These terms and conditions of sale (“terms and conditions” or “Agreement”) govern the sale, license, resale and distribution, as applicable, of third-party vendor (“Vendor”) hardware, products, software (including all open source licensed or distributed by Vendor, or incorporated into any Vendor software), and services (collectively “Products”) by vCloud Tech and its eCommerce brand vCloud Choice (together “vCloud”) to the entity purchasing or licensing the Products from vCloud (“Buyer”). vCloud will not accept any other terms or conditions, unless Buyer and vCloud have executed a written agreement which specifically modifies, supersedes or replaces these terms and conditions. Certain vCloud Vendors require vCloud to pass-through terms for the Product to marketplaces, resellers, affiliates and end-users. By purchasing the Product from vCloud, the Buyer agrees to these Vendor pass-through terms.
1. ACCEPTANCE OF PURCHASE ORDERS
Acceptance: Buyer accepts these terms and conditions through any of the following, whichever occurs first: (a) Buyer submits a purchase order (“Order”) to vCloud; (b) Buyer provides written acknowledgment; (c) Buyer accepts any shipment of any Products; or (d) Buyer performs any other act or expression of acceptance. All orders are subject to vCloud acceptance, which may occur through vCloud in writing, Electronic Data Interchange (“EDI”) acknowledgment, or execution of Order. Such acceptance is expressly limited to these terms and conditions in their entirety without addition, modification or exception, and vCloud rejects any term, condition or proposals submitted by Buyer (whether oral or in writing), which are inconsistent with or in addition to these terms and conditions. vCloud’s silence or failure to respond to any such subsequent or different term, condition or proposal shall not be deemed to be vCloud’s acceptance thereof. Buyer may not change, cancel or reschedule orders for Products without vCloud’s prior written consent.
Quotations: Quotes from vCloud shall be applicable for the period specified in the quote. vCloud reserves the right to allocate the sale of Products among its buyers. Furthermore, unless otherwise stated on vCloud’s proposal, quote or invoice: (i) quotes are invitations to tender and are subject to change at any time without notice; (ii) prices are for Products only and do not include taxes, freight, duties or any other charges or fees for additional services (collectively “Additional Fees”); and (iii) Buyer is responsible for any and all Additional Fees. Additional Fees also specifically include customs clearance, import or customs duties, VAT, applicable federal, state, municipal and other government taxes (such as sales, use and similar taxes), license fees, freight (except as otherwise provided in vCloud shipping policy) and any other similar charges, however designated or levied on the sale or delivery of the Products or measured by the purchase price paid for the Products.
Electronic Orders: These terms and conditions will apply to Orders from vCloud using EDI, vCloud Choice E-Commerce Website, Buyer’s internal or third-party portal or any other electronic means.
Unless otherwise agreed in writing, vCloud will deliver or arrange to deliver in accordance with vCloud’s shipping policy in effect on the date of shipment.
Domestic: For all domestic transactions, including drop shipments, unless otherwise stated on the front of the invoice, title to the Products and all risk of loss or damage with respect to the Products, except software or services, shall pass to Buyer upon delivery to the carrier or Buyer’s representative at vCloud’s logistics center (Owned and operated by vCloud’s distribution partners).
International: For all international transactions, the Product will be sold vCoud’s logistics center or for drop shipments, vCloud’s distribution partner’s warehouse where the Products are located (Incoterms 2010). vCloud assumes no responsibility for Additional Fees for the country designated for delivery by the Buyer. Title and risk of loss, except for software or services, shall pass to the Buyer upon delivery to the Buyer or Buyer’s representative at vCloud’s logistics center or, for drop shipments, upon delivery of the Products to the first common carrier.
Delivery is subject to vCloud’s receipt of all necessary information and documentation from Buyer including all import certificates, exemption, resale certificates, licenses and other documents as may be required from Buyer for export of the Product. Buyer shall notify vCloud, no later than five (5) business days after delivery, of any claimed shortages or rejection as to any delivery and must meet all other vCloud requirements as stated in vCloud return policies located at https://vcloudchoice.com/return-policy. Buyer shall provide such notice in writing and with reasonable detail, stating the grounds for any such rejection. Buyer’s failure to give such notice within the time specified is deemed an acceptance in full of any such delivery.
3. PRICE AND PAYMENT
Buyer shall bear all Additional Fees (except as otherwise provided in vCloud shipping policy in above link). vCloud’s prices set forth on the invoice do not include Additional Fees. All information relating vCloud pricing is vCloud proprietary and confidential and the Buyer will keep such information confidential. Buyer must present exemption certificates to vCloud prior to shipment if they are to be honored. vCloud shall invoice Buyer for all taxes applicable to sales of the Products, itemized by type and jurisdiction, which vCloud is required by law to collect from Buyer. Upon Buyer’s request, vCloud will provide Buyer with sufficient documentation to enable Buyer to complete any necessary tax filings or claim any applicable tax credits for amounts paid to vCloud. If applicable law requires Buyer to deduct any amount from the amounts to be paid to vCloud due to withholding taxes or any other taxes or levies of any kind, Buyer shall pay all such additional amounts so that the net amounts received by vCloud are the amounts specified on the invoice. To the extent that any withholding tax is payable, vCloud and Buyer shall mutually collaborate and provide any and all assistance reasonably requested to obtain the benefits of any applicable tax treaty between the country where the vCloud entity that accepted Buyer Order is located and the applicable jurisdiction where the withholding tax applied.
Payment Terms: Payment is due as stated on vCluod’s invoice without offset or any deduction for withholding taxes or other fees. vCloud, at its discretion, may require reasonable advance assurances of payment through irrevocable bank letters of credit or otherwise. All unpaid invoices will bear interest at an amount equal to 1-1/2% of the outstanding balance per month (or the maximum rate of interest allowed to be contracted for by law, whichever is less), starting on the date payment is due. Buyer’s failure to make timely payment may result in such action as commencement of proceedings for collection, revocation of credit, cancellation of Orders, stoppage of shipment, delay or cessation of future deliveries, repossession of unpaid delivered goods, and termination of any one or more sales agreements. At any time, vCloud may change the terms of Buyer’s credit. vCloud may apply payments to any of the Buyer’s accounts. Notwithstanding any “net” payment provisions specified on the invoice, vCloud shall have no continuing obligation to deliver Products on credit, and any credit approval may be withdrawn by vCloud at any time and without prior notice. Prior to accepting an Order, vCloud may require Buyer to grant vCloud a security interest in the Product, plus all accounts resulting therefrom as a condition of accepting an Order. Buyer agrees to execute a Security Agreement in a form acceptable to vCloud, and Buyer authorizes vCloud to file such financing statements as vCloud deems appropriate to perfect and/or continue vCloud’s purchase money security interest therein.
Collections: : If vCloud engages an attorney or collection agency for the purpose of collection, or enforcing vCloud’s security interest in the Products, with or without litigation, Buyer shall pay any and all associated costs, including, without limitation, attorneys’ fees and costs (whether incurred prior to, during, or subsequent to trial), collection, bankruptcy, or other creditor’s rights proceedings. vCloud reserves the right to effect a recoupment, to set off of any funds due at any time to Buyer from vCloud, and to set off any amounts against amounts owed by Buyer to vCloud.
Currency: : If a sale is to occur (or the Product is to be shipped) outside of the United States, Buyer acknowledges and agrees that the amount due vCloud is contracted in U.S. Dollars and that payment in U.S. Dollars is of the essence. Any payment by Buyer in local currency or the receipt by vCloud of local currency as a consequence of enforcement procedures against Buyer will be deemed (a) an authorization for vCloud to use that local currency to purchase U.S. Dollars or, (b) if such purchase is prohibited by local law, an authorization to purchase appropriate bonds or other instruments and export them from the Buyer’s country in order to convert the currency into U.S. Dollars and apply the proceeds to the payment of any amounts owed to vCloud by Buyer. Buyer is responsible for any deficiency as a result of the conversion of payment into U.S. Dollars.
vCloud’s Product Return policies in effect on the date of the invoice, or as otherwise provided by vCloud to Buyer in writing, will control any return of Products. All Orders for Products that vCloud identifies as non-standard or “NCNR” are non-cancelable and non-returnable. vCloud may identify Products as NCNR by various means including, but not limited to, quotes and product lists. vCloud’s Product Return policies are located at https://vcloudchoice.com/return-policy. vCloud reserves the right to modify or eliminate such policies at any time. The right to return defective Products as set forth herein shall constitute vCloud’s sole liability and end-user, reseller, marketplace or affiliates exclusive remedy in connection with any claim of any kind relating to the quality, condition, or performance of any Product, whether such claim is based upon breach of contract, warranty, negligence or other tort, breach of any statutory duty, indemnity or contribution, the failure of any limited or exclusive remedy to achieve its essential purpose, or otherwise. If vCloud issues a return authorization to Buyer allowing Buyer to return Product to vCloud, Buyer will deliver the Product to vCloud’s specified address in the United States and Buyer shall bear Additional Fees designated or levied, on any replacement Product to be shipped by vCloud to Buyer. If vCloud determines such Products are not eligible for a return, vCloud will, at its sole discretion, send such Products back to Buyer on freight collect basis, or hold such Products (at Buyer’s expense) for Buyer’s collection and on Buyer’s account.
5. DISCLAIMER OF WARRANTIES
Although vCloud’s policies may permit Buyer to return defective Products under certain circumstances as specified in Section 4, vCloud makes no representations or warranties of any kind with respect to the Products, including but not limited to Product information. vCloud HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, AS TO THE PRODUCTS OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. VCLOUD WILL NOT BE LIABLE FOR ANY DAMAGE, LOSS, COST, OR EXPENSE FOR BREACH OF WARRANTY. Any express warranties with respect to Products are provided by the Vendor. vCloud will pass through to end-user, marketplace, affiliates or reseller such warranties to the extent it is legally permitted to do so. End-user, marketplace, affiliates and Reseller shall not provide or make any representations and warranties on behalf of or purporting to bind vCloud or the Vendor other than express warranties for the Product(s) provided by the Vendor.
6. LIMITATION OF LIABILITY
SUBJECT TO THE LIMITATIONS OF SECTIONS 4 AND 5, VCLOUD’S LIABILITY FOR DAMAGES ARISING UNDER THESE TERMS AND CONDITIONS, OR OTHERWISE WHETHER IN CONTRACT, TORT, OR OTHERWISE, WILL: (1) BE LIMITED TO ACTUAL, PROVEN, DIRECT DAMAGES; AND (2) WILL NOT EXCEED THE NET AMOUNT PAID TO VCLOUD BY BUYER FOR THE PRODUCT THAT IS THE SUBJECT OF THE CLAIM. VCLOUD SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE AGREEMENT TO SELL PRODUCT TO BUYER OR THE PRODUCT, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOST PROFITS, LOSS OF USE, LOST DATA, COSTS OF COVER, OR FOR ANY DAMAGES OR SUMS PAID BY BUYER TO THIRD PARTIES, EVEN IF VCLOUD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY APPLIES WHETHER ANY CLAIM IS BASED UPON BREACH OF CONTRACT, WARRANTY, NEGLIGENCE OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, THE FAILURE OF ANY LIMITED OR EXCLUSIVE REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE, OR OTHERWISE.
vCloudChoiceTM is an online platform offered by vCloud. If Buyer chooses to use vCloudChoiceTM, Buyer’s use is subject to these terms and conditions, and any additional vCloudChoiceTM platform agreements, which will be communicated to Buyer at the time of purchase. The additional terms found in this Section 7 will specifically apply to all sales by vCloud through vCloudChoiceTM. All data and other information available on vCloudChoiceTM are proprietary, confidential and the sole property of vCloud or third parties licensing such information to vCloud.
Electronic Delivery / Access: Unless otherwise agreed in writing, the Products made available through vCloudChoiceTM will be made available for use by software download or the transmission of (or access to) enabling information electronically.
Credit Card Authorization: If Buyer pays by credit card, Buyer represents that it is the owner of or is authorized to use the credit card and Buyer authorizes vCloud to charge the credit card for all transactions through the vCloudChoiceTM platform, unless otherwise specified. If vCloud extends credit to Buyer, Buyer will be invoiced on the agreed-upon terms.
Automatic Renewals and Recurring Services: For Products made available on a subscription or recurring term basis (“Subscriptions”), Buyer agrees that vCloud may invoice Buyer for automatic renewals and recurring Subscriptions, using end-user, reseller, affiliate or marketplace’s initial purchase order number as authorization for subsequent invoices until Buyer properly cancels the applicable Subscription. Buyer further agrees to notify end users of the applicable renewal or recurring Subscriptions and payments due therefore, and acknowledges that Buyer’s obligation to pay is not conditioned on: (a) vCloud’s invoice for such Products, or (b) Buyer’s placement of a renewal purchase order.
Buyer further acknowledges that information from the end-user is necessary for end-users to access or use certain Products. Buyer agrees to provide such information as requested by the Vendor to both vCloud and the Vendor. Buyer represents and warrants that Buyer has properly obtained the consent of the end-user to provide said information to vCloud and the Vendor. If Buyer defaults on these terms and conditions, vCloud reserves the right to cancel the subscription.
8. BUYER’S OBLIGATIONS
Compliance with Laws: Buyer represents and warrants that it will comply with all applicable laws, codes, and regulations. Buyer further acknowledges and agrees that the Products are subject to the export control laws and regulations of the United States, including, but not limited to, the Export Administration Regulations, and sanctions regimes of the U.S. Department of Treasury, Office of Foreign Asset Controls. Buyer shall not, without prior U.S. government authorization, export, re-export, or transfer any Products, either directly or indirectly, to any country subject to a U.S. trade embargo, or to any resident or national of any such country, or to any person or entity listed on the “Entity List” or “Denied Persons List” maintained by the U.S. Department of Commerce or the list of “Specifically Designated Nationals and Blocked Persons” maintained by the U.S. Department of Treasury. In addition, Buyer may not export, re-export, or transfer Products to an end-user engaged in activities related to weapons of mass destruction. Such activities include, but are not necessarily limited to, activities related to the design, development, production, or use of: (1) nuclear materials, nuclear facilities, or nuclear weapons; (2) missiles or support of missiles projects; (3) chemical or biological weapons; and 4) life support systems, human implantation, or any other application where Product failure could lead to loss of life or property damage.
Vendor Restrictions: Buyer acknowledges and agrees that some Product sales are limited to a specified territory and shall not sell Products outside that territory. Such sales may constitute copyright or trademark infringement. Products purchased by Buyer may also be subject to additional usage restrictions or authorizations or terms and conditions imposed by the Vendor. Buyer is responsible for ensuring compliance with any such restrictions, authorizations or terms and conditions. Buyer shall comply with any applicable rights of third parties regarding Products, including software or other intellectual property, such as patents, copyrights, and user licenses.
Anti-Bribery Anti-Corruption: Buyer agrees it has not and will not in the future directly or indirectly offer or pay, or authorize the offer or payment of, any money or anything of value in an effort to influence any government official or any other person in order to improperly obtain or retain business or gain an improper business advantage, and has not accepted, and will not accept in the future, any such payment.
Software: Software is the machine-readable (object code) version of computer programs (“Software”). To the extent Buyer purchases or licenses Products containing Software, Buyer shall not, directly or indirectly, modify the features or functionality of, copy or create derivative works using all or any portion of, decompile, or otherwise reverse engineer or attempt to reverse engineer or derive source code, techniques, algorithms or processes from the Software or permit or encourage any third-party to do so. Buyer’s use of Software and any related documentation is governed by the Software’s applicable license agreements. Software embedded in or bundled with hardware must be used solely with the device for which it was intended and may not be transferred separately.
Buyer authorizes vCloud to accept, on Buyer’s behalf, any end-user license agreement, or similar agreement for Products. Buyer shall secure this same authority from its end-user customers. vCloud has no obligation to accept any end-user license agreements, but may use its sole discretion to exercise its authority. Buyer acknowledges that Vendor or Vendor’s third-party licensors will provide the buyer any license required to use the Product and not to vCloud.
Records and Audit: Buyer will keep, provide and allow vCloud to audit, complete and accurate records related to this Agreement including records relating to sales during the term of this Agreement and for seven (7) years from the date of the record, or longer if required by the applicable Vendor.
Refunds: Buyer will reimburse to vCloud any funds provided to Buyer by vCloud or the Vendor, which vCloud is obligated to return to the Vendor (or which vCloud expected to but did not receive from the Vendor). These funds include but are not limited to discounts, fees, and marketing funds. vCloud may also recover such refunds by offsetting any amounts due to Buyer from vCloud.
Notices and Communications: Buyer consents to receive all communications from vCloud or Vendor regarding Products and shall promptly notify vCloud in writing of all changes to Buyer’s name, address, and control/ownership of its assets. Additionally, Buyer consents to allow vCloud to contact Buyer’s customers and end-users regarding Products.
Indemnification: Buyer will indemnify, defend, and hold vCloud harmless of and from any and all liabilities, losses, and damages (including costs, expenses, and attorney’s fees, and costs of establishing rights to indemnification) for any claim including (i) breach by Buyer of any warranty, representation, or covenant under this Agreement; (ii) breach by Buyer of any agreement with Vendor or Buyer violation of the rights of a Vendor; (iii) non-compliance with requirements hereunder or with applicable laws, regulations, directives, or ordinances; or (iv) claims arising from Buyer’s negligence or willful misconduct; or (v) claims arising from vCloud’s compliance with Buyer’s designs, specifications or instructions; modifications of any Product by anyone other than vCloud; use or sale of Products in combination with other products or in violation of the Vendor’s applicable specifications and/or documentation.
Entire Agreement: This Agreement contains the entire agreement of the parties with respect to the subject matter hereof, and supersedes any and all prior negotiations, representations and agreements, whether written or oral, between the parties with respect to the subject matter hereof. Each party acknowledges that no representations, inducements, promises or agreements, orally or otherwise have been made by any party. Further, vCloud is not obligated to sell Product to Buyer under this Agreement. No other agreement, statement or promise modifies these terms and conditions unless it is in writing and signed by both parties. Any vCloud waiver or default of one or more of these terms and conditions is not a waiver of the remaining terms and conditions or of any future defaults. 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 its rights.
Governing Law and Venue: Any provision of these terms and conditions that is prohibited or unenforceable under the laws of the State of California shall be ineffective to the extent of such prohibition or unenforceability, without impairing or invalidating the remaining provisions of these terms and conditions. All sales agreements and these terms and conditions shall be deemed made in, and shall be governed by, the laws of the State of California. The venue for any disputes arising out of these terms and conditions shall be, at vCloud’s sole and exclusive option, Los Angeles County, California or the courts with proper jurisdiction at Buyer’s location.
Force Majeure: vCloud is not liable for failures to perform (including, without limitation, delays in delivery) due to causes beyond its reasonable control (for example, acts of nature, acts or omissions of Buyer, operational disruptions, man-made or natural disasters, acts of war, government interference, epidemic medical crises, materials or Product shortages, strikes, criminal acts, delays in delivery or transportation, or inability to obtain labor, materials or Products through regular sources).
Data Protection and Personal Information: Buyer will maintain industry standard controls for personal information processed under this Agreement that will, among other things, protect against unauthorized access, use, modification, or disclosure by electronic or physical means. Buyer shall update its security controls from time to time as required by applicable law or to conform to standard industry practices. Buyer shall (i) process and hold personal information in the strictest of confidence, (ii) protect such information, (iii) provide required notifications, and (iv) obtain all consents necessary to collect and process end-user personal data in accordance with applicable data protection laws. If required by applicable data protection laws, Buyer will execute a data processing agreement, or such other required documentation, and complete a privacy and security risk assessment as reasonably requested by vCloud, including without limitation executing standard contractual clauses in the event any European personal data is transferred across national borders. If Buyer discovers or is notified of an actual, probable or reasonably suspected breach of security or any unauthorized access to or acquisition, use, loss, destruction, compromise, alteration or disclosure of any personal data processed by Buyer pursuant to this Agreement, then Buyer shall notify vCloud within twenty-four (24) hours of such discovery or notification and investigate, mitigate, or if possible remediate, the effects of the breach. Buyer shall cooperate and provide reasonable assistance to vCloud in connection with any legal or regulatory inquiries or investigations relating to any breach.
Trademarks: Buyer will not use vCloud’s name, logos, trademarks, or other intellectual property rights without vCloud’s written consent. Buyer grants vCloud the limited right to use its logos and trademarks in any marketing and promotional materials associated with this Agreement.
Accurate Information: Buyer represents and warrants that the information provided in any documents to vCloud will be true and correct in all material respects and contains all information necessary so that such information is not materially misleading. Buyer acknowledges that vCloud is relying on the accuracy of the information provided by Buyer.
Assignment and Survival of Obligations. Buyer may not assign this Agreement without vCloud’s prior written consent. vCloud may, without Buyer’s consent, assign the Agreement, including all its amendments, attachments and addenda, and its rights and obligations to its successors, assigns or a purchaser of all or substantially all of its assets. All benefits of the contract will ensure to the benefit of the assignee. vCloud’s affiliates may perform vCloud’s obligations under these terms and conditions. All obligations under this Agreement that by their nature extend beyond termination, including without limitation all monetary obligations of either party to the other under this Agreement, will survive termination, remain in effect and bind all successors and assigns.
Independent Contractors. The Parties will act as independent contractors in the performance of this Agreement and neither Party shall act as agent for or partner of the other Party.