Sales Terms, the relationship between NetDiverse and Buyer, or including the marks of the other party or any affiliate of that party, must be approved in writing by the other party prior to release.
Assignment:
Buyer may not assign or delegate its rights or duties under these Sales Terms, by operation of law or otherwise, in whole or in part, without the prior written consent of NetDiverse. Any change of control of Buyer will be deemed an assignment. Any attempted assignment without that consent will be null and void without any force or effect.
Validity:
If any provision of these Sales Terms is held to be unenforceable, the enforceability of the remaining provisions will not in any way be affected. Failure or delay of either party to exercise a right under these Sales Terms will not operate as a waiver, nor will any single or partial exercise of a right preclude any other future exercise of that right. The parties agree to use electronic signatures and that their respective electronic signatures will be legally enforceable.
Survival:
No termination of these Sales Terms will affect any rights or obligations of either party: (i) which are vested pursuant to these Sales Terms as of the effective date of such termination; or (ii) which, by their sense and context are intended to survive completion of performance or termination of these Sales Terms, including, without limitation, Confidentiality, Warranties / Indemnities, and Limitation of Liability, all of which will survive.
Entire Agreement and Amendment:
These Sales Terms are intended to be the sole and complete statement of the obligations and rights of the parties as to all matters covered hereunder, and supersede all previous understandings, agreements, negotiations and proposals relating thereto. These Sales Terms may only be amended by written agreement of Buyer and NetDiverse.