Hofstra Group Sales Agreement

1. Equipment and Pricing

Prior to or contemporaneous with Buyer’s purchase from Hofstra Group, an invoice, payment request, or similar document (each, an “Invoice”) identifying the equipment to be purchased (the “Equipment”), the price of such Equipment, and the estimated shipping costs thereof, shall be sent or displayed to Buyer electronically (including through a “check out” display on Seller’s web site) or through the U.S. postal or other courier service. Each Invoice shall identify any included components, add-ons, configurations, or other details of the purchased Equipment. Only those items explicitly identified in the Invoice shall be deemed included with the Equipment for purposes of this Agreement.

 

2. Payment

Terms of payment are within Seller’s sole discretion and, unless otherwise agreed to by Seller, payment must be received by Seller prior to Seller's acceptance of an order. Payment for Equipment will be made by credit card, wire transfer, or some other prearranged payment method unless credit terms have been agreed to by Seller. Invoices are due and payable within the time period noted on the Invoice, or in seven (7) days if no such time period is noted, measured in calendar days from the date of the Invoice. Seller may invoice parts of an order separately. Your order is subject to cancellation by Seller, in Seller's sole discretion. Seller is not responsible for pricing, typographical, or other errors in any offer, advertisement, or sale proposal by Seller and reserves the right to cancel any orders resulting from such errors.

 

In the event that Buyer has applied for and Seller has granted to Buyer a line of credit, the following terms shall apply. All payments outstanding for a period longer than thirty (30) days from invoicing shall incur a service charge of the lesser of 15% annually (accrued and payable monthly), or the maximum amount allowed by law on all past due balances. Seller has the right, without notice, to change or revoke Buyer’s credit limit on the basis of a change in Seller’s credit policies or the Buyer’s financial condition or record of payment. If Buyer fails to make timely payment of any amount invoiced hereunder (or any monthly service fees related thereto), Seller shall have the right, in addition to any and all other rights and remedies available to Seller at law or equity, to immediately revoke any or all credit extended, and/or to delay or cancel future deliveries. Buyer shall pay all costs of collection including reasonable attorneys’ fees.

 

3. Shipment

Seller will make a good faith effort to complete delivery of the Equipment as indicated by Seller in writing, but Seller assumes no responsibility or liability and will accept no back charge for loss or damage due to delay or inability to deliver, whether or not such loss or damage was made known to Seller, including, but not limited to, liability for Seller's non-performance caused by acts of God, war, labor difficulties, accidents, inability to obtain materials, delays of carriers, contractors or suppliers or any other causes of any kind whatever beyond the control of Seller. Seller will ship Equipment to Buyer using Seller’s carrier of choice in accordance with Seller’s shipping policies at the time of shipment. Under no circumstances shall Seller be liable for any special, consequential, incidental, indirect, or liquidated damages, losses, or expense (whether or not based on negligence) arising directly or indirectly from delays or failure to give notice of delay.

 

Risk of loss and legal title to the Equipment shall transfer to Buyer for sales in which the end destination of the Equipment is outside of the United States immediately after the Equipment has passed beyond the territorial borders of the United States. For all other shipments, Title to Equipment passes from Seller to Buyer on shipment from Seller’s facility. All shipments are EXW Seller's shipping point as defined by Incoterms 2010. Risk of loss shall pass to Buyer upon Seller’s tendering of Equipment to shipper for delivery. Any claims for shortages or damages suffered in transit are the responsibility of Buyer and shall be submitted by Buyer directly to the carrier. Shortages or damages must be identified and signed for at the time of delivery.

 

4. Taxes

All prices quoted prior to purchase shall be exclusive of any applicable sales tax. Applicable sales tax shall be added to any Invoice for Equipment to which such sales tax applies. Except for such sales tax, any and all other taxes, licenses, or other payments due to governmental agencies in connection with Buyer’s purchase of Equipment shall be the sole responsibility of Buyer.

 

5. Software and Intellectual Property

All hardware and software included in the Equipment is provided as-is and Seller makes no warranty or representation as to Buyer’s ability to utilize any software included on any Equipment or on any other medium. Seller also makes no representation or warranty as to Buyer’s ability to utilize Equipment free of any patent-related restraints or obligations.

 

Equipment, including any accompanying software, may be subject to terms and conditions of use provided by the manufacturer of such Equipment. Buyer agrees to comply with any such terms and conditions.

 

6. Right of Return and Inspection

Claims for damage, shortage or errors in shipping must be reported within seven (7) days following delivery to Buyer. Buyer shall also have seven (7) days from the date Buyer receives any Equipment to inspect such Equipment for defects and nonconformance which are not due to damage, shortage or errors in shipping and notify Seller, in writing, of any defects, nonconformance or rejection of such Equipment. Any Equipment returned under the foregoing policy must be returned in the same condition in which it was received by Buyer. After such seven (7) day period, Buyer shall be deemed to have irrevocably accepted the Equipment, if not previously accepted. After such acceptance, Buyer shall have no right to reject the Equipment for any reason or to revoke acceptance. Buyer hereby agrees that such seven (7) day period is a reasonable amount of time for such inspection and revocation. Buyer shall have no right to order any change or modification to any Equipment previously ordered by Buyer or its representatives or cancel any order without Seller's written consent and payment to Seller of all charges, expenses, commissions and reasonable profits owed to or incurred by Seller. Specially fabricated or ordered items may not be canceled or returned, and no refund will be made. The sole and exclusive remedy for merchandise alleged to be defective in workmanship or material will be a refund of the purchase price, exclusive of any shipping costs or expenses.

 

7. Export

You agree to comply with all applicable laws and regulations of the various states, the United States, and any jurisdictions in which you operate or are otherwise subject to such laws or regulations. You agree and represent that you are buying only for your own internal use only, and not for resale or export.

 

Buyer agrees to comply fully with all laws and regulations concerning the purchase and sale of Equipment. In particular, Buyer agrees to comply with the Export Administration Regulations of the United States in so far as they apply to the sale or export of Equipment. Buyer hereby warrants that it will not export or re-export any Equipment with knowledge that it 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 U.S. Department of Commerce. Buyer further warrants that it will not export or re-export, directly or indirectly, any Equipment to embargoed countries or sell Equipment to companies or individuals listed on the Denied Persons List published by the Department of Commerce.

 

 

8. High Risk Use

Equipment sold by Hofstra Group is not authorized for use as critical components in life support devices or systems, or for medical, nuclear, air-traffic, or other life-dependent applications (collectively, “High Risk Uses”).

 

9. Indemnification

Buyer hereby agrees to indemnify, defend, and hold Seller harmless against any third party claims (including those by any governmental entities) arising from: (1) Buyer’s failure to obtain any licenses or authorizations necessary to utilize software or any other Intellectual Property embodied in or included with the Equipment, (2) Buyer’s failure to satisfy any export or import obligations under the laws of either the United States or any jurisdiction in which Buyer operates, (3) Buyer’s use of any Equipment for High Risk Uses.

 

10. Limited Warranty

In addition to Buyer’s right of return as set forth in Section 6 above, Seller warrants to Buyer that for a period of ninety (90) days from receipt, Equipment shall materially conform with the specifications and operational parameters set forth in the manufacturer’s documentation, whether accompanying the Equipment or not. If Seller receives notice that any Equipment is defective, Seller shall, at its option, replace, repair, or refund the purchase price of any such defective Equipment. In the event that Seller elects to permit a return of any defective Equipment, Seller shall pay for return shipping costs via a courier of Seller’s choosing. This limited warranty does not apply to defects resulting from (a) improper or inadequate maintenance or calibration, (b) software, interfacing, parts, or supplies not supplied by Seller, (c) modification or misuse of Equipment, (d) operation outside of the published environmental specifications for the product, (e) improper site preparation or maintenance or (f) unplanned acts of nature, such as floods, tornadoes, lightning strikes, hurricanes, or earthquakes.

 

EXCEPT FOR THE LIMITED RIGHT OF RETURN AND LIMITED WARRANTY DESCRIBED ABOVE, THE BUYER'S SOLE AND EXCLUSIVE WARRANTY, IF ANY, IS THAT PROVIDED BY THE EQUIPMENT’S MANUFACTURER. EXCEPT FOR THE FOREGOING LIMITED WARRANTY, SELLER MAKES NO EXPRESSED OR IMPLIED WARRANTIES. EXCEPT FOR THE FOREGOING LIMITED WARRANTY, SELLER HEREBY DISCLAIMS ALL OTHER EXPRESSED OR IMPLIED WARRANTIES, WHETHER IMPLIED BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS OR FITNESS FOR A PARTICULAR PURPOSE. UNDER NO CIRCUMSTANCES, AND IN NO EVENT, WILL SELLER BE LIABLE FOR PERSONAL INJURY OR PROPERTY DAMAGE OR ANY OTHER LOSS, DAMAGE, COST OF REPAIRS OR INCIDENTAL, PUNITIVE, SPECIAL, CONSEQUENTIAL, OR LIQUIDATED DAMAGES OF ANY KIND, WHETHER BASED UPON WARRANTY, CONTRACT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER CAUSE OF ACTION ARISING IN CONNECTION WITH THE DESIGN, MANUFACTURE, SALE, TRANSPORTATION, INSTALLATION, USE OR REPAIR OF THE EQUIPMENTS SOLD BY SELLER. BUYER HEREBY ACKNOWLEDGES AND AGREES THAT UNDER NO CIRCUMSTANCES, AND IN NO EVENT, SHALL SELLER'S LIABILITY, IF ANY, EXCEED THE NET SALES PRICE OF THE DEFECTIVE EQUIPMENT; NO ADDITIONAL ALLOWANCE SHALL BE MADE FOR THE LABOR OR EXPENSE OF REPAIRING OR REPLACING DEFECTIVE EQUIPMENT OR WORKMANSHIP OR DAMAGE RESULTING FROM THE SAME. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, ALL EQUIPMENT AND/OR SERVICES PROVIDED BY SELLER AND ITS EMPLOYEES AND AGENTS ARE PROVIDED "AS IS," "WHERE IS," AND "WITH ALL FAULTS."

 

11. Limitation of Liability

SELLER DOES NOT ACCEPT LIABILITY BEYOND THE REMEDIES SET FORTH HEREIN, INCLUDING BUT NOT LIMITED TO ANY LIABILITY FOR EQUIPMENT NOT BEING AVAILABLE FOR USE, LOST PROFITS, LOSS OF BUSINESS OR FOR LOST OR CORRUPTED DATA OR SOFTWARE, OR THE PROVISION OF SERVICES AND SUPPORT. EXCEPT AS EXPRESSLY PROVIDED HEREIN, SELLER WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY. YOU AGREE THAT FOR ANY LIABILITY RELATED TO THE PURCHASE OF EQUIPMENT, SELLER IS NOT LIABLE OR RESPONSIBLE FOR ANY AMOUNT OF DAMAGES ABOVE THE AMOUNT INVOICED AND PAID BY THE BUYER FOR THE APPLICABLE EQUIPMENT. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, THE REMEDIES SET FORTH IN THIS AGREEMENT SHALL APPLY EVEN IF SUCH REMEDIES FAIL THEIR ESSENTIAL PURPOSE.

 

12. Non-Waiver

Seller's failure to insist upon the strict performance of any term or condition herein shall not be deemed a waiver of any of Seller's rights or remedies hereunder, nor of its right to insist upon the strict performance of the same or any other term herein in the future. No waiver of any term or condition hereunder shall be valid unless in writing and signed by an officer or director of Seller.

 

13. Entire Agreement

This document constitutes the entire, complete, and exclusive agreement between the parties with respect to the subject matter hereof and contains all the agreements and conditions of sale; no course of dealing or usage of the trade shall be applicable unless expressly incorporated herein. The terms and conditions contained herein may not be added to, modified, superseded or otherwise altered except by a written modification signed by an officer or director of the Seller. All transactions shall be governed solely by the terms and conditions contained herein.

 

14. Independent Contractors

Seller is an independent contractor; nothing in this Agreement shall be construed to create a partnership, joint venture, or agency relationship between the parties.

 

15. Severability

These terms and conditions of sale shall not be construed against the party preparing them, but shall be construed as if all parties jointly prepared these terms and conditions of sale and any uncertainty or ambiguity shall not be interpreted against any one party. If any provision hereof is held to be illegal, invalid or unenforceable under any present or future laws, such provision shall be fully severable and the terms and conditions herein shall be construed and enforced as if such illegal, invalid or unenforceable provision had never been made a part hereof. The remaining provisions herein shall remain in full force and effect and shall not be impaired or effected.

 

16. Governing Law and Forum Selection

This Agreement will be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts. The parties further submit to and waive any objections to the exclusive jurisdiction of and venue in any of the following forums: U.S. District Court for the District of Massachusetts or any other forum in Massachusetts, for any litigation arising out of this Agreement. All actions, regardless of form, arising out of or related to this transaction or the Equipment sold hereunder must be brought against Seller within the applicable statutory period, but in no event more than ONE (1) YEAR after the date of Invoice.