This Agreement shall apply to the resale of Third-Party software, hardware, and/or professional services (collectively, Product), described in attached quote, by PC Network Inc. (PCN) to the person or entity named on quote (Customer). No other terms and conditions shall apply to this sale. This quote is valid for a period of 30 days unless otherwise stated on the quote.
1. Customer Acceptance of Terms. Customer agrees that by a) issuing a Purchase Order (PO), b) accepting, taking control of, or using Product, and/or c) issuing payment for Product, Customer accepts and agrees to this Agreement and the Terms and Conditions shall exclusively govern this transaction, as though fully set forth in an executed writing between the parties without regard to any other term or condition, including any term written or preprinted on any Customer PO, acceptance, payment document and/or other communication which contradicts or claims to supersede this Agreement. All Purchase Orders are subject to acceptance by PCN.
2. Cancelation, Modification or Alteration of Quote or Terms. The terms and conditions of this Agreement and/or any quote accepted by Customer may not be canceled or changed, unless expressly agreed in a writing that explicitly references the canceled or changed term and is signed by an authorized PCN officer. No Product returns will be accepted by PCN for any reason. PCN reserves the right to place any order on hold, delay shipment, suspend performance, and/or reject any order due to, but not limited to, the breach or default by Customer of this Agreement or Customer's insufficient credit.
3. Shipping and Risk of Loss. All prices for Product are F.O.B. PCN’s point of shipment. Delivery to carrier constitutes delivery to Customer. Product purchased under this Agreement shall be deemed accepted by Customer and title will transfer to Customer upon shipment. All shipments are to be insured at Customer’s expense and made at Customer's risk. It is the Customer’s responsibility to seek compensation from the carrier or for damaged or missing freight. PCN shall not be liable for any shipment made after any delivery date(s) requested by Customer. PCN shall not be responsible for any claims or damages resulting from a delay in delivery or failure to perform which results from Force Majeure (defined in Section 9.2).
4. Fees; Payment Terms. Customer agrees to pay PCN the fees specified in PCN’s quote (Fees). All Fees will be invoiced and paid in US dollars. If a subscription, maintenance, or other defined-term Product is part of the sale, PCN will invoice Customer for the entire term in advance. Maintenance will be non-refundable. Fees are exclusive of all present and future sales, revenue, excise, VAT, or other taxes, customs brokerage, freight charges, etc. that may be levied on the sale, transfer of ownership, installation, license, or use of Product, all of which shall be paid by the Customer. Payment is due within thirty (30) days from date of invoice. Any late payment or default by Customer shall be subject to PCN’s costs of collection (including reasonable legal fees and costs and fees and expenses paid to collection agencies) and shall bear interest at the greater of one and one-half percent (1.5%) or the maximum rate permitted by law) per month or partial month. In the event of a default in payment, PCN, upon notice to Customer, may immediately place the account for collection.
5. Product Licensing and Terms. This Agreement incorporates by reference the terms of the Third Party’s most recent applicable agreements governing licensing, maintenance, service levels, warranty, subscription, purchase, and/or use of the Product. Customer acknowledges and agrees that it has read, understands, and will abide by all such agreements and terms.
6. Product Warranties; Disclaimers.
6.1. THE PRODUCT IS SUBJECT SOLELY TO THE WARRANTY, IF ANY, OF THE THIRD PARTY, WHICH WARRANTY SHALL BE INCORPORATED BY REFERENCE INTO THIS AGREEMENT. CUSTOMER AGREES THAT ALL PRODUCT IS MADE AVAILABLE TO CUSTOMER BY PCN "AS IS" AND IS NOT SUPPORTED, WARRANTED, OR GUARANTEED BY PCN.
6.2. PCN PROVIDES NO WARRANTY OR INDEMNITY REGARDING THE PRODUCTS OR THEIR PERFORMANCE. PCN EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INDEMNITIES, COVENANTS AND CONDITIONS, ORAL OR WRITTEN, EXPRESS, IMPLIED, WHETHER ARISING UNDER CUSTOM, COMMON LAW OR STATUTE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. PCN DOES NOT WARRANT THAT THE PRODUCTS WILL: OPERATE WITHOUT ERROR OR INTERRUPTION; SATISFY ALL CUSTOMER NEEDS; OR OPERATE WITH ALL COMBINATIONS OF HARDWARE AND SOFTWARE. THE WARRANTIES SET FORTH IN THIS SECTION SHALL CONSTITUTE THE SOLE WARRANTY AND SOLE REMEDY OF CUSTOMER AND THE SOLE LIABILITY OF PCN WITH RESPECT THERETO.
7. LIMITATION OF LIABILITY. NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT, REGARDLESS OF THE FORM OR CAUSE OF ACTION, IN RESPECT OF A BREACH OR DEFAULT OF CONDITION OR FUNDAMENTAL TERM, OR OTHERWISE:
7.1. NO PARTY SHALL HAVE ANY LIABILITY TO ANY OTHER PARTY FOR ANY ECONOMIC, CONSEQUENTIAL, INDIRECT, INCIDENTAL, OR SPECIAL DAMAGES (INCLUDING WITHOUT LIMITATION, LOSS OF USE, PROFITS, GOODWILL OR SAVINGS, OR LOSS OF DATA, DATA FILES OR PROGRAMS) ARISING OUT OF OR IN CONNECTION WITH THIS SALE OR THE USE OR PERFORMANCE OF ANY OF THE PRODUCTS, AND
7.2. NO PARTY’S LIABILITY FOR ANY CLAIM ARISING OUT OF THIS SALE SHALL EXCEED ACTUAL, DIRECT, PROVABLE DAMAGES, WILL NOT IN ANY EVENT EXCEED THE LESSER OF: a) THE TOTAL OF ALL SUMS PAID TO PCN BY CUSTOMER FOR THE PRODUCT GIVING RISE TO SUCH LIABILITY; OR b) ONE HUNDRED THOUSAND DOLLARS ($100,000). THE LIMITATIONS REFERRED TO IN THIS PARAGRAPH SHALL APPLY TO, AND BE A COMPLETE DISCHARGE OF, ALL OBLIGATIONS, ACTS OR OMISSIONS OF A PARTY, AND REGARDLESS OF THE FORM OF ANY ACTION, WHETHER PURSUANT TO STATUTE, CONTRACT, TORT, EQUITY OR ANY OTHER FORM OF ACTION, WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE OR THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8. Confidentiality. Each party (Receiving Party) agrees that it shall (i) maintain proprietary or confidential information or trade secrets (Confidential Information), including without limitation this document and all contracting, pricing and marketing materials, received from the other party (Disclosing Party) in confidence, (ii) exercise at least the same degree of care to safeguard the Confidential Information of the Disclosing Party that it uses to safeguard its own Confidential Information (but no less than reasonable care), (iii) disclose the Confidential Information of the Disclosing Party only on a need to know basis, and (iv) use the Confidential Information of the Disclosing Party only to exercise its rights and fulfill its obligations under this Agreement. All Confidential Information shall be so marked or by announcement at the time of initial disclosure or if not so marked or announced should reasonably have been understood as confidential, either because of legends or other markings, the circumstances of disclosure or the nature of the information itself. Provided that neither party shall have any obligation with respect to information that (i) is public or becomes known to the public through no breach of the Receiving Party, (ii) is independently developed by the Receiving Party, (iii) is known to the Receiving Party prior to its receipt from the Disclosing Party, (iv) is rightfully received from a third party, (v) is declared no longer confidential by the Disclosing Party, or (vi) is required to be disclosed by law.
9. Independent Parties. The parties are independent contractors, have no other relationship, and may not make commitments or incur costs in the name of the other.
10. Force Majeure. Excepting payment obligation, neither party shall be liable for any delay in or failure of performance resulting from fire, computer virus, worm or Trojan horse, labor dispute, strike, war, insurrection, terrorist action, government restriction, act of God, or other force majeure event beyond its reasonable control, provided such party uses its best efforts to resume performance as promptly as possible following such an event.
11. Waiver. The failure of a party to act upon any right, remedy, or breach of this Agreement shall not constitute a waiver of that or any other right, remedy, or breach.
12. Governing Law; Consent to Forum. This Agreement shall be governed by and construed in accordance with the substantive and procedural laws of the Commonwealth of Pennsylvania, without regard for conflicts of law principles of any jurisdiction.
13. Entire Agreement. This Agreement, together with any Product license or warranty incorporated into it, constitutes the entire agreement between the parties. Any representation, statement, or warranty not expressly contained in this Agreement is not enforceable. This Agreement may not be amended except in a writing that specifically references this Agreement and is signed by an authorized PCN officer.