STANDARD SALES TERMS AND CONDITIONS

1. Softmart Government Services, Inc. or Softmart Commercial Services, Inc. or their designees or their wholly owned affiliates or subsidiaries and similarly owned entities ("Softmart") agrees to supply and you agree to purchase/license/sublicense products ("Products") quoted herein are subject to these terms and conditions, which shall supersede any terms and conditions on any purchase order form or document you submit to Softmart ("Agreement"). You also agree that the Products will not be used for, or in the design of any ultrahazardous activities, including but not limited to, air traffic control, critical care operations, mining, nuclear installations, and the like.
2. PAYMENT TERMS: Our payment terms are net thirty (30) days from our invoice date. Each shipment will have a separate invoice. A late payment fee of the lesser of 1.5%, or the maximum interest rate allowed by law, of the invoice total will be charged for each month (or portion thereof) that an invoice remains unpaid by you. You are also responsible for any costs, including attorneys’ fees, incurred by Softmart in the collection of any invoice balance not paid within the previously stated time period. Softmart’s pricing is based on a cash discount that may not be applicable to other payment forms.
3. SHIPPING AND HANDLING: A shipping and handling charge will be added to each order if applicable.
4. TAXES: Prices do not include any federal, state, municipal or other foreign government duties or taxes (such as sales, use, etc.). We will honor properly presented sales tax exemption certificates supplied at the time of the order.
5. Unless otherwise expressly agreed to by Softmart, Products shipped by Softmart to you will be shipped at your expense F.O.B. origin, via ground freight. Freight charges will be prepaid and added to the Softmart invoice.
6. MEDIA & DOCUMENTATION: By placing an order for additional media or duplication services, Customer acknowledges and warrants that it has the right to such in the quantities requested. Further, Customer agrees to defend and indemnify Softmart against and hold Softmart harmless from any and all claims, damages and expenses (including reasonable attorney’s fees and cost of litigation) by any party resulting from any claim of unauthorized copying or use of any such ordered product(s).
7. Patent and Trademark Indemnity: Softmart shall have no duty to defend, indemnify, or hold Customer harmless from and against any or all damages and costs incurred by Customer arising from the infringement of Patents or Trademarks or the violation of Copyrights by goods which were not manufactured by Softmart.
8. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY:
1. SOFTMART IS A RESELLER, NOT THE MANUFACTURER OF THE PRODUCT(S). THEREFORE, SOFTMART ONLY PROVIDES THE WARRANTIES AS SET FORTH EXPLICITLY HEREIN. YOU ACKNOWLEDGE AND AGREE THAT THE USE OF THE PRODUCT(S) IS AT YOUR SOLE RISK.YOU RECOGNIZE THAT THE USE AND SERVICING OF COMPUTER PRODUCTS INVOLVES A SUBSTANTIAL RISK OF LOSS OF STORED DATA AND COMPUTING AND COMMUNICATION FUNCTIONS, AND THAT INDUSTRY STANDARDS DICTATE YOUR SYSTEMATIC USE OF PRODUCTS, SYSTEMS, AND PROCEDURES WHICH PROVIDE COMPREHENSIVE PROTECTION AND BACK-UP OF DATA, COMMUNICATION, AND COMPUTING FUNCTIONS SO AS TO PREVENT ANY LOSS OR DOWNTIME.
2. SOFTMART MAKES NO WARRANTY, EXPRESSED OR IMPLIED, OTHER THAN THOSE EXPRESSLY SET FORTH HEREIN. IN NO EVENT SHALL SOFTMART BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES (INCLUDING, AMONG OTHER THINGS, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTIONS, LOSS OF BUSINESS INFORMATION, AND THE LIKE) ARISING FROM THE PRODUCT(S) SOLD/LICENSED/SUBLICENSED HEREUNDER OR ANY ACTIONS TAKEN BY YOU BASED ON THE PRODUCTS SOLD/LICENSED/SUBLICENSED HEREUNDER, EVEN IF SOFTMART HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ADDITIONALLY SOFTMART SHALL NOT BE LIABLE FOR LOSSES, COSTS, EXPENSES, OR DAMAGES OF ANY KIND OR NATURE ALLEGED TO HAVE RESULTED FROM ANY BREACH OF WARRANTY OR FAILURE OF THE PRODUCT OF ANY KIND. SOFTMART DOES NOT WARRANT THE MERCHANTABILITY OF THE PRODUCT(S) OR THEIR FITNESS FOR ANY PARTICULAR PURPOSE OR THAT THEIR OPERATION WILL BE UNINTERRUPED OR ERROR-FREE. SOFTMART HAS EXPRESSED NO OPINION AS TO THE SUITABILITY OF THE PRODUCT PURCHASED FOR YOUR PARTICULAR PURPOSE. SOFTMART DOES NOT WARRANT THAT ANY OF THE PRODUCTS SOLD, LICENSED OR SUBLICENSED UNDER THIS AGREEMENT ARE CAPABLE OF HANDLING CALCUALATIONS OR OTHER FUNCTIONS INVOLVING THE YEAR 2000 OR BEYOND.
3. THE ACTUAL MANUFACTURER OF THE PRODUCT(S) MAY OFFER ADDITIONAL WARRANTIES, AND INFORMATION. PLEASE READ THE DOCUMENTATION INCLUDED WITH THE PRODUCT(S) BY THE MANUFACTURER FOR MORE SPECIFIC INFORMATION.
4. BECAUSE SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, OR THE LIMITATION OF IMPLIED WARRANTY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
5. PLEASE NOTE THAT THE TERMS OF THIS SECTION MAY NOT AFFECT OR PREJUDICE YOUR STATUTORY RIGHTS IF YOU ARE A CONSUMER AND THE PRODUCT(S) ARE NOT PURCHASED/LICENSED/SUBLICENSED IN THE COURSE OF BUSINESS.
6. SOFTMART’S TOTAL LIABILITY TO YOU FOR ACTUAL DAMAGES OR COSTS RESULTING FROM ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO THE TOTAL AMOUNT ACTUALLY PAID BY YOU TO SOFTMART FOR THE SPECIFIC PRODUCT.
9. ERRORS, PRICE CHANGES & AVAILABILITY: Softmart shall not be held liable for mistakes or typographical errors. Prices are subject to change without notice. Products listed are subject to availability and may change without notice.
10. LEASING: Softmart is not a leasing or financing company. Any lease or financing terms contained within this Agreement are merely estimates and should not be relied on as an actual offer. All leasing or financing options are contingent upon credit approval by the selected leasing or financing company and successful execution of a leasing or financing agreement between yourself and that leasing or financing company.
11. RETURNS: Return privileges vary by manufacturer/publisher. Unless otherwise expressly specified, Softmart offers the following guidelines with regard to Product returns:
1. Unopened Software or Hardware Product can be returned within fifteen (15) days of the invoice date subject to the manufacturer/publisher’s prior approval. Product must be 100% complete and contain all original manufacturer boxes with the original UPC code. Such returns may be subject to a 15% restocking fee.
2. Opened Software or Hardware Products are subject to prior approval from the manufacturer/publisher within fifteen (15) days of the invoice date. If the manufacturer’s seal is broken, the return is considered opened product. This includes manufacturer tape, shrink-wrap, or plastic packaging. Such returns may be subject to a 15% restocking fee. Customized, configured or build-to-order units are not returnable.
3. Defective hardware product returns are based solely on the manufacturer policy. Refer to the specific manufacturer’s documentation provided with the product for their return procedures. Certainly, your Softmart Sales representative will assist you with any questions, but you should consult the warranty information provided by the product manufacturer. Since all warranty policies are not the same, please be sure to discuss the Product return specifications with your sales representative prior to purchase. Perhaps they can offer you assistance with additional extended warranty protection.
4. The return of Software product purchased through a Volume License Program ("VLP") is subject to publisher approval within 15 days of invoice date. Each software publisher has separate and distinct rules for the return of VLP license-only products. If the publisher approves the request, you may return the license(s) and/or complete a letter of destruction for credit (defined as price actually paid by customer, less any applicable manufacturer or publisher restocking fees). Certain publishers require that a replacement order be submitted prior to processing a return request. Volume License Program returns may be subject to a 15% processing fee.
5. In all cases a Return Authorization ("RA") number must be obtained from Softmart prior to any return. The RA number should be clearly noted on the return ship to label only. Do not write on the outside of the actual product box. Manufacturers will refuse the return when writing is noted on the actual product box. Softmart must receive the Product within 10 days of the date the RA is provided by Softmart. RA numbers cannot be extended or re-issued. No returns will be accepted without a valid RA number. You are responsible for shipping charges and risk of loss or damage on all return shipments. Softmart recommends that all returned merchandise be returned via a traceable shipping carrier who will provide proof of delivery. You should insure that the return shipment is properly packed and fully insured.
12. FORCE MAJEURE: Softmart shall not be liable for any failure to perform under this Agreement resulting from any cause beyond the reasonable control of Softmart, including, but not limited to, an act of God; accident; telephone service provider problem; war; fire; lockout; strike or labor dispute; riot or civil commotion; act of the public enemy; enactment, rule, order or act of civil or military authority; or acts or omissions of any other party, including Softmart's Vendor.
13. APPLICABLE LAW, CHOICE OF VENUE: This Agreement is entered into in Chester County, Pennsylvania and shall be governed by, construed and enforced in accordance with, the laws of the Commonwealth of Pennsylvania, notwithstanding any application of choice of law principles. You agree that any lawsuit filed to enforce this Agreement shall be properly filed only in the Court of Common Pleas, Chester County, Pennsylvania or The United States District Court for the Eastern District of Pennsylvania.
14. TERMINATION: Softmart has the right to terminate or change this Agreement without notice. Softmart has the right to deny credit to any company or entity that does not meet the then current Softmart credit standards.
15. ASSIGNMENT & SURVIVAL: This Agreement, including, all of its underlying obligations, may not be assigned by you without the express, written consent of an officer of Softmart. The provisions of the Patent and Trademark Indemnity, Disclaimer of Warranties and Limitation of Liability, Assignment and Survival, and Applicable Law, Choice of Venue sections of this Agreement shall survive any termination of this Agreement.
16. SEVERABILITY: In the event any term, provision or covenant of this Agreement shall be judged by any court of competent jurisdiction to be unenforceable, then the validity of the remaining terms, provisions and covenants shall be unaffected and this Agreement shall be construed as if the unenforceable provision had never been a part of it. If any term, provision or covenant of this Agreement shall be judged unenforceable by a court of competent jurisdiction by reason of its duration, scope or a combination thereof, such covenant shall be adjusted to the extent necessary to cure such lack of enforceability, and this Agreement shall be construed as if such provision had originally been agreed to in its adjusted form.
17. MODIFICATION: This Agreement may only be modified or amended in writing under the signature of Softmart’s President or Chief Executive Officer.
18. HEADINGS: The headings herein are for organizational purposes and ease of reading only and shall not be binding upon the parties.
19. EQUAL EMPLOYMENT OPPORTUNITY: Softmart is an equal opportunity employer.

 

Vendor Terms and Conditions

DEFINITIONS: As used in these Terms and Conditions, "Order" means the purchase order accompanying these Terms and Conditions, and all its attachments. "Vendor" means the entity to whom the Order is issued. "Softmart" means Softmart Commercial Services, Inc. "Product" means any and all materials furnished by Vendor to Softmart pursuant to the Order.

• COMPLETE AGREEMENT. This Order, including these Order Terms and Conditions and any specifications or attachments hereto, constitutes the sole and entire agreement between the parties ("Agreement"). The Vendor's quotation is incorporated in and made a part of this Order only to the extent of specifying the nature and description of the goods ordered, and then only to the extent that such items are consistent with the other terms of this Order. No other terms or conditions shall be binding upon Softmart unless accepted by Softmart in writing.
• CHANGES AND SUBSTITUTIONS. No changes or substitutions in place or materials are to be made without written approval of Softmart prior to the delivery of the Product, and no increase in price for any such changes or substitutions shall be permitted except as agreed to at the time of such written approval.
• SHIPMENT. Unless specifically modified herein, all Products will be shipped F.O.B. destination. All transportation costs shall be prepaid by Vendor. (Vendor represents that any transportation costs included in the purchase price shall not exceed actual transportation costs paid by Vendor.) The entire risk of loss for Products shall rest with Vendor until such time as it is delivered to and accepted by Softmart personnel. Vendor agrees to either pre-pay or reimburse Softmart for any import duties, taxes, or other charges related to the import of this Product into the United States.
• DELIVERY. Time is of the essence with this Order. Vendor will use best efforts to meet Softmart's required delivery date(s) provided in this Order for Products. If Vendor, for any reason, does not comply with Softmart's required delivery date for Product, Softmart, in addition to its remedies provided by law at its option, may either approve a revised delivery date(s) or may terminate the Order without further liability to Vendor. Any Product delivered later than required by this Order may be refused by Softmart. The cost of returning such refused Product shall be borne by Vendor.
• CANCELLATION. Softmart may cancel this Order or parts thereof at anytime for any reason. Softmart may cancel any Order prior to shipment without incurring any penalty thereafter. Softmart shall reimburse the Vendor for its actual shipping costs of any Order placed by Softmart which it then canceled after shipment of said Order by Vendor.
• PRICES. The prices indicated in this Order are fixed and are not subject to escalation or adjustment for any reason whatsoever unless specifically provided for herein. All shipments must be freight paid by Vendor, unless specifically modified herein. Vendor warrants that the prices charged herein are as low as any net price to any other customer. Vendor warrants that prices shown on this Order shall be complete, and no additional charges of any kind shall be added without Softmart's express written consent.
• PAYMENT. Payment for all Products included in this Order from Vendor by Softmart shall be due two (2%) percent fifteen (15) days/ net forty-five (45) days after Softmart's acceptance of the Product or the Vendor's invoice date, which ever is later, unless specifically modified herein. The payment shall be equal to the total of any applicable Vendor invoices less any outstanding credits for returns, unpaid rebates, marketing funds, and the like.
• TAXES. Prices to Softmart do not include taxes of any nature. Under no circumstances will Softmart be responsible for Vendor's income tax, franchise tax, or other similar tax liability.
• PACKAGING. No charges of any kind for boxing, handling, packaging or other will be allowed unless specified in Vendor's bid and accepted by Softmart in writing. A packaging list must accompany each shipment. Order number must appear on all invoices, packing slips and bills of lading.
• ASSIGNMENT. Vendor may not assign or delegate its rights or obligations under this Order without Softmart's written consent.
• CONFIDENTIAL INFORMATION. Vendor shall consider all information furnished by Softmart, including but not limited to the prices charged Softmart and the Product and/or quantities of Product ordered by Softmart, to be confidential, shall not disclose any such information to any third party, and will not use for any reason other than those contemplated herein any such confidential information without the prior written consent from Softmart.
• INDEMNIFICATION. Vendor will defend and indemnify Softmart against and hold Softmart harmless from, any and all claims, damages, and expenses (including reasonable attorneys' fees and costs of litigation), by any other party resulting from any claim, including but not limited to Product liability, that any Product infringe any patent, trademark or copyright or misappropriates any U.S. trade secret. Vendor will pay all damages and costs finally awarded against Softmart in such action based on such a claim, provided that Softmart gives Vendor prompt written notice of any such claim and allows Vendor to control, and fully cooperate with Vendor in the defense and all related settlement negotiations. Vendor shall have no liability for any settlement or compromise made without its consent. Upon notice of an alleged infringement, or if in the Vendor's opinion such a claim is likely, Vendor shall have the right, at its option, to obtain the right for Softmart to continue the distribution of the Products, substitute other computer software with similar operating capabilities, or modify the Products so that they are no longer infringing.
• WARRANTY. Vendor expressly warrants that the Products supplied pursuant to this Order shall conform to the description and specification provided herein, will be new, and will be free from defects in material or workmanship. Vendor warrants that all such Products will conform to any statements made on the containers or labels or advertisements for such Products. Vendor's warranty shall run to Softmart's customers to whom Softmart sold Product. IN NO EVENT SHALL SOFTMART BE LIABLE FOR SPECIAL, INDIRECT, CONSEQUENTIAL, COLLATERAL OR INCIDENTAL DAMAGES ARISING OUT OF THIS ORDER, EVEN IF SOFTMART HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
• GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, except with regard to its laws regarding choice of law. Any litigation between the parties shall take place in the courts residing or nearest to Chester County, Pennsylvania.
• HEADING. The titles and headings of the various sections and paragraphs in this Agreement are intended solely for convenience of reference and are not intended for any other purpose whatsoever, or to explain, modify or place any construction upon or on any of the provisions of this Agreement.
• AMENDMENTS. No provisions in either party's purchase orders, or in any other business forms employed by either party will supersede the terms and conditions of this Agreement, and no supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement.
• EQUAL EMPLOYMENT OPPORTUNITY. Softmart is an equal opportunity employer and U.S. Government contractor, pursuant to Executive Order 11246 as amended, Section 503 of the Rehabilitation Act of 1973 and Section 402 of the Vietnam Era Veterans Readjustment Assistance Act of 1974, the provisions of 41 C.F.R. 60-1.4(a), 60-1.40, 60-1.7, 60-741.4 and 5, 60-250.4 and 5 are incorporated by reference herein. Vendor certifies compliance with all requirements thereunder and that it is an equal opportunity employer.
• FAIR LABOR STANDARDS ACT. Supplier warrants it complies with the requirements of the Fair Labor Standards Act, as amended, and the rules and regulations promulgated thereunder.
• SURVIVAL. Any provision of this Agreement which imposes an obligation after termination or expiration of this Agreement shall survive such termination or expiration and shall be binding upon the parties subsequent thereto.
• SEVERABILITY. In the event any term, provision or covenant of this Agreement shall be judged by any court of competent jurisdiction to be unenforceable, then the validity of the remaining terms, provisions and covenants shall be unaffected and this Agreement shall be construed as if the unenforceable provision had never been a part of it. If any term, provision or covenant of this Agreement shall be judged unenforceable by a court of competent jurisdiction by reason of its duration, scope or a combination thereof, such covenant shall be adjusted to the extent necessary to cure such lack of enforceability and this Agreement shall be construed as if such provision had originally been agreed to in its adjusted form.
• LIMITATION OF LIABILITY. Softmart's total liability to Vendor for actual damages or costs resulting from any cause whatsoever, regardless of the form of the action, will be limited to the total amount actually paid by Softmart to Vendor for the specific Product.
• ENTIRE AGREEMENT. These terms and conditions constitute the full and complete understanding and agreement of the parties and supersede all prior understandings and agreements. Any waiver, modification of any provision herein shall be effective only if in writing and signed by an authorized Vendor representative and the Chief Executive Officer or President of Softmart.