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PEAK-RYZEX TERMS AND CONDITIONS
These Terms and Conditions for the Purchase of Hardware and Media form the general agreement ("Agreement") between the parties hereto. Peak-Ryzex shall provide to Customer such Hardware and/or Media as purchased by Customer in accordance with a quote (an "Order"). Therefore, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. DELIVERY. All Hardware and Media listed in an Order shall be delivered to Customer F.O.B. Origin, at which time title and risk of loss to such Hardware and Media shall pass to Customer. Customer acknowledges and agrees that the quantity for Media orders may vary by plus or minus ten percent (10%) of the quantity ordered and Customer agrees that delivery of the Media within such variance shall be deemed acceptable by Customer. The purchase price for the Media shall be adjusted pro rata in respect of such variance.
2. RESTOCKING FEE. At Peak-Ryzex's discretion, Customer may return or cancel a Hardware order for reasons other than a warranty claim. Peak-Ryzex reserves the right to charge Customer a restocking fee equal to twenty percent (20%) of the purchase price for the returned Hardware ("Restocking Fee"). Such Restocking Fee shall be due upon receipt of Peak-Ryzex's invoice. Peak-Ryzex will not charge a Restocking Fee so long as the Hardware is returned to Peak-Ryzex within thirty (30) days of shipment, unopened in its original packaging. Peak-Ryzex will not accept the return of Media or custom Hardware.
3. BILLING AND PAYMENT. Peak-Ryzex shall invoice Customer for the Hardware and Media at time of shipment and Customer shall pay Peak-Ryzex upon receipt of Peak-Ryzex's invoice. Peak-Ryzex shall invoice Customer for any additional installation charges upon installation of the Hardware by Peak-Ryzex at Customer's location. Peak-Ryzex retains a security interest in the Hardware and Media until payment in full is received. Customer shall pay all applicable taxes excluding taxes based on Peak-Ryzex's income, or provide satisfactory proof of exemption. If Customer fails to make payments when due and such failure continues after Peak-Ryzex notifies Customer of such failure, Peak-Ryzex may refuse to perform any further Services or deliver any further Hardware. If Customer fails to make payments when due, Peak-Ryzex may charge Customer interest on the overdue amounts, from the date such amount became due at the lesser of the rate of one and one-half percent (1.5%) per month or the maximum interest rate permitted by applicable law. Peak-Ryzex reserves the right to revoke any credit extended to Customer at any time for good and sufficient cause.
4. BLANKET ORDERS. In the event that Customer has purchased the Hardware or Media in a blanket order with multiple shipment dates, Peak-Ryzex will invoice Customer on the shipment date of each installment of the blanket order. Customer shall be responsible for the total purchase price of the blanket order. In the event that Customer has not requested delivery of the total quantities of the Hardware or Media prior to the expiration date of the blanket order, Peak-Ryzex will invoice the Customer for the remaining balance due and Customer agrees to pay the remainder of the total purchase price upon receipt of Peak-Ryzex's invoice. If no expiration date is stated on the Order, the blanket order shall expire twelve (12) months from the date of the Order.
5. DEFAULT. If either Customer or Peak-Ryzex is in material default of its obligations under this Agreement, the non-breaching party shall have the right to deliver to the breaching party written notice specifying that a breach has occurred and providing in detail the particulars of the alleged breach. The party in breach shall have thirty (30) days to cure the alleged breach (ten days if the alleged breach relates to the payment of any amounts due hereunder) or such other period as may be agreed to in writing by the parties. If such breach is not cured within such period, then the non-breaching party shall be entitled to exercise all of its rights and remedies at law and in equity, including the right to terminate this Agreement if such non-performance constitutes a material breach of this Agreement.
6. WARRANTY. Peak-Ryzex hereby assigns to Customer, to the extent possible, the benefits of any warranties provided to Peak-Ryzex by the manufacturer(s) of the Hardware and Media. Peak-Ryzex warrants to Customer for a period of sixty (60) days following the performance of any installation work by Peak-Ryzex, that such work will be performed in a good and workman-like manner. Peak-Ryzex's obligations and liability under this warranty is conditioned upon the receipt of prompt notice of defects as to parts and/or workmanship from Customer, and is limited to repairing or, at Peak-Ryzex's sole option, to replacing the Hardware/Media or if Peak-Ryzex is unable to repair or replace the Hardware/Media to refund the purchase price paid by Customer to Peak-Ryzex. This warranty shall be void if the Hardware/Media is damaged or rendered unusable by the willful act, negligence and/or tampering of persons other than Peak-Ryzex. Peak-Ryzex makes no warranty or guaranty for any hardware or third party materials. Customer understands that Peak-Ryzex is not responsible for, and will have no liability for, hardware, software, or any other items or any services provided to Customer by any persons other than Peak-Ryzex. TO THE FULLEST EXTENT ALLOWED BY LAW, THE WARRANTIES PROVIDED IN THIS SECTION ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, PEAK-RYZEX DISCLAIMS ALL WARRANTIES EXPRESSED OR IMPLIED WITH REGARD TO THE SERVICES PROVIDED UNDER THIS AGREEMENT, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THESE DISCLAIMERS OF WARRANTY CONSTITUTE AN ESSENTIAL PART OF THIS AGREEMENT.
7. Limitation of Liability. Peak-Ryzex's liability for any and all claims, including claims of contract, negligence and strict liability, shall not exceed the amounts paid and payable by Customer to Peak-Ryzex for the Services or Hardware (to the extent that Customer purchased the Hardware from Peak-Ryzex pursuant to this Agreement) giving rise to the claim. Peak-Ryzex shall have no responsibility for defects in hardware, software or services supplied by persons other than Peak-Ryzex or for modifications to any hardware or software manufactured by persons other than Peak-Ryzex. IN NO EVENT SHALL PEAK-RYZEX BE LIABLE FOR ANY INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, LOSS OF DATA, LOSS OF BUSINESS, AND LOSS OF PROFITS. THESE LIMITATION OF DAMAGES AND REMEDIES CONSTITUTE THE SOLE AND EXCLUSIVE REMEDIES AND MEASURE OF DAMAGES. THESE LIMITATIONS OF DAMAGES AND REMEDIES WILL NOT BE AFFECTED IF ANY REMEDY PROVIDED HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
8. Force Majeure. Notwithstanding anything in this Agreement to the contrary, Peak-Ryzex shall not be liable for any delay or failure to provide the Hardware and/or Media hereunder, if the delay or failure is caused by war, terrorist attacks, riots, civil commotion, fire, flood, earthquake or any act of God, delay by subcontractor or the failure of any third party subcontractor, or third party hardware, software, network system equipment, wiring, electrical systems or utilities, or other causes beyond Peak-Ryzex's reasonable control. If any third party subcontractor providing service or hardware with respect to this Agreement, ceases to provide such services or hardware, and Peak-Ryzex cannot find a suitable replacement vendor, then Peak-Ryzex shall have the right to terminate the Agreement by providing thirty (30) days prior written notice to Customer.
9. MISCELLANEOUS. (a) This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. Neither party shall assign or otherwise transfer this Agreement without the prior express written consent of the other party, such consent not to be unreasonably withheld; provided however, either party may assign this Agreement without the other party's consent incidental to a merger, reorganization, change of control, or sale of all or substantially all of its assets or the assets of a division. (b) This Agreement supersedes and merges all prior proposals, understandings and agreements, oral and written, between the parties relating to the subject matter of this Agreement and may not be modified or altered except by written instrument duly executed by both parties. Customer agrees that this Agreement exclusively governs and controls the rights of the parties so that any purchase order or other writing Customer may submit to Peak-Ryzex shall only be for Customer's convenience. Any additional or differing terms, whether or not materially different, set forth in any communication from Customer are hereby expressly rejected. (c) No term or provision of this Agreement shall be deemed waived and no breach excused unless such waiver or consent is in writing and signed by the party claimed to have waived or consented. (d) Section headings are for convenience only and do not form a part of this Agreement. (e) The invalidity or unenforceability of one or more provisions of this Agreement shall not affect the enforceability of any other provision, and this Agreement shall be construed in all respects as if such invalid or unenforceable provision were omitted. (f) This Agreement shall be governed by the internal laws of the State of Maryland, without regard to its conflict of law provisions. The United Nations Convention for the International Sale of Goods shall not apply. (g) All notices hereunder shall be in writing, sent by certified mail, or overnight delivery service addressed to the parties at their respective addresses set forth on the Order. (h) Customer hereby grants to Peak-Ryzex, its affiliates, successors, and assigns, all rights to reference Customer and/or its logos, including quotes, photos taken or illustrations from Customer, for advertising and marketing purposes, including but not limited to case studies, print advertisements, reference in Peak-Ryzex marketing materials, press releases, Internet postings and other publications electronic or printed which are produced in the ordinary course of business.