These terms and conditions, all typed or written terms pursuant to the corresponding DATA CENTER WAREHOUSE ("Data Center Warehouse") confirmation of Purchaser's Purchase Order, and any appendices thereto and specifications referred to therein, constitute the terms and conditions of agreement ("Terms and Conditions") between Data Center Warehouse and Purchaser. The Purchase Order is expressly subject to Purchaser's assent to each and every term and condition herein. No additions hereto, or modifications hereof, shall be binding upon Data Center Warehouse without the express, prior, written consent of Data Center Warehouse, given by a duly authorized officer of Data Center Warehouse. Reference to Purchaser's bids or proposals in this document shall not affect the terms and conditions of this agreement. Typed or written terms shall prevail over provisions of these general terms and conditions. Receipt by the Purchaser of confirmation of the Purchaser's Purchase Order shall serve as acceptance of Data Center Warehouse of the Purchase Order.
The validity, interpretation and performance of these Terms and Conditions shall be construed and governed by the substantive laws of the State of California. Any disputes arising under, or in connection with, these Terms and Conditions and the parties themselves shall be subject to the exclusive jurisdiction of the courts of the State of California.
Communication of Acceptance:
Until Purchaser communicates its acceptance of the Purchase Order and Terms and Conditions herein to Data Center Warehouse in the manner required by Article 1 hereof and/or Data Center Warehouse communicates confirmation in any manner, either electronic or postal of the Purchase order, Data Center Warehouse shall have the right to withdraw the Purchase Order. Purchaser may provide acceptance by communicating a returned signed copy of the Purchase Order, by performance of Purchaser's obligations, in whole or in part, or by delivery of Purchaser's acknowledgement form, but in the latter case, the parties agree that no terms and conditions stated thereon shall form a part of these Terms and Conditions.
Subject Matter of Transaction:
Purchaser agrees to purchase and Data Center Warehouse agrees to sell the goods or provide the services (the "Goods or Services") as referenced in the Purchase Order. The Goods or Services shall be created and manufactured in accordance with the standard, published specifications of Data Center Warehouse unless the Purchaser provides specifications incorporated into the Purchase Order, either of which are incorporated by reference as part of these Terms and Conditions, except to the extent that such specifications differ from Data Center Warehouse's specifications attached thereto the Purchase Order, if any, in which case the latter shall prevail. It is understood that Data Center Warehouse is supplying the Goods or Services for Purchaser's own use or for resale to a third party, however, time shall not be of the essence of the delivery of Goods and Services.
Purchaser may, at any time by written change order, require changes in or to the Goods or Services. Data Center Warehouse shall forthwith perform the order as changed. Data Center Warehouse shall forthwith notify Purchaser of any changes in the time for delivery resulting from the change order. An equitable adjustment shall be made to the price for any changes and Purchaser shall have 5 days in which to notify Data Center Warehouse that it does not agree with; however said increase in price is final if the work is to proceed. Data Center Warehouse shall have the right to withdraw the change order if any price increase or delivery changes are not satisfactory to Data Center Warehouse.
Purchaser shall have the right to inspect to make interim inspections of the Goods or Services when notified that any item of delivery of the Goods or Services are ready for shipment. Where appropriate, Purchaser shall pay for samples at its expense. The Goods or Services shall be deemed accepted by Purchaser upon delivery.
The Goods or Services shall be delivered F.O.B. Data Center Warehouse's plant, suitably packaged and prepared for shipment to ensure same transportation and to secure the lowest transportation rates and comply with carrier regulations. Charge for packaging and cartage shall be stated in the Purchase Order and if not so noted, Data Center Warehouse will charge for all shipping and handling at customary industry rates for like shipment of like goods. The exterior of all packaging shall be clearly marked with Purchaser's name, address and purchase order number.
Delivery and Shipment:
Data Center Warehouse shall notify Purchaser when the Goods or Services are ready for shipment. Data Center Warehouse shall deliver the Goods or Services ready for shipment F.O.B. Data Center Warehouse's plant unless a specific place and in the manner is shown on the face of the Purchase Order. Data Center Warehouse's invoice may accompany, or precede, such documents. Purchaser shall in any case comply with Data Center Warehouse's routing instructions, if any.
If Data Center Warehouse fails to deliver the Goods or Services as scheduled or makes a delivery which is nonconforming in any material manner, then Purchaser's sole remedy is for Data Center Warehouse to repair or remediate the nonconforming Goods and Services in accordance with the specification per the Purchase Order.
Limited Warranty and Warranty Period:
Data Center Warehouse shall warrant the Goods or Services in accordance with the terms of the limited warranty herein. The warranty period hereunder shall extend until the completion of the warranty period provided by Data Center Warehouse to Data Center Warehouse's Purchaser but in any event no longer than ninety (90) days. Data Center Warehouse warrants the Good or Serves to be (a) as described and in conformity with all specifications, drawings, plans, instructions, and samples; (b) merchantable; (c) fit for the purposes intended and stated in Data Center Warehouse's product specification; (d) free from defects in material and design; (e) new; and (f) owned by Purchaser free of all encumbrances and liens. Notwithstanding any other obligation hereunder, in the event of a defect in material or design, Data Center Warehouse's obligation shall be to repair or replace any supply or unit of supply which Data Center Warehouse deems to be defective.
Price and Payment:
The Purchase Price and time for payment shall be as specified on the face of the Purchase Order and if not so specified shall be net 30 days from acceptance of the Goods or Services by Purchaser, as appropriate. Federal, state and local taxes, if any, payable by Data Center Warehouse in such transaction shall be separately stated in Purchaser's invoice. Data Center Warehouse shall supply Purchaser with a resale certificate, if appropriate, for the avoidance of sales or other taxes.
Cancellation of Order:
Data Center Warehouse reserves the right to cancel the Purchase Order, or any part thereof, by giving written notice to Purchaser. In the event of such cancellation, Purchaser shall pay for all Goods or Services previously delivered and accepted by Purchaser. If Purchaser ceases to conduct its operations in the normal course of business, fails to meet its obligations as they come due, or if any proceedings are commenced under any bankruptcy or insolvency laws with respect to Purchaser, or a receiver is appointed for the assets of the Purchaser or Purchaser makes an assignment for the benefit of its creditors, Data Center Warehouse may cancel these Terms and Conditions without further liability or cost to Data Center Warehouse and shall be entitled to the return of all deposits. Such cancellation shall be without prejudice to any other rights of Data Center Warehouse.
Purchaser and Data Center Warehouse shall take appropriate measures to keep confidential all information communicated to each by the other in connection with this transaction.
Ownership of Technology:
Data Center Warehouse shall retain ownership of all trade secrets, manufacturing technology and product formulations as supplied under these Terms and Conditions.
Purchaser shall hold harmless and indemnify Data Center Warehouse from any loss or liability for the injury or death to third parties or third party property damage, which arises out of and is directly caused by the negligent acts or omissions of Purchaser, its officers, agents or employees or which arises out of or is attributable in whole or in part to the use of the goods. Data Center Warehouse shall hold harmless and indemnify Purchaser from any loss or liability for injury or death to third parties or third party property damage, which arises out of and is directly caused by the negligent acts or omissions of Data Center Warehouse, its officers, agents or employees. Purchaser shall maintain at its own expense during the term of its Agreement and for one (1) year thereafter, with an insurer or insurers (rated at least A-/XII by the most current A. M. Best Publication), commercial general liability insurance including products/ completed operations, blanket contractual liability, and personal injury and advertising commercial general liability coverage in amounts no less than One Million Dollars ($1,000,000) combined single limit for each single occurrence for bodily injury and personal property damage, and within thirty (30) days from the date hereof to submit to Data Center Warehouse a certificate evidencing such insurance, that Data Center Warehouse had been named as additional insured party on said insurance and that said insurance shall be primary coverage before any other similar insurance available to Data Center Warehouse.
An event of force majeure shall mean any act of God or nature or government, including government decrees or legislation, flood, fire or hurricane, or war, rebellion, riot, insurrection or declared state of emergency, which prevents a party hereto from performing that party's obligations hereunder. On the occurrence of an event of force majeure, the obligations of the parties hereto shall be suspended for the duration of the event of force majeure and the time for performance hereunder shall be modified accordingly. If such event of force majeure shall continue for six months, either party hereto may cause the Purchase Order to be canceled.
No waiver or delay by Data Center Warehouse in the enforcement of the terms of these Terms and Conditions shall be binding upon Data Center Warehouse unless in writing signed by Data Center Warehouse and shall not prevent Data Center Warehouse from later enforcing any of the rights so waived or delayed.