Terms and Conditions
1 PRIMACY OF SELLERS TERMS AND CONDITIONS. Any order received and accepted by Direct Midrange Systems Incorporated ("Seller") shall be construed as an acceptance of Seller's offer to sell its goods in accordance with the terms and conditions of sale set forth herein. No modification of the same by implication shall be affected by Seller's acceptance or general acknowledgement of a purchase order from Buyer containing any different or inconsistent terms or conditions. No different or inconsistent terms or conditions shall be binding on Seller unless specifically agreed to by Seller in writing, and such writing is signed by one authorized on Seller's behalf to accept such different or inconsistent terms or conditions.
2 WAIVER. No waiver, whether express or implied, by Seller of any of the terms or conditions hereof shall be deemed a continuing waiver or trade custom between the parties, but shall apply solely to the instance to which the waiver is directed.
3 ACCEPTANCE BY SELLER. All orders received by Seller are subject to revision and possible rejection by Seller within seven business days after its receipt of the same at its corporate office, not withstanding the fact that the same may have been signed by Seller's sales personnel. Unless revised or rejected, any such order shall become a firm Purchase Agreement upon Passage of such seven days.
4 PRICE. Unless otherwise agreed to by Seller: (a) prices shall be specified by Seller and shall be applicable for the period specified on the sellers quote; (b) all prices, quotations, shipments and deliveries by Seller are FOB Destination unless otherwise specified; (c) prices do not include Seller's freight/handling/insurance charges; (d) prices do not include any sales, use, excise, value added or other tax, all of which present or future tax obligations are the responsibility of and must be paid by, the buyer.
5 DELIVERY, TITLE, AND RISK OF LOSS. All shipments are F.O.B. Destination unless otherwise agreed to in writing and all transportation and insurance charges shall be prepaid by Seller and charged back to Buyer in addition to the price of the products. In the event the parties agree to F.O.B. origin, and subject to seller's right of stoppage in transit, delivery of the products to the carrier shall constitute delivery to the Buyer and risk of loss shall thereupon pass to buyer; however, title shall remain in Seller until Buyer makes payment in full for the products. In the event buyer requests and seller agrees to insure F.O.B. origin shipments, the cost of such insurance shall be paid by Buyer. Selection of the carrier and delivery method shall be made by Seller unless specified by Buyer. Seller shall use reasonable efforts to initiate shipments and schedule delivery as close to delivery dates. Buyer acknowledges that delivery dates provided by Seller are estimates only and seller is not liable for failure to deliver on such dates. Seller reserves the right to make deliveries in installments. Delivery of quantity which varies from the specified shall not relieve Buyer of the obligation to accept delivery and pay for the products delivered. Delay in delivery of one installment shall not entitle Buyer to cancel other installment.
6 PRODUCT ACCEPTANCE AND CLAIMS. Inspection and acceptance of the products shall be Buyer's responsibility. Buyer is deemed to have accepted the products unless written notice is received by Seller within ten (10) days after delivery of products. Buyer waives any right to revoke acceptance thereafter. Buyer shall report any discrepancy in shipment quantity or damage within five (5) days after delivery. If products are received with obvious damage to outer packaging, a report may be made with carrier at time of delivery and all original packaging must be kept for inspection during claim process. If claim is denied by carrier due to lack of evidence resulting from Buyer disposing of packaging, Buyer agrees to pay DMS in full for the damaged shipment.
7 RETURNS / RESTOCKING FEE. For returned products, there is a restocking charge of 20%. Returned merchandise including defective product returns will not be accepted without a Return Material Authorization (RMA) from Direct Midrange Systems Logistics Department. All returned merchandise must be shipped prepaid and insured at Buyers expense. Any merchandise retained for a period longer than thirty (30) days from date of shipment, cannot be returned for credit. Factory sealed products must be returned in sealed condition for full credit to be issued. Defective product returns must be accompanied by an RMA number and are subject to Direct Midrange System's Limited Warranty.
8 DROP SHIPMENTS. Direct Midrange Systems will ship an order directly to the Buyer's customer. Drop shipments are sent pre-paid and freight charges are added to the invoice.
9 PAYMENT. The terms of payment for each order shall be Net thirty (30) days from date of invoice unless otherwise agreed to by Seller. New orders will not be shipped until past due accounts are paid. For new accounts that have not established credit with Direct Midrange Systems, a sufficient time will be allowed to obtain proper credit information. Buyer must provide the following: (1) Name, phone and address of bank. (2) Three trade references. (3) Dun and Bradstreet listing. Large orders may require a cash advance payment prior to manufacturing.
10 LIMITED WARRANTY. Direct Midrange Systems warrants to the original purchaser that SUN original products sold will perform to manufactures specifications for a period of twenty-five (25) months from date of shipment excluding batteries, monitors, and tape drives which are covered for a period of ninety (90) days from ship date. Sun original products which are resold are warranted for thirty (30) days from original ship date. New products including Nexsan products, Networking devices, IBM, and Dell are warranted direct from the manufacture and subject to the manufactures warranty. Refurbished Networking and Storage devices are covered for a period of thirty (30) days. User & Software license not included unless specified on quote. No claims under this warranty will be valid unless Buyer notifies Direct Midrange Systems within seven (7) days of its discovery of any defect, but in any event prior to the expiration of the Applicable Warranty period for such product. This warranty does not cover ordinary maintenance, wear and tear, abuse, improper use, alterations, or products not installed or maintained in accordance with manufactures recommendations. If a product was originally shipped with a serial number recorded at the time of shipment, the returned product must match the serial number that was shipped. Serial number information is provided to the Buyer on the invoice. This document must be kept for proof of warrantee coverage. DMS will make every attempt to confirm warranty status, but ultimate responsibility is with the Buyer. For products not covered under a manufactures warrantee, Direct Midrange Systems will repair or replace, at its option, any products (or parts thereof) which are covered by this limited warranty and which are found to be defective. Standard warranty is repair and return only. Advanced swap coverage can be purchased at additional cost. THE FOREGOING WARRANTY IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER EXPRESS AND IMPLIED WARRANTIES WHATSOEVER, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. No such repair or replacement will extend the Applicable Warranty Period. When a warranty claim arises, Buyer must contact Direct Midrange Systems Products Company to arrange return shipment to Direct Midrange Systems, with freight and insurance prepaid by Buyer to: Direct Midrange Systems, 1342 Bell Ave Unit C, Tustin, California 92780. The risk of loss or damage to any products returned to Direct Midrange Systems will be with Buyer. No return shipment will be accepted without an RMA number issued by DMS. THE REMEDY OF REPAIR OR REPLACEMENT PROVIDED FOR HEREIN IS BUYER'S EXCLUSIVE REMEDY IN THE EVENT OF BREACH OF THIS LIMITED WARRANTY. IN ADDITION, DIRECT MIDRANGE SYSTEMS SHALL NOT BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES OR ANY LOSS, DAMAGE OR EXPENSE ARISING FROM THE SALE, USE OR INSTALLATION OF THE PRODUCTS OR FROM ANY OTHER CAUSE WHATSOEVER, WHETHER BASED ON WARRANTY (EXPRESS OR IMPLIED) OR OTHERWISE BASED ON CONTRACT, OR ON TORT, OR REGARDLESS OF ANY ADVICE OR REPRESENTATIONS THAT MAY HAVE BEEN RENDERED BY DIRECT MIDRANGE SYSTEMS OR IT'S AGENTS OR REPRESENTATIVES CONCERNING THE SALE, USE OR INSTALLATION THE PRODUCTS. Some States do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations and exclusion may not apply to you. This warranty gives you specific legal rights, and you may also have other rights, which vary from State to State.
11 LIMITATIONS OF LIABILITY. SELLER WILL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION ANY LOST PROFITS OR LABOR COSTS, ARISING FROM THE SALE, USE OR INSTALLATION OF THE PRODUCTS, FROM THE PRODUCTS BEING INCORPORATED INTO OR BECOMING A COMPONENT OF ANOTHER PRODUCT, FROM ANY BREACH OF THIS AGREEMENT OR FROM ANY OTHER CAUSE WHATSOEVER, WHETHER BASED ON WARRANTY (EXPRESSED OR IMPLIED) OR OTHERWISE BASED ON CONTRACT, OR ON TORT OR OTHER THEORY OF LIABILITY, AND REGARDLESS OF ANY ADVICE OR REPRESENTATIONS THAT MAY HAVE BEEN RENDERED BY SELLER CONCERNING THE SALE USE OR INSTALLATION OF THE PRODUCTS. SELLER SHALL NOT BE LIABLE FOR AND BUYER SHALL INDEMNIFY, DEFEND AND HOLD SELLER HARMLESS FROM ANY CLAIMS BASED ON SELLERS COMPLIANCE WITH BUYERS DESIGNS, SPECIFICATIONS OR INSTRUCTIONS, OR MODIFICATIONS OF ANY PRODUCT BY PARTIES OTHER THAN SELLER, OR USE IN COMBINATION WITH OTHER PRODUCTS.
12 EXCUSABLE DELAYS. Seller shall not be liable for delays or failure in performance of an order or default in delivery arising out of, or resulting from, causes beyond its control and without its fault or negligence. Such causes include, but are not limited to, acts of God, acts of Buyer or the government, or of a public enemy, fire, flood, earthquake, epidemic, quarantine restrictions, strikes, freight embargos, unusually severe weather, or default of suppliers due to any such causes.
13 ASSIGNMENT. Buyer shall not assign any order or any interest therein without the written consent of Seller. Any such actual or attempted assignment without Seller's prior written consent shall entitle Seller to cancel the order upon written notice to Buyer.
14 SEVERABILITY. The provisions of this Agreement shall be deemed severable. If any part, term, or provision of this Agreement be construed by any court of competent jurisdiction to be illegal, invalid or enforceable, the legality, validity and enforceability of the remaining parts, terms and provisions shall not be affected thereby.
15 LIMITATIONS OF ACTIONS. Any cause of action arising from the agreement of the breach of it must be commenced within two years after the cause of action accrues.
16 PROVISIONS FOR INTERNATIONAL TRANSACTIONS. The sales, resale or other disposition of products and any related technology or documentation are subject to the export control laws, regulations and orders of the United States and may be subject to the export and/or control laws and regulations of other countries. Buyer agrees to comply with all such laws, regulations and orders and acknowledges that it shall not directly or indirectly export any products to any country which such export or transmission is restricted. Buyer acknowledges its responsibility to obtain any licenses to export, re-export or import as may be required.
