Overall terms and conditions of sale

These terms and conditions (“Agreement”) apply to all purchases of products and/or services and support (“Product”) sold by Austin Ribbon & Computer, its affiliates and subsidiaries (collectively, “ARC”) to its customers (each, a “Buyer”).  ARC will not accept any other terms and conditions of sale, except (i) if Buyer and ARC have executed a written agreement which specifically modifies, supersedes and/or replaces any or all of these terms and conditions, or (ii) to the extent that particular terms and conditions are stipulated by state or local laws or regulations which specifically govern sales of Products by ARC to Buyer.  Acceptance of all purchase orders is expressly made conditional upon Buyer’s assent, expressed or implied, to the terms and conditions set forth herein without modification or addition.

1.              ACCEPTANCE OF TERMS AND CONDITIONS

Buyer’s acceptance of these terms and conditions shall be indicated by any of the following, whichever first occurs:  (i) Buyer’s submitting a purchase order for any Products to ARC; (ii) Buyer’s written acknowledgment hereof; (iii) Buyer’s acceptance of any Products from ARC; (iv) Buyer’s acceptance in accordance with any state or local law regulation which specifically governs the sale of Products by ARC to Buyer; or (v) any other act or expression of acceptance by Buyer.  ARC’s acceptance is expressly limited to these terms and conditions in their entirety without addition, modification or exception, and any term, condition or proposals hereafter submitted by Buyer (whether oral or in writing) which is inconsistent with or in addition to these terms and conditions is objected to and is hereby rejected by ARC.  ARC’s silence or failure to respond to any such subsequent or different term, condition or proposal shall not be deemed to be ARC’s acceptance or approval thereof.

2.              PRICING

All prices are subject to change without notice, will be established at time of order acceptance by ARC and will be subject to any qualifications set forth in any price quotes, price proposals or offers to sell executed and delivered by ARC to Buyer.  Prices for backordered Products are not guaranteed.  Additional fees may apply in accordance with ARC policies in effect on the date of shipment.  Buyer 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 any other similar charges, however designated or levied on the sale or delivery of the Products or measured by the purchase price paid for the Products.  ARC’s prices set forth on the front side of the invoice do not include such taxes, fees and charges.  Exemption certificates must be presented to ARC prior to shipment if they are to be honored.  If a manufacturer updates or changes product codes, part numbers, or discontinues a product, ARC reserves the right to substitute the discontinued item(s), product code(s), or part number(s) with the manufacturers’ current version provided it is similar in all material respects to the original at a price equal to or less than the original quote.

3.              PAYMENT

Unless otherwise specified in a separate written agreement or instrument executed and delivered by ARC to Buyer, or pursuant to any state or local law or regulation specifically governing sale of Products by ARC to Buyer, payments for Products shall be made in accordance with this paragraph.  Payment for Products is due on or prior to delivery thereof.  ARC, at its discretion, may require reasonable advance assurances of payment through irrevocable bank letters of credit or otherwise.  All unpaid invoices shall bear interest at an amount equal to 1.5% of the outstanding balance per month (or the maximum rate of interest allowed to be contracted for by law, whichever is less), commencing upon the date payment is due.  Buyer’s failure to make timely payment may result in such action as commencement of proceedings for collection, revocation of credit, stoppage of shipment, delay or cessation of future deliveries, repossession of unpaid delivered goods and termination of any one or more sales agreements.  Notwithstanding any “net” payment provisions specified on the invoice, ARC shall have no continuing obligation to deliver Products on credit, and any credit approval may be withdrawn by ARC at any time and without prior notice.  ARC retains (and Buyer grants to ARC by submitting a purchase order) a security interest in the Products to secure payment in full and compliance with these terms and conditions of sale.  Buyer agrees to execute any additional documents necessary to perfect such security interest.  In the event the sales invoice shall be placed by ARC in the hands of an attorney or collection agency for the purpose of collection, with or without litigation, or for the purpose of enforcing ARC’s security interest in the Products, Buyer agrees to pay any and all costs associated with such placement, including, without limitation, attorney’s fees and costs incurred prior to, during, or subsequent to trial, and including, without limitation, collection, bankruptcy, or other creditor’s rights proceedings.

4.              DELIVERY/RISK OF LOSS

All Product shipments will be made FOB origin, unless otherwise agreed by ARC.  Title and risk of loss with respect to any Product will transfer to Buyer upon ARC tendering the Product for delivery to the carrier.  ARC will ship Products using ARC’s carrier of choice in accordance with ARC’s shipping policies at the time of shipment.  Additional fees and charges may also apply.  Buyer shall examine all Products upon receipt and shall promptly notify ARC, in no event later than five (5) business days after delivery, of any claimed shortages or rejection as to any delivery.  Such notice shall be in writing and shall be reasonably detailed, stating the grounds for any such rejection.  If Buyer does not give ARC such notice as stated herein, Buyer agrees that such Products will be deemed to have been accepted by Buyer as of the date of shipment.

5.              WARRANTIES

PRODUCT WARRANTIES WITH RESPECT TO ANY PRODUCTS SOLD BY ARC TO BUYER ARE PROVIDED BY THE MANUFACTURER OF THE APPLICABLE PRODUCT, AND ARC MAKES NO WARRANTIES WHATSOEVER.  ARC HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, AS TO THE PRODUCTS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.  ARC WILL NOT BE LIABLE FOR ANY DAMAGE, LOSS, COST OR EXPENSE FOR BREACH OF WARRANTY.  The right to return defective Products, as described herein, shall constitute ARC’s sole liability and Buyer’s exclusive remedy in connection with any claim of any kind relating to the quality, condition or performance of any Product, whether such claim is based upon principles of contract, warranty, negligence or other tort, breach of any statutory duty, principles of indemnity or contribution, the failure of any limited or exclusive remedy to achieve its essential purpose, or otherwise. 

ARC SHALL NOT BE LIABLE TO BUYER OR ANY OTHER PARTY FOR ANY LOSS, DAMAGE, OR INJURY THAT RESULTS FROM THE USE OR APPLICATION BY BUYER, BUYER’S CUSTOMERS, OR ANY OTHER PARTY, OF PRODUCTS DELIVERED TO BUYER, UNLESS THE LOSS OR DAMAGE RESULTS DIRECTLY FROM THE INTENTIONALLY TORTIOUS OR FRAUDULENT ACTS OF ARC.  IN NO EVENT SHALL ARC BE LIABLE TO BUYER OR ANY OTHER PARTY FOR LOSS, DAMAGE, OR INJURY OF ANY KIND OR NATURE ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND CONDITIONS, OR ANY AGREEMENT INTO WHICH THEY ARE INCORPORATED, OR ANY PERFORMANCE OR NONPERFORMANCE UNDER THESE TERMS AND CONDITIONS BY ARC, ITS EMPLOYEES, AGENTS OR SUBCONTRACTORS, IN EXCESS OF THE PURCHASE PRICE OF THE PRODUCTS OR SERVICES ACTUALLY DELIVERED TO AND PAID FOR BY BUYER HEREUNDER.  IN NO EVENT SHALL ARC BE LIABLE TO BUYER OR ANY OTHER PARTY FOR INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO LOSS OF GOODWILL, LOSS OF ANTICIPATED PROFITS, OR OTHER ECONOMIC LOSS ARISING OUT OF OR IN CONNECTION WITH ARC’S BREACH OF, OR FAILURE TO PERFORM IN ACCORDANCE WITH ANY OF THESE TERMS AND CONDITIONS, OR THE FURNISHING, INSTALLATION, SERVICING, USE OR PERFORMANCE OF ANY PRODUCTS OR SERVICES ARC SHALL PROVIDE HEREUNDER, EVEN IF NOTIFICATION HAS BEEN GIVEN AS TO THE POSSIBILITY OF SUCH DAMAGES.  BUYER HEREBY EXPRESSLY WAIVES ANY AND ALL CLAIMS FOR SUCH DAMAGES.   IN ADDITION TO THE FOREGOING, ARC SHALL HAVE NO DUTY TO DEFEND, INDEMNIFY, OR HOLD HARMLESS BUYER FROM AND AGAINST ANY OR ALL DAMAGES AND COST INCURRED BY BUYER ARISING FROM THE INFRINGEMENT OF PATENTS OR TRADEMARKS OR THE VIOLATION OF COPYRIGHTS BY PRODUCTS.

6. RETURNS

A.             General Requirements – Prior to returning any Product, Buyer must obtain a valid Return Material Authorization (“RMA”) number from ARC. RMAs will be issued, at ARC’s sole discretion, in accordance with these terms and conditions.  Buyer must provide its account number and all other information as required by ARC for all returns.  RMAs are valid for twenty (20) days from the date of issuance.  Buyer must return Products to the manufacturer, publisher, or distributor of the Product (or such other person as ARC may designate) at the location identified in the RMA.  Buyer must allow for in-transit time for Products to be returned.  RMAs will be issued for authorized returns under one of the following categories: (i) defective Products, (ii) billing or shipping discrepancies, or (iii) damaged product.  Buyer is responsible for ensuring that the RMA number is clearly visible on the address label of the Product packaging when it is returned.  The manufacturer or distributor will refuse delivery of any boxes without a valid, clearly visible RMA number as noted above.  Overgoods are unauthorized returns.  Any Products returned (i) without a valid RMA number, including Product shipments refused by Buyer, (ii) later than twenty (20) days from the RMA date, or (iii) in a condition unsuitable for resale (excluding defective Products), will be considered Overgoods.  ARC or its agent will return Overgoods to Buyer and ARC will charge Buyer a $50 processing fee per shipment plus related freight charges.  If Buyer refuses the shipment of Overgoods or returns the Overgoods a second time without ARC’s prior authorization, Buyer agrees to relinquish all right and title to and waives all claims against ARC for credit related to such Products.  Notwithstanding anything to the contrary, ARC reserves the right not to authorize the return of Products that are no longer in production or are being produced or published by a manufacturer or publisher that (i) is insolvent, (ii) has declared bankruptcy, or (iii) will not accept returns from ARC.  In addition, certain Products will be non-returnable (as specified in the applicable contract, purchase order other instrument governing the sale of such Products) and Buyer will assume all risks (including, without limitation, risk of product defect or damage) with respect to such Products.

B.             Defective Product Returns – Defective returns are only for Products purchased from ARC that are inoperable or do not function in accordance with the specifications published by the manufacturer or publisher and are covered under the manufacturer’s or publisher’s warranty.  All defective returns are subject to more restrictive manufacturer or publisher policies.  Buyer may request an RMA for the return of defective Products within twenty-one (21) days of invoice date.  Upon receipt of the defective Product for which the RMA was issued, ARC may test the Products and may return to Buyer, at Buyer’s expense, any Products found not to be defective.  Upon verification that the returned Product is defective, ARC may, at ARC’s sole discretion, either (i) ship Buyer a replacement product, or (ii) provide Buyer a credit equal to the lesser of the Product’s invoice price or current replacement value less any applicable charges or fees.  ARC reserves the right to require Buyer to return defective Products directly to the manufacturer or publisher for replacement according to its defective Products return policy.  ARC shall not be obligated to repair, replace, or issue credit to Buyer for Products rendered defective, in whole or in part, by causes external to the Products, including, but not limited to, catastrophe, power failure or transients, overvoltage on interface, environment extremes, improper use, maintenance or application of the Products or use of unauthorized parts.  Buyer shall bear all risks of loss when returning defective Products.

C.             Damaged Product Returns – Damaged Product returns are only for Products purchased from ARC  and shipped via ARC’s carrier of choice that are damaged in transit from ARC to the Buyer.  Buyer shall refuse any Product delivered in damaged condition.  If the Product is received in damaged condition, Buyer shall notify ARC and request an RMA within three (3) business days of receipt of such Product.  Failure to notify ARC and request an RMA within such time shall be deemed an acceptance of the Product as of the date of shipment.

7.              BILLING/SHIPPING DISCREPANCIES

Billing and shipping discrepancies are for Products purchased from ARC that were invoiced or shipped incorrectly.  These include lost shipments, short shipments, wrong sales, wrong shipments and pricing/invoice errors.  Buyer may request an RMA for verified billing and shipping discrepancies within twenty-one (21) days of invoice date.  In addition, Buyer must notify ARC of any billing discrepancies related to Buyer’s authorized returns within thirty (30) days of RMA date.  Such notice shall be reasonably detailed and shall specify the discrepancy.  Failure to give such notice within the time specified herein shall be deemed a waiver of Buyer’s rights to claim such discrepancy.

8.              COMPLIANCE WITH U.S. EXPORT LAWS

If Buyer delivers the Products to its customer who may use the Products outside the United States, Buyer acknowledges and shall advise its customer that the Products are controlled for export by the U.S. Department of Commerce and that the Products may require authorization prior to export from the United States or re-export.  Buyer agrees that it will not export, re-export, or otherwise distribute Products, or direct products thereof, in violation of any export control laws or regulations of the United States.  Buyer warrants that it will not export or re-export any Products with knowledge that they will be used in the design, development, production, or use of chemical, biological, nuclear, or ballistic weapons, or in a facility engaged in such activities, unless Buyer has obtained prior approval from the Department of Commerce.  Buyer further warrants that it will not export or re-export, directly or indirectly, any Products to embargoed countries or sell Products to companies or individuals listed on the Denied Persons List published by the Department of Commerce.

9.              RELATIONSHIP OF THE PARTIES

Buyer’s relationship with ARC will be that of an independent contractor.  Buyer will not have, and will not represent that is has, any power, right or authority to bind ARC, or to assume or create any obligation or responsibility, express, implied or by appearances, on behalf of ARC or in ARC’s name, except as herein expressly provided.  Nothing stated in these terms and conditions will be construed as constituting Buyer and ARC as partners or as creating the relationships of employer/employee, franchisor/franchisee, or principal/agent between the parties.  Buyer will make no warranty, guarantee or representation, whether written or oral, on ARC’s behalf.

10.           MANUFACTURER, PUBLISHER AND SUPPLIER RESTRICTIONS

If authorization for resale is required by the manufacturer or publisher of any Product, then ARC will not be obligated to sell such Product to Buyer unless ARC has received notification of such authorization from the manufacturer or publisher.  All Products delivered to Buyer hereunder may have additional restrictions on their use required by the manufacturer or publisher.  Buyer is solely responsible for ensuring its adherence to any and all such restrictions and requirements.  If any supplier prohibits ARC from selling specific Products to Buyer, then ARC reserves the right not to sell such Products to Buyer.

11.           CHOICE OF LAW/CHOICE OF FORUM

These terms and conditions (and any agreement into which they are incorporated) shall be construed, interpreted and enforced under and in accordance with the internal laws of the State of Texas, excluding its conflicts or choice of law rule or principles which might refer to the law of another jurisdiction.  Buyer agrees to exercise any right or remedy in connection with these terms and conditions exclusively in, and hereby submits to the jurisdiction of the State of Texas, Courts of Travis County, or the United States District Court for the Western District of Texas - Austin Division.

12.           NOTICES

All notices, requests, demands and other communications that either party may desire to give the other party must be in writing and may be given by (i) personal delivery to an officer of the party, (ii) mailing the same by registered or certified mail, return receipt requested, or via nationally recognized courier services to the party at the address of such party as set forth herein, at the official corporate address of such party, or such other address as the parties may hereinafter designate, or (iii) facsimile subsequently to be confirmed in writing pursuant to item (ii) above.  Notices to ARC shall be sent to its principal office at 9211 Waterford Centre Boulevard, Suite 202, Austin Texas 78758 or, if the address of ARC’s principal office changes after the sale of Products covered hereby, at ARC’s principal office as forth on ARC’s website (www.arc-texas.com).

13.           BINDING EFFECT/ASSIGNMENT

These terms and conditions shall be binding upon and shall inure to the benefit of the parties hereto and their respective representatives, successors and permitted assigns.  Buyer may not assign its rights and/or duties under these terms and conditions without the prior written consent of ARC.  Any such attempted assignment shall be void. 

14.           PARTIAL INVALIDITY

If any provision of these terms and conditions shall be held to be invalid, illegal or unenforceable, such provision shall be enforced to the fullest extent permitted by applicable law and the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

15.           NO WAIVER

Failure or delay of ARC to exercise a right or power under these terms and conditions shall not operate as a waiver thereof, nor shall any single or partial exercise of a right or power preclude any other future exercise thereof.

16.           CAPTIONS

The captions used herein are for reference purposes only and shall have no effect upon the construction or interpretation of any provisions herein.