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TD on CD Volume 4 #2
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TD on CD (Volume 4, Issue 2) (USA).bin
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T&C_SALE.TXT
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1997-11-20
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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.