These policies supersede policies appearing on all other INFO X literature, and are in effect for purchases made after October 1, 2002.
Terms of Sale
For all prices and products, we reserve the right to make adjustments due to errors, changing market conditions, product discontinuation or typographical errors in advertisements. INFO X is not responsible for manufacturer price changes, which may occur at any time without notice.
SALES TERMS AND CONDITIONS
All sales made by Info X Distribution LLC (“Info X”) to its customers (“Purchaser”) are subject to these terms and conditions. Purchasers acceptance of these terms and conditions shall be effected by the first to occur of either: (i) Purchaser providing a purchase order number to Info X, or (ii) Purchasers acceptance of any Product from Info X. These terms and conditions supersede any prior written or oral agreements or understandings, preprinted or other standard terms on any purchase order, invoice, acknowledgment or similar document exchanged between the parties and shall not be supplemented by any prior course of dealing, performance, or usage of trade. By using this Website to purchase, the Purchaser acknowledges having read, understands, and agrees to be bound by these terms. These terms and conditions shall apply to sales of all products described in Info X’s current product listing including special order products except as otherwise noted below (“Product”). The term “Special Order Product” as used herein shall mean products that are not listed in Info X’s current comprehensive product listing or have been configured to Purchaser’s specifications.
Prior to placing an order, Purchaser must have an active Info X sales account number, which account must be current and in good standing. Purchaser must provide Info X with complete Product order information as required by Info X. Info X’s order form, which can be found at www.info-x.com. The Product order information will include without limitation the (i) Product description, (ii) unit quantity, (iii) Info X or manufacturer product SKU number and/or vendor part number, (iv) current unit price as provided by Info X, and (v) correct shipping address. For government or educational orders, Purchaser will provide the above Product order information as well as (i) end user name and zip code and (ii) government or educational contract number. Purchaser personnel will identify, for each Product order, the ship-to destination as either Purchaser, Purchaser’s customer, or to some other specified third party. Info X reserves the right to require additional information based on the requirements of the manufacturer or publisher or licensor of the Product. Purchaser shall not disclose any confidential information when ordering from Info X. Purchaser may place orders over telephone, via facsimile, and via Info X-approved electronic ordering methods only through persons who identify themselves as an employee of Info X prior to placing the order. Purchaser will disclose its Info X customer number only to its personnel with a need to know. Info X’s acceptance of any order from Purchaser is limited to these terms and conditions in their entirety without addition, modification, or exception. Any additional or different terms in Purchaser’s purchase order or submitted by Purchaser in any form are hereby rejected and notice of objection to them is hereby given. Info X will have no obligation to hold Product for future sale to Purchaser if Purchaser’s order is incomplete, on hold, or if Purchaser does not confirm it within 48 hours of notification from Info X that backordered Product is available for shipment.
All Product pricing, description and availability information (“Information”) provided by Info X, in any form, is the property of Info X. If Info X provides Information to Purchaser electronically, Purchaser agrees to update such Information regularly to ensure its accuracy. Purchaser agrees to hold in confidence and not to directly or indirectly use, reveal, report, publish, disclose or transfer to any other person or entity any of the Information or utilize the Information for any purpose except as permitted herein.
Prices are FOB origin for the specific quantity stated. Prices do not include sales and use taxes, duties, license fees, nor charges for transportation, special testing, marketing or packaging. All prices are subject to change without notice and will be established at time of order acceptance by Info X. Order acceptance and sale by Info X occurs at time of shipment. Prices for backordered Products are not guaranteed.
SHIPMENT AND DELIVERY
U.S. Shipments -All Product shipments will be made FOB origin. For Products owned by Info X, title and risk of loss will transfer to Purchaser upon Info X tendering the Product for delivery to the carrier. Info X will ship Products using Info X’s carrier of choice in accordance with Info X’s shipping policies at the time of shipment. If Purchaser requests Info X prepay and bill Purchaser for freight charges, Purchaser agrees that Info X retains the right to choose the carrier. Notwithstanding anything to the contrary herein, additional charges may apply for unusually heavy or large items or for shipment of materials designated as hazardous in accordance with Federal and/or International Air Transportation regulations. COD and additional fees may also apply. Purchaser shall examine all Products upon receipt and shall notify Info X, as specified herein, of all discrepancies and refusal to accept delivery of purchased Product within five (5) calendar days after receipt. Such notice shall be reasonably detailed and explain the discrepancy or why the purchased Product was refused. If Purchaser does not give Info X such notice as stated herein, Purchaser agrees that such Products have been accepted by Purchaser as of the date of shipment.
International Shipments - All shipments by Info X to Purchaser or Purchaser’s customers at an address outside of the United States are subject to additional terms and will not be made unless Purchaser and Info X have entered into Info X’s International Fulfillment Agreement (IFA). Under certain circumstances, Info X may choose to ship Product to Purchasers located at an address outside of the United States. These shipments will be made FCA (as defined by the International Chamber of Commerce Terms in effect at the time of order acceptance) closest U.S. airport or seaport from Info X’s shipping warehouse, via Info X’s carrier of choice. Title and risk of loss will transfer to Purchaser upon Info X tendering the Product for delivery to the carrier. Purchaser will bear all the costs related to shipment and delivery. Purchaser shall examine all Products promptly upon receipt and shall notify Info X of all discrepancies or if rejection is intended within five (5) calendar days after receipt. Such notice shall be reasonably detailed and shall specify the discrepancy or reason for rejection. Failure to give such notice within such time shall be deemed an acceptance of the Products as of the date of shipment. If the approval of any government or governing organization is required with respect to these terms and conditions or the distribution of the Products including without limitation, giving legal effect to these terms and conditions, protecting intellectual property and other rights in the Products or compliance with exchange regulations, Purchaser will, at its expense, immediately take whatever steps may be necessary to secure such approvals. If any such approval requires or results in the deletion or amendment of any provision of these terms and conditions, then Info X will have the right to immediately terminate these terms and conditions.
CREDIT AND PAYMENT TERMS
Unless otherwise agreed upon, all sales are made net thirty (30) days from date of invoice. No payment by offset is permitted. Purchaser shall furnish to Info X all financial information reasonably requested by Info X from time to time for the purpose of establishing or continuing Purchaser’s credit limit. Purchaser agrees that Info X shall have the right to decline to extend credit to Purchaser and to require that the applicable purchase price be paid prior to shipment. Purchaser shall promptly notify Info X of all changes to Purchaser’s name, address, of the sale of substantially all of its assets, or a material change in Purchaser’s net worth. Info X shall have the right from time to time, without notice, to change or revoke Purchaser’s credit limit on the basis of changes in Info X’s credit policies or Purchaser’s financial condition and/or payment record. Purchaser shall not deduct any amounts owing from any Info X invoice without Info X’s express written approval, which approval shall be contingent upon Purchaser providing all supporting documentation for such deduction as required by Info X. An interest charge of the lesser of one and one-half percent (1 1/2%) per month or the maximum amount allowed by law will be charged on all past due balances commencing on the date payment is due. Credit cards (MasterCard, VISA, American Express and Discover Card) will only be accepted at the time of order. No cash payments will be accepted. Payment by money orders or travelers check will be allowed only if the money order or travelers check is made out in the exact amount of the invoice; payment of one invoice through multiple money orders or travelers checks will not be permitted. Info X retains (and Purchaser grants to Info X by submitting a purchase order) a security interest in the Products, and any accounts receivable or cash from the resale thereof, to secure payment in full, and Purchaser agrees to execute any additional documents necessary to perfect such security interest. If Purchaser fails to make timely payment of any amount invoiced hereunder, Info X shall have the right, in addition to any and all other rights and remedies available to Info X at law or in equity, to immediately revoke any or all credit extended, to delay or cancel future deliveries and/or to reduce or cancel any or all quantity discounts extended to Purchaser. Purchaser shall pay all costs of collection including reasonable attorneys’ fees. Any obligation of Info X under these terms and conditions to deliver Products on credit terms shall terminate without notice if Purchaser files a voluntary petition under a bankruptcy statute, or makes an assignment for the benefit of creditors, or if an involuntary petition under a bankruptcy statute is filed against Purchaser, or if a receiver or trustee is appointed to take possession of the assets of Purchaser.
Purchaser shall bear applicable federal, state, municipal, and other government taxes, duties or cargoes, domestic or foreign (such as sales, use, etc.). Unless otherwise specified, prices do not include such taxes. Exemption certificates, valid in the place of delivery, must be presented to Info X prior to shipment if they are to be honored.
WARRANTIES OF MANUFACTURER ONLY
Product warranties, if any, are provided by the manufacturer or publisher or licensor of the Products. Info X makes no warranties whatsoever. Info X’s sole obligation (and Purchaser’s sole remedy) in the event of breach of any warranty shall be the repair or replacement of defective Products. INFO X DISCLAIMS ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS, STATUTORY OR OTHERWISE, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH REGARD TO ANY PRODUCT.
Requirements - Purchaser must obtain a valid Return Material Authorization (“RMA”) number from Info X for all returns. RMAs will be issued, at Info X’s sole discretion, in accordance with these terms and conditions. Purchaser must provide its account number and all other information as required by Info X for all returns. RMAs are valid for thirty (30) calendar days from the date of issuance. Purchaser must allow for in-transit time for Products to be returned to Info X, as Info X must physically receive such returned Products within such thirty (30) days in their original packaging. RMAs will be issued for authorized returns under one of the following categories: (I) defective Products, (ii) billing or shipping discrepancies, or (iii) damaged Product, not resulting after delivery to carrier selected by Purchaser for shipment. Notwithstanding the reason for the return of a Product, Purchaser is responsible for all costs, including shipping costs, with respect to such return or exchange. Purchaser is responsible for ensuring that the RMA number is clearly visible on the address label of the Product packaging when it is returned to Info X. Info X will refuse delivery of any boxes without a valid, clearly visible RMA number as noted above. Unauthorized Returns are unauthorized returns. Any Products received by Info X (i) without a valid RMA number, including Product shipments refused by Purchaser or Purchaser’s customer except those damaged in transit from Info X to Purchaser or from Info X to Purchaser’s customer, (ii) later than thirty (30) calendar days from the RMA date, or (iii) in a condition unsuitable for resale (excluding defective Products), will be considered Unauthorized Returns. Info X will return Unauthorized Returns to Purchaser or Purchaser’s customer, and will charge Purchaser a processing fee equal to the greater of (a) $150 or (b) 15% of the returned Product invoice amount, per shipment, plus related freight charges. If Purchaser refuses the shipment of Unauthorized Returns from Info X or returns the Unauthorized Returns to Info X a second time without Info X’s prior authorization, Purchaser agrees to relinquish all right and title to and waives all claims against Info X for credit related to such Products against future Products. Billing or Shipping Discrepancy Returns – Returns based upon a mistake by the Purchaser, or for billing and/or shipping discrepancies, or for stock balancing, will only be accepted for credit against future purchases by Info X if: (i) the RMA and the return shipment to Info X are received before the expiration of thirty (30) days after the initial invoice date for the Products to be returned; and (ii) the packaging of the returned Product remains sealed and unbroken. Defective Product Returns - Defective returns are only for Products purchased from Info X that are inoperable or do not function in accordance with the specifications published by the manufacturer or publisher or licensor and are covered under the manufacturer’s or publisher’s or licensor’s warranty. All defective returns are subject to more restrictive manufacturer or publisher policies. Purchaser may request an RMA for the return of defective Products, excluding Special Order Products, within the manufacturer’s warranty period. Upon receipt of the defective Product for which the RMA was issued, Info X may test the Products and may return to Purchaser, at Purchaser’s expense, any Products found not to be defective. Upon verification that the returned Product is defective, Info X may, at Info X’s sole discretion, either (i) ship Purchaser a replacement Product, or (ii) provide Purchaser a credit, against future purchases, in an amount equal to the lesser of the Product’s invoice price or current replacement value less any applicable charges or fees. Info X reserves the right to require Purchaser to return defective Products directly to the manufacturer or publisher for replacement according to its defective Products return policy. Info X shall not be obligated to repair, replace, or issue credit to Purchaser for Products rendered defective, in whole or in part, by causes external to the Products, including, but not limited to, catastrophe, power failure or transients, overvoltage on interface, environment extremes, improper use, maintenance or application of the Products or use of unauthorized parts. Purchaser shall bear all risks of loss when returning defective Products. Damaged Product Returns Damaged Product returns are only for Products purchased from Info X and shipped via Info X’s carrier of choice that are damaged in transit from Info X to the Purchaser or from Info X to the Purchaser’s customer. Purchaser or Purchaser’s customer shall refuse any Product delivered in damaged condition. If the Product is received in damaged condition, Purchaser shall notify Info X and request an RMA within three (3) business days of receipt of such Product. Failure to notify Info X and request an RMA within such time shall be deemed an acceptance of the Product as of the date of shipment. All credits must be used as a credit against future purchases ordered within one (1) year of the return date of a Product. Notwithstanding anything to the contrary, Info X reserves the right not to authorize the return of Products that are no longer in production or are being produced or published by a manufacturer or publisher that (i) is insolvent, (ii) has declared bankruptcy, or (iii) will not accept returns from Info X.
BILLING AND SHIPPING DISCREPANCIES
Billing and shipping discrepancies are for Products purchased from Info X that were invoiced or shipped incorrectly. These include lost shipments, short shipments, wrong sales, wrong shipments and pricing/invoice errors. Purchaser may request an RMA for verified billing and shipping discrepancies within thirty (30) calendar days of invoice date. In addition, Purchaser must notify Info X of any billing discrepancies related to Purchaser’s authorized returns within ninety (90) calendar days of RMA date. Such notice shall be reasonably detailed and shall specify the discrepancy. Failure to give such notice within the time specified herein shall be deemed a waiver of Purchaser’s rights to claim such discrepancy.
PATENT AND TRADEMARK INDEMNITY
INFO X SHALL HAVE NO DUTY TO DEFEND, INDEMNIFY, OR HOLD HARMLESS PURCHASER FROM AND AGAINST ANY OR ALL DAMAGES AND COSTS INCURRED BY PURCHASER OR BY PURCHASER’S USERS OR VENDEES, ARISING FROM THE INFRINGEMENT OF PATENTS OR TRADEMARKS OR THE VIOLATION OF COPYRIGHTS BY PRODUCTS, OR FOR ANY OTHER ACTION WITH REGARD TO THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
LICENSED SOFTWARE AND FIRMWARE
Use of products comprised of software or firmware may be subject to Purchaser’s acceptance of additional terms and conditions set forth in separate license agreements with Info X or third party licensors. In the absence of any such license, Purchaser is granted a non-exclusive, non-transferable license to use only in object code form and solely in connection with the Products sold hereunder, with no rights to sublicense, disclose, disassemble, decompile, reverse engineer, or otherwise modify the software or firmware.
LIMITATION OF LIABILITY
INFO X SHALL NOT BE LIABLE TO PURCHASER, PURCHASER’S CUSTOMERS, OR ANY OTHER PARTY FOR ANY LOSS, DAMAGE, OR INJURY THAT RESULTS FROM THE USE OR APPLICATION BY PURCHASER, PURCHASER’S CUSTOMER, OR ANY OTHER PARTY, OF PRODUCTS DELIVERED TO PURCHASER, UNLESS THE LOSS OR DAMAGE RESULTS DIRECTLY FROM THE INTENTIONALLY TORTIOUS OR FRAUDULENT ACTS OR OMISSIONS OF INFO X. IN NO EVENT SHALL INFO X BE LIABLE TO PURCHASER OR ANY OTHER PARTY FOR LOSS, DAMAGE, OR INJURY OF ANY KIND OR NATURE ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND CONDITIONS, OR ANY AGREEMENT INTO WHICH THEY ARE INCORPORATED, OR ANY PERFORMANCE OR NONPERFORMANCE UNDER THESE TERMS AND CONDITIONS BY INFO X, ITS EMPLOYEES, AGENTS OR SUBCONTRACTORS, IN EXCESS OF THE NET PURCHASE PRICE OF THE PRODUCTS OR SERVICES GIVING RISE TO THE CLAIM OR LIABILITY. IN NO EVENT SHALL INFO X BE LIABLE TO PURCHASER OR ANY OTHER PARTY FOR INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO LOSS OF DATA OR GOODWILL, LOSS OF ANTICIPATED PROFITS OR ANTICIPATED SAVINGS, OR OTHER ECONOMIC LOSS ARISING OUT OF OR IN CONNECTION WITH INFO X’S BREACH OF, OR FAILURE TO PERFORM IN ACCORDANCE WITH ANY OF THESE TERMS AND CONDITIONS, OR THE FURNISHING, INSTALLATION, SERVICING, USE OR PERFORMANCE OF ANY PRODUCTS OR INFORMATION INFO X SHALL PROVIDE HEREUNDER, EVEN IF NOTIFICATION HAS BEEN GIVEN AS TO THE POSSIBILITY OF SUCH DAMAGES. THESE DISCLAIMERS AND LIMITATIONS OF LIABILITY WILL EXTEND TO THE BENEFIT OF INFO X’S VENDORS, AND OTHER AUTHORIZED RESELLERS AS BENEFICIARIES. ANY ACTION AGAINST INFO X MUST BE BROUGHT WITHIN EIGHTEEN (18) MONTHS AFTER THE CAUSE OF ACTION ACCRUES.
COMPLIANCE WITH U.S. EXPORT LAWS
If Purchaser delivers the Products to its customer who may use the Products outside the United States, Purchaser acknowledges and shall advise its customer that the Products are controlled for export by the U.S. Department of Commerce and that the Products may require authorization prior to export from the United States or re-export. Purchaser agrees that it will not export, re-export, or otherwise distribute Products, or direct products thereof, in violation of any export control laws or regulations of the United States. Purchaser warrants that it will not export or re-export any Products with knowledge that they will be used in the design, development, production, or use of chemical, biological, nuclear, or ballistic weapons, or in a facility engaged in such activities, unless Purchaser has obtained prior approval from the Department of Commerce. Purchaser further warrants that it will not export or re-export, directly or indirectly, any Products to embargoed countries or sell Products to companies or individuals listed on the Denied Persons List published by the Department of Commerce.
RELATIONSHIP OF THE PARTIES
Purchaser will not have, and will not represent that it has, any power, right or authority to bind Info X, or to assume or create any obligation or responsibility, express, implied or by appearances, on behalf of Info X or in Info X’s name, except as herein expressly provided. Nothing stated in these terms and conditions will be construed as constituting Purchaser and Info X as partners or as creating the relationships of employer/employee, franchisor/franchisee, or principal/agent between the parties. Purchaser will make no warranty, guarantee or representation, whether written or oral, on Info X’s behalf.
MANUFACTURER, PUBLISHER, LICENSOR AND SUPPLIER RESTRICTIONS
If authorization for resale or license is required by the manufacturer or publisher or licensor of any Product, then Info X will not be obligated to sell such Product to Purchaser unless Info X has received notification of such authorization from the manufacturer or publisher. All Products delivered to Purchaser hereunder may have additional restrictions on their use required by the manufacturer or publisher or licensor. Purchaser is solely responsible for ensuring its adherence to any and all such restrictions and requirements. If any supplier prohibits Info X from selling specific Products to Purchaser, then Info X reserves the right not to sell such Products to Purchaser.
CHOICE OF LAW/CHOICE OF FORUM
These terms and conditions (and any agreement into which they are incorporated) shall be construed, interpreted and enforced under and in accordance with the internal laws of the State of New Jersey, excluding its conflicts or choice of law rule or principles which might refer to the law of another jurisdiction. Purchaser agrees to exercise any right or remedy in connection with these terms and conditions exclusively in, and hereby submits to the jurisdiction of the State of New Jersey, Courts of Morris County, New Jersey, or the United States District Court at Newark, New Jersey. The state and federal courts situated in Morris County, New Jersey will have non-exclusive jurisdiction and venue over any dispute or controversy that arises out of these terms and conditions, The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these terms and conditions.
All notices, requests, demands, and other communications that either party may desire to give the other party must be in writing and may be given by (i) personal delivery to an officer of the party, (ii) mailing the same by registered or certified mail, return receipt requested, or via nationally recognized courier services to the party at the address of such party as set forth herein, at the official corporate address of such party, or such other address as the parties may hereinafter designate, or (iii) facsimile subsequently to be confirmed in writing pursuant to item (ii) above. Notices to Info X shall be sent to: Info X Distribution LLC, 3 Aspen Drive, Randolph, New Jersey 07869, Attn: Sales Department.
These terms and conditions shall be binding upon and shall inure to the benefit of the parties hereto and their respective representatives, successors and permitted assigns. Neither party may assign its rights and/or duties under these terms and conditions without the prior written consent of the other party given at the other party’s sole option. Any such attempted assignment shall be void. Notwithstanding the foregoing, Info X may assign any purchase order received from Purchaser to a subsidiary or affiliate upon notice to Purchaser.
If any provision of these terms and conditions shall be held to be invalid, illegal or unenforceable, such provision shall be enforced to the fullest extent permitted by applicable law and the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Failure or delay of Info X to exercise a right or power under these terms and conditions shall not operate as a waiver thereof, nor shall any single or partial exercise of a right or power preclude any other future exercise thereof.
Info X will not be liable for any loss, damage or delay arising out of its, or its resellers, failure to perform its obligations due to causes beyond its reasonable control; including but not limited to, acts of God; fire, flood or other casualty; war; acts of terrorism; and delays in transportation. In such events, Info X’s performance dates will be extended for such length of time, as may be reasonably necessary to compensate for such delay.
The captions used herein are for reference purposes only and shall have no effect upon the construction or interpretation of any provisions herein.
These terms and conditions, as published on Info X’s Web site located at www.info-x.com at the time of sale, are the official terms and conditions of sale between Info X and Purchaser and may be amended from time to time without notice at Info X’s sole discretion.