Please read carefully our Sales Terms:
1. SELLER (Pyramid Technology Services, Inc.) AGREES TO SELL AND CUSTOMER AGREES TO PURCHASE from Seller the products (Products) listed on its Bill of Materials and the services (Services) described in its Scope of Work for the price(s) itemized therefore. Scope of Work will contain a detailed description of the Services to be performed including the requirements for acceptance of those Services, the location(s) where Seller will perform the Services, all timelines and delivery dates. The terms of sale set forth herein as well as those in Terms & Conditions incorporated herein by reference apply to this sale of Products and Services.
2. PURCHASE PRICE; PAYMENT: Customer must pay the Seller’s undisputed invoices. Customer must pay undisputed invoices for accepted Products and Services no later than 30 days from Customer’s receipt of those invoices, subject to credit approval. Seller will invoice Customer upon execution of the Sales Agreement.
3. Used Product Warranty: WILL REPAIR, REPLACE OR REFUND PRICE AT OUR DISCRETION FOR UP TO 60 DAYS FOR PRODUCTS IN ORIGINAL CONDITION.
4. Returns: – All authorized returns will be assessed a 18% restocking charge.
IN WITNESS WHEREOF, the parties have caused this Sales Agreement to be executed and do each hereby warrant and represent that their respective signatory whose signature appears below has been and is on the date of this agreement duly authorized by all necessary and appropriate corporate action to execute this agreement.
Attachment A – Terms and Conditions of Sale
1. PRICE; PAYMENT; TAXES. – Customer agrees to pay the unit price of each item of hardware or software (collectively “Products”) and/or services (“Services”) described in a Sales Agreement, Order Confirmation or invoice, together with any other itemized charges, fees and costs (the “Price”). Termination of this Agreement, except for breach by Seller, shall not relieve Customer’s obligation to pay the Price.
Interest on any past due obligation shall accrue at the rate of two percent (2%) per month or at the maximum rate allowed by law. All prices are exclusive of applicable taxes or other charges imposed by law and are F.O.B Customer’s site. All taxes or other charges will be added to the price and itemized or invoiced separately.
2. TITLE; RISK OF LOSS; SECURITY INTEREST; REMEDIES UPON DEFAULT. Title to and ownership to each Product sold pursuant to this Agreement shall remain in Seller until payment is made in full, including any additional charges provided for herein. Risk of loss to the Products shall pass to the Customer F.O.B Customer’s site.
Seller reserves a purchase money security interest in and to the Products sold hereunder as security for performance of the Customer’s obligations and may file the Sales Agreement together with any attachments thereto providing a description thereof as notice of such interest. Customer will cooperate with Seller in perfecting its security interest.
In the event Customer fails to pay according to an agreement or an invoice or perform any of its obligations pursuant to an agreement, Seller may, at its option, do any of the following: (i) terminate any applicable agreement upon notice to Customer; (ii) whether or not an agreement is terminated, suspend further performance under an agreement; (iii) retain all or a portion of the security deposit, if any, previously paid by Customer as an offset to Customer’s liability for such default; (iv) repossess the Products without waiving Seller’s rights herein. Customer shall in any event remain fully liable for damages resulting from Customer’s breach including, but not limited to, all costs and expenses incurred by Seller on account of such breach including costs of arbitration and reasonable attorneys’ fees. The rights afforded Seller hereunder shall not be deemed to be exclusive, but shall be in addition to any rights or remedies provided by law.
3. WARRANTIES; DISCLAIMERS. – Seller represents and warrants that upon the sale of a Product to Customer, Seller will be the lawful owner thereof, free and clear of any liens and encumbrances (other than those which may arise from this Agreement) and will have full right, power, and authority to sell, deliver or provide the same to Customer. Product and Service Warranty
(i) Used Products: Seller’s statement of applicable warranty, and the remedy, if any, appears on the front of the Sales Agreement or Schedules identified to the Master Sales Agreement.
(ii) New/Unused Products: Seller will pass through to Customer the benefit of any remaining and transferable original equipment manufacturer (“OEM”) warranty, if any, on the Products at the time of sale. In the case of Customer installed Products, the warranty period commences on the date of invoice.
(iii) Services: Services are warranted for thirty (30) days from the date of completion to be performed: (i) in accordance with the relevant Agreement, statement of work or other written specifications agreed upon in writing between the parties; and (ii) in a professional and workmanlike manner by qualified personnel. VALID SOFTWARE LICENSES ARE THE CUSTOMERS RESPONSIBILITY. SERVICE PRICING PROVIDED IS FOR AN ALTERNATIVE HARDWARE MAINTENANCE PROGRAM PROVIDED BY AN INDEPENDENT SERVICE MAINTENANCE ORGANIZATION. CUSTOMER MUST HAVE ALL LICENSES REQUIRED TO OPERATE THIS EQUIPMENT. PTSI PROVIDES NO LICENSING. EXCEPT FOR THOSE SOFTWARE PRODUCTS SPECIFICALLY LISTED ON THIS SALES QUOTE, CUSTOMER ACKNOWLEDGES AND AGREES THAT PTSI DOES NOT PROVIDE ANY OPERATING SYSTEM SOFTWARE, SOFTWARE RIGHT-TO-USE LICENSES AS PART OF THE SERVICE SUPPORT AGREEMENT. CUSTOMER IS RESPONSIBLE FOR REGISTERING ANY SOFTWARE IT USES OR OBTAINS WITH THE APPLICABLE LICENSOR AND FOR COMPLYING WITH ALL SOFTWARE LICENSING POLICIES OF SUCH LICENSOR.
Remedy: If a Product fails to operate during the applicable warranty period, if any, Customer shall promptly notify Seller describing in detail how the Product failed or fails to operate in conformance with the OEM specifications and Seller shall, at its sole option, repair or replace the Product without charge to the Customer or refund the purchase price upon return of the non-conforming Product to Seller. In the case of Software, Customer must also provide Seller during the warranty period information in sufficient detail to enable Seller or the OEM to reproduce and analyze the failure and provide remote access to the affected Software. Returned Products that have been replaced by Seller will become Seller’s property. Replacement Products are warranted as above for the remainder of the original OEM Product warranty period. In the event Customer has a complaint about the Services during the warranty period, Customer shall promptly notify Seller. Seller, at its option, shall re-perform the Services.
This warranty does not cover repair for damages to Products or Product components or malfunctions caused by: (i) misuse, neglect, power failures or surges, lightning, fire, flood or accident; (ii) use of products or facilities supplied by others; (iii) failure to follow installation, operation or maintenance instructions or failure to permit remote access; or (iv) force majeure conditions specified in Section 8.
THE EXPRESS WARRANTIES HEREIN CONTAINED ARE IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, EACH OF WHICH SELLER DISCLAIMS AND ARE EXCLUDED. SELLER DOES NOT WARRANT ERROR FREE OPERATION OF THE PRODUCTS OR SERVICES PROVIDED HEREIN. SELLER MAKES NO EXPRESS WARRANTY THAT THE PRODUCTS ARE IMMUNE FROM OR WILL PREVENT FRAUDULENT INTRUSION OR WILL PREVENT UNAUTHORIZED USE.
4. SOFTWARE LICENSES. – Customer shall be bound by the terms and provisions of each manufacturer’s software license and limited warranty, if any, applicable to a Product purchased hereunder (“Software License”). The terms and provisions of each Software License govern the use and limitations of the pertinent manufacturer’s product including, but not limited to, registration, use, copying, limitations on resale and distribution, prohibitions against reverse engineering and tampering with or otherwise infringing or misappropriating the manufacturer’s rights. The terms and provisions of the applicable Software Licenses are available from time to time on Seller’s web site, in shrink-wrapped form from the manufacturer (or as otherwise supplied with the Products purchased hereunder) or, upon request to Seller.
5. SERVICES AND TIMING. – Services not specifically itemized are not provided. CUSTOMER IS RESPONSIBLE FOR SYSTEM BACK-UP PRIOR TO COMMENCEMENT OF SERVICES OR INSTALLATION OF A PRODUCT. The Customer is responsible for all data validation and existing system or program modification, acceptance and testing.
6. INDEPENDENT CONTRACTOR. – Seller shall conduct its business as an independent agent with respect to Customer.
7. CUSTOMER COOPERATION – Customer shall cooperate fully with Seller following a purchase to facilitate performance of Seller’s obligations hereunder including the rendition of Services or installation of the Products. Customer shall dedicate such time, personnel and resources as may be necessary to complete the implementation or installation.
8. FORCE MAJEURE. – Seller shall not be liable for any loss, failure or delay in furnishing a Product or service resulting from fire, explosion, flood, storm, act of God, governmental acts, orders or regulations, hostilities, civil disturbance, strike, labor difficulties, machinery breakdown, transportation contingencies, difficulty in obtaining parts, supplies, shipping facilities, delay of carriers, or any other cause beyond the control of Seller.
9. ARBITRATION. – Seller and Customer agree to submit all disputes of whatever kind or nature, including the validity of this provision, whether in law or equity, arising out of this or any other agreement between the parties or their affiliates, to binding arbitration only, to be conducted pursuant to the rules of the American Arbitration Association, such arbitration to be held in the County of Middlesex, Commonwealth of Massachusetts before one arbitrator who shall be a licensed attorney with expertise in litigation and commercial law with an AV Martindale-Hubbell rating. In the event third parties are necessary to achieve a just adjudication of the issues, either party may commence a civil action in a court of competent jurisdiction having jurisdiction over all such parties. The parties agree that the non-prevailing party shall be liable for all costs, including the prevailing party’s attorneys’ fees and costs in addition to the costs of arbitration. The parties are entitled to limited discovery under the local rules of civil procedure for courts of general jurisdiction. The parties further agree that any monetary award may be reduced to judgment and docketed in any court of competent jurisdiction without objection and execution had thereon. This provision shall survive the termination or cancellation of an Agreement. No arbitration or action, regardless of form, arising out of a purchase may be brought or commenced by either party more than one (1) year after the dispute or cause of action arose.
10. LIMITATION OF LIABILITY. – THE ENTIRE LIABILITY OF SELLER AND CUSTOMER’S EXCLUSIVE REMEDIES FOR ANY DAMAGES CAUSED BY ANY PRODUCT DEFECT OR FAILURE, OR ARISING FROM THE PERFORMANCE OR NON-PERFORMANCE OF ANY WORK OR SERVICE REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL BE: (i) FOR FAILURE OF PRODUCTS OR SERVICES SUBJECT TO A WARRANTY, THE REMEDY SPECIFIED ON THE FACE OF AN AGREEMENT OR AS STATED IN SECTION 3; (ii) FOR DELAYS IN DELIVERY OR INSTALLATION, WHICHEVER IS APPLICABLE, SELLER SHALL HAVE NO LIABILITY UNLESS THE DELIVERY OR INSTALLATION DATE IS DELAYED BY MORE THAN THIRTY (30) DAYS BY CAUSES NOT ATTRIBUTABLE TO EITHER CUSTOMER OR FORCE MAJEURE CONDITIONS, IN WHICH CASE CUSTOMER’S SOLE REMEDY SHALL BE TO CANCEL THE ORDER WITHOUT INCURRING CANCELLATION CHARGES AND RECEIVE A REFUND OF ALL MONIES PAID WITHIN 30 DAYS OF SUCH CANCELLATION; OR (iii) FOR SELLER’S FAILURE TO PERFORM ANY OTHER MATERIAL TERM OF THIS AGREEMENT, CUSTOMER’S SOLE REMEDY SHALL BE TO TERMINATE THIS AGREEMENT WITHOUT INCURRING CANCELLATION CHARGES IF SELLER FAILS TO CORRECT SUCH FAILURE WITHIN THIRTY (30) DAYS OF RECEIPT OF WRITTEN NOTICE AND RECEIVE A FULL REFUND. SELLER SHALL IN NO CASE BE LIABLE FOR INDIRECT OR INCIDENTAL DAMAGES, SPECIAL OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO: LOST PROFITS, SAVINGS OR REVENUES OF ANY KIND, LOST, CORRUPTED, MISDIRECTED OR MISAPPROPRIATED DATA, WHETHER OR NOT SELLER HAS BEEN ADVISED OF SUCH DAMAGES. UNLESS OTHERWISE AGREED, CUSTOMER IS SOLELY RESPONSIBLE FOR ENSURING THAT CUSTOMER’S NETWORKS AND SYSTEMS ARE ADEQUATELY SECURED AGAINST UNAUTHORIZED INTRUSION.
11. CHOICE OF LAW. – This Agreement shall be governed by, and construed in accordance with, the laws of the State of Massachusetts, applicable to contracts executed in and to be performed entirely within that state.
(a) Merger – This Agreement constitutes the entire agreement between the Seller and the Customer with respect to the purchase described herein, superseding all prior correspondence between the parties. No provision of an Agreement shall be deemed waived, amended, or modified by either party unless such waiver, amendment, or modification be in writing signed by the party against whom enforcement is sought.
(b) No Assignment – An Agreement shall not be assignable by either party without the prior written consent of the other party, and any attempted assignment without such consent shall be void.
(c) Notices – All notices herein shall be in writing and shall be delivered in person or sent by facsimile or U.S. Mail, postage prepaid, to the address of the other party as set forth on a Sales Agreement Master Sales Agreement, Schedule or other agreement or to such other address as a party shall designate.
(d) Acknowledgment and Authority – By execution hereof, the signer hereby certifies that he/she has read the Agreement and these terms, understands them, and agrees to all terms and conditions stated herein and therein, and that he/she is duly authorized to execute an Agreement on behalf of the Customer.
(e) Secrecy and Confidentiality – Each party covenants and agrees on behalf of itself, its officers, directors, employees, and agents as follows: (i) all information obtained from a party including, but not limited to, customers lists, customer sensitive information, business practices and operations and pricing and financial information, product plans and designs, configurations and layouts is secret, proprietary and confidential; (ii) such information shall not be disclosed to others nor used for any unauthorized purpose; and (iii) each party shall use its best efforts to return such information to the other party upon termination of this Agreement. This provision is limited to the extent such information was in the possession of a party before disclosure, becomes a matter of public record through no fault of a party or is released by or at the direction of a party.
13. ALL ITEMS ARE SUBJECT TO PRIOR SALE.
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