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Terms And Conditions


These terms and conditions of sale ("Terms and Conditions") apply to all sales of product and services ("Product") by Westcon Group North America, Inc. its subsidiaries and affiliates ('Company') to you ("Customer").
1. Acceptance. Customer's acceptance of these Terms and Conditions shall be indicated by signing this Credit Application where indicated or submission of a request to purchase Product by any means ('Order'), including the Company's electronic ordering system ('E-System'). The Company's acceptance of Customer's Order is conditioned upon Customer's acceptance of these Terms and Conditions. In the event that Customer's Order is deemed to be an offer, the Company's acknowledgment or performance of the Order is conditioned upon Customer's acceptance of these Terms and Conditions and the Customer's acceptance of delivery without objection to these Terms and Conditions constitutes acceptance of these Terms and Conditions.

2. Order and Shipment. Customer will order Product by sending the Company a complete Order, in a form acceptable to the Company. The Company may reject the Order for any reason. The Company will not be bound by any terms or conditions set forth in any Order. Customer agrees not to contest the validity or enforceability of any Order. Customer is solely responsible for the use of its assigned E-System user ID, password or other permitted method of access to the E-System.
Delivery will be made in accordance with the Company's shipping policy in effect on the date of shipment. All shipments of Product hereunder will be FOB point of shipment. Insurance coverage, transportation costs and all other expenses applicable to shipment from the Company to Customer's identified place of delivery will be at Customer's sole expense. Company will pay all insurance costs applicable to shipment on behalf of Customer, unless waived in writing by Customer. Customer must notify the Company, by calling the Company's Customer Service Department within seven (7) days after delivery, of any claimed shortages or rejections and the Company must receive a written notice within fifteen (15) days after delivery ('Shipment Claim'). Failure to give such notice of a Shipment Claim will be deemed an acceptance in full of any such delivery. Approval of and remedy for any Shipment Claim is in the Company's sole discretion. In the event that the Company does not approve the Shipment Claim, Customer will pay the total invoice.

3. Price and Payment. Prices for the Product will be as set forth in the Company's then applicable price list or per agreed pricing arrangement exclusive of applicable taxes, duties, licenses, excises, tariffs and shipping costs, which shall be the obligations of the Customer.
Payment is due thirty (30) days from date of the Company's invoice, except that COD accounts are due upon delivery. Payment of the Company's invoices shall be made in the currency of the United States. Customer will pay a late fee of one and one half percent (1.5%) per month on any outstanding balance owed, or the maximum amount permitted under applicable law. The Company reserves the right to withhold shipment of any part of an Order or to require pre-payment of any Order in the event that the Company determines in its sole judgment that the Customer is unable to make timely payment.

4. Purchase Money Security Interest. Customer grants the Company and the Company retains a purchase money security interest in the Product. Customer agrees to cooperate with the Company to perfect the Company's security interest. Customer authorizes Company to file any such instrument, including without limitation, any UCC Financing Statements without Customer's signature or on behalf of Customer as Customer's irrevocably appointed attorney-in-fact.

5. Returns and Warranty Assistance Service. Customer may return Product purchased from the Company ('Returned Product') and receive a credit up to the amount
invoiced for the Returned Product, subject to the following: (a) the Returned Product is received by the Company within thirty (30) days of the invoice date; (b) the Company's cost for the Returned Product on the date of shipment is not less than the Company's cost to purchase the same Product as the Returned Product on the date of the return; (c) the Returned Product is new and unused; (d) the Returned Product is in its original package, which has not been damaged or altered; (e) the Company determines, in its sole judgment, that Customer is not in default of the Terms and Conditions or any other agreement between the parties, and (f) the Company issues a return material authorization ('RMA'), including applicable fees, for the Returned Product .
Product purchased from the Company determined to be defective during the applicable manufacturer warranty period ('Defective Product') may be returned to the Company for assistance in processing a manufacturer's warranty, provided that the Defective Product is covered by a manufacturer's warranty, the Company determines, in its sole judgment, that Customer is not in default of the Terms and Conditions or any other agreement between the parties and the Company issues an RMA for the Defective Product.
All Returned Product and Defective Product must be shipped by Customer FOB destination and received by the Company within fifteen (15) days of the date of issuance of the RMA. Notwithstanding the foregoing, the Company makes no warranty or representation regarding the Product.

6. Credit Memos and Refunds. Credit memos may be available to Customer pursuant to the Company's then applicable policies and programs which may include, without limitation, Product returns, co-op advertising, rebates and allowances ("Credit Memos"). The Customer or the Company may apply any Credit Memos to any amount Customer owes to the Company. Refunds will be issued, upon request of Customer, only in the event of an overpayment and provided that Customer's account with the Company is current.

7. Confidential and Proprietary Information. Each party acknowledges that all non-public information, disclosed as a result of performance of these Terms and Conditions, including without limitation, customer lists, pricing information or other customer-specific or marketing information, whether in tangible or intangible form and however conveyed shall be deemed 'Confidential and Proprietary Information'. Each party agrees not to disclose or use such information except, (i) in connection with these Terms and Conditions, or (ii) as required by law to do so. Each party agrees to promptly notify the other party of any subpoena or court order compelling disclosure.

8. DISCLAIMER AND LIMITATION OF LIABILITY. THE COMPANY MAKES NO WARRANTIES OF ANY KIND WITH REGARD TO THE PRODUCT. THE COMPANY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, AS TO THE PRODUCT, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL THE COMPANY BE LIABLE FOR ANY LOSS, DAMAGE OR COST FOR BREACH OF WARRANTY.
THE COMPANY WILL NOT, IN ANY EVENT, BE LIABLE FOR ANY LOSS OF REVENUE, PROFIT, USE OF DATA, UNAUTHORIZED USE OF THE E-SYSTEM, INTERRUPTION OF BUSINESS OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRODUCT, OR IN ANY WAY CONNECTED TO THIS AGREEMENT, EVEN IF THE COMPANY HAS BEEN ADVISED OF SUCH DAMAGES. IN NO EVENT WILL THE COMPANY'S LIABILITY TO CUSTOMER EXCEED THE LESSER OF (1) THE PURCHASE PRICE PAID FOR THE PRODUCT THAT IS THE BASIS FOR THE CLAIM, OR (2) $25,000. THIS DISCLAIMER AND LIMITATION OF LIABILITY PROVISION WILL APPLY WHETHER ANY CLAIM IS BASED UPON PRINCIPLES OF CONTRACT, WARRANTY, NEGLIGENCE OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, PRINCIPLES OF INDEMNITY OR CONTRIBUTION, OR OTHERWISE.

9. Export Restrictions. Customer will obtain all licenses, permits and approvals required by any government and will comply with all applicable laws, rules, policies and procedures. Customer will indemnify, defend and hold harmless the Company for any violation or alleged violation by Customer of such laws, rules, policies or procedures.

10. General. The Terms and Conditions will be construed in accordance with the laws of New York other than conflicts of law. CUSTOMER CONSENTS TO THE NON-EXCLUSIVE JURISDICTION OF ANY STATE AND FEDERAL COURTS IN WESTCHESTER COUNTY, NEW YORK REGARDING ANY DISPUTES ARISING OUT OF THESE TERMS AND CONDITIONS. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms and Conditions. The failure of either party to insist upon strict performance of any of the provisions of the Terms and Conditions will not be deemed a waiver of any breach or default. Each of the parties represents that it has the authority to enter into and sign the Terms and Conditions. Any notice given to either party will be in writing and effective by transmission via facsimile and regular mail to the addresses indicated in the Credit Application or as advised in writing by the party. The Company will be entitled to receive all costs, including attorneys fees and costs, incurred as a result of enforcement of any provision hereof or collection of any sum due from Customer. If any provision of these Terms and Conditions are unenforceable as a matter of law, all other provisions will remain in effect. The Company may assign these Terms and Conditions. Customer may not assign these Terms and Conditions without the prior written approval of the Company. The Company will not be liable for any delay or failure in performance whatsoever due to acts of God, earthquakes, shortage of supplies, transportation difficulties, labor disputes, riots, war, fire, epidemics and similar occurrences. These Terms and Conditions constitute the entire agreement between the parties as to the sale of Product and supersede all prior or current written or oral statements, representations, negotiations, agreements and understandings regarding the sale of Product. The Terms and Conditions may be amended or modified only in writing, signed by both parties. Customer warrants and represents that the information provided as part of the Credit Application is true and correct and acknowledges that the Company will rely on this information in determining financing terms for Customer, if any. Customer acknowledges acceptance of these Terms and Conditions of Sale.

 

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