Terms and Conditions for Product Sales
All quotations and sales to you ("Customer") by The Virant Group, Inc., its subsidiaries or affiliates ("Seller") are subject to the following terms and conditions.
Acceptance: Entire Agreement; Modification
This agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all proposals, oral or written, all negotiations, conversations and/or discussions between the parties relating to this Agreement and all past courses of dealing or industry customs. SELLER SHALL NOT BE BOUND BY ANY ADDITIONAL PROVISION AT VARIANCE HEREWITH THAT MAY APPEAR IN CUSTOMER'S PURCHASE ORDER, ACKNOWLEDGMENT, OR IN ANY OTHER COMMUNICATION FROM CUSTOMER TO SELLER UNLESS SUCH PROVISION IS EXPRESSLY AGREED TO IN WRITING SIGNED BY AN AUTHORIZED OFFICER OF SELLER. Seller's acceptance of payment for Products shall not constitute acceptance of any counter-proposal, purchase order or other communication from Customer to Seller not otherwise accepted in writing signed by an authorized officer of Seller. The terms and conditions set forth herein shall constitute the entire agreement between Customer and Seller and no change, modification, amendment, suspension, revision or termination of the terms and conditions set forth herein shall be binding upon Seller unless made in writing and signed by an authorized officer of Seller.
Delivery
Unless otherwise agreed to in writing, delivery shall be made in accordance with Seller's shipping policy in effect on the date of shipment. Title to, and all risk of loss or damage with respect to the Products shall pass to Customer upon delivery by Seller to Customer's representative. Delivery is subject to the payment provisions set forth herein and to Seller's receipt from Customer of all necessary information and documentation from Customer, including all import certificates, licenses and other documents as may be required from Customer for export of the Products. Seller shall not be held liable for any shipment delays beyond the reasonable control of Seller which affect Seller or any of Seller's suppliers, including but not limited to delays caused by unavailability or shortages of Products from Seller's suppliers; natural disasters, acts of war, fire, flood, strike, riot, or governmental interference; unavailability or shortage of materials, labor, fuel or power through normal commercial channels at customary and reasonable rates; failure or destruction of plant or equipment arising from any cause whatsoever; or transportation failures.
Title; Risk of Loss
If Customer provides Seller with Customer's carrier account number or selects a carrier other than a carrier that regularly ships for Seller, title to products and risk of loss or damage during shipment passes from Seller to Customer upon shipment from Seller's facility. For all other shipments, title to products and risk of loss or damage during shipment passes from Seller to Customer upon shipment to Customer. 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. Seller retains a security interest in the products until payment in full is received. Customer will be responsible for all shipping and related charges.
Export Sales
If this transaction involves an export under the Export Administration Regulations, the commodities, technology and/or software sold or distributed under these terms and conditions of sale exported from the United States by Seller were exported in accordance with the Export Administration Regulations. Diversion, use, export or re-export contrary to United States law is prohibited. The commodities, technology and/or software sold or distributed under these terms and conditions of sale may not be exported or re-exported to Cuba, Iran, Iraq, Libya, Sudan, North Korea or Syria or to entities and persons that are ineligible under United States law to receive United States commodities, technology and/or software. In addition, manufacturers' warranties for exported products may vary or may be null and void for products exported outside the United States.
Price and Payment
The Products are being invoiced at the prices specified. Unless otherwise provided, Customer shall bear all applicable federal, state, municipal and other government taxes (such as sales, use, and similar taxes), as well as import or customs duties, license fees and similar charges. Exemption certificates must be presented prior to shipment if they are to be honored. Seller shall have no continuing obligation to deliver Products on credit, and Seller may withdraw any credit approval at any time without prior notice. Seller hereby retains (and Customer grants to Seller) a purchase money security interest in all Products sold by Seller to Customer, and in the proceeds of any resale of such Products, until the purchase price and any other charges due to Seller have been paid in full. Customer agrees to execute any financial statements Seller may request in order to protect Seller's security interest. Upon any breach by Customer of these terms and conditions, Seller shall have all rights and remedies of a secured party under Uniform Commercial Code, which rights and remedies shall be cumulative and not exclusive. Customer is responsible for all costs and expenses reasonably incurred by Seller in collecting any sums owed by Customer (which may include, but not be limited to, reasonable attorney's and collection agency fees). If Seller incurs costs collecting on any judgment arising out of customer's breach, customer will be responsible for them, and this provision will survive the entry of such judgment. All unpaid invoices shall bear interest at a variable per annum rate not to exceed the highest rate allowed by law. Customer's failure to make timely payment may result in such action as revocation of credit, delay or cessation of future deliveries, repossession of unpaid delivered goods and termination of this agreement or any one or more of these.
Reclamation
If Seller discovers that Customer has received Products on credit while insolvent, Seller may reclaim the Products upon demand made within thirty (30) calendar days after Customer's receipt of such Products. The said thirty (30) day restriction does not apply if Customer has made a misrepresentation of solvency in writing to Seller within three (3) months prior to delivery of the Products.
Transportation
In the absence of specific shipping instructions, Seller will use its own discretion in choice of method of transportation and carrier. Seller assumes no responsibility for insuring shipment unless specified by Customer, in which event such insurance shall be based on Customer's valuation and at Customer's expense. All claims for damage and loss, whether apparent or concealed, shall be filed by Customer with the carrier. Seller assumes no responsibility for any such damage or loss.
Limitation of Liability for Delay in Delivery
UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE FOR ANY DAMAGES WHATSOEVER RESULTING FROM A DELAY IN DELIVERY OF PRODUCTS DUE TO ANY CAUSE BEYOND SELLER'S CONTROL, AS SET FORTH IN PARAGRAPH 2 ABOVE. IN THE EVENT OF A DELAY IN DELIVERY OF PRODUCTS DUE TO ANY OTHER REASON, SELLER SHALL NOT BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR EXEMPLARY DAMAGES.
Inspection and Warranty; Limitation of Liability
Customer shall inspect all Products promptly upon receipt thereof. All Customer complaints regarding Products must be made promptly in writing by Customer to Seller and must specify, in reasonable detail, the deficiencies claimed. Seller guarantees your satisfaction with all Products for a period of 30 days from the date of original purchase. If you are dissatisfied with the product within that time period, return the package in saleable condition to Seller for a full refund, less any shipping charges.
EXCEPT AS PROVIDED ABOVE, THE VIRANT GROUP, INC. DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OR MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE PRODUCT. SHOULD THE PROGRAM PROVE DEFECTIVE, THE PURCHASER ASSUMES THE RISK OF PAYING THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION, AND ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES.
IN NO EVENT WILL THE VIRANT GROUP, INC. BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE LIKE) ARISING OUT OF THE USE OR THE INABILITY TO USE THIS PRODUCT EVEN IF THE VIRANT GROUP, INC. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Special Provision for Software Sales
ALL SOFTWARE SALES ARE SUBJECT TO SELLER"S SOFTWARE LICENSING AGREEMENT CONTAINED HEREIN BY REFERENCE.
Bankruptcy or Insolvency
Either party may cancel this order in the event of the institution of proceedings relating to insolvency, bankruptcy, reorganization, arrangement or liquidation by or against the other party, or if the other party shall make an assignment for the benefit of creditors.
Waiver
Neither the failure of nor any delay on the part of Seller to exercise any right, remedy, power or privilege under this Agreement shall operate as a waiver thereof in any later instance. No waiver by Seller shall be effective unless it is in writing and is signed by an authorized officer of Seller.
Governing Law; Venue
This contract and the sale of goods contemplated hereby has been made in, and shall be construed and enforced in accordance with the laws of the State of Minnesota, notwithstanding any Minnesota or other conflict-of-laws rules to the contrary. Any legal action brought by either party hereto against the other party to enforce any rights or obligations arising out of this contract shall only be instituted in a federal or state court of competent jurisdiction for the County of Dakota, State of Minnesota. If either party hereto is named as a defendant in any action brought in connection herewith in any other court, such party shall have the right to have the venue of such action changed to a federal or state court of competent jurisdiction in the County of Dakota, State of Minnesota, or, if necessary, to have such action dismissed, requiring the party bringing such action in accordance with the venue requirement of this Paragraph. Customer and Seller each consent to jurisdiction over their person by, and agree to submit personally to the jurisdiction of the appropriate federal or state court of competent subject matter jurisdiction for the County of Dakota, State of Minnesota.
Severability
If any provision of this contract is held to be invalid or unenforceable by a federal or state court of competent jurisdiction, the enforceability of all remaining provisions of this contract will not be impaired and will remain in full force and effect.
Last updated on January 26, 2006.