GENERAL DIGITAL CORPORATION
STANDARD TERMS AND CONDITIONS OF SALES
The quotation to which these Terms and Conditions of Sale are attached (the "Quote") is an offer to sell the quoted services (the "Services") to the named purchaser (the "Buyer"), conditional on the Buyer's agreement to the terms and conditions set forth below and GENERAL DIGITAL SOFTWARE SERVICES agrees to sell the same only upon these terms and conditions. Except as specifically provided otherwise below, this document constitutes the entire agreement of the parties with respect to the purchase and sale of the Services and supersedes all prior understandings or agreements, whether written or verbal. No term or condition of Buyer's order inconsistent with the terms and conditions hereof shall be binding on GENERAL DIGITAL SOFTWARE SERVICES. Any additional or different terms, including but not limited to those on Buyer's purchase orders (the "Purchase Orders"), are hereby rejected by GENERAL DIGITAL SOFTWARE SERVICES and disclaimed by Buyer. Any amendment to these terms and conditions must be in writing, must GENERAL DIGITAL SOFTWARE SERVICES. Unless otherwise specified in the Quote, or unless withdrawn earlier by GENERAL DIGITAL SOFTWARE SERVICES, the Quote will expire thirty (30) days from the date issued.
(a) Prices in the Quote are in US dollars, include packaging for domestic or international commercial shipment, as appropriate, and are exclusive of any other amounts including without limitation fees for export, special packaging, transportation and insurance, and are payable as per the Quote.
(b) Prices do not include any taxes, customs duties or tariffs. When GENERAL DIGITAL SOFTWARE SERVICES has the legal obligation to pay or collect any such taxes, duties or tariffs, the appropriate amount shall be paid by Buyer unless Buyer provides GENERAL DIGITAL SOFTWARE SERVICES with a valid exemption certificate. Buyer agrees to indemnify and hold GENERAL DIGITAL SOFTWARE SERVICES harmless for any liability for any tax, duty or tariff in connection with the sale, as well as the collection or withholding thereof, including penalties and interest.
2. ORDER ACCEPTANCE
Purchase Orders are subject to formal acceptance in writing (via email, by letter or fax) by GENERAL DIGITAL SOFTWARE SERVICES’ contractual representative even if received elsewhere by a salesperson, selling agent or other representative. GENERAL DIGITAL SOFTWARE SERVICES will use commercially reasonable efforts to confirm or reject any Buyer Purchase Order within five (5) business days of receipt by GENERAL DIGITAL SOFTWARE SERVICES’ contractual representative.
3. PAYMENT TERMS
(a) GENERAL DIGITAL SOFTWARE SERVICES will invoice Buyer for each shipment. The amount invoiced will include the price of the Services plus all applicable taxes, fees, transportation, insurance, and other fees or charges. If all Service in Buyer’s Purchase Order are not shipped at the same time, GENERAL DIGITAL SOFTWARE SERVICES will invoice Buyer at the time of shipment for the Services being shipped. Payments shall be remitted to: GENERAL DIGITAL SOFTWARE SERVICES, Inc., 8 Nutmeg Rd. South, South Windsor, Connecticut, 06074, U.S.A.
(b) Unless otherwise specified, payments are due thirty (30) days after the date of invoice.
(c) Any unpaid due amounts will be subject to interest at 1.5% per month, or, if less, the maximum rate allowed by law.
(d) GENERAL DIGITAL SOFTWARE SERVICES shall not be liable under any warranty stated herein if the purchase price has not been paid in full.
(e) GENERAL DIGITAL SOFTWARE SERVICES may offset amounts GENERAL DIGITAL SOFTWARE SERVICES owes to Buyer against amounts Buyer owes to GENERAL DIGITAL SOFTWARE SERVICES, whether under the same or a different Purchase Order.
4. ACCEPTANCE OF SERVICES
Acceptance of services shall occur immediately upon completion unless buyer provides written notification of non-conformity within 15 calendar days of completion.
5. WARRANTIES EXCLUSIVE
To the full extent allowed by law, the foregoing warranties and remedies are exclusive and are in lieu of all other remedies, warranties, terms, or conditions, express or implied, either in fact or by operation of law, statutory or otherwise. GENERAL DIGITAL SOFTWARE SERVICES’ warranties herein convey to Buyer and to the ultimate end user (the "End User"), but are not extended to any other third parties. GENERAL DIGITAL SOFTWARE SERVICES neither assumes nor authorizes any other person to assume for it any other liability in connection with the sales, installation, maintenance or use of its Products or performance of Services. Replacement Products assume the warranty status of the Product being replaced and have no separate or independent warranty of any kind. OTHER THAN AS EXPRESSLY SET FORTH ABOVE, GENERAL DIGITAL SOFTWARE SERVICES MAKES NO WARRANTIES, EXPRESS, STATUTORY, IMPLIED, OR OTHERWISE. GENERAL DIGITAL SOFTWARE SERVICES SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES AND CONDITIONS OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY LAW.
LIMITATION OF LIABILITY. GENERAL DIGITAL SOFTWARE SERVICES', OR ITS AFFLIATES’ OR ITS SUPPLIERS’ TOTAL LIABILITY ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO DIRECT, ACTUAL DAMAGES UP TO BUT NOT TO EXCEED THE PURCHASE PRICE OF THE SERVICES. IN NO EVENT SHALL GENERAL DIGITAL SOFTWARE SERVICES BE LIABLE FOR COSTS OF SUBSTITUTE PRODUCTS OR SERVICES, LOST PROFITS OR REVENUE, BUSINESS INTERRUPTION, CLAIMS OF THIRD PARTIES, LOSS OF INFORMATION ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, OR ANY SPECIAL, INDIRECT, RELIANCE, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY REGARDLESS OF THE REASON. THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER GENERAL DIGITAL SOFTWARE SERVICES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. The disclaimers of warranty and limitations of liability set forth herein are an essential element in setting the product price. Because some states and jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply or fully apply to Licensee.
6. BUYER CHANGE ORDER AND CANCELLATION
Any and all changes to Buyer’s Purchase Orders must be provided by written (paper-based or electronically transmitted) notice from Buyer. Any change order increasing the purchase quantity is subject to acceptance by GENERAL DIGITAL SOFTWARE SERVICES’ contractual POC.
7. CANCELLATION FOR DEFAULT
GENERAL DIGITAL SOFTWARE SERVICES may, upon written notice to Buyer, cancel any or all Buyer Purchase Orders effective immediately if:
(i) Buyer fails to perform any material obligations and such failure is not remedied within fifteen (15) calendar days after notice has been given;
(ii) Buyer fails to pay for purchases in accordance with the terms stated herein;
(iii) Buyer: ceases doing business as a going concern; makes an assignment for the benefit of creditors; is unable to pay its debts as they become due; files a voluntary petition in bankruptcy; is adjudicated to be a bankrupt or insolvent debtor; files a petition seeking for itself any reorganization; or consents or acquiesces in the appointment of a trustee, receiver or liquidator; or
(iv) any proceeding seeking involuntary reorganization, or similar relief is filed against Buyer which is not dismissed within thirty (30) days after filing, or if any trustee, receiver or liquidator of Buyer or any substantial part of its business assets or properties is appointed without GENERAL DIGITAL SOFTWARE SERVICES’ consent or acquiescence and such appointment is not vacated within thirty (30) days after such appointment. Any cancellation pursuant to this clause will be in addition to and not in lieu of any other remedies available to GENERAL DIGITAL SOFTWARE SERVICES at law or in equity.
8. EXPORT COMPLIANCE
Buyer acknowledges that the Products are subject to U.S. export control laws and regulations, including but not limited to the U.S. Export Administration Regulations and the U.S. International Traffic in Arms Regulations. Buyer shall comply strictly with all U.S. export laws and regulations and assumes sole responsibility for obtaining required export or re-export licenses at Buyer's sole risk, cost and expense. Buyer shall not directly or indirectly export, re-export or transmit any Products to any country or foreign national thereof to which such export, re-export, or transmission is restricted or prohibited. Buyer shall indemnify and hold GENERAL DIGITAL SOFTWARE SERVICES harmless against any liabilities suffered by GENERAL DIGITAL SOFTWARE SERVICES for any violation of this provision. Buyer agrees to furnish an End User Statement or End User Certificate for any Product if requested by GENERAL DIGITAL SOFTWARE SERVICES prior to the date of shipment.
9. U. S. GOVERNMENT USE; RESTRICTED RIGHTS
GENERAL DIGITAL SOFTWARE SERVICES Hardware, Software, and Integrated Products are Commercial, Off-the-Shelf ("COTS") items and any accompanying documentation have been developed entirely at private expense. They are delivered and licensed as "commercial computer software" as defined in DFARS 252.227-7014 (Jun 1995), as a "commercial item" as defined in FAR 2.101(a), or as "restricted computer software" as defined in FAR 52.227-19 (Jun 1987), or any equivalent agency regulation or contract clause, whichever is applicable. Buyer or its End User has only those rights provided for such Software and any accompanying documentation by the applicable FAR or DFARS clause and the applicable GENERAL DIGITAL SOFTWARE SERVICES standard software license.
10. GOVERNING LAW, VENUE, LANGUAGE AND EXPENSES
The transactions contemplated herein shall be governed in all respects by the laws of the Commonwealth of Virginia without regard to conflicts of law rules. In the event that a dispute arises, Buyer and GENERAL DIGITAL SOFTWARE SERVICES hereby submit to the exclusive jurisdiction and venue of the state and federal courts located in Fairfax County, Commonwealth of Virginia, United States of America. The United Nations Convention on the International Sale of Goods shall not apply. The parties hereby confirm that the English language shall be the governing language of these terms and conditions. The parties also hereby confirm that, in the case of any conflict or claim that results in litigation between the parties related to the sale of GENERAL DIGITAL SOFTWARE SERVICES Services , that all costs associated with said litigation, including legal fees, incurred by the prevailing party, shall be paid by the opposing party.
11. FORCE MAJEURE
GENERAL DIGITAL SOFTWARE SERVICES will be excused from any obligation to the extent performance thereof is prevented by acts of God, fire, flood, riots, material shortages, strikes, governmental acts, disasters, earthquakes, inability to obtain labor or materials through its regular sources, or any other cause beyond GENERAL DIGITAL SOFTWARE SERVICES’ reasonable control.
12. LICENSE AGREEMENTS
Notwithstanding anything to the contrary herein, to the extent the Services are delivered with a GENERAL DIGITAL SOFTWARE SERVICES or Third Party Product license agreement(s) (the "License Agreement(s)"), the terms and conditions of such License Agreement(s) shall apply in addition to the terms and conditions set forth herein. To the extent there is a conflict between the terms and conditions of such License Agreement(s) and those set forth herein, the term or condition set forth in the License Agreement(s) shall govern in all cases. Nothing herein shall be construed to grant any rights or license to use any Product or other intellectual property in any manner or for any purpose not expressly permitted by the License Agreement.
13. CONFIDENTIAL INFORMATION
Buyer acknowledges that Products contain a combination of trade secret, know-how, patent, proprietary, and confidential information of a commercial or technical nature (“Confidential Information”), and are valuable property of GENERAL DIGITAL SOFTWARE SERVICES. Buyer agrees to protect Confidential Information with the same confidentiality protections as are used, or should be used, for its own confidential information, and in any case, shall make the best commercial effort to protect such Confidential Information. Confidential Information is and remains the sole property of GENERAL DIGITAL SOFTWARE SERVICES (or its licensors, if any). Buyer shall not reverse engineer any Products.
14. PUBLICITY AND USE OF GENERAL DIGITAL SOFTWARE SERVICES MARKS
Buyer shall not release any publicity, advertisement, or news release regarding any contract, subcontract or purchase order with GENERAL DIGITAL SOFTWARE SERVICES without GENERAL DIGITAL SOFTWARE SERVICES’ express written consent. Buyer shall not use any GENERAL DIGITAL SOFTWARE SERVICES trade/service marks or trade names (“collectively “marks”) for any purpose whatsoever without the express written consent of GENERAL DIGITAL SOFTWARE SERVICES, except as expressly permitted by the rules of use set forth in GENERAL DIGITAL SOFTWARE SERVICES’ website.
GENERAL DIGITAL SOFTWARE SERVICES may freely assign or pledge the payments due (and the documentation supporting such payment obligation) from Buyer under the applicable Purchase Order, and may assign all of its other rights and obligations by giving Buyer written notice thereof but without being obligated to obtain Buyer's consent prior thereto. In the event of an assignment, GENERAL DIGITAL SOFTWARE SERVICES shall be discharged of any further liability pursuant to the affected Purchase Orders. Buyer may not assign its rights or delegate its obligations under any or all of its Purchase Orders unless GENERAL DIGITAL SOFTWARE SERVICES’ written consent is obtained prior thereto and any such assignment without such consent shall be void.
If any provision of these terms and conditions is held by a court, government agency or other legal authority of competent jurisdiction to be invalid, illegal or unenforceable, such invalidity, illegality or unenforceability shall not invalidate, void or render unenforceable any other portion of these terms and conditions.
17. SURVIVAL OF TERMS
The termination or cancellation of any Buyer Purchase Order shall not affect the parties' obligations and rights hereunder which by their nature should be understood to survive such termination or cancellation.