By accessing any web sites of Hyve Solutions Corporation or its subsidiaries (collectively “Hyve Solutions” or “Seller”) or otherwise indicating acceptance as set forth below, you are agreeing to the following terms and conditions (as modified from time to time), and each time that you access Hyve Solutions web site you reassert your agreement. If you do not agree with these terms and conditions, then you may not access or use hyvesolutions.com or any other Hyve Solutions web site.
In order to access certain Hyve Solutions e-commerce websites, you must present a valid password and user ID. Your password is your sole responsibility, and you must take all necessary actions to safeguard the security of your password and its use in accessing Hyve Solutions and ordering product via Hyve Solutions. You agree not to challenge the validity or enforceability of any order made via Hyve Solutions with your password. You must not disclose your password to any person who is not authorized to use the password on your behalf. You will be solely responsible for all unauthorized use of your password by your employees or third parties, except where caused solely and directly by Hyve Solutions negligence. Hyve Solutions highly recommends that you change your password periodically, and that you change your password immediately when you have reason to believe that your password security has been compromised.
II. TERMS AND CONDITIONS OF SALE
All sales of products and finished goods offered and supplied by Seller to its customer (“Buyer”) (“Products”) shall be pursuant to the following standard terms and conditions. Any conflicting terms in Buyer’s purchase order or elsewhere are without effect unless signed by the applicable party(ies). All Buyer purchases from Hyve Solutions are deemed to be purchases pursuant to a written agreement.
1- ACCEPTANCE: Buyer’s acceptance of these Terms and Conditions shall be indicated by any of the following, whichever first occurs: (a) Buyer’s written acknowledgement hereof, (b) Buyer’s submission of an order to Hyve Solutions, regardless of whether the Product(s) ordered is ever delivered or if the purchase order is completely or partially fulfilled, rejected, modified or cancelled; (c) Buyer’s receipt of any part of the items specified for delivery in any purchase order submitted to Hyve Solutions, (c) Buyer’s application for credit submitted to Hyve Solutions, (d) accessing any Hyve Solutions e-commerce web site, or (e) any other act or expression of acceptance by Buyer. Buyer’s acceptance is expressly limited to the Terms and Conditions in their entirety without addition, modification or exception and any term, condition, or proposal hereafter submitted by Buyer (whether oral or in writing), which is inconsistent with or in addition to the Terms and Conditions set forth hereon is objected to and is hereby rejected by Seller. Seller’s silence or failure to respond to any such subsequent term, condition or proposal shall not be deemed to be Seller’s acceptance or approval thereof.
2- ORDERS: Orders shall be submitted in writing to Hyve Solutions by postal delivery, courier delivery, facsimile transmission, or electronic transmission. All orders are subject to Hyve Solutions acceptance. Once Hyve Solutions accepts an order Buyer may not change, cancel or reschedule such order. Hyve Solutions reserves the right to schedule and reschedule any order, with notice to Buyer, at Hyve Solutions reasonable discretion, and to decline any order for any reason, or no reason, in Hyve Solutions sole discretion.
3- DELIVERY: Delivery shall be made in accordance with Seller’s shipping policy in effect on the date of shipment. Product title and risk of loss will transfer to Buyer upon Hyve Solutions tendering the Product for delivery to the carrier (F.O.B. Origin). If Buyer requests special shipping or handling, including expedited shipment, third-party billing, or freight collect, Buyer shall be responsible filing claims with the carrier and all freight and handling costs. Buyer shall pay for any special routing, packing, handling or insurance requested by Buyer and agreed to by Hyve Solutions. Orders shipped under special routing instructions must be separately agreed upon and may be subject to additional charges. Hyve Solutions will not be subject to requirements of non-compliance programs of Buyer, including charges for product delays, missing/inaccurate shipping documents, labeling or product markings.Buyer shall promptly notify Seller, no later than 30 days from invoice date, of any claimed shortages or rejection as to any delivery, with the exception of deliveries that reveal external shipping damage, which, in some instances, must be refused immediately upon delivery by the carrier. Such notice shall be in writing and shall be reasonably detailed stating the grounds for any such rejection. Failure to provide any such notice within such time shall be deemed an acceptance in full of any such delivery. Seller shall not be liable for any shipment delays that affect Seller or any of Seller’s suppliers, including but not limited to delays caused by unavailability or shortages of Products from Seller’s suppliers, natural disasters, acts of war or terrorism, acts or omissions of Buyer, fire, strike, riot, or governmental interference, unavailability or shortage of materials, labor, fuel or power through normal commercial channels at customary and reasonable rates, failure or destruction of plant or equipment arising from any cause whatsoever, or transportation failures.
4- PRICES: Prices payable by Buyer for the Products are specified on the invoice. Seller does not offer price protection. Buyer shall bear all applicable federal, state, provincial, municipal and other government taxes (such as sales, use and similar taxes), as well as import or customs duties, license fees and similar charges, however designated, levied on this sale or the Products (or the delivery thereof) or measured by the purchase price hereunder. Seller’s prices do not include such taxes, fees and charges. Exemption certificates must be presented prior to shipment if they are to be honored. To the extent any sale is made without the prior receipt of a valid exemption certificate, Seller expressly reserves the right to include on the invoice for such sale, or to separately invoice Buyer for all applicable taxes, fees and charges and Buyer agrees that these amounts shall be immediately due and payable.
5- PAYMENT TERMS: Buyer shall provide all financial information reasonably requested by Hyve Solutions from time to time for the purpose of establishing or continuing Buyer’s credit limit. Buyer agrees that Hyve Solutions shall have the right to decline or extend credit to Buyer and to require that the applicable purchase price be paid prior to shipment. Hyve Solutions shall have the right from time to time, without notice, to change or revoke Buyer’s credit limit on the basis of changes in Hyve Solutions credit policies or Buyer’s financial condition and/or payment record.
6- INVOICES: Invoices are due and payable within the time period noted on your invoice, or if not noted, then within 30 days, measured from the date of the invoice, subject to continuing credit approval by Hyve Solutions, such approval may be revoked without further notice from Hyve Solutions. Hyve Solutions may invoice parts of an order separately or may invoice purchases of the Products and Services in one invoice to Buyer. Hyve Solutions is not responsible for pricing, typographical, or other errors in any offer, and reserves the right to cancel orders arising from such errors. Buyer agrees that all invoices shall be deemed accurate unless Buyer advises Hyve Solutions in writing of a bona fide, material error within fourteen (14) days of the date of such invoice. In the event that Buyer advises Hyve Solutions of a material error, (i) payment of any amounts corrected or modified by Hyve Solutions in writing shall be due within fourteen (14) days of such correction, and (ii) all other amounts shall be paid by Buyer by the invoice due date. In the event Buyer withholds payment of any invoiced amounts upon an assertion by Buyer that such amounts are erroneous, and Hyve Solutions subsequently concludes that such invoiced amounts are accurate, Buyer shall pay interest on such amounts as described below from the due date for such amounts until Hyve Solutions receipt of those amounts. In no case shall Buyer be entitled to offset, defer or deduct any invoiced amounts that Hyve Solutions determines are not erroneous following the notification process set forth above.Buyer shall not deduct any amounts from any Hyve Solutions invoice without Hyve Solutions express written approval, which approval shall be contingent upon Buyer providing all supporting documentation for such deduction as required by Hyve Solutions. Deductions received by Hyve Solutions without advance notice will be denied. No Program fees may be deducted from invoices. If Buyer fails to make timely payment of any amount invoiced by Hyve Solutions, Hyve Solutions shall have the right, in addition to any and all other rights and remedies available to Hyve Solutions at law or in equity, to immediately revoke any or all credit extended, to delay or cancel future deliveries and/or to reduce or cancel any or all quantity discounts extended to Buyer. Buyer shall pay all costs of collection including reasonable attorneys’ fees. A service charge of the lesser or one and one-half percent (1 1/2%) per month or the maximum amount allowed by law will be charged on all past due balances commencing on the date payment is due.
7- SECURITY INTEREST: Hyve Solutions reserves a purchase money security interest in each unit of the Products sold to Buyer in the amount of the purchase price therefor. This interest shall be satisfied by payment in full for such units of the Products. Buyer agrees to execute, and to allow Hyve Solutions to file, any and all documents, including, without limitation UCC documents, as may be reasonably necessary to perfect such purchase money security interest.
8- EXPORT: All Products delivered to Buyer hereunder, if sold in the United States, are intended for use in the United States only. Shipment of the Products outside the United States may require a valid export license.
9- WARRANTIES: Hyve Solutions warrants to Buyer that each of the Products manufactured, configured or tested by Hyve Solutions shall have been manufactured, configured and tested in conformance with the Specifications therefor and be free from material defects in workmanship under normal use and service for a period of ninety (90) days after shipment by Hyve Solutions. “Specification” or “Specifications” shall mean the specifications for the Products, as provided by Buyer and accepted in writing by Hyve Solutions, and as revised from time to time upon mutual written agreement of the parties. Hyve Solutions sole obligation under this warranty is limited to replacing, repairing, or issuing credit for any Products that do not substantially conform to such Specifications or are materially defective in workmanship. Hyve Solutions shall repair or replace any such Product, and deliver the repaired or replacement unit to Buyer, within forty-five (45) days of Hyve Solutions receipt of such Product. No units of Products for which action may be required under this warranty shall be returned to Hyve Solutions manufacturing facility, F.O.B. Buyer, without an accompanying Hyve Solutions Return Merchandise Authorization (“RMA”) number, which Hyve Solutions shall grant on request upon Buyer showing a reasonable basis for such return. Any authorized deductions for returned Products must include Buyer’s customer tracking number and RMA number.In the event a returned unit of a Product is found not to substantially conform to such Specifications or to be materially defective in workmanship, Hyve Solutions shall be responsible for the cost of shipping such unit of Product to Hyve Solutions and back to Buyer. If a returned unit of Product is not so found, Buyer shall be responsible for such costs of shipping. Buyer shall cooperate with Hyve Solutions in its efforts to determine whether a material defect in a unit of Product exists and to repair any materially defective unit of Product.
THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE AND NON-INFRINGEMENT AND FOR ALL OTHER OBLIGATIONS OR LIABILITIES ON HYVE SOLUTIONS PART.
HYVE SOLUTIONS NEITHER ASSUMES, NOR AUTHORIZES ANY OTHER PERSON TO ASSUME FOR HYVE SOLUTIONS, ANY OTHER LIABILITY IN CONNECTION WITH THE SALE OF PRODUCTS TO BUYER. THIS WARRANTY SHALL NOT APPLY TO ANY UNITS OF PRODUCTS WHICH SHALL HAVE BEEN REPAIRED OR ALTERED OTHER THAN BY HYVE SOLUTIONS OR WHICH SHALL HAVE BEEN SUBJECT TO MISUSE, NEGLIGENCE, OR ACCIDENT. HYVE SOLUTIONS SHALL NOT BE LIABLE FOR PERSONAL INJURY RESULTING DIRECTLY OR INDIRECTLY FROM THE DESIGN, MATERIAL, OPERATION OR INSTALLATION OF ANY UNITS OF PRODUCTS.
10- INDEMNIFICATION: Product Indemnification: Buyer agrees that it shall indemnify Hyve Solutions against any and all Claims hereafter brought or asserted by any person or entity arising out of the design, installation or use of any units of Product(s) manufactured by Hyve Solutions under this Agreement, except to the extent such Claim results from such units of Product(s) not substantially conforming to their Specifications or being materially defective in workmanship. Such indemnification obligation shall be conditioned upon Hyve Solutions promptly notifying Buyer of any such Claim. Such indemnification shall include reasonable attorneys’ fees and other costs incurred by Hyve Solutions in the defense of any Claim; provided, however, Buyer shall have the right to defend any Claim with its own counsel, which is reasonably acceptable to Hyve Solutions. Buyer shall not enter into any settlement that affects Hyve Solutions rights or interests without Hyve Solutions prior written approval. Buyer shall have no authority to settle any Claim on behalf of Hyve Solutions.Patents, Copyright, Trade Secret and Other Proprietary Rights. Customer agrees to defend at its expense any suit brought against Hyve Solutions based upon a claim that finished Product(s) manufactured by Hyve Solutions pursuant to the terms and conditions of this Agreement infringes a patent, copyright, trade secret or other proprietary right, foreign or domestic, and to pay the amount of any settlement, or the costs and damages finally awarded, with respect to such Claim, provided that Hyve Solutions promptly notifies Customer of, and provides Customer with reasonable assistance in the defense of, any such Claim. Customer shall not enter into any settlement that affects Hyve Solutions rights or interests without Hyve Solutions prior written approval. Customer shall have no authority to settle any Claim on behalf of Hyve Solutions.
11- LIMITATION OF LIABILITY: HYVE SOLUTIONS SHALL NOT BE LIABLE TO BUYER, BUYER’S CUSTOMERS, OR ANY OTHER PARTY FOR ANY LOSS, DAMAGE, OR INJURY THAT RESULTS FROM THE USE OR APPLICATION BY BUYER, BUYER’S CUSTOMER, OR ANY OTHER PARTY, OF PRODUCTS DELIVERED TO BUYER, UNLESS THE LOSS OR DAMAGE RESULTS DIRECTLY FROM THE INTENTIONALLY TORTIOUS OR FRAUDULENT ACTS OR OMISSIONS OF HYVE SOLUTIONS. IN NO EVENT SHALL HYVE SOLUTIONS 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 HYVE SOLUTIONS, ITS EMPLOYEES, AGENTS OR SUBCONTRACTORS, IN EXCESS OF THE NET PURCHASE PRICE OF THE PRODUCTS OR SERVICES ACTUALLY DELIVERED TO AND PAID FOR BY BUYER HEREUNDER. IN NO EVENT SHALL HYVE SOLUTIONS BE LIABLE TO BUYER OR ANY OTHER PARTY FOR INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO LOSS OF GOOD WILL, LOSS OF ANTICIPATED PROFITS, OR OTHER ECONOMIC LOSS ARISING OUT OF OR IN CONNECTION WITH HYVE SOLUTIONS BREACH OF, OR FAILURE TO PERFORM IN ACCORDANCE WITH ANY OF THESE TERMS AND CONDITIONS, OR THE FURNISHING, INSTALLATION, SERVICING, USE OF PERFORMANCE OF ANY PRODUCTS OR INFORMATION HYVE SOLUTIONS SHALL PROVIDE HEREUNDER, EVEN IF NOTIFICATION HAS BEEN GIVEN AS TO THE POSSIBILITY OF SUCH DAMAGES.
12- CONFIDENTIALITY: The receiving party shall protect the confidentiality and secrecy of the disclosing party’s Confidential Information and shall prevent any improper disclosure or use thereof by its employees, agents, contractors or consultants, in the same manner and with the same degree of care (but in no event less than a reasonable degree of care) as it uses in protecting its own information of a confidential nature for a period of three (3) years from the date of such disclosure. Each party must inform its employees having access to the other’s Confidential Information of restrictions required to comply with this Section 2(k). Each party agrees to provide notice to the other immediately after learning of or having reason to suspect a breach of any of the restrictions of this Section 2(k). Notwithstanding the foregoing, each party may disclose the other party’s Confidential Information if and to the extent that such disclosure is required by applicable law, provided that the receiving party uses reasonable efforts to limit the disclosure and provides the disclosing party a reasonable opportunity to review the disclosure before it is made and to interpose its own objection to the disclosure. Each party retains for itself all proprietary rights it possesses in and to all of its own Confidential Information. Accordingly, Confidential Information which the disclosing party may furnish to the receiving party shall be in the receiving party’s possession pursuant only to a restrictive, nontransferable, nonexclusive license under which the receiving party may use such Confidential Information under the terms of this Agreement, solely for the purposes of satisfying its obligations hereunder.Each party understands that the party receiving Confidential Information may now or in the future be developing proprietary information internally, or receiving proprietary information from third parties in confidence that may be similar to disclosed Confidential Information. Nothing in this Agreement shall be construed as a representation or inference that the receiving party will not develop products, for itself or others that compete with the products, processes, systems or methods contemplated by disclosed Confidential Information. Each party acknowledges that any material violation of the rights and obligations provided in this Section 2(k) may result in immediate and irreparable injury to the other party, and hereby agrees that the aggrieved party shall be entitled to immediate temporary, preliminary, and permanent injunctive relief against any such continued violations upon adequate proof, as required by applicable law. Notwithstanding Section 2(m), each party hereby submits itself to the personal jurisdiction of the courts of competent subject matter jurisdiction for purposes of entry of such injunctive relief.
13- ECEXPRESS/EDI/ELECTRONIC COMMUNICATIONS DISCLAIMER: Seller is not liable for any failure of the ECExpress service, EDI service, or any other form of electronic communication (collectively, “Electronic Communication”) to transmit, receive, store or handle documents or perform related activities. Hyve Solutions does not represent or warrant that the information accessible via the Hyve Solutions web site is accurate, complete or current. Price and availability information is subject to change without notice. Buyers must properly use security procedures, which are reasonably sufficient to ensure that all electronic transmissions of documents to Seller are authorized and shall be responsible for any such unauthorized transmissions. Buyer’s ECExpress identification code is Buyer’s signature and use of the code is sufficient to verify that Buyer originated an order, when purchasing via ECExpress.Any order properly transmitted in accordance with these terms and conditions is considered to be “in writing”; and any order containing a code is deemed (a) to have been “signed” and (b) to constitute an “original” when printed from electronic files or records established and maintained in the normal course of business. Buyer and Seller agree not to contest the validity or enforceability of orders as to whether certain agreements are to be in writing or signed.
14- INDEPENDENT CONTRACTOR: Hyve Solutions and Buyer are and shall be independent contractors to one another, and nothing herein shall be deemed to cause this Agreement to create an agency, partnership, or joint venture between the parties.
15- FORCE MAJEURE: Neither party shall be liable to the other for any delay in performance or failure to perform, in whole or in part, due to labor dispute, strike, war or act of war (whether an actual declaration is made or not), insurrection, riot, civil commotion, act of public enemy, accident, fire, flood, earthquake, or other act of God, act of any governmental authority, judicial action, computer virus or worm, or similar causes beyond the reasonable control of such party. If any event of force majeure occurs, the party affected by such event shall promptly notify the other party of such event and take all reasonable actions to avoid the effect of such event.
16- NOTICE: All written notices required by this Agreement must be delivered in person or by means evidenced by a delivery receipt and will be effective upon receipt.
USE OF HYVE SOLUTIONS E-COMMERCE WEB SITE IS ON AN “AS IS” BASIS AND HYVE SOLUTIONS MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO THE WEB SITE OR RELATED PRODUCTS. HYVE SOLUTIONS DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN ADDITION, HYVE SOLUTIONS DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ACCESSIBLE VIA THE HYVE SOLUTIONS WEB SITE IS ACCURATE, COMPLETE OR CURRENT. PRICE AND AVAILABILITY INFORMATION IS SUBJECT TO CHANGE WITHOUT NOTICE.
IV. LIMITATION ON USE
Buyer hereby acknowledges that Products are not intended for use in life support systems, critical care applications, human implantation, commercial aviation, nuclear facilities or systems or any other applications where product failure could lead to injury to persons or loss of life or catastrophic property damage. Hyve Solutions hereby disclaims any liability or responsibility for risk of loss, expenses, cost, liability, litigation and/or potential adverse verdict or judgment in relation to any such use of the products.
V. LIMITED LICENSE
The information and databases provided to you via certain Hyve Solutions e-commerce web sites is licensed to you by Hyve Solutions for your use only in the ordinary course of your business for your review, selection and purchase of products from Hyve Solutions. This license is non-exclusive, non¬transferable, and may be terminated by Hyve Solutions with or without cause at any time.
VI. LIMITATION OF LIABILITY
Except as specifically stated herein, neither Hyve Solutions nor any of its directors, employees or other representatives will be liable for damages arising out of or in connection with your use of any Hyve Solutions web site. This is a comprehensive limitation of liability that applies to all damages of any kind, including (without limitation) compensatory, direct, indirect or consequential damages, loss of data, income or profit, loss of or damage to property and claims of third parties.
IN NO EVENT SHALL HYVE SOLUTIONS BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, SPECIAL OR OTHER DAMAGES WHATSOEVER RESULTING FROM OR RELATED TO BUYER’S USE OF ANY HYVE SOLUTIONS WEB SITE OR HYVE SOLUTIONS PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT OR THE FURNISHING, PERFORMANCE OR USE OF ANY PRODUCT(S) SOLD PURSUANT HERETO, WHETHER DUE TO BREACH OF CONTRACT, BREACH OF WARRANTY, STRICT LIABILITY, PRODUCT LIABILITY, PERSONAL INJURY, THE NEGLIGENCE OF HYVE SOLUTIONS OR OTHERWISE. HYVE SOLUTIONS LIABILITY SHALL BE LIMITED SOLELY TO THE REPAIR, REPLACEMENT OR CREDIT OF THE PRODUCT(S), AT HYVE SOLUTIONS OPTION.
You agree to defend, indemnify and hold Hyve Solutions and its affiliates, and their respective directors, officers, employees and agents, harmless from and against any and all liabilities, costs and expenses, including reasonable attorneys’ fees, arising from or in any way relating to your use of any Hyve Solutions web site or any Product acquired from Hyve Solutions.
These Terms and Conditions, along with (a) the terms and conditions on any Hyve Solution invoice, (b) the terms and conditions of the Hyve Solutions credit application, and (c) the terms and conditions of any other agreement signed by authorized representatives of both Buyer and Seller, sets forth the entire agreement and understanding of the parties relating to the subject matter herein. In the event of a conflict between these various terms and conditions, they will take effect in the following order of precedence: (1) any signed agreement between the parties; (2) the terms and conditions on any Hyve Solutions Invoice, (3) these Terms and Conditions, and (4) the terms and conditions in Buyer’s credit application to Hyve Solutions. Any terms and conditions on Buyer’s purchase order or any other document not signed by Hyve Solutions shall have no force and effect.Notwithstanding the foregoing, if Buyer and Seller have executed an agreement that specifically supersedes and replaces or modifies any or all of the Terms and Conditions, the terms of such Agreement shall control. No additional or different terms of conditions, whether material or immaterial, shall become a part of these Terms and Conditions unless expressly accepted in writing by an authorized officer of Seller. Any waiver by Seller of one or more of these Terms and Conditions or any defaults hereunder shall not constitute a waiver of the remaining Terms and Conditions or any future defaults hereunder. It is the intention of the parties that these Terms and Conditions shall be enforceable to the fullest possible extent, regardless of any partial invalidity or unenforceability, and that no failure or delay by either party in exercising or enforcing any right hereunder shall operate as a waiver thereof or preclude any other exercise or enforcement of rights hereunder. The rights and obligations of Buyer under the Terms and Conditions may not be assigned by Buyer without the prior written consent of Seller (which shall not be unreasonably withheld).
Hyve Solutions may modify the information and functionality of any Hyve Solutions web site at any time. Hyve Solutions reserves the right, in its sole discretion, to modify, alter or otherwise update these Terms and Conditions at any time, and you agree to be bound by such modifications, alterations or updates. Any modifications, alterations or updates to these Terms and Conditions will be available to you on Hyve Solutions website, and you agree to regularly check Hyve Solutions website for new versions of these Terms and Conditions.
IX. WAIVER OF JURY TRIAL
EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
X. GOVERNING LAW/VENUE
This Agreement shall be governed by and construed under the laws of the State of South Carolina, without regard to its principles regarding conflicts of law. The parties disclaim the United Nations Convention on Contracts for the International Sale of Goods in its entirety. The parties will attempt in good faith to promptly resolve any controversy, dispute or claim arising out of or relating to this Agreement through negotiations between the parties before resorting to other remedies available to them. If attempts to resolve the dispute amicably have failed or if negotiation to resolve the dispute is impossible (notably in case of urgent procedure to obtain a protective order), any action or proceeding between the parties relating to this Agreement shall take place in Greenville County, South Carolina and the parties hereby waive any objection to personal jurisdiction or venue in any forum located in that county. If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of the Agreement, which shall remain valid and enforceable according to its terms. Buyer agrees to pay court costs and reasonable legal fees incurred in the collection of any unpaid balances whether or not suit is filed. In the event of any litigation arising out of this Agreement or its enforcement by either party, the prevailing party shall be entitled to recover as part of any judgement, reasonable attorneys’ fees and court costs.
BY ACCESSING ANY HYVE SOLUTIONS WEB SITE, YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT.
VENDOR SUPPLY TERMS AND CONDITIONS
Unless otherwise agreed in writing, these Vendor Supply Terms and Conditions (“Vendor Terms”), as published herein, govern all purchases of products and services by Hyve Solutions Corporation or any Affiliate of Hyve Solutions Corporation (hereinafter “Hyve Solutions”) from the manufacturer or vendor (“Vendor”) of such products or services (“Products”). Vendor hereby authorizes Hyve Solutions to purchase and use Vendor’s Products to fulfill manufacturing contracts for third party customers worldwide. An Affiliate of a party means any corporation, partnership or other business entity which controls, is controlled by, or is under common control with such party.
- Terms. Hyve Solutions reserves the right to change the Vendor Terms from time to time and at its sole discretion. Please check this page periodically for updates. This page was last updated on 08/13/2018.
- Order. To order the Products, Hyve Solutions shall place a purchase order with Vendor and each such purchase order shall be governed by these Vendor Terms. Each purchase order for the Products shall be subject to Vendor’s acceptance and, upon acceptance, Vendor shall confirm the purchase order and the shipping date with Hyve Solutions.
- Acceptance. If Vendor does not reject a purchase order in accordance with Vendor Terms within 2 business days of receipt, it will be deemed to have accepted such purchase order. Vendor’s acceptance of a purchase order shall constitute an agreement to all terms and conditions; including but not limited to purchase order price, quantity, delivery, specifications, terms, quality requirements, and regulatory requirements.
- Delivery. Unless otherwise agreed in writing, the Products shall be delivered DDP (Incoterm 2010), freight charges paid by Vendor for all Products shipped to Hyve Solutions or its customers’ location(s). Title and risk of loss shall pass from Vendor to Hyve Solutions upon delivery to Hyve Solutions or its customer. Vendor shall follow all instructions provided by Hyve Solutions. Vendor shall be the importer of record.
- Change of Purchase Order. Hyve Solutions may after placing a purchase order, by written notice to Vendor and without additional charges, cancel a purchase order or push out or accelerate the delivery date if necessary based on a customer’s orders to Hyve Solutions.
- Packaging. Vendor shall package all Products for suitable and safe protection, preservation, and transportation to avoid any possible damage.
- Failure of Delivery or Delay. Hyve Solutions shall have the right to cancel any purchase order at no cost if (a) Product is not received by Hyve Solutions by the expected arrival date, (b) Hyve Solutions receives non-conforming Product, or (c) Hyve Solutions receives deficient documentation related to a Product or purchase order. Vendor shall be responsible for any penalties or additional costs incurred by Hyve Solutions as a result of Vendor’s late delivery or delivery of nonconforming Product.
- Notification of Nonconforming Material Vendor agrees to notify Hyve Solutions prior to shipping of any Product that is suspect of non-conformance to a specified requirement. This notification must be in such a manner to allow Hyve Solutions to provide a timely agreement to accept such non-conformance prior to shipment.
- Inspection and Acceptance of Goods. All goods shall be delivered subject to Hyve Solutions’ right of inspection and rejection. Defective goods or goods which fail to conform in any respect with Hyve Solutions specifications will be held for Vendor’s instructions for resolution. Hyve Solutions shall have the right to cancel those goods and any unshipped portion of the order. Payment for goods on this order prior to inspection shall not constitute acceptance thereof and acceptance of the goods by Hyve Solutions shall not relieve Vendor from any of its obligations and warranties.
- Returns. Hyve Solutions may return to Vendor, any Product that is nonconforming, or that allegedly contains any defect or inadequate warnings or instructions, or allegedly violates any law, regulations or court or administrative order, or allegedly infringes any patent, copyright, service mark, trade name, trade dress, trademark, or other right (collectively “Intellectual Property”).
- Damaged Returns. Vendor shall allow Hyve Solutions to return any Product for full credit that is damaged or defective.
- Unless otherwise agreed to in writing, all payments shall be in United States dollars and shall be due within sixty (60) days of the date of Vendor’s invoice. In order to avoid delays in payment, all requirements of the purchase order must be completed as specified within the purchase order and the purchase order terms and conditions.
- Extra Charges. No additional charges of any kind, including charges for boxing, packing, crating or other extras will be allowed unless agreed to in writing in advance by Hyve Solutions. Before proceeding with any work or shipping any goods involving possible claims by the Vendor for extra compensation above the price specified in the order, Vendor shall submit to Hyve Solutions a detailed statement of such items together with the price thereof.
- Confidentiality. The receiving party shall protect the confidentiality of the disclosing party’s Confidential Information. Notwithstanding the foregoing, each party may disclose the other party’s Confidential Information if and to the extent that such disclosure is required by law, provided that the receiving party uses reasonable efforts to limit the disclosure and provides the disclosing party a reasonable opportunity to preview and to object to the disclosure. “Confidential Information” shall mean the information of a party, which information is conspicuously marked with “Confidential,” or “Proprietary” or other similar legend. If Confidential Information is orally disclosed it shall be identified as such at the time of disclosure and a brief written non-confidential description of the information and confirmation of the confidential nature of the information shall be sent to the recipient within 30 days after the disclosure. Quantities, schedules, pricing, sales reports and inventory reports shall be considered Confidential Information whether disclosed orally or in writing, or whether or not marked “Confidential” or “Proprietary.” Confidential Information does not include information that: (a) was in the possession of, or was known by, the receiving party prior to its receipt from the disclosing party, without an obligation to maintain its confidentiality; (b) is or becomes generally known to the public without violation of these Vendor Terms; (c) is obtained by the receiving party from a third party, without an obligation to keep such information confidential; or (d) is independently developed by the receiving party without use of Confidential Information.
- Each of the parties agrees not to solicit, hire or engage any employees of the other party that are directly involved in the activities of the other party in connection with these Vendor Terms during the period such employees are employed by the other party and for a period of 180 days after the date of such employee’s termination of employment from the other party.
- Equitable Relief. Each party acknowledges that any material violation of the rights and obligations provided in Sections 14 and 15 may result in immediate and irreparable injury to the other party, and hereby agrees that the aggrieved party shall be entitled to seek immediate temporary, preliminary, and permanent injunctive relief against any such continued violations.
- Compliance with Laws Vendor must comply with all applicable state and federal laws and regulations, including, but not limited to, equal opportunity employment, affirmative action, employment compliance/reporting and regulatory requirements. Upon request Vendor will provide a certificate attesting to such compliance signed by an officer of Vendor. Vendor shall provide information as requested by Hyve Solutions regarding the source of any “conflict minerals,” as defined in Section 1502 of the U.S. Dodd-Frank Wall Street Reform and Consumer Protection Act, in the Products.
- Notification of Changes In-process, Material, Manufacturing or Production Facilities: Vendor agrees to notify Hyve Solutions in the event that an agreed upon process will be or has changed to the degree it may affect the Product’s performance either at Hyve Solutions or the customer. Once a manufacturing or production facility has been awarded a contract the Vendor may not move Hyve Solutions business without notification and approval by Hyve Solutions. In the event that multiple facilities are within the business scope of the Vendor, the processes, manufacturing and/or Product are to remain at the production or manufacturing location unless agreed upon by Hyve Solutions in writing.
- Key Characteristics When key characteristics have been identified by Hyve Solutions the Vendor agrees to flow down all applicable requirements to any sub-contracted work in which they are being compensated for including but not limited to: (1) drawings; (2) Product specifications; (3) regulatory requirements; and (4) documentation (written or electronic).
- Records When directed by Hyve Solutions all quality records must be maintained in retrievable form or format for the specified time in the notification. When no retention time is specified records will be maintained and retrievable for 3 years.
- Right to Access When deemed necessary by Hyve Solutions the Vendor shall allow for source or on sight inspection by Hyve Solutions, its customer or both. The Vendor will be provided reasonable notification of any such inspection.
- Product Warranty. Vendor warrants that all Products will be exact conformity with the order and with any other description, specification, drawing or sample supplied by Hyve Solutions or Vendor; shall be free from defects in material and/or workmanship and shall be merchantable and fit for the purpose, if any, indicated by Hyve Solutions to Vendor. At the option of Hyve Solutions, Vendor’s obligations under this product warranty include: (a) replacing the Products on cross-ship terms or (b) returning the Products for credit.
- Epidemic Failure. (a) Upon occurrence of an Epidemic Failure, Hyve Solutions shall notify Vendor, and shall provide, if known and as may then exist, a description of the failure, and the suspected lot numbers, serial numbers or other identifiers, and delivery dates, of the failed Products. Hyve Solutions shall make available to Vendor, samples of the failed Products for testing and analysis. Upon receipt of the Product from Hyve Solutions, Vendor shall promptly provide its preliminary findings regarding the cause of the failure. The parties shall cooperate and work together to determine the root cause of the failure. Thereafter, Vendor shall promptly propose a plan for the repair and/or replacement of the affected Products with minimal disruption to Hyve Solutions and/or its customers. (b) After identifying a plan for the repair and replacement of the Products as noted herein, Vendor shall, and at Hyve Solutions’ option repair and/or replace the affected Products at no additional cost to Hyve Solutions or its customers. If Vendor is unable to repair and/or replace the Product promptly, Vendor will reimburse all costs incurred by Hyve Solutions and its customers for all labor, equipment and processing costs incurred by Hyve Solutions, its customers or authorized third parties in the implementation of the corrective action plan, including costs pertaining to test procedures, securing of test equipment, the actual testing of Products, reasonable freight, transportation, customs, duties, insurance, storage, handling and other incidental shipping costs incurred in connection with the repair and/or replacement of the affected Products. (c) For the purposes of these Vendor Terms, “Epidemic Failure” shall mean the Product failures (i) having the same or similar cause, verified by the Vendor, by Hyve Solutions, or an independent third party on behalf of Hyve Solutions; (ii) occurring within three (3) years after the date of delivery of the Product; (iii) resulting from defects in materials, workmanship, manufacturing process or design or failure to conform with the specifications; and (iv) Epidemic Failure is defined as an event that renders one percent (1%) over the first month, one and a half percent (1.5%) for the first three months and thereafter five percent (5%) Annual Failure Rate (“AFR”), with the same symptom(s) caused by the same or similar cause(s), of Product delivered by Vendor inoperable. Any defect caused by normal wear and tear shall not constitute epidemic failure as long as the Product is being used within the documented environmental conditions and shall be covered under the product warranty for replacement of defective Products. Upon occurrence of an Epidemic Failure, the remedies as defined above shall apply to the entire Product population affected by the root cause failure until corrective action is complete. Vendor shall be solely liable for ensuring that such components as converted, integrated and/or assembled into the Product conform to their applicable specification. Vendor’s obligation to ensure that components meet such specification include, but are not limited to, incoming quality control, sub-tier audits, statistical process control, control of workmanship, and outgoing quality inspection. Vendor is responsible for covering costs and labor of all proactive system and component replacements and repairs resulting from safety hazard potentially impacting 100% of the Product delivered to Hyve Solutions and/or known recalls.”
- Limitation of Liability. EXCEPT FOR A BREACH OF SECTIONS 14 AND 15, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, EXEMPLARY, PUNITIVE, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES OR COSTS HOWSOEVER ARISING OUT OF OR RELATED TO THESE VENDOR TERMS, WHETHER OR NOT EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COSTS.
- Indemnification. With respect to any and all Products, Vendor agrees to defend, indemnify and hold harmless Hyve Solutions and each customer (including their subsidiaries and affiliates, their successor and assigns) at Vendor’s expense from and against any claim, charge, demand, proceeding, suit, liability, cost, expense, order, decree, attorneys’ fees, court costs, trial or appeal and judgment including damages of any kind resulting from, arising out of or in connection with any actual or claimed: (a) personal injury, property damage or loss of any nature whatsoever alleged to have occurred as a result of the Products; (b) any defect in material, workmanship, or design; (c) Vendor’s failure to comply with any applicable federal, state, local or foreign statute, law, regulation, ruling or ordinance; (d) Intellectual Property infringement; or (e) any breach of any representation or warranty or agreement of Vendor. Vendor agrees to reimburse Hyve Solutions for any and all costs and expenses (including attorneys’ fees) incurred in responding to any subpoena or other compulsory process relating to the Products.
- Supplier Code of Conduct. “Code” means the current version of Hyve Solutions’ Supplier Code of Conduct, as modified by Hyve Solutions from time-to-time and which as of the Effective Date is posted at https://hyvesolutions.com/about-hyve/. At all times during the term of these Vendor Terms, Vendor shall comply with, and shall ensure that all Vendor contractors, subcontractors (including any affiliates) and its and their personnel comply with, the requirements of the Code. Subject to Vendor’s site safety and security requirements, Hyve Solutions or an external monitor, who has signed Hyve Solutions’ standard confidentiality or non-disclosure agreement, shall have the right to visit Vendor’s facilities to assess compliance with the Code, and to audit Vendor’s wage, hour, payroll, and other worker records and practices. Such audits will be conducted in an efficient manner and with minimal disruption of Vendor’s operations. Vendor shall promptly implement corrective action to remedy any material non-conformance identified by Hyve Solutions. Vendor shall periodically assess its contractors’ and subcontractors’ compliance with the Code and require prompt corrective action to remedy any material non-conformance identified.
- Entire Agreement and Modification. These Vendor Terms shall constitute the entire agreement between the parties and supersedes all prior agreements and understandings between the parties relating to the transactions contemplated hereby. No modification of these Terms shall be binding, unless in writing and signed by an authorized representative of each party.
- Severability. In case any one or more of the provisions contained in these Terms shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall be severed and shall not affect any other provision hereof. Furthermore, the severed provision shall be replaced by a provision which comes closest to such severed provision, or part thereof, in language and intent, without being invalid, illegal or unenforceable.
- Disputes. Excluding disputes relating to Sections 14 and 15, any and all other disputes of every kind and nature between the parties arising out of or in connection with the existence, construction, validity, interpretation, or meaning, performance, non-performance, enforcement, operation, breach, continuance, or termination of these Vendor Terms shall be submitted to binding arbitration, pursuant to the Rules of the American Arbitration Association, before a single arbitrator in Alameda County, California. In the event of any litigation arising out of these Vendor Terms or its enforcement by either party, the prevailing party shall be entitled to recover as part of any judgment, reasonable attorneys’ fees and court costs.
- Jurisprudence. These Vendor Terms shall be governed by and construed in accordance with the laws of California and the United Nations Convention on Contracts for the International Sale of Goods shall not apply.
- Notice. All written notices required by these Vendor Terms must be delivered in person or by means evidenced by a delivery receipt and will be effective upon receipt.
- Order of Precedence. In the event of a conflict or inconsistency between a term or provision of any Vendor document (including any pre-printed terms contained therein) and a term or provision of these Vendor Terms, these Vendor Terms will control. Without limiting the foregoing, the order of precedence language in this paragraph specifically supersedes any conflicting language in any Vendor invoice.
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