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Terms & Conditions
Terms & Conditions
of International Sale and
for Persons or Entities Purchasing to Resell
PLEASE READ THIS DOCUMENT CAREFULLY! IT CONTAINS VERY IMPORTANT
INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS
AND EXCLUSIONS THAT APPLY TO YOU.
These
terms and conditions ("Agreement") apply to your purchase and resale of
computer systems, related products and/or services and support sold in
the United States ("Products") by the Visix entity named on the invoice
("Visix") or other documents provided to you by Visix. This Agreement does
not apply to you if you are buying for your own end use. By accepting
delivery of the Products you agree to be bound by and accept the terms
and conditions of this Agreement. These terms and conditions are subject
to change at any time in Visix's sole discretion without prior written
notice. If you do not wish to be bound by this Agreement, you must
promptly notify Visix. Products must remain in the boxes in which they
were shipped and notify us immediately to arrange a Product return. YOU
WILL BE RESPONSIBLE FOR SHIPPING & HANDLING CHARGES FOR THIS RETURN.
ADDITIONAL RETURN OR RESTOCKING FEES MAY APPLY. THIS AGREEMENT SHALL
APPLY UNLESS YOU HAVE A SEPARATE WRITTEN AGREEMENT WITH VISIX OR OTHER
VISIX
TERMS AND CONDITIONS APPLY.
Other Documents.
This Agreement may NOT be altered, supplemented or amended by the use of
any other document(s) unless otherwise agreed to in a separate written
agreement signed by both you and Visix. If you do not receive an invoice
or acknowledgement in the mail or with your Product, information about
your purchase may be obtained by
contacting your sales representative.
Reselling.
You may resell Products to end-users approved by
Visix, in Visix's sole
discretion, only after you have added value to the Products through the
addition of hardware, software, or services. Approval by Visix shall not
be deemed from the sale of Product to you. You may not resell to
Consumer, Education, Healthcare, Federal, State or Local sector
customers nor to distributors, third party sales agents, remarket or
sell through retail storefronts or auction-type Web sites. This
Agreement is not exclusive. Visix may market Products to any third party
directly or indirectly without any obligation or liability to you. This
Agreement does not guarantee that you will make any sales of the
Products. You determine or set your resale Product pricing. Visix reserves
the right to restrict or prohibit your participation in certain
promotions, add, modify, or discontinue pricing, Products and/or parts.
Visix may require you to meet additional obligations not outlined herein,
which will be disclosed to you prior to your purchase of Products. You
will provide Visix such information and reports as may reasonably be
requested by Visix.
Trademarks; Copyrights.
You may use the "Visix" name and Visix's product names solely for the
purpose of accurately identifying the Visix-branded Products you market
and/or sell under this Agreement. You agree to change or correct, at
your own expense, any material or activity that Visix decides is
inaccurate, objectionable or misleading or a misuse of Visix's name,
trademarks, service marks, or Visix's logos or copyrighted works. You may
not use the Visix name and Visix's product names for any other purpose. You
may not use other Visix trademarks or service marks, or Visix's logos or
copyrighted works, at any time. You are prohibited from referring to
yourself as an authorized reseller of Visix, implying that you and Visix are
partners, creating the impression that Visix is affiliated with you or has
sponsored, authorized, approved or endorsed your business, or any offer
or any marketing, advertising or promotion thereof. You may not register
or use any domain name or business name containing or confusingly
similar to any name or mark of Visix's. You will clearly and prominently
identify yourself in all offers and advertising, marketing and
promotional materials relating to this Agreement.
Quotes; Orders; Payment
Terms; Interest.
Payment terms are within Visix's sole discretion. You agree not to violate
the terms of any offer or concession made available by Visix. Visix may
invoice and/or ship parts of an order separately. Visix reserves the right
to cancel an order or transaction, in whole or in part. If you breach
the provisions of this Agreement or the terms of any offer, Visix may
charge or re-debit your account or credit card the full list price for
your purchase (in lieu of a discounted or special price included in the
offer). You agree to pay interest on all past-due sums at the highest
rate allowed by law. You hereby grant Visix, and Visix hereby retains, a
purchase money security interest and lien on any and all of your rights,
title and interest in Products, wherever located, and all replacements
or proceeds of the Products, until the invoice for the applicable
Products is paid in full, including any late charges and costs of
collection. You consent to Visix's use of this Agreement, as well as
Product invoices, as financing statements for protecting this security
interest and appoint Visix as your agent for service of process. Unless
you and Visix have agreed to a different discount, Visix's standard pricing
policy for Visix-branded systems, which include both hardware and services
in one discounted price, allocates the discount off list price
applicable to the service portion of the system to be equal to the
overall calculated percentage discount off list price on the entire
system.
Shipping Charges; Taxes.
Shipping dates provided by
Visix are estimates only. Shipping and handling
are additional and will be shown on the invoice(s) or other
documentation. Loss or damage that occurs during shipping by a carrier
selected by Visix is Visix's responsibility. Loss or damage that occurs
during shipping by a carrier selected by you is your responsibility.
Unless you provide Visix with a valid and correct tax exemption
certificate applicable to the Product ship-to location at the time of
purchase, you will be responsible for sales and all other taxes
associated with the order, however designated, except for Visix's
franchise taxes and taxes on Visix's net income.
Title; Risk of Loss;
Insurance.
Title to products passes from Visix to you on shipment from Visix's facility
or third party manufacturers facility. Title to software will remain
with the applicable licensor(s). You will maintain comprehensive general
liability, including products liability, insurance in an amount
appropriate for your business, but in no event less than $1,000,000.00
(US) with an insurance company having a Best rating of A. Upon Visix's
request, you will provide to Visix a certificate of such insurance
(including any new or amended certificates of insurance) and/or name
Visix
as an additional insured.
Warranties.
VISIX MAKES NO EXPRESS WARRANTIES EXCEPT THOSE STATED IN THIS SECTION AND
IN VISIX'S APPLICABLE LIMITED WARRANTY STATEMENT IN EFFECT ON THE DATE OF
THE INVOICE, PACKING SLIP OR ACKNOWLEDGEMENT FOUND AT
www.visix.com OR THE DOCUMENTATION PROVIDED WITH THE PRODUCT(S).
VISIX DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING
WITHOUT LIMITATION IMPLIED WARRANTIES OF NONINFRINGEMENT,
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THERE ARE NO
WARRANTIES BY VISIX FOR NON-VISIX BRANDED PRODUCTS, SERVICE OR SOFTWARE
PRODUCTS. ALL SUCH PRODUCTS ARE PROVIDED BY VISIX "AS IS". NO REVISION IN
LIMITED WARRANTIES WILL AFFECT PRODUCTS ALREADY ORDERED BY YOU.
Additional Remedies &
Responsibilities.
VISIX RESERVES THE RIGHT TO DISCONTINUE OR OTHERWISE
VOID ANY WARRANTY, SERVICE OR TECHNICAL SUPPORT IT OFFERS IN WHOLE OR IN
PART IF YOU BREACH ANY OF YOUR OBLIGATIONS UNDER THIS AGREEMENT OR IF
YOU FAIL TO PAY AMOUNTS DUE FOR PRODUCTS YOU PURCHASE FROM VISIX. YOU
SHALL BE SOLELY RESPONSIBLE FOR ALL REPRESENTATIONS OR OMISSIONS YOU
MAKE TO YOUR CUSTOMERS INCLUDING BUT NOT LIMITED TO ANY REPRESENTATION
OR OMISSION YOU MAKE ABOUT PRODUCT WARRANTIES, FEATURES, PERFORMANCE,
SUPPORT AND SERVICE. YOU WILL INFORM YOUR CUSTOMERS OF VISIX'S RIGHTS AND
YOUR OBLIGATIONS UNDER THIS AGREEMENT.
Software.
All
software is provided subject to the license agreement that is provided
with the Product. You agree that you and your customers will be bound by
such license agreement.
Returns.
Visix's
return policies can be found
here.
Products.
Visix's policy is one of on-going Product update and revision. Visix may
revise and discontinue Products at any time without notice to you. Visix
will ship Products that have the functionality and performance of the
Products ordered, but changes between what is shipped and what is
described in a specification sheet or catalog are possible. The parts
and assemblies used in building Products and spare parts are selected
from new, equivalent-to-new or reconditioned parts and assemblies.
Limitation of Liability.
VISIX
DOES NOT ACCEPT LIABILITY BEYOND THE REMEDIES SET FORTH HEREIN,
INCLUDING BUT NOT LIMITED TO ANY LIABILITY FOR PRODUCTS NOT BEING
AVAILABLE FOR USE OR FOR LOST OR CORRUPTED DATA OR SOFTWARE, LOST
PROFITS, LOSS OF BUSINESS, YOUR BREACH OF THIS AGREEMENT OR THE
PROVISION OF SERVICES AND SUPPORT. VISIX WILL NOT BE LIABLE FOR ANY
CONSEQUENTIAL, SPECIAL, INDIRECT OR PUNITIVE DAMAGES, EVEN IF ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY
EXCEPT AS EXPRESSLY PROVIDED HEREIN. NOTWITHSTANDING ANYTHING IN THIS
AGREEMENT OR ON OUR WEB SITE TO THE CONTRARY, VISIX IS NOT RESPONSIBLE FOR
INFORMATION YOU PROVIDE TO US UNLESS YOU HAVE A SEPARATE WRITTEN
AGREEMENT OTHERWISE. YOU AGREE THAT FOR ANY LIABILITY ARISING FROM OR
RELATED TO THE PURCHASE OF ANY PRODUCTS, VISIX IS NOT LIABLE OR
RESPONSIBLE FOR ANY AMOUNT OF DAMAGES ABOVE THE AGGREGATE DOLLAR AMOUNT
INVOICED BY VISIX FOR THE RESPECTIVE PRODUCTS. NOTWITHSTANDING ANYTHING IN
THIS AGREEMENT TO THE CONTRARY, THE REMEDIES SET FORTH IN THIS AGREEMENT
SHALL APPLY EVEN IF SUCH REMEDIES FAIL THEIR ESSENTIAL PURPOSE.
Service and Support.
Service offerings may vary from product to product. If you purchase
optional services and support, Visix or a third party service provider
will provide the optional service and support to you or your customer in
the United States in accordance with the terms and conditions in effect
at the time of your purchase located at
www.visix.com or by telephone at 800-572-4935, extension 220 or
as may be mailed to you. Visix may, at its discretion, revise its general
and optional service and support programs and the terms and conditions
that govern them without prior notice to you or your customer. VISIX HAS
NO OBLIGATION TO PROVIDE WARRANTY OR SUPPORT SERVICES TO YOU OR YOUR
CUSTOMERS UNTIL VISIX HAS RECEIVED FULL PAYMENT FOR THE PRODUCT THAT YOU
PURCHASE. To transfer service, contact
Visix's customer
service.
YOUR INDEMNITY TO
VISIX.
To the fullest extend permitted by law, you will indemnify, defend and
hold Visix, including Visix's partners, officers, directors, agents,
employees, subsidiaries, affiliates, parents, successors and assigns,
harmless from any claim, demand, cause of action, debt or liability
(including reasonable attorneys fees, expenses and court costs) arising
from: (a) your modification(s) of and/or addition(s) to Product(s); (b)
your breach of this Agreement, (c) your omissions, misrepresentations,
or negligence, and (d) the Products sold by you damage a third party to
the extent such claim is based on (i) your modification of and/or
addition to the Products, misuse or abuse of the Products, negligence or
breach of any provision in this Agreement; (ii) your failure to abide by
all applicable laws, rules, regulations and orders that affect the
Products; (iii) your omission, misrepresentation, or negligence, or (iv)
you or your end-users cause intentional harm to any person or property.
Indemnified claims, debts and liabilities include the amount of any
discount in price or concession that is made available by Visix to you.
Dispute Resolution.
The parties will attempt to resolve any claim, or dispute or controversy
(whether in contract, tort or otherwise) against Visix, its agents,
employees, successors, assigns or affiliates (collectively for purposes
of this paragraph, "Visix") arising out of or relating to this Agreement,
Visix's advertising, or any related purchase (a "Dispute") through face to
face negotiation with persons fully authorized to resolve the Dispute or
through mediation utilizing a mutually agreeable mediator, rather than
through litigation. If the parties are unable to resolve the Dispute
through negotiation or mediation within a reasonable time after written
notice from one party to the other that a Dispute exists, the Dispute
will be settled by binding arbitration in accordance with the then
current CPR Rules for Non-Administered Arbitration. The Arbitration will
be conducted before three (3) independent and impartial arbitrators.
Visix
will appoint one (1) arbitrator and the other party or parties will
appoint one (1) arbitrator. The two (2) appointed arbitrators will then
select a third arbitrator, who shall be the presiding arbitrator. The
arbitration hearing shall take place in Atlanta, Georgia and will be
governed by the United States Federal Arbitration Act to the exclusion
of any inconsistent state laws. The arbitrators shall base their award
on the terms of this Agreement, and will follow the law and judicial
precedents that a United States District Judge sitting in the
appropriate District in Georgia would apply to the Dispute. The
arbitrators shall render their award in writing and will include the
findings of fact and conclusion of law upon which their award is based.
Judgment upon the arbitration award may be entered by any court of
competent jurisdiction. The existence or results of any negotiation,
mediation or arbitration will be treated as confidential.
Notwithstanding the foregoing, either party will have the right to
obtain from a court of competent jurisdiction a temporary restraining
order, preliminary injunction or other equitable relief to preserve the
status quo or prevent irreparable harm, although the merits of the
underlying Dispute will be resolved in accordance with this paragraph.
Independent Contractors.
No
provision of this Agreement will or shall be deemed to create a
partnership, joint venture or other combination between Visix and you. You
and Visix are independent contractors. Neither party will make any
warranties or representations or assume any obligations on the other
party's behalf. Neither party is nor will claim to be a legal
representative, partner, franchisee, agent or employee of the other
party. Each party is responsible for the amounts it incurs arising from
this Agreement and for the direction and compensation, and is liable for
the actions of, its employees and subcontractors.
Governing Law.
THE LAWS
OF THE STATE OF GEORGIA GOVERN THIS AGREEMENT, EXCLUDING ITS CONFLICTS
OF LAWS RULES AND EXCLUDING THE UNITED NATIONS CONVENTION ON THE
INTERNATIONAL SALE OF GOODS.
Export.
You acknowledge that the purchased goods licensed or sold under this
Agreement, and the transaction contemplated by this Agreement, which may
include technology and software, are subject to the customs and export
control laws and regulations of the United States ("U.S.") and may also
be subject to the customs and export laws and regulations of the country
in which the products are manufactured and/or received. You acknowledge
that it is your sole responsibility to comply with and abide by those
laws and regulations. Further, under U.S. law, the goods shipped
pursuant to this Agreement may not be sold, leased or otherwise
transferred to restricted countries or utilized by restricted end-users
or an end-user engaged in activities related to weapons of mass
destruction, including without limitation, activities related to the
design, development, production or use of nuclear weapons, materials, or
facilities, missiles or the support of missile projects, and chemical or
biological weapons. You agree not to provide any written regulatory
certifications or notifications on behalf of Visix. Visix has not tested
Products for use in high-risk activities including but not limited to
any life sustaining, chemical, or mission critical use. VISIX WILL NOT
HAVE ANY LIABILITY FOR ANY DAMAGES ARISING FROM THE USE OF THE PRODUCTS
IN ANY HIGH RISK ACTIVITY, INCLUDING, BUT NOT LIMITED TO, THE OPERATION
OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR
TRAFFIC CONTROL, MEDICAL SYSTEMS, LIFE SUPPORT, OR WEAPONS SYSTEMS.
Headings.
The section headings used herein are for convenience of reference only
and do not form a part of these terms and conditions, and no
construction or inference shall be derived there from. If any provision
of this Agreement is void or unenforceable, the remainder of this
Agreement will remain in full force and will not be terminated. Neither
party will be liable for any delays resulting from circumstances or
causes beyond the party's reasonable control.
*Terms last revised
November, 2006.
We reserve
the right to change this policy at any time.
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