By entering the Customer portal, Customer agrees to the following terms and conditions to Customer’s use of the portal and ordering, purchasing, and receiving products and services, including Subscriptions (each such order, a “Customer Order”), through it:

CompuNet – Terms and Conditions – 2 (9-2023)

1.              CUSTOMER ACKNOWLEDGEMENTS. Customer acknowledges that (a) CompuNet is a reseller of technology products and services, including subscription-based products and services (each a “Subscription”); (b) Customer also is or may be obligated to the third-party manufacturer or developer (each an “OEM”) pursuant to a subscription agreement between Customer and the OEM (“the Subscription Agreement”) or end-user license agreement or other end-user agreement between Customer and the OEM (a “EULA”); (c) a reseller, CompuNet is or may be obligated to the OEM for the term of Customer’s Subscription, and thus bears the risk of Customer’s nonpayment or other breach causing termination of Customer’s subscription rights under the terms of the Subscription Agreement; and (d) these terms are reasonably necessary for CompuNet’s protection in light of said risk.

PERFORMANCE AND PAYMENTS. Customer shall pay CompuNet the payments in the aggregate amounts specified in the applicable Customer Order, without prior re-notice or demand, and all other amounts payable pursuant to these terms (installments and other amounts for a Subscription, the “Subscription Payments”). Each Customer Order constitutes a non-cancelable net agreement (irrespective of any error later claimed by Customer in Customer’s entry of the Customer Order), and Customer’s obligations to pay the specified amount(s) for the Customer Order, including to pay Subscription Payments, and to otherwise perform its obligations under (a) the Customer Order and these terms, (b) each applicable Subscription Agreement or EULA, and (c) all of the other documents and agreements entered in connection herewith, including but not limited to any master agreement between CompuNet and Customer ((a)-(c) collectively constituting the “Agreement Documents”), are unconditional and shall not be affected or reduced by any claim of setoff, recoupment, deduction, defense or other claim which Customer may have against CompuNet, the OEM, or anyone else

Subscription payments are payable as and when specified in the Customer Order or the Subscription Agreement, and in the manner and at the location provided in the Agreement Documents. Customer agrees to make all Subscription Payments for the duration of the term of a Subscription (including automatic renewals or extensions, unless Customer has timely given any notice of non-renewal required in the Customer Order or Subscription Agreement). Where Customer extends a Subscription on a self-service basis beyond the term set forth in the original Customer Order, or purchases products or services which are purchased by Customer on a self-service basis beyond the quantities set forth in the original Customer Order, using an email address and login credentials associated with the purchase initially made pursuant to the Customer Order, including through an OEM or distributor online portal, Customer shall be subject to any price increases imposed on CompuNet by the OEM or distributor.

All amounts are due and payable upon receipt of invoice from CompuNet (or in the case of Subscription installment payments invoiced by the OEM, in accordance with the Subscription Agreement). Timeliness of Customer’s payment and its other performance under the Agreement Documents are of the essence. If any payment is not paid on the due date, CompuNet may collect, and Customer agrees to pay, a charge (the “Late Charge”) calculated as the product of the late charge rate specified in the Agreement Documents (the “Late Charge Rate”) and the amount in arrears for the period such amount remains unpaid. If the Agreement Documents contain no Late Charge Rate, it shall be 1.5% per month or the maximum rate permitted by law if less. 

Customer shall be responsible for all shipping, handling, taxes, and import duties or fees.

3.              OWNERSHIP. Subject to the Subscription Agreement or EULA applicable to each product or service purchased through a Customer Order, Customer has no ownership interest in the licensed products, services or related documentation or deliverables, and the OEM or CompuNet, as applicable, will own all right, title, and interest in such licensed items. 

4.              REPRESENTATIONS AND WARRANTIES OF CUSTOMER. Customer, and the person entering a Customer Order, each represent and warrant that (a) Customer is an entity duly organized, validly existing and in good standing under the laws of the state of its organization. (b) The person entering the Order is a duly authorized representative of Customer, authorized to agree to these terms and to place the Customer Order; (c) All necessary action and approval on the part of Customer to agree to these terms and enter into the Customer Order has been taken and obtained. (c) Customer’s agreement to these terms and entry of the Customer Order do not and will not contravene any law or governmental rule, regulation or order now binding on Customer, or the charter or by-laws of Customer, or contravene the provisions of, or constitute a default under, or result in the creation of any lien or encumbrance upon the property of Customer under, any indenture, mortgage, contract or other agreement to which Customer is a party or by which it or its property is bound, the contravention and/or creation of which would have a material adverse effect on Customer. (d) These terms and each of the Agreement Documents constitutes legal, valid and binding obligations of Customer enforceable against Customer, in accordance with the terms thereof, except as limited by applicable bankruptcy, insolvency, or similar laws affecting the enforcement of creditors’ rights generally, and by applicable law (or equitable rights) which may affect creditors’ rights generally. (e) There are no pending actions or proceedings to which Customer is a party (and as to which Customer has received written notice), and there are no other pending or threatened actions or proceedings of which Customer has knowledge, before any court, arbitrator or administrative agency, which, either individually or in the aggregate, would materially and adversely affect the financial condition of Customer or the ability of Customer to perform its obligations under the Agreement Documents. Further, Customer is not in default (as of the date of execution hereof, and Customer has no knowledge of the occurrence of any event which, with the giving of notice or the lapse of time, would become a default ) under any obligation for borrowed money, for the deferred purchase price of property or any other subscription or credit agreement which, either individually or in the aggregate, would have the same such effect. (f) The address stated in the Customer Order is the principal office of Customer. (g) Customer is not conducting business under a trade, assumed or fictitious name. 

5.              FURTHER ASSURANCES AND NOTICES. Customer covenants and agrees: (a) Customer will promptly execute and deliver to CompuNet such further reasonable documents, instruments and assurances and take such further action as CompuNet from time to time may reasonably request in order to carry out the intent and purpose of these terms. (b) Customer shall provide written notice to CompuNet: (1) thirty (30) days prior to any contemplated change in the name or address of the principal office of Customer; (2) promptly upon the occurrence of any Default (as hereinafter defined) or event which, with the lapse of time or the giving of notice, would become a Default; and (3) promptly upon Customer becoming aware of any alleged material violation of applicable law relating to the Customer Order, any Subscription, or any of the Agreement Documents.

6.              CONDITIONS PRECEDENT. CompuNet’s obligations with respect to each Customer Order, including its obligation to purchase or maintain any Subscription to be resold to Customer, are conditioned upon CompuNet’s reasonable determination that all the following have been satisfied (or waived, at CompuNet’s sole discretion): (a) Customer shall have taken the steps necessary to accept and be bound by any applicable Subscription Agreement or EULA. (b) All representations and warranties of Customer in any of the Agreement Documents shall be true and correct on the effective date of such Customer Order with the same effect as though made as of such date (Customer’s entry of the Customer Order shall constitute an acknowledgment of the same). (c) There shall be no existing Default (as defined herein) by Customer.

8.              USE. Customer shall: (1) use products and services purchased through the Customer Order, including any Subscription, solely in the conduct of its business; and (2) use such products and services, and maintain all records and other materials relating thereto, in accordance and consistent with (A) the OEM’s requirements or recommendations and all maintenance and operating manuals or service agreements, whenever furnished or entered into, including any subsequent amendments or replacements thereof, (B) all applicable laws; and (C) the Agreement Documents. With respect to licensed items, Customer shall not directly or indirectly: (a) use, copy or reproduce them except as permitted under the applicable EULA; (b) exceed the subscribed quantities, users or other entitlement measures as provided in the applicable Customer Order or EULA; (c) assign, sell, sublicense, rent, lease, time-share, or otherwise transfer the rights granted to Customer under any EULA; (d) modify or reverse engineer any items; (e) decompile, attempt to derive the source code or underlying algorithms of any part of, or attempt to recreate any items; (f) use any such items for any purpose competitive with CompuNet or the applicable OEM; (g) create derivative works based to any extent upon them; (h) interfere with the integrity or performance of them; (i) attempt to gain unauthorized access to them or their related systems or networks, circumvent any related security measures, or perform unauthorized penetrating testing on them; (j) use them to infringe on the intellectual property rights or privacy rights of any third party, or to store or transfer unlawful data; or (k) send, store or process in them any personal health data, personal financial data or other such sensitive regulated data not permitted under the applicable EULA or any data that is subject to the International Traffic in Arms Regulations maintained by the United States Department of State.

9.              DEFAULT. (a) A default shall be deemed to have occurred hereunder and under the Agreement Documents (“Default”) if (1) Customer shall fail to make any payment, including Subscription Payments, as and when due and such failure shall continue unremedied for a period of 30 calendar days; or (2) Customer shall fail to perform or observe any other covenant, condition or agreement to be performed or observed by it under any Agreement Document and such failure shall continue unremedied for a period of ten (10) calendar days after written notice thereof to Customer by CompuNet (or such other period as is provided in the Agreement Documents); or (3) Customer shall (i) be generally not paying its debts as they become due; or (ii) make any filing for the purpose of invoking the protection of any bankruptcy or insolvency law, or any such law is invoked against or with respect to Customer or its property, and any such petition filed against Customer is not dismissed within sixty (60) calendar days; or (4) Customer shall make or permit any unauthorized lien against, or assignment or transfer of, a Subscription, any of the Agreement Documents, or any interest therein; or (5) any certificate, statement, representation, warranty or audit contained herein or furnished with respect hereto by or on behalf of Customer proving to have been false in any material respect at the time as of which the facts therein set forth were stated or certified; or (6) Customer shall have terminated its corporate or other entity existence, consolidated with, merged into, or conveyed (except in connection with any bona fide financing arrangement) substantially all of its assets as an entirety to any person unless not less than sixty (60) days prior to such event: (i) such person executes and delivers to CompuNet an agreement satisfactory in form and substance to CompuNet, in its sole discretion, containing such person’s effective assumption, and its agreement to pay, perform, comply with and otherwise be liable for, in a due and punctual manner, all of Customer’s obligations having previously arisen, or then or thereafter arising, under all of the Agreement Documents; and (ii) CompuNet is reasonably satisfied as to the creditworthiness of such person. (b) The occurrence of a Default with respect to any Subscription shall, at the sole discretion of CompuNet, constitute a default with respect to any or all Agreement Documents to which Customer is then a party. Notwithstanding anything set forth herein, CompuNet may exercise all rights and remedies hereunder independently with respect to each Agreement Document. 

10.           REMEDIES. Without limiting CompuNet’s other rights hereunder, under applicable law, or under any of the Agreement Documents, if Customer shall be in Default, Customer automatically shall be deemed to be in default under the applicable Customer Order or Subscription, and at CompuNet’s sole option all of Customer’s rights, but not its obligations, under such and in and to the Customer Order or Subscription thereunder automatically shall be suspended or cancelled as provided in the Subscription Agreement or EULA for a default. With respect to Subscriptions, with Customer remaining liable for any deficiency and with any excess being retained by CompuNet; recover from Customer damages, not as a penalty, but herein liquidated for all purposes as follows: an amount equal to the sum of (A) any accrued and unpaid Subscription Payments, and (B) (i) the present value of the total Subscription Payments for the then remaining term of such Subscription, and (C) any incidental or consequential damages, less expenses saved by CompuNet in consequence of the Default.

All amounts to be present valued shall be discounted at a rate equal to the discount rate of the Federal Reserve Bank of San Francisco then in effect. Except as to such with respect to which there is a cancellation, the Customer Order and the Subscriptions not so cancelled shall remain in full force and effect and Customer shall be and remain liable for the full performance of all its obligations hereunder and thereunder. Customer shall be liable for all reasonable legal fees and other expenses incurred by reason of any default or Default or the exercise of CompuNet’s remedies, and all other pre-judgment and post-judgment enforcement related activities. No right or remedy referred to in these terms is intended to be exclusive, but each shall be cumulative and shall be in addition to any other remedy otherwise available at law or in equity and may be exercised concurrently or separately from time to time. The failure of CompuNet to exercise the rights granted hereunder upon any Default by Customer shall not constitute a waiver of any such right. In no event shall the performance of a Customer Order constitute a waiver by CompuNet of any pre-existing Default.

Without limiting any other remedies available to it, CompuNet may suspend Customer’s access to products, including Subscriptions, or request that the OEM suspend such access, without liability if: (a) CompuNet reasonably believes that the products are being used in violation of applicable law; (b) requested by a law enforcement or government agency or otherwise to comply with applicable law; (c) Customer’s failure to timely pay any invoice for the subject products reaches thirty (30) days; or (d) Customer ceases doing business, seeks bankruptcy protection, is placed in receivership, or makes an assignment for the benefit of creditors. Information on the OEM’s servers may be unavailable to Customer during any such suspension of access. CompuNet will use commercially reasonable efforts to give Customer at least 24 hours’ notice of a suspension unless it determines in its sole judgment that a suspension on shorter or no notice is necessary to protect CompuNet or OEM.

11.           NO WARRANTY. CompuNet makes no warranty, express, implied or statutory, and disclaims all such warranties, regarding the products and services resold by it and ordered by Customer using the portal, including but not limited to warranty of fitness for a particular purpose, merchantability, or noninfringement, or arising from a course of dealing, performance, usage, trade practice, or custom. CompuNet shall pass through to Customer any warranty by the applicable OEM to CompuNet. Customer shall seek redress or recovery under any such warranty, or any warranty by OEM to Customer under a Subscription Agreement or EULA, directly from the OEM.

12.           LIMITATION OF DAMAGES. CompuNet shall not be liable to Customer for any loss of profits, revenue, or goodwill, or for any indirect, special, incidental, consequential or punitive damages arising out of, or in connection with these terms or the products or services purchased by Customer using the portal, however caused, whether in contract, tort, warranty, indemnity or any other legal theory, and whether or not Customer has been advised of the possibility of such damages. In no event shall CompuNet’s aggregate liability to Customer be more than the lesser of (a) the total amount paid by Customer to CompuNet under the Customer Order to which a claim or claims by Customer relates; or (b) the applicable OEM’s liability to CompuNet for the same claim or claims. This limitation applies notwithstanding any claim that it deprives a party of an adequate remedy or causes any remedy to fail of its essential purpose.

13.           INDEMNITY.    Customer will defend, indemnify, and hold CompuNet and its officers, directors, employees, contractors and agents harmless from and against any and all damages, costs, liabilities, expenses (including, without limitation, reasonable attorneys’ fees), and settlement amounts incurred in connection with any claim arising from or relating to Customer’s: (a) breach of any obligation under any Subscription Agreement or EULA; (b) breach of any obligation under these terms; (c) actual or alleged use of products or services purchased by Customer through the portal in violation of law by Customer or any authorized users; or (d) actual or alleged infringement or misappropriation of third party intellectual property rights arising from data used with the products or services purchased by Customer through the portal.

  14.        MISCELLANEOUS. (a) These terms may be modified by CompuNet, and each applicable Subscription Agreement or EULA may be modified by the OEM from time to time, and Customer shall remain bound them as modified (unless otherwise provided in the Subscription Agreement or EULA). (b) Any provision of these terms which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective only to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. (c) The representations, warranties and covenants of Customer herein shall be deemed to be continuing and shall survive the termination of any of the Agreement Documents. (d) Each entry by Customer of a Customer Order shall be deemed a reacceptance of these terms, as they may be modified from time to time. (e) With respect to each Subscription, the obligations of Customer under such Subscription and these terms which have accrued but not been fully satisfied, performed or complied with prior to the cancellation or termination of such Subscription, shall survive the cancellation or termination thereof to the extent necessary for the full and complete performance of such obligations. (f) Customer irrevocably appoints CompuNet as Customer’s attorney-in-fact (which power shall be deemed coupled with an interest) to execute, endorse and deliver any documents and checks or drafts relating to or received in payment for any loss or damage under applicable policies of insurance, but only to the extent that the same relates to the applicable Customer Order. (g) COMPUNET AND CUSTOMER HEREBY WAIVE TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO WHICH CUSTOMER AND/OR COMPUNET MAY BE PARTIES ARISING OUT OF OR IN ANY WAY PERTAINING TO THESE TERMS. (h) All notices (excluding billings and communications in the ordinary course of business) hereunder shall be in writing, personally delivered, delivered by overnight courier service, or sent by certified mail, return receipt requested, addressed to the other party at its respective address stated below the signature of such party or at such other address as such party shall from time to time designate in writing to the other party; and shall be effective from the date of receipt. (i) THESE TERMS SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF IDAHO (WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES OF THE STATE), INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE. The parties agree that any action or proceeding arising out of or relating to these terms may be commenced in any state or Federal court in the State of Idaho, and agree that a summons and complaint commencing an action or proceeding in any such court shall be properly served and shall confer personal jurisdiction if served personally or by certified mail to it at its primary address, or as it may provide in writing from time to time, or as otherwise provided under the laws of the State. (j) In the event of any conflict between these terms and any Agreement Document, the provision most protective of CompuNet as applied shall prevail.

15.           DEFINITIONS AND RULES OF CONSTRUCTION. The following words when used in these terms have the following meanings: (1) “Business Day”: any day, other than a Saturday, Sunday, or legal holiday for commercial banks under the laws of the State; (2) “governmental authority”: any federal, state, county, municipal, regional or other governmental authority, agency, board, body, instrumentality or court, in each case, whether domestic or foreign; and (3) “person”: any individual, corporation, partnership, joint venture, or other legal entity or a governmental authority. Any Agreement Document or other agreement or instrument referred to herein means such agreement or instrument as supplemented, renewed, extended, modified or amended from time to time. Any reference to CompuNet or Customer shall include their permitted successors and assigns. 

Effective 12/04/2023 – Version 23.0