Terms and Conditions
Standard Terms and Conditions of Sale
PLEASE READ THESE TERMS AND CONDITIONS OF SALE VERY CAREFULLY.
THE TERMS AND CONDITIONS OF SALE ARE LIMITED TO THOSE CONTAINED HEREIN. ANY ADDITIONAL OR DIFFERENT TERMS IN ANY FORMS DELIVERED BY 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 AND SERVICES DESCRIBED IN VARSITY
TECHNOLOGIES’ INVOICE, CUSTOMER AGREES TO BE BOUND BY AND ACCEPTS THESE
TERMS AND CONDITIONS OF SALE.
Important Information About These Terms and Conditions of Sale
These terms and conditions of sale constitute a binding contract between Customer and Varsity Technologies.
Customer accepts these terms and conditions of sale by making a purchase or placing an order with Varsity
Technologies. These terms and conditions are subject to change without notice, but the terms and conditions effective on the date an order is accepted by Varsity Technologies shall govern such sale.
These terms and conditions of sale constitute the entire agreement between Customer and Varsity Technologies relating to the sale of products and services purchased from Varsity Technologies.
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 sale contained herein and in Varsity Technologies’ invoice or other 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 sale or any purchase order or invoice related thereto.
THESE TERMS AND CONDITIONS OF SALE AND ANY SALE HEREUNDER WILL BE GOVERNED BY
THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD TO CONFLICTS OF LAWS RULES.
ANY ARBITRATION, ENFORCEMENT OF AN ARBITRATION OR LITIGATION WILL BE BROUGHT IN
THE COUNTY OF SAN FRANCISCO, CALIFORNIA, AND CUSTOMER CONSENTS TO THE
JURISDICTION OF THE FEDERAL AND STATE COURTS LOCATED IN THE COUNTY OF SAN
FRANCISCO, CALIFORNIA AND 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.
Title; Risk of Loss
Title to products and risk of loss or damage during shipment passes from Varsity Technologies to Customer upon receipt by Customer, unless Customer requires Varsity Technologies to use a carrier other than one commonly used by Varsity Technologies in which case title to products and risk of loss or damage shall pass from Varsity Technologies to Customer upon Varsity Technologies’ delivery of products to such carrier for shipment. Title to software will remain with the applicable licensor(s). Varsity Technologies retains a security interest in the products until payment in full is received. Customer will be responsible for all shipping and related charges.
This transaction does not involve an export from the United States of commodities, technology and/or software under the applicable Export Administration Regulations of the United States. Any diversion, use, export or re – 2 Rev. 9-04 export by Customer in a manner that is contrary to United States law is strictly prohibited. The commodities, technology and/or software sold or distributed under these terms and conditions of sale may not be exported or reexported to Cuba, Iran, Iraq, Libya, Sudan, North Korea, Syria or to any other entities or persons that are ineligible under United States law to receive United States commodities, technology and/or software. Customer hereby indemnifies Varsity Technologies for any costs, expenses, losses or damages resulting from Customer’s violation of the foregoing prohibition. In addition, Customer is hereby advised that manufacturers’ warranties may vary or may be null and void for products exported outside the United States.
Customer understands that Varsity Technologies is not the manufacturer of the products purchased by Customer hereunder and the only warranties offered are those of the manufacturer, not Varsity Technologies. In purchasing the products, Customer is relying on the manufacturer’s specifications only and is not relying on any statements, specifications in brochures, photographs or other illustrations representing the products that may be provided by Varsity Technologies. VARSITY TECHNOLOGIES HEREBY EXPRESSLY DISCLAIM S ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, RELATED TO PRODUCTS SOLD OR SERVICES PROVIDED BY THIRD PARTIES , INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THIS DISCLAIMER DOES NOT AFFECT THE TERMS OF THE
MANUFACTURER’S WARRANTY, IF ANY.
Pricing Information; Availability Disclaimer
All pricing is subject to change. Varsity Technologies reserves the right to make adjustments to pricing, products and service offerings 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, Varsity Technologies cannot guarantee that it will be able to fulfill Customer’s orders.
Limitation of Liability
VARSITY TECHNOLOGIES SHALL IN NO EVENT BE LIABLE FOR LOST PROFITS, LOSS OF BUSINESS OR OTHER CONSEQUENTIAL, SPECIAL, INDIRECT OR PUNITIVE DAMAGES, EVEN IF ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY. VARSITY
TECHNOLOGIES SHALL NOT BE LIABLE FOR PRODUCTS NOT BEING AVAILABLE FOR USE OR FOR LOST OR CORRUPTED DATA OR SOFTWARE OR THE PROVISION OF SERVICES BY THIRD PARTIES. CUSTOMER AGREES THAT FOR ANY LIABILITY RELATED TO THE PURCHASE OF PRODUCTS OR
SERVICES PROVIDED DIRECTLY BY VARSITY TECHNOLOGIES, VARSITY TECHNOLOGIES WILL
NOT BE LIABLE OR RESPONSIBLE FOR ANY AMOUNT OF DAMAGES ABOVE THE DOLLAR AMOUNT PAID BY CUSTOMER FOR THE PRODUCT(S) OR SERVICE(S) GIVING RISE TO THE CLAIM.
Varsity Technologies will not be responsible for any delays in delivery which result from any circumstances beyond its control, including without limitation, product unavailability, carrier delays, delays due to fire, severe weather conditions, failure of power, labor problems, acts of war, terrorism, general insurrection, acts of God or acts of any government or agency.
Third Party Services
Customer acknowledges and agrees that, in some instances, Varsity Technologies is a reseller of services and is not the provider of those services. In those cases, the third party service provider is the only party responsible for providing services to Customer. Customer will look solely to the third party service provider for any loss, claims or damages arising from or relating to the purchase or provision of such services. Customer hereby releases Varsity Technologies from any and all claims arising from or relating to the purchase or provision of any such services by third party service providers. Services may be subject to tax. Should Varsity Technologies collect any amounts, including taxes, in respect of such third party services, Varsity Technologies is doing so solely in its capacity as an independent sales agent.
Any claim, dispute, or controversy (whether in contract, tort or otherwise, whether preexisting, present or future, and including statutory, common law, intentional tort and equitable claims) arising from or relating to the products or services sold pursuant to these terms and conditions of sale, the interpretation or application of these terms and conditions of sale or the breach, termination or validity thereof, the relationships which result from these terms and conditions of sale (including, to the full extent permitted by applicable law, relationships with third parties who are not signatories hereto) (collectively, a “Claim”) WILL BE RESOLVED, UPON THE ELECTION OF VARSITY 3 Rev. 9-04 TECHNOLOGIES, CUSTOMER OR THIRD PARTIES INVOLVED, EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION. If arbitration is chosen, it will be conducted pursuant to the Rules of the American Arbitration Association in San Francisco, California. If arbitration is chosen by any party with respect to a Claim, neither Varsity Technologies 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.
Further, Customer will not have the right to participate as a representative or
member of any class of claimants pertaining to any Claim. Any court having jurisdiction may enter judgment on the award rendered by the arbitrator(s). Each party will bear its own cost 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 Varsity Technology arising out of sales hereunder will be exclusively litigated in court rather than through arbitration.
Orders; Payment Terms; Interest; Taxes
Orders are not binding upon Varsity Technologies until expressly accepted by Varsity Technologies. Terms of payment are within Varsity Technologies’ sole discretion. Invoices are due and payable within the time period specified on the invoice, measured from the date of invoice. Varsity Technologies may invoice parts of an order separately. Customer agrees to pay interest on all past-due sums at the lower of (i) one and one-half percent (1 1/2%) per month and (ii) the highest rate allowed by law. Customer is responsible for, and will indemnify and hold Varsity Technologies harmless from, any applicable sales, use or other taxes associated with the order. Customer must claim any exemption from tax at the time of purchase and provide the necessary supporting documentation. In the event of a payment default by Customer, Customer will be responsible for all of Varsity Technologies’ costs of collection, including court costs, filing fees and attorney’s fees.
Return privileges are determined by the manufacturer and, if applicable, the distributor through which Varsity Technologies purchased the applicable product. Each manufacturer and distributor may have a different return policy. Varsity Technologies shall use commercially reasonable efforts to assist Customer in processing returns of eligible products as determined by the applicable manufacturer or distributor. However, Customer shall only be entitled to make such returns and receive such exchanges, replacements, repairs, credits and refunds as are ultimately accepted and made by the applicable manufacturer or distributor. Prior to returning any product ordered through Varsity Technologies, Customer must first contact Varsity Technologies to obtain a Return Merchandise Authorization (RMA). Customer must abide by the following:
In order to expedite a return, please have the following information on hand when requesting an RMA:
invoice number, serial number, reason for return, action to take (replacement/exchange/repair/refund/credit)
and whether the box has been opened or is manufacturer sealed.
Please return all products 100% complete including all original manufacturer boxes with the UPC code and
packing materials, all manuals, blank warranty cards, accessories and any other documentation included
with the original shipment. RMA approval is contingent upon, among other things, the products being
Customer is responsible for shipping to Varsity Technologies all products being returned, exchanged or
Customer is responsible for all risk of loss and damage to products being shipped for return, exchange or
replacement. 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 Airborne Express.
Failure to return a product within the applicable return period will be deemed to be an acceptance of the product.
If Customer receives damaged products, please refuse the products upon original delivery attempt. If damaged
products are accepted from the carrier, such damage should be noted on the carrier delivery record. Please save the
product and the original box and packaging and notify Varsity Technologies immediately (and in any event within
ten (10) days) to arrange for a carrier inspection and a pick up of damaged products. Timely receipt of this
information is necessary for Varsity Technologies to file a damage claim.