TD on CD Volume 4 #2/TD on CD (Volume 4, Issue 2) (USA).bin/APPS/TDO/disk2/CANADA.Z/T&C_SALE.TXT

Text File | 1997-11-20 | 26KB | 391 lines

UNITED STATES TERMS AND CONDITIONS OF SALE

TERMS AND CONDITIONS OF SALE


These terms and conditions of sales which appear on all invoices
are the terms and conditions upon which Tech Data Corporation and
its U.S. subsidiaries (together "TDC") make all sales.  TDC will
not accept any other terms and conditions of sale, unless Buyer
and TDC have executed a master contract which specifically
supersedes and replaces these terms and conditions.  Acceptance
of all purchase orders is expressly made conditional upon Buyer's
assent, expressed or implied, to the terms and conditions set
forth herein without modification or addition.

1.    ACCEPTANCE

Buyer's acceptance of these terms and conditions shall be
indicated by any of the following, whichever first occurs:
(a) Buyer's making of an offer to purchase Product from TDC;
(b) Buyer's written acknowledgment hereof;
(c) Buyer's acceptance of any shipment of any part of the items
specified for delivery (the "Products"); or
(d) any other act or expression of acceptance by Buyer.
TDC's acceptance is expressly limited to the terms and conditions
hereof in their entirety without addition, modification or
exception, and any term, condition or proposals hereafter
submitted by Buyer (whether oral or in writing) which is
inconsistent with or in addition to the terms and conditions
set forth hereon is objected to and is hereby rejected by TDC.
TDC's silence or failure to respond to any such subsequent or
different term, condition or proposal shall not be deemed to be
TDC's acceptance or approval thereof.

2.    DELIVERY

Unless otherwise agreed in writing, delivery shall be made in
accordance with TDC's shipping policy in effect on the date of
shipment. For all domestic transactions, unless otherwise stated
on the front of the invoice, title to, and all risk of loss or
damage with respect to the Products shall pass to Buyer upon
delivery by TDC to the carrier or Buyer's representative at TDC's
warehouse or plant.  For all international transactions, the
Product shall be sold on a delivered, insurance paid, duty and
international freight unpaid basis.  TDC assumes no responsibility
for charges attendant to Customs clearance in the country of
delivery, customs duty, VAT or any other charges or taxes within
the country designated for delivery by the Buyer.  Title and risk
of loss shall pass to the Buyer upon delivery to the port
designated by the Buyer and prior to Customs clearance.  Delivery
is subject to the payment provisions set forth herein and to TDC's
receipt from Buyer of all necessary information and documentation
from Buyer including all import certificates, exemption and/or
resale certificates, licenses and other documents as may be
required from Buyer for export of the Product.  Buyer shall
promptly notify TDC, in no event later than five (5) business days
after delivery, of any claimed shortages or rejection as to any
delivery.  Such notice shall be in writing and shall be reasonably
detailed, stating the grounds for any such rejection. Failure to
give any such notice within such time shall be deemed an acceptance
in full of any such delivery.  TDC shall not be liable for any
shipment delays beyond the reasonable control of TDC which
affect TDC or any of TDC's suppliers, including, but not limited
to, delays caused by unavailability or shortages of Products from
TDC's suppliers; natural disasters, acts of war; acts or
omissions of Buyer; fire, strike, riot, or governmental
interference; unavailability or shortage of materials, labor,
fuel or power through normal commercial channels at customary
and reasonable rates; failure or destruction of plant or
equipment arising from any cause whatsoever; or transport
failures.

3.    PRICE AND PAYMENT

Buyer shall bear all applicable federal, state, municipal and
other government taxes (such as sales, use and similar taxes),
as well as import or customs duties, license fees and similar
charges, however designated or levied on the sale of the
Products (or the delivery thereof) or measured by the purchase
price paid for the Products. (TDC's prices set forth on the front
side of the invoice do not include such taxes, fees and charges.)
Exemption certificates must be presented prior to shipment if
they are to be honored.  Unless otherwise specified, payment
terms are COD.  TDC, 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 to be contracted
for by law, whichever is less), commencing upon the date payment
is due.  Buyer's failure to make timely payment may result in
such action as commencement of proceedings for collection,
revocation of credit, stoppage of shipment, delay or cessation
of future deliveries, repossession of unpaid delivered goods and
termination of any one or more sales agreements. Notwithstanding
any "net" payment provisions specified on the invoice, TDC shall
have no continuing obligation to deliver Products on credit, and
any credit approval may be withdrawn by TDC at any time and
without prior notice.  TDC retains (and Buyer grants to TDC by
submitting a purchase order) a security interest in the Products
to secure payment in full and compliance with all sales
agreements, and Buyer agrees to execute any additional documents
necessary to perfect such security interest.  In the event the
sales invoice shall be placed by TDC in the hands of an attorney
for the purpose of collection, with or without litigation, or
for the purpose of enforcing TDC's security interest in the
Products, the Buyer agrees to pay any and all costs associated
with such placement, including, without limitation, attorney's
fees and costs incurred prior to, during, or subsequent to trial,
and including, without limitation, collection, bankruptcy, or
other creditor's rights proceedings.  If a sale is to occur, or
the Product is to be shipped, outside of the United States,
Buyer acknowledges and agrees that the amount due TDC is
contracted in U.S. Dollars and that payment in U.S. Dollars is
of the essence.  Any payment by Buyer in local currency or the
receipt by TDC of local currency as a consequence of enforcement
procedures against Buyer will be deemed an authorization for
TDC to use that local currency to purchase U.S. Dollars or, if
such purchase is prohibited by local law, an authorization to
purchase appropriate bonds or other instruments and export them
from the Buyer's country in order to convert the currency into
U.S. Dollars and apply the proceeds to the payment of any
amounts owed to TDC by Buyer.  Any deficiency as a result of
conversion of payment into U.S. Dollars shall be the
responsibility of Buyer.

4.    PRODUCT RETURNS

Return of Products purchased hereunder, whether for stock
balancing purposes or because such Products are claimed to be
defective, shall be governed by TDC's Product Return policies as
set forth in TDC's Wholesale Catalog in effect on the date of
the invoice, or as otherwise provided by TDC to Buyer in writing.
TDC reserves the right to modify or eliminate such policies at
any time.  Although TDC's policies may permit Buyer to return
Products claimed to be defective under certain circumstances,
TDC makes no representations or warranties of any kind with
respect to the Products.  TDC HEREBY DISCLAIMS ALL
REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED,
AS TO THE PRODUCTS, INCLUDING, BUT NOT LIMITED TO,
ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE.  TDC WILL NOT BE LIABLE
FOR ANY DAMAGE, LOSS, COST OR EXPENSE FOR BREACH
OF WARRANTY.  The right to return defective Products, as
previously described, shall constitute TDC'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, warranty, negligence or other tort, breach of any
statutory duty, principles of indemnity or contribution, the
failure of any limited or exclusive remedy to achieve its
essential purpose, or otherwise.  In the event TDC issues a
return authorization to Buyer allowing Buyer to return Product
to TDC, Buyer will deliver the Product to TDC's address in the
United States, if so required by TDC, and Buyer shall bear all
applicable federal, state, municipal and other government taxes
(such as sales, use and similar taxes) as well as import or
customs duties, license fees and similar charges, however
designated or levied, on any replacement Product to be shipped
by TDC to Buyer.

5.    LIMITATION OF LIABILITY

TDC 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 THE
AGREEMENT TO SELL PRODUCT TO BUYER OR THE PRODUCT,
INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOST PROFITS,
LOSS OF USE, LOST DATA OR FOR ANY DAMAGES OR SUMS PAID BY
BUYER TO THIRD PARTIES, EVEN IF TDC HAS BEEN ADVISED OF
POSSIBILITY OF SUCH DAMAGES.  THE FOREGOING LIMITATION OF
LIABILITY SHALL 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, THE FAILURE OF ANY LIMITED
OR EXCLUSIVE REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE,
OR OTHERWISE.

6.    GENERAL

These terms and conditions shall constitute the final, complete
and exclusive agreement of the parties with respect to all sales
by TDC to Buyer and shall supersede all prior offers,
negotiations, understandings and agreements.  Unless Buyer and
TDC have executed a master contract which specifically supersedes
and replaces the terms and conditions herein, it is expressly
agreed that no prior or contemporaneous agreement or
understanding, whether written or oral, shall contradict, modify,
supplement or explain the terms and conditions contained herein.
No additional or different terms or conditions, whether material
or immaterial, shall become a part of any sales agreement unless
expressly accepted in writing by an authorized officer of TDC in
the United States.  Any waiver by TDC of one or more of these
terms and conditions or any defaults hereunder shall not
constitute a waiver of the remaining terms and conditions or of
any future defaults hereunder.  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 rights hereunder.  Any provision of these terms
and conditions that is prohibited or unenforceable under the
laws of the State of Florida shall be ineffective to the extent
of such prohibition or unenforceability, without impairing or
invalidating the remaining provisions of these terms and
conditions.  All sales agreements shall be deemed made in, and
shall be governed by, the laws of the State of Florida.  The
venue for any disputes arising out of any sales agreement shall
be, at TDC's sole and exclusive option, Pinellas County, Florida
or the courts with proper jurisdiction at Buyer's location.
ALL SALES TRANSACTIONS EXCLUDE THE APPLICATION OF THE
1980 UNITED NATIONS CONVENTION ON CONTRACTS FOR THE
INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE.


CANADIAN TERMS AND CONDITIONS OF SALE

These terms and conditions of sales which will appear on all invoices are the terms and conditions upon
which Tech Data Canada Inc. and its subsidiaries ("TDC") make all sales. TDC will not accept any other
terms and conditions of sale. Unless Buyer and TDC have executed a master contract which specifically
supersedes and replaces these terms and conditions, acceptance of all purchase orders is expressly
made conditional upon BuyerÆs assent expressed or implied to the terms and conditions set forth herein
without modification or addition.


ACCEPTANCE

BuyerÆs acceptance of these terms and conditions shall be indicated by any of the following, whichever
first occurs:  (a) BuyerÆs making of an offer to purchase Product from TDC; (b) BuyerÆs written
acknowledgment hereof; (c) BuyerÆs acceptance of any shipment of any part of the items specified for
delivery (the "Products"); or (d) any other act or expression of acceptance by Buyer. TDCÆs acceptance is
expressly limited to the terms and conditions hereof in their entirety without addition, modification or
exception, and any term, condition or proposals hereafter submitted by Buyer (whether oral or in writing)
which is inconsistent with or in addition to the terms and conditions set forth hereon is objected to and is
hereby rejected by TDC. TDCÆs silence or failure to respond to any such subsequent or different term,
condition or proposal shall not be deemed to be TDCÆs acceptance or approval thereof.


DELIVERY

Unless otherwise agreed in writing, delivery shall be made in accordance with TDCÆs shipping policy in
effect on the date of shipment and shall be F.O.B. TDCÆs warehouse unless otherwise indicated. TDC
reserves the right to make deliveries in installments.
Title to, and all risk of loss or damage with respect to the Products shall pass to Buyer upon delivery by
TDC to the carrier or BuyerÆs representative at TDCÆs warehouse or plant. Delivery is subject to the
payment provisions set forth herein and to TDCÆs receipt from Buyer of all necessary information and
documentation from Buyer including all import certificates, exemption and/or resale certificates, licenses
and other documents as may be required from Buyer for export of the Product. Buyer shall promptly notify
TDC, in no event later than five (5) business days after delivery, of any claimed shortages or rejection as
to any delivery. Such notice shall be in writing and shall be reasonably detailed, stating the grounds for
any such rejection. Failure to give any such notice within such time shall be deemed an acceptance in full
of any such delivery. TDC shall not be liable for any shipment delays beyond the reasonable control of
TDC which affect TDC or any of TDCÆs suppliers, including, but not limited to, delays caused by
unavailability or shortages of Products from TDCÆs suppliers; natural disasters, acts of war; acts or
omissions of Buyer; fire, strike, riot, or governmental interference; unavailability or shortage  of materials,
labor, fuel or power through normal commercial channels at customary and reasonable rates; failure or
destruction of plant or equipment arising from any cause whatsoever; or transport failures.



PRICE AND PAYMENT

All prices quoted and all payments shall be in Canadian Dollars unless otherwise specified. Buyer shall
bear all applicable federal, provincial, municipal and other government taxes (such as sales, use and
similar taxes), as well as import or customs duties, license fees and similar charges, however  designated
or levied on the sale of the Products (or the delivery thereof) or measured by the purchase price paid for
the Products. (TDCÆs prices set forth on the front side of the invoice do not include such taxes, fees and
charges.) Exemption certificates must be presented prior to shipment if they are to be honored. Unless
otherwise specified, payment terms are COD. TDC, 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 18% per annum (or
the maximum rate of interest allowed to be contracted for by law, whichever is less), commencing upon
the date payment is due. The charging and payment of interest shall not be construed as obligating TDC
to grant any extension of time in terms of payment. BuyerÆs failure to make timely payment may result in
such action as commencement of proceedings for collection, revocation of credit, stoppage of shipment,
delay or cessation of future deliveries, repossession of  unpaid delivered goods and termination of any one
or more sales agreements. Notwithstanding any "net" payment provisions specified on  the invoice, TDC
shall have no continuing obligation to deliver Products on credit, and any credit approval may be withdrawn
by TDC at any time and without prior notice. TDC retains (and Buyer grants to TDC by submitting a
purchase order) a security interest which may include but shall not be limited to a purchase money
security interest in the Products to secure payment in full and compliance herewith, and Buyer agrees to
execute any additional documents necessary to perfect such security interest and to the registration of
any financing statements and the giving of notices in respect to the grant of the said security interest. In
the event the sales invoice shall be placed by TDC in the hands of an attorney for the purpose of
collection, with or without litigation, or for the purpose of enforcing TDCÆs security interest in the Products,
the Buyer agrees to pay any and all costs associated with such placement, including, without limitation,
attorneyÆs fees and costs incurred prior to, during, or subsequent to trial on a solicitor and his own client
basis, and including, without limitation, collection, bankruptcy, or other creditorÆs rights proceedings. If a
sale is to occur, or the Product is to be shipped, outside of Canada, Buyer acknowledges and agrees that
the amount due TDC is contracted in Canadian Dollars and that payment in Canadian Dollars is of the
essence. Any payment by Buyer in local currency or the receipt by TDC of local currency as a
consequence of enforcement procedures against Buyer will be deemed an authorization for TDC to use
that local currency to purchase Canadian Dollars or, if such purchase is prohibited by local law, an
authorization to purchase appropriate bonds or other instruments and export them from the BuyerÆs
country in order to convert the currency into Canadian Dollars and apply the proceeds to the payment of
any amounts owed to TDC by Buyer. Any deficiency as a result of conversion of payment into Canadian
Dollars shall be the responsibility of Buyer and shall be a debt due from Buyer to TDC together with
interest thereon as set out herein.



SPECIAL CONDITIONS

Any order may be terminated by the Buyer only upon reimbursement to TDC of expenses already incurred
and commitments made by TDC with respect to the order. TDC reserves the right to reject orders placed
by the Buyer or to refuse to ship orders accepted in circumstances of actual or anticipated shortages of
any product. TDC reserves the right to allocate available products amongst its customers in such
circumstances and in such manner as TDC may, in its sole discretion, determine appropriate. Prices set
out in purchase orders are subject to adjustments to account for any currency fluctuations affecting
products. In respect to special orders and promotions, all prices are current at time of print and are
subject to change without notice.



PRODUCT RETURNS

Return of Products purchased hereunder, whether for stock balancing purposes or because such
Products are claimed to be defective, shall be governed by TDCÆs Product Return policies as set forth in
TDCÆs Wholesale Catalog and the Latin America Supplement thereto in effect on the date of the invoice,
or as otherwise provided by TDC to Buyer in writing. TDC reserves the right to modify or eliminate such
policies at any time. Although TDCÆs policies may permit Buyer to return Products claimed to be defective
under certain circumstances, TDC makes no representations or warranties of any kind with respect  to the
Products. TDC HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR
IMPLIED, AS TO THE PRODUCTS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. TDC WILL NOT BE LIABLE FOR
ANY DAMAGE, LOSS, COST OR EXPENSE FOR BREACH OF WARRANTY. THE RIGHT TO RETURN
DEFECTIVE PRODUCTS, AS PREVIOUSLY DESCRIBED, SHALL CONSTITUTE TDCÆS SOLE
LIABILITY AND BUYERÆS 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, WARRANTY, NEGLIGENCE OR OTHER TORT,
BREACH OF ANY STATUTORY DUTY, PRINCIPLES OF INDEMNITY OR CONTRIBUTION, THE
FAILURE OF ANY LIMITED OR EXCLUSIVE REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE, OR
OTHERWISE. In the event TDC issues a return authorization to Buyer allowing Buyer to return Product to
TDC, Buyer will deliver the Product to TDCÆs address in Canada, if so required by TDC, and Buyer shall
bear all applicable federal, provincial, municipal and other government taxes (such as sales, use and
similar taxes) as well as import or customs duties, license fees and similar charges, however designated
or levied on any replacement Product to be shipped by TDC to Buyer.



LIMITATION OF LIABILITY

TDC SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES OR FOR ANY REASON FOR ANY
INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR EXEMPLARY OR PUNITIVE DAMAGES
ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE AGREEMENT TO SELL PRODUCT TO
BUYER OR THE PRODUCT, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOST PROFITS,
LOSS OF USE, LOST DATA OR FOR ANY DAMAGES OR SUMS PAID  BY BUYER TO THIRD
PARTIES, EVEN IF TDC HAS BEEN ADVISED OF POSSIBILITY OF SUCH DAMAGES. THE
FOREGOING LIMITATION OF LIABILITY SHALL 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, THE FAILURE OF ANY LIMITED
OR EXCLUSIVE REMEDY TO ACHIEVE ITS  ESSENTIAL PURPOSE, OR OTHERWISE.



GENERAL

These terms and conditions shall constitute the final, complete and exclusive agreement of the parties
with respect to all sales by TDC to Buyer and shall supersede all prior offers, negotiations, understanding
and agreements. Unless Buyer and TDC have executed a master contract which specifically supersedes
and replaces the terms and conditions herein, it is expressly agreed that no prior or contemporaneous
agreement or understanding, whether written or oral, shall contradict, modify, supplement or explain the
terms and conditions contained herein. No additional or different terms or conditions, whether material or
immaterial, shall become a part of any sales agreement unless expressly accepted in writing by an
authorized officer of TDC in Canada. Any waiver by TDC of one or more of these terms and conditions or
any defaults hereunder shall not constitute a waiver of the remaining terms and conditions or of any future
defaults hereunder. 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 rights hereunder. Any
provision of these terms and conditions that is prohibited or unenforceable under the laws of the Province
of Ontario shall be ineffective to the extent of such prohibition or unenforceability, without impairing or
invalidating the remaining provisions of these terms and conditions. All sales agreements shall be deemed
made in, and shall be governed by, the laws of the Province of Ontario. The venue for any disputes arising
out of any sales agreement shall be, at TDCÆs sole and exclusive option, Toronto, Ontario, or the courts
with proper jurisdiction at BuyerÆs location. For Buyers situate in Alberta, to the extent permitted by law,
Buyer hereby waives its rights, benefits or protection given to Buyer in the Judicature Act and the
Seizures Act (Alberta). For Buyers situate in Saskatchewan, Buyer agrees that the Limitation of Civil
Rights Act shall have no application to these terms and conditions of sale. These terms and conditions of
sale shall enure to the benefit of and shall be binding upon TDC, the Buyer and their respective
successors and assigns. TDC shall not be liable for loss or damages or delay due to causes beyond its
control including but not limited to acts of God, acts of the Buyer, fire, strikes, lock outs or other labor
disruptions, flood, epidemics, civil or military restrictions, embargoes, car shortages, wrecks, delays in
transportation or inability to obtain necessary labour. In the event of any such delay, the delivery shall be
extended for a period equal to the time lost by reason of the delay. Any notice required or contemplated
hereunder shall be in writing and shall be delivered personally or sent by telex, facsimile or other form of
telecommunication or by prepaid registered mail. Any notice by personal delivery or telex or facsimile or
other form of telecommunication shall be deemed to have been received when delivered or transmitted
(receipt confirmed) and any notice sent by registered mail shall be deemed to have been received on the
second business day following mailing. ALL SALES TRANSACTIONS EXCLUDE THE APPLICATION OF
THE 1980 UNITED  NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF
GOODS, IF OTHERWISE APPLICABLE.

Product and manufacturer names are manufacturer and publisher trademarks, registered trademarks and
copyrights, and are used only for purposes of identification.