By signing this quote, statement of work, or by issuing an order with CompuNet which references this document or a document which references this document, Customer agrees to the following terms and conditions:
1. License. The Purchase Order or Statement of Work (in either case, as applicable, “Quote”) provided by CompuNet, Inc. (“CompuNet”) with these terms and conditions (“Terms”) is for products (“Products”) provided by the third party identified in the Quote (“Provider”) or through CompuNet, or for services (“Services”) provided by CompuNet, its contractor, or a third party. Certain of the Products or related Provider or CompuNet materials provided with Products (“Documentation”) may be provided pursuant to a license (“License”) granted to Customer. In that case, subject to the License, Customer has no ownership interest in the licensed Products or Documentation, and Provider or CompuNet, as applicable, will own all right, title, and interest in such licensed Products and Documentation. Certain documentation, materials or tangible items (collectively, “Deliverables”) may be provided with the Services pursuant to a License. In that case, subject to the License, Customer has no ownership interest in the licensed Deliverables, and CompuNet or a third party licensor, as applicable, will own all right, title and interest in such licensed Deliverables. By signing a Quote or issuing a purchase order in response to it, Customer agrees to review any end user license agreement (EULA) or Subscription Agreement (SA) applicable to any Product included in the Quote, and agrees to be bound by any applicable EULA or SA.
2. Payment. This Quote becomes binding and non-cancelable upon Customer’s return to CompuNet of acceptance. Customer will promptly pay the amounts set forth in the Quote. All amounts are due and payable upon receipt of invoice from CompuNet and shall be paid in no event later than 30 days from invoice date. Customer agrees to timely make all monthly payments for the duration of any subscription period set forth in the Quote. Any amounts not timely paid will bear interest at the rate of 1.5% per month. Customer will pay to CompuNet the reasonable costs, including attorney fees, incurred by CompuNet in collecting any unpaid and overdue amount. Unless specified in the Quote, customer will be responsible for all shipping, handling, taxes, and import fees and costs. CompuNet reserves the right to cancel any Quote arising from pricing or other error.
3. Acceptance. “Acceptance” shall occur (a) for Products, upon the passage of three (3) business days after the date of delivery if written notice by Customer of rejection is not earlier received by CompuNet; and (b) for Services and Deliverables, upon the passage of three (3) business days after CompuNet’s notice to test and accept or reject, without written notice of rejection by Customer detailing the Services rejected and the alleged deficiencies. In the case of timely rejection of Products, Customer’s sole remedy is repair or replacement of rightfully rejected Products by CompuNet within a reasonable time. In the case of timely rejection of Services, CompuNet shall correct the noticed deficiencies and renotice Customer, and the acceptance procedure will be repeated to a maximum of thirty (30) days from the original rejection notice. If uncorrected deficiencies then remain, Customer may, as its sole remedy as to those Services that it has not Accepted, (a) terminate the applicable Statement of Work, and (b) obtain a refund for the rejected Services. Customer shall remain responsible for the value of those Services not rejected and shall timely pay all undisputed invoiced amounts. Title to the Products and risk of loss shall pass at delivery.
4. Use. With respect to licensed Products, Documentation or Deliverables, Customer shall not directly or indirectly: (a) use, copy or reproduce them except as permitted under the applicable License; (b) exceed the subscribed quantities, users or other entitlement measures of the Products or Deliverables as provided in the applicable License; (c) assign, sell, sublicense, rent, lease, time-share, or otherwise transfer the rights granted to Customer under any License; (d) modify or reverse engineer the Products or Deliverables; (e) decompile, attempt to derive the source code or underlying algorithms of any part of, or attempt to recreate the Products or Deliverables; (f) use them for any purpose competitive with CompuNet or Provider; (g) create derivative works based to any extent upon them; (h) interfere with the integrity or performance of the Products or Deliverables; (i) attempt to gain unauthorized access to the Products or Deliverables their related systems or networks, circumvent any related security measures, or perform unauthorized penetrating testing on the Products or Deliverables; (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 the Products or Deliverables any personal health data, personal financial data or other such sensitive regulated data not required by the Documentation or permitted by the License, or any data that is subject to the International Traffic in Arms Regulations maintained by the United States Department of State. Customer’s authorized use of the Products is limited to the purchased quantities and features set forth in the Quote.
5. Suspension of Service. Without limiting any other remedies available to it, CompuNet may suspend Customer’s access to Products or request that Provider suspend such access, without liability if: (a) CompuNet reasonably believes that the Products are being used in violation of these Terms or applicable law; (b) requested by a law enforcement or government agency or otherwise to comply with applicable law; (c) Customer fails to timely pay any invoice for the Products; or (d) Customer ceases doing business, seeks bankruptcy protection, is placed in receivership, or makes an assignment for the benefit of creditors. Information on Provider’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 Provider.
6. 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 License; (b) breach of any obligation under these Terms; (c) actual or alleged use of the Products or Deliverables 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 Deliverables.
7. Warranty. CompuNet warrants to Customer that it will (a) perform the Services in a timely, competent, professional and workmanlike manner, using qualified personnel, consistent with commercially reasonable industry practices and in compliance with applicable laws, and (b) perform the services in accordance with policies and procedures provided by Customer in writing regarding on-site security and Customer workplace rules. Except for the foregoing, CompuNet makes no warranty, express, implied or statutory, and disclaims all such warranties, regarding the Products and Services, 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 Provider to CompuNet regarding the Products. Customer acknowledges that CompuNet is a reseller of products and not the OEM. Customer shall seek redress or recovery under any such warranty, or any warranty by Provider to Customer under a License, directly from Provider.
8. 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, 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 Quote for the Products or Services as to which a claim or claims by Customer relates; or (b) Provider’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.
9. No Changes. A Quote becomes a binding contract on the terms set forth in it (including these Terms) when it is accepted by Customer either by acknowledgment or by commencement of performance by CompuNet pursuant to the Quote. CompuNet objects to and rejects any conflicting or additional terms contained in a purchase order, acceptance, acknowledgement, or other documents issued or delivered by Customer in response to the Quote. A Quote cannot be modified except by written agreement signed by an authorized representative of CompuNet.
10. Miscellaneous: Customer may not assign these Terms without the prior written consent of CompuNet. Any other purported assignment of these Terms will be void. CompuNet may assign its rights and obligations hereunder without limitation. These Terms together with the Quote constitute the entire agreement between the parties regarding their subject matter and supersede all prior discussions and writings between the parties with respect to the same, except to the extent Customer and CompuNet are parties to a Master Product Purchase and Services Agreement or similar master agreement (“Agreement”), in which case the terms of such Agreement shall control to the extent they directly conflict with these Terms. These Terms shall supplement such Agreement to the extent they do not directly conflict and are not voided by Sections 5(a) or 6(a) of the Agreement or any similar provision voiding non-conflicting terms in adding to the Agreement’s terms. Customer warrants that it has the right to enter into these Terms and that the Quote has been executed by an authorized representative of Customer. No failure or delay in enforcing any right or exercising any remedy will be deemed a waiver of any right or remedy. If any provision of these Terms becomes unenforceable or illegal, it will be reformed to the minimum extent necessary for these Terms to otherwise remain in effect. CompuNet is not an agent, partner, or joint venturer of Customer. The laws of the State of Idaho, USA govern the interpretation of these Terms, regardless of conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods is excluded in its entirety from application to these Terms. Customer consents to the exclusive jurisdiction of the federal and state courts in Ada County, Idaho, USA for any dispute arising under or relating to these Terms. TO THE EXTENT NOT PROHIBITED BY LAW, EACH PARTY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY CLAIM OR COUNTERCLAIM ON ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THESE TERMS. Customer’s obligations under these Terms will survive the expiration or other termination of any License or Customer’s subscription for any Products.