PLEASE READ THESE TERMS AND CONDITIONS OF PRODUCT SALES VERY CAREFULLY. THE TERMS AND CONDITIONS OF PRODUCT SALES ARE LIMITED TO THOSE CONTAINED HEREIN. ANY ADDITIONAL OR DIFFERENT TERMS IN ANY FORMS DELIVERED BY YOU ("CUSTOMER") ARE HEREBY DEEMED TO BE MATERIAL ALTERATIONS AND NOTICE OF OBJECTION TO THEM AND REJECTION OF THEM IS HEREBY GIVEN. BY ACCEPTING DELIVERY OF THE PRODUCTS FROM THE MAXPOWER AFFILIATE IDENTIFIED ON THE INVOICE OR OTHER MAXPOWER DOCUMENTATION, CUSTOMER AGREES TO BE BOUND BY AND ACCEPTS THESE TERMS AND CONDITIONS OF PRODUCT SALES UNLESS EXPRESSLY AGREED TO IN WRITING BY AN AUTHORIZED MAXPOWER OFFICER, IN WHICH CASE THE SEPARATE AGREEMENT WILL GOVERN.
Important Information
These Terms and Conditions of Product Sales constitute a binding contract between Customer and MaxPower and are referred to herein as either "Terms and Conditions of Product Sales" or this "Agreement." Customer accepts these Terms and Conditions of Product Sales by making a purchase, placing an order or otherwise shopping on MaxPower's Website (the "Site"). These Terms and Conditions of Product Sales are subject to change without prior notice, except that the Terms and Conditions of Product Sales posted on the Site at the time Customer places an order will govern the order in question, unless otherwise agreed in writing by MaxPower and Customer. Customer consents to receiving electronic records, which may be provided via Web browser or e-mail application connected to the Internet; individual consumers may withdraw consent to receiving electronic records or have the record provided in non-electronic form by contacting MaxPower. Electronic signatures (or copies of signatures sent via electronic means) are the equivalent of written and signed documents.
Service and Support
IN THE EVENT THAT ADDITIONAL SERVICES ARE PROCURED OUTSIDE OF THOSE COVERED UNDER SPECIFIC PRODUCT WARRANTY, EITHER INDEPENDENTLY OR IN CONJUNCTION WITH THE PURCHASE OF PRODUCTS, SUCH SERVICES SHALL BE ON AND SUBJECT TO THE "TERMS AND CONDITIONS OF SERVICE."
Customer may issue a purchase order for administrative purposes only. Additional or different terms and conditions contained in any such purchase order will be null and void. Customer agrees that the Terms and Conditions of Product Sales contained herein and in MaxPower's invoice or other MaxPower documentation will control. No course of prior dealings between the parties and no usage of trade will be relevant to determine the meaning of these Terms and Conditions of Product Sales or any purchase order or invoice related thereto. This Agreement supersedes all prior communications (whether verbal, written or electronic) between the parties related to the products.
Governing Law
THESE TERMS AND CONDITIONS OR PRODUCT SALES AND ANY SALE OF PRODUCTS HEREUNDER WILL BE GOVERNED BY THE LAWS OF THE STATE OF COLORADO, WITHOUT REGARD TO CONFLICTS OF LAWS OR RULES. ANY ARBITRATION, ENFORCEMENT OF AN ARBITRATION OR LITIGATION WILL BE BROUGHT EXCLUSIVELY IN THE CITY AND COUNTY OF DENVER, COLORADO, AND CUSTOMER CONSENTS TO THE JURISDICTION OF THE FEDERAL AND STATE COURTS LOCATED THEREIN, SUBMITS TO THE JURISDICTION THEREOF AND WAIVES THE RIGHT TO CHANGE VENUE. CUSTOMER FURTHER CONSENTS TO THE EXERCISE OF PERSONAL JURISDICTION BY ANY SUCH COURT WITH RESPECT TO ANY SUCH PROCEEDING. Except in the case of nonpayment, neither party may institute any action in any form arising out of these Terms and Conditions of Product Sales more than one year after the cause of action has arisen. The rights and remedies under these Terms and Conditions of Product Sales are cumulative, are in addition to, and do not limit or prejudice any other right or remedy available to MaxPower at law or in equity.
Title; Risk of Loss
Title to products and risk of loss or damage during shipment pass from MaxPower to Customer upon shipment from MaxPower's facility (F.O.B. Origin, freight prepaid and added). Notwithstanding the foregoing, title to software will remain with the applicable licensor(s) and Customer's rights therein are contained in the license agreement between such licensor(s) and Customer. MaxPower retains a security interest in the products until payment in full is received.
Payment
Orders are not binding upon MaxPower until accepted by MaxPower. Customer agrees to pay the total invoiced purchase price for the products, plus shipping (to the extent shipping is not prepaid by Customer). Terms of payment are within MaxPower's sole discretion. If you breach the provisions of this Agreement or the terms of any offer, MaxPower 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). Invoices are due and payable within the time period specified on the invoice, measured from the date of invoice, subject to continuing credit approval by MaxPower. MaxPower may invoice Customer separately for partial shipments. Customer agrees to pay interest on all past-due sums at the lower of 1.5% per month or at the highest rate allowed by law. Customer will pay for, and will indemnify and hold MaxPower and its affiliates harmless from, any applicable sales, use, transaction, excise or similar taxes and any federal, state or local taxes, fees or charges (including, but not limited to, environmental or similar fees), imposed on, in respect of, or otherwise associated with the order or the products. Customer must claim any exemption from such taxes, fees or charges at the time of purchase and provide MaxPower with the necessary supporting documentation. Any sales, use or other applicable tax or fees or assessments is based on the location to which the order is shipped. In the event of a payment default, Customer will be responsible for all of MaxPower's costs of collection, including, but not limited to, court costs, filing fees and attorney fees.
Export Sales
If this transaction involves an export of items (including, but not limited to commodities, software or technology), subject to the Export Administration Regulations, such items were exported from the United States by MaxPower in accordance with the Export Administration regulations. Customer agrees that it will not divert, use, export or re-export such items contrary to United States law. Customer expressly acknowledges and agrees that it will not export, re-export, or provide such items to any entity or person within any country that is subject to United States economic sanctions imposing comprehensive embargoes without obtaining prior authorization from the United States Government. The list of such countries subject to United States economic sanctions or embargoes may change from time to time, but currently includes Cuba, Iran, Sudan, and Syria. Customer also expressly acknowledges and agrees that it will not export, re-export, or provide such items to entities and persons that are ineligible under United States law to receive such items, including but not limited to, any person or entity on the United States Treasury Department's list of Specially Designated Nationals or on the United States Commerce Department's Denied Persons List, Entity List, or Unverified List. In addition, manufacturers' warranties for exported products may vary or may be null and void for products outside the United States.
Warranties
Customer understands that MaxPower may not be the manufacturer of the products purchased by Customer hereunder and the warranties offered are only those of the relevant manufacturer. In purchasing the products, Customer is relying on the manufacturer's specifications only and is not relying on any statements, specifications, photographs or other illustrations representing the products that may be provided by MaxPower or its affiliates. MAXPOWER MAKES NO EXPRESS WARRANTIES EXCEPT THOSE STATED IN MAXPOWER'S APPLICABLE MAXPOWER-BRANDED WARRANTY OR SERVICE DESCRIPTION IN EFFECT ON THE DATE OF THE INVOICE, PACKING SLIP OR ACKNOWLEDGMENT. MAXPOWER AND ITS AFFILIATES HEREBY EXPRESSLY DISCLAIM ALL WARRANTIES EITHER EXPRESS OR IMPLIED, RELATED TO PRODUCTS, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF TITLE, ACCURACY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTY OF NONINFRINGEMENT. THE DISCLAIMER CONTAINED IN THIS PARAGRAPH DOES NOT AFFECT THE TERMS OF ANY MANUFACTURER'S WARRANTY INCLUDING THOSE WHEREIN MAXPOWER IS THE PRODUCT MANUFACTURER. Customer acknowledges that no employee of MaxPower or its affiliates is authorized to make any representation or warranty on behalf of MaxPower or any of its affiliates outside of those documented as the manufacturer's warranty. MaxPower will not be responsible for and no liability shall result to MaxPower or any of its affiliates for any delays in delivery which result from any circumstances beyond MaxPower's reasonable control, including, but not limited to, product unavailability, carrier delays, delays due to fire, severe weather conditions, failure of power, labor problems, acts of war, terrorism, embargo, acts of God, or acts or laws of any government or agency. Any shipping dates provided by MaxPower and any purported deadlines contained in any other document are estimates only.
Pricing Information; Availability Disclaimer
MaxPower reserves the right to make adjustments to pricing and products for reasons including, but not limited to, changing market conditions, product discontinuation, product unavailability, manufacturer price changes and errors in advertisements. All orders are subject to product availability. Therefore, MaxPower cannot guarantee that it will be able to fulfill Customer's orders.
Limitation of Liability
UNDER NO CIRCUMSTANCES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY SET FORTH HEREIN, WILL MAXPOWER, ITS AFFILIATES, SUPPLIERS, SUBCONTRACTORS OR AGENTS BE LIABLE FOR: (A) ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, BUSINESS, REVENUES OR SAVINGS, EVEN IF MAXPOWER HAS BEEN ADVISED OF THE POSSIBILITIES OF SUCH DAMAGES OR IF SUCH DAMAGES ARE OTHERWISE FORESEEABLE. IN EACH CASE, WHETHER A CLAIM FOR ANY SUCH LIABILITY IS PREMISED UPON BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY OF LIABILITY; (B) ANY CLAIMS, DEMANDS OR ACTIONS AGAINST CUSTOMER BY ANY THIRD PARTY; (C) ANY LOSS OR CLAIM ARISING OUT OF OR IN CONNECTION WITH CUSTOMER'S IMPLEMENTATION OF ANY CONCLUSIONS OR RECOMMENDATIONS BY MAXPOWER OR ITS AFFILIATES IN CONNECTION WITH THE PRODUCTS; OR (D) ANY UNAVAILABILITY OF THE PRODUCT FOR USE OR ANY LOST, DAMAGED OR CORRUPTED DATA OR SOFTWARE. NOTWITHSTANDING THE FOREGOING, IN THE EVENT OF ANY LIABILITY INCURRED BY MAXPOWER OR ANY OF ITS AFFILIATES, THE ENTIRE LIABILITY OF MAXPOWER AND ITS AFFILIATES FOR DAMAGES FROM ANY CAUSE WHATSOEVER WILL NOT EXCEED THE LESSER OF: (A) THE DOLLAR AMOUNT PAID BY CUSTOMER FOR THE PRODUCT(S) GIVING RISE TO THE CLAIM; OR (B) $50,000.
Confidential Information
Each party anticipate that it may be necessary to provide access to information of a confidential nature of such party, its affiliates or of a third party, (hereinafter referred to as "Confidential Information") to the other party in the performance of this Agreement. "Confidential Information" means any information or data in oral, electronic or written form which the receiving party knows or has reason to know is proprietary or confidential and which is disclosed by a party in connection with this Agreement or which the receiving party may have access to in connection with this Agreement. Confidential Information will not include information which: (a) becomes known to the public through no act of the receiving party; (b) was known to the receiving party, or becomes known to the receiving party from a third party having the right to disclose it and having no obligation of confidentiality to the disclosing party with respect to the applicable information; or (c) is independently developed by personnel of the receiving party who have not had access to such information. To the extent practicable, Confidential Information should be clearly identified or labeled as such by the disclosing party at the time of disclosure or as promptly thereafter as possible; however, failure to so identify or label such Confidential Information will not be evidence that such information is not confidential or protectable.
Each party agrees to hold such Confidential Information confidential for a period of three years following the date of disclosure and to do so in a manner at least as protective as it holds its own Confidential Information of like kind. Disclosures of Confidential Information will be restricted: (i) to those individuals who are participating in the performance of this Agreement and need to know such Confidential Information for purposes of providing or receiving the products or otherwise in connection with this Agreement; or (ii) to its business, legal and financial advisors, each on a confidential basis. Upon the written request of a party, the other party will either return or certify the destruction of the Confidential Information of the other party.
If a receiving party is required by law, rule or regulation, or requested in any judicial or administrative proceeding or by any governmental or regulatory authority, to disclose the Confidential Information, the receiving party will give the disclosing party prompt notice of such request so that the disclosing party may seek an appropriate protective order or similar protective measure.
Return Privileges
MaxPower customer return requests must be made within 30 days of invoice date. Product returned under a MaxPower customer return request must be received within 30 days of Return Merchandise Authorization (RMA) date. Products shall be returned undamaged and 100% complete. This includes manufacturer box, UPC label, packing materials, all manuals, blank warranty cards, and accessories.
Return privileges are contingent upon various manufacturer policies. MaxPower reserves the right to decline return requests based on those policies. Please verify policies for specific item(s) with a member of Customer Account Management. End-of-life product is excluded.
Restocking fees: A restocking fee of 15% will be charged on all hardware, accessories, peripherals, parts, and unopened software still in its/their sealed package, and on software that has not been downloaded if the software is delivered electronically. There will be a 50% restocking/cancellation fee for nonstandard products. Unit must be in new, resalable condition for a refund or credit to be applied. If the item(s) being returned is over 75lbs, the item(s) MUST BE shipped via palletized freight or MaxPower will not honor the RMA.
MaxPower is not responsible whatsoever for product that is lost, damaged, modified, or otherwise processed for disposal or resale. At MaxPower's discretion, credit for damaged, modified, or partial returns may be less than invoice or individual component prices. Please contact MaxPower Customer Account Management at 877-853-8338 between 7:00 a.m. and 7:00 p.m. CT, Monday through Friday, or via email at Sales@Maxpowercorp.com to obtain an RMA before shipping product back to MaxPower. This will expedite and help ensure the proper action or credit upon processing.
In order to expedite a return, please have the following information on hand when requesting an RMA number: customer number, invoice number, serial number, reason for return, action to take (replacement/repair/return/credit) and whether the box has been opened or is manufacturer sealed. Please do not write on or damage the manufacturer box.
Customer is responsible for shipping charges to and from MaxPower's distribution center for all products being shipped back to MaxPower. If the carrier selected by customer is not used by MaxPower, a comparable shipping method will be selected.
Customer is responsible for all risk of loss and damage to products being shipped back to MaxPower. As, such, it is highly recommended that the customer return goods in palletized form in order to reduce risk of shipping damage. Please fully insure return shipment in case of loss or damage. Please use a carrier that is able to provide you with proof of delivery such as UPS, Federal Express or DHL. This is for your protection as well as to ensure quick action on your return.
Failure to return a product within 30 days will be deemed to be an acceptance of the product.
Credit will be issued after equipment has been received and inspected.
Damaged Products
Products are shipped F.O.B. Origin. If Customer receives damaged product, a claim should be filed with the carrier, according to their policies and procedures.
Arbitration
Any claim, dispute, or controversy (whether in contract, tort or otherwise, whether preexisting, present or future, and including, but not limited to, statutory, common law, intentional tort and equitable claims) arising from or relating to the products, the interpretation or application of these Terms and Conditions of Product Sales or the breach, termination, validity thereof, the relationships which result from these Terms and Conditions of Product Sales (including to the full extent permitted by applicable law, relationships with third parties who are not signatories hereto), or MaxPower's or any of its affiliates' advertising or marketing (collectively a "Claim") WILL BE RESOLVED, UPON THE ELECTION OF ANY ONE OF MAXPOWER, CUSTOMER OR THE THIRD PARTY INVOLVED, EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION. If arbitration is chosen, it will be conducted pursuant to the Rules of the American Arbitration Association. If arbitration is chosen by any party with respect to a Claim, neither MaxPower nor Customer will have the right to litigate that Claim in court or to have a jury trial on that Claim or to engage in pre-arbitration discovery, except as provided for in the applicable arbitration rules or by agreement of the parties involved. Further, Customer will not have the right to participate as a representative or member of any class of claimants pertaining to any Claim. Notwithstanding any choice of law provision included in these Terms and Conditions of Product Sales, this arbitration agreement is subject to the Federal Arbitration Act (9 U.S.C. §§ 1-16). The arbitration will take place exclusively in Denver, Colorado. Any court having jurisdiction may enter judgment on the award rendered by the arbitrator(s). Each party involved will bear its own costs of any legal representation, discovery or research required to complete arbitration. the existence or results of any arbitration will be treated as confidential. Notwithstanding anything to the contrary contained herein, all matters pertaining to the collection of amounts due to MaxPower arising out of sales hereunder will be exclusively litigated in court rather than through arbitration.
Software
All software is provided subject to a license agreement and you agree that you will be bound by such license agreement.
Trademarks; Copyrights
You may use the "MaxPower" name and MaxPower's product names solely for the purpose of accurately identifying the MaxPower-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 MaxPower decides is inaccurate, objectionable or misleading or a misuse of MaxPower's name, trademarks, service marks, or MaxPower's logos or copyrighted works. You may not use the MaxPower name and MaxPower's product names for any other purpose. You may not use other MaxPower trademarks or service marks or MaxPower's logos or copyrighted works at any time. You are prohibited from referring to yourself as an authorized reseller of MaxPower, implying that you and MaxPower are partners, creating the impression that MaxPower is affiliated with your 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 MaxPower's. You will clearly and prominently identify yourself in all offers and advertising, marketing and promotional materials relating to this Agreement.
Your Indemnity to MaxPower
To the fullest extent permitted by law, you will indemnify, defend and hold MaxPower, including MaxPower'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 attorney fees, expenses and court costs) arising from: (a) your modification(s) of and/or addition(s) to Products(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 t his 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 MaxPower to you.
Miscellaneous
MaxPower may assign or subcontract all or any portions of its rights or obligations with respect to the sale of Products or assign the right to receive payments, without Customer's consent. Customer may not assign these Terms and Conditions of Product Sales, or any of its rights or obligations herein without the prior written consent of MaxPower. Subject to the restrictions in assignment contained herein, these Terms and Conditions of Product Sales will be binding on and inure to the benefit of the parties hereto and their successors and assigns. No provision of this Agreement will be deemed waived, amended or modified by either party unless such waiver, amendment or modification is in writing and signed by both parties. The relationship between MaxPower and Customer is that of independent contractors and not that of employer/employee, partnership or venture. The invalidity or unenforceability of any provision of this Agreement will not affect the validity or enforceability of any other provision of this Agreement.
