standard terms and conditions of sale
1.
CUSTOMER ORDER. Customer may accept the attached
Dimension Data offer to sell (“Quote”) by issuing a purchase order in
response to such Quote (each accepted Quote constitutes a “Customer Order”).
Customer shall be deemed to unconditionally accept these terms and conditions
by issuing such purchase order. No terms and conditions specified or
preprinted on any Customer purchase order or other form of acceptance shall
add to or modify these terms and conditions. Charlotte, North Carolina shall
be the acceptance and fulfillment location for any Customer Order.
2.
PRICES AND TAXES. All Quotes are valid for
thirty (30) days unless otherwise specified. All invoice prices are those
specified in the Quote accepted by Customer. Prices do not include
applicable taxes and, unless expressly identified and itemized, do not
include freight, handling or insurance. Products, Maintenance or Services
purchased for delivery outside of the United States may be subject to
required and non-recoverable Value Added Tax or similar indirect sales
related taxes (collectively, “VAT”), and Customer hereby agrees to reimburse
Dimension Data for the total amount of such VAT incurred which will be
invoiced as an international logistics fee.
3.
TRADE INS. If a Customer Order includes a
trade-in allowance then Customer shall comply with the return requirements of
the manufacturer’s trade in agreement. Any such trade-in goods must be
received by the manufacturer on or before the date specified in the trade in
agreement or, if no such agreement exists, by the sooner of the date
specified in a Quote or sixty (60) days from delivery of the replacement
goods. If Customer fails to return trade-in goods as required the trade-in
allowance shall be forfeited and Customer will pay Dimension Data for the
trade in allowance amount.
4.
PAYMENT AND INVOICING TERMS. Payment in full of
all invoices is due thirty (30) days from date of invoice. Payment terms are
subject to Customer maintaining a credit status acceptable to Dimension Data.
Invoices for Products are issued upon shipment of Products from the
manufacturer. Invoices for Services are invoiced at the start of any
Service. Dimension Data has the right to charge a late payment fee of one and
one half percent (1.5%) of the outstanding balance per month for each month,
or partial month, any undisputed invoice remains unpaid beyond its due date.
Customer will pay collection fees incurred by Dimension Data to effect
settlement of any undisputed past due invoice. Products shipped to a
Dimension Data facility for Services will be invoiced upon shipment from the
manufacturer. Upon request, Dimension Data will cooperate with Customer’s
third party leasing company to facilitate payment of the Customer Order by
the leasing company. Notwithstanding the foregoing, Customer remains
primarily responsible and liable for complete and timely payment of all
invoices issued hereunder. Any Products delivered to a Dimension Data
facility for Services will be shipped to Customer no later than ten (10) days
after completion of such Service and Customer shall accept delivery of all
such Products.
5.
SHIPPING AND DELIVERY. All shipments by
Dimension Data are F.O.B. origin or as may be applicable under the
International Delivery terms below. Title and risk of loss to Products shall
pass to Customer upon delivery to the common carrier. Customer is
responsible for all freight, handling and insurance charges which shall be in
addition to the price of the Products in the Quote. The carrier is not an
agent of Dimension Data and in no event shall Dimension Data have any
liability for loss or damage during shipment. Dimension Data shall endeavor
to initiate shipment and schedule delivery as close as possible to Customer’s
requested delivery dates and Customer acknowledges that any delivery dates
provided by Dimension Data are estimates only. Dimension Data shall not be
liable for any delay in delivery or for failure to give notice of such
delay. Customer shall accept and pay for partial shipments of Products.
6.
SECURITY INTEREST. Customer hereby grants and
Dimension Data retains a security interest in all Products purchased
hereunder, and such security interest is released when payment in full is
received by Dimension Data.
7.
EXPEDITED DELIVERY. Customer may request
Expedited Delivery of Products. “Expedited Delivery” means shipment of
Products within a time frame that is sooner than the earliest date of
availability from the manufacturer. If Dimension Data accepts such request
Dimension Data will assess an Expedited Delivery fee equal to two percent
(2%) of the unit list price for the applicable Products unless otherwise
specified in a Quote. Products shipped under Expedited Delivery may have
distributor part numbers that do not match the manufacturer part numbers and
will be at the standard operating system revision level as supplied by the
distributor.
8.
CANCELLATION OF ORDERS. No Customer Order for
Products or Maintenance may be cancelled or modified without Dimension Data’s
consent. If Dimension Data consents to a Customer cancellation or
modification request, Customer agrees to pay all actual resulting costs,
expenses and fees incurred by Dimension Data from the manufacturer, the
supplier and/or its shippers. Customer Orders for Services may be cancelled
upon ten (10) days prior written notice. Customer will pay for all Services
delivered through the date of cancellation.
9.
RETURN POLICY. All sales are final other than for
Products that do not meet manufacturer specifications or that are not
included in the Customer Order. Customer must notify Dimension Data of any
damaged or defective Products or discrepancy in shipment quantity or type and
request a Return Material Authorization (“RMA”) consistent with the
manufacturer’s return policies. All RMA’s issued are valid for the period of
time allowed by the manufacturer after which time the RMA will be cancelled.
No return of Products will be accepted without an RMA. A credit for properly
returned items less any restocking or other related charges imposed by the
applicable third party manufacturer or supplier will be entered against the
original invoice for the returned items. Products returned due to a shipping
error or in accordance with warranty terms are not subject to restocking
fees. Customer must ship returned Products prepaid to the specified
warehouse location. Dimension Data will reimburse Customer’s shipping costs
for Products returned due to a shipping error. Returned Products must be in
the original shipping cartons, undamaged, unused and unaltered. Opened
software is not returnable. Dimension Data shall have the right to reject
return of items and/or impose additional charges which Customer agrees to pay
for any equipment received without an RMA and/or in a condition other than
described.
10.
WARRANTY. All Products and Maintenance purchased
hereunder are subject to the warranties provided by the manufacturer.
Dimension Data hereby transfers to Customer such transferable warranties
Dimension Data receives from the applicable manufacturer as legally permissible.
Dimension Data warrants that its Services will be performed by qualified
individuals in a professional and workmanlike manner conforming to generally
accepted industry standards and practices. Services are supported against
defects in workmanship for thirty (30) days after delivery. DIMENSION DATA
MAKES NO WARRANTY AS TO THE RESULTS OF ANY SERVICES PROVIDED. EXCEPT AS SET
FORTH IN THIS PARAGRAPH, ALL PRODUCTS AND MAINTENANCE ARE PROVIDED “AS IS”
AND DIMENSION DATA DISCLAIMS ANY AND ALL WARRANTIES AND REMEDIES, WHETHER
EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF
MERCHANTABILITY, SUITABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR USE,
TITLE AND NON-INFRINGEMENT.
11.
LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING
ELSE HEREIN, ALL LIABILITY OF DIMENSION DATA UNDER THIS AGREEMENT OR
OTHERWISE SHALL BE LIMITED TO MONEY PAID TO DIMENSION DATA UNDER THIS
AGREEMENT DURING THE SIX (6) MONTH PERIOD PRECEDING THE EVENT OR
CIRCUMSTANCES GIVING RISE TO SUCH LIABILITY AND IN THE CASE OF DAMAGES
RELATING TO ANY ALLEGEDLY DEFECTIVE PRODUCT SHALL, UNDER ANY LEGAL OR
EQUITABLE THEORY, BE FURTHER LIMITED TO THE PURCHASE PRICE PAID BY CUSTOMER
FOR SUCH PRODUCT. IN NO EVENT SHALL DIMENSION DATA BE LIABLE FOR ANY
INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR LOST DATA, OR ANY OTHER
INDIRECT DAMAGES EVEN IF DIMENSION DATA HAS BEEN INFORMED OF THE POSSIBILITY
THEREOF.
12.
SERVICES. Customer may purchase Dimension Data
Services identified in a Quote. Custom project-based services require a
statement of work between the parties and are not governed by these terms and
conditions. All prices for Services in the attached Quote are based on work
being performed during normal business hours (Monday through Friday).
Security arrangements and access for Dimension Data at the Customer’s
location is the responsibility of Customer. Service prices for installations
assume Customer provides a complete list of the installation sites at least
two (2) weeks prior to the Services commencement. Customer will notify
Dimension Data in writing of cancellations of scheduled site visits no less
than five (5) business days prior to such scheduled site visit. Customer
changes to the number of devices/office locations to be implemented may
result in changes to prices and delivery requirements. Other than Customer
Content, Dimension Data retains ownership rights to all intellectual
property, including but not limited to all methodologies, tools, techniques
or software, used or developed by Dimension Data during and as a result of
Services provided hereunder. “Customer Content” means the specific data that
results from the delivery of the Service and that is unique to the Customer,
including Customer’s systems design and configuration specifications and
related reports.
13.
MAINTENANCE. Any Maintenance resold by Dimension
Data hereunder, including but not limited to Cisco SMARTNet, is subject to
the terms and conditions for such services identified by the third party
provider. Dimension Data is not a party to any such third party terms and
conditions.
14.
SOFTWARE. Any software delivered under this
Agreement is subject to the license terms provided with it. All software
license terms are established directly between the Customer and the owner or
licensor of the software. Dimension Data is not a party to any such software
license and makes no warranties or representations related to the ownership,
use or operation of the software.
15.
DD LOGISTICS PRODUCT ORDERING SERVICE. Customer
may purchase Dimension Data Product ordering services (“DD Logistics”) for
delivery of Products to locations outside of the United States for an
additional fee. DD Logistics is provided by a Dimension Data affiliate. DD
Logistics includes the following items: (1) recording orders (including
serial numbers and purchase order values) onto TransIT (order tracking system
for international deliveries); (2) coordination of cargo collection,
including commercial invoices (tariff headings provided); (3) tracking and
tracing of orders from shipment to delivery and the updating of TransIT; (4)
feedback through entire commerce chain (e.g., notification of early delivery,
potential delays); (5) coordination of customs clearance (as applicable),
including collection of relevant import information, applicable certificates
and licenses; (6) collecting and uploading proof of delivery details onto
TransIT; (7) reporting, including global spending reports, asset reporting;
(8) providing a single point of contact for all logistics information; (9)
providing a single point of contact for all escalations; (10) Dead on Arrival
or RMA management; (11) arranging marine insurance based on applicable
Incoterm 2000; (12) carriage insurance (unless prohibited by local
regulations), freight, storage (for up to 15 days) and delivery (subject to
applicable Incoterm 2000). The DD Logistics fee specifically excludes the
cost of import taxes and duties, import registration and licensing fees, pre-
and post-shipment inspection costs, brokers’ fees, and costs of other related
requirements. Additional fees and requirements will apply if Customer (i) is
not a registered importer in the destination country, and/or (ii) requires
use of freight forwarder not approved by Dimension Data. Product delivery to
certain countries is prohibited by United States law and some manufacturer
policies. All risk of loss to any Products delivered by Dimension Data
pursuant to DD Logistics shall pass to Customer upon delivery thereof to the
agreed ship to location or, if delivery is based on DDU Destination Airport
Incoterm 2000, then all risk of loss will pass to Customer upon “touch down”
of the shipment at the importation airport.
16.
GOVERNING LAW. All transactions made under this
Agreement will be governed by the applicable state laws for the state of New
York, excluding any conflict of laws rules that may apply in such state. Any
dispute regarding this Agreement shall be subject to the exclusive
jurisdiction of the applicable court in New York. The United Nations Convention
on Contracts for the International Sale of Goods shall not apply. Each Party
agrees to comply with the U.S. Foreign Corrupt Practices Act (15 U.S.C.
78(dd)(i) et seq., as the same may be amended) and with the anti-bribery laws
and regulations of any other country having jurisdiction over the
transactions contemplated hereby. Customer acknowledges and agrees that it
has the ability to access each URL referenced in any Quote. Customer waives
any claims or defenses to the validity or enforceability of this Agreement
arising from any electronic submission of it to Customer.
17.
EXPORT ADMINISTRATION. Each Party shall comply
with all relevant export and sanctions laws and regulations of the United
States to assure that neither any software deliverable, nor any direct
product thereof is (a) exported or re-exported, directly or indirectly, in
violation of any export laws, or (b) intended to be used for any purposes
prohibited by any export laws, including without limitation, nuclear,
chemical, or biological weapons proliferation, or (c) made available to any
prohibited person or entity, as such terms are defined under applicable laws
and regulations administered by the U.S. Office of Foreign Assets Control.