SALES TERMS & CONDITIONS, GLOBAL IMAGING, INC.
Prices charged for services, equipment, software, and supplies (“goods”) shall be the prices in effect on the date of delivery of product(s) to Client. All written quotations and/or proposals submitted by Global to Client shall be valid and binding for thirty (30) days from date of submission. Oral quotations are provided as an approximation of charges only and are exclusively for the Client’s convenience. Any claims for adjustments in connection with any invoice must be presented to Global in writing within ten (10) days from the date of such invoice.
2. Terms of Payment.
All orders are accepted on a C.O.D. basis, unless credit has been established with Global’s credit department. Payment on invoices for service is due at time of service. Credit approval takes approximately one week to process upon receipt of a complete credit application and current financial statement. Payment on invoices for goods for Clients with an approved credit line is net thirty (30) days from invoice date unless other arrangements have been made previously. Global accepts VISA, MasterCard, Discover and government credit cards. Equipment orders exceeding $10,000 require a 50% down payment upon placement of the order, with the balance due upon receipt of the equipment. Leasing options are also available. If payment is not made when due, Client agrees to pay interest at the rate of 1.5% per month (18% per year) on all amounts overdue. Client agrees to pay all costs and expenses, including, but not limited to, attorney and collection fees incurred by Global in connection with the enforcement of Global’s rights hereunder. Clients with past due accounts will be placed on “shipping hold” until their account is current and the Client’s account may revert to a C.O.D. only status. Global shall have the right to offset any amount due to Client by any amount due to Global by Client.
3. Return Policies.
Any goods returned without prior written consent of Global will be refused. Unopened products may be returned for credit or exchange within 15 days of the invoice date. No returns can be made of specialty or custom goods unless defective. A Customer Product Return Form must be completed by the Client and goods approved for return by Global in order for credit to be issued. All returns are subject to a 15% restocking charge. Account credits must be used within 60 days.
4. Delivery and Shipping.
Delivery dates, if furnished by Global, are approximate. Client’s order will be processed as quickly as practicable taking into consideration the type of product or service ordered by Client, Global’s obligations to other clients, Global’s facility capacity and availability of product. All goods shipped are F.O.B. shipping point. Title and risk of loss of all goods shall pass upon Global’s (or designated supplier’s) delivery to carrier for shipment to Client, unless otherwise agreed by Global in writing. Buyer shall pay all freight, handling, delivery and insurance charges for shipment of goods. Choice of carrier and shipping method and route shall be at the election of Global unless specifically designated by Client. Global shall not be liable for delays in delivery or for failure to perform due to causes beyond the reasonable control of Global. Global shall be entitled to refuse or to delay shipments for failure by Client to pay promptly any payments due Global. Global shall have the right to deliver all goods at one time or in portions from time to time within the time for delivery provided in the order therefor.
5. Security Interest.
Global shall retain full title to all goods until Client has made full payment to Global. Client hereby grants Global a security interest in all goods shipped to secure the payment of the purchase price of such goods and all other amounts owing under this agreement as described and set forth on each invoice for such goods shipped from time to time pursuant to this agreement. Client agrees to execute one or more financing statements in a form satisfactory to Global, and Global is authorized to file a financing statement in any location deemed necessary or advisable to perfect Global’s security interest in the goods and their proceeds. Client further agrees to cooperate fully with Global in executing any additional documents, instruments, financing statements or amendments thereof as Global may deem necessary or advisable to maintain and continue the security interest created by this agreement.
6. Insurance/Location of Property.
The Client agrees to obtain appropriate insurance policies insuring the goods against loss by fire or other casualty, and agrees that the goods will be kept and used by Client solely at the “Ship To Address” listed on the relevant invoice, and agrees that the Client will keep the goods in good condition and will not remove the goods, nor any part thereof, from that address without the written consent of Global until the Client has made full payment of the sum owed Global.
7. Repossession by Secured Party/ Resale.
In the case of a failure to make full payment on any amounts owing to Global, or in the case of violation of paragraph 6 of this agreement, Global, or its representatives or assigns, shall be at liberty from that time, and is authorized to enter into and upon any place(s) where the goods may then be, and retake the same and cancel this agreement, and to retain all payments made with regard to the goods without obligation as to resale except as specifically required by the Uniform Commercial Code. The Client agrees to fully cooperate with the secured party in the event of removal/ repossession of the goods. In addition, upon the retaking of the goods, Global or its assigns shall have the right to resell the same for the account of the Client in the manner provided by the Uniform Commercial Code and the Client agrees to pay the deficiency arising after the application of the proceeds of the resale to the expenses of retaking and resale and to the payment of the contract price remaining due with interest.
The parties agree that the Client will be in default under the terms of this agreement if the Client fails to pay any amounts due Global within the terms of this agreement, or violates paragraph 6, and, therefore all amounts due and payments to Global shall be accelerated. In addition, from the time of default all sums due shall accrue a default interest rate of eighteen percent (18%) per annum.
Global’s prices do not include sales, use, excise or similar taxes. Accordingly, Client shall, in addition to prices specified by Global, pay any sales, use, excise or similar tax attributable to the sale of the goods covered hereby or in lieu thereof, provide Global with tax exemption certificates acceptable to the taxing authorities.
10. Buyer’s Terms and Conditions.
Global’s goal is to provide the highest quality products and services available, maintain inventory levels to meet Client needs, deliver products promptly and in good condition, and serve the Client’s needs to the best of our ability. Accordingly, goods furnished and services rendered by Global are sold only on the terms and conditions stated herein. Notwithstanding any terms or conditions on Client’s order, Global’s performance of any contract is expressly made conditional on Client’s agreement to Global’s Terms and Conditions, unless otherwise specifically agreed to in writing by Global. If a contract is not earlier formed by mutual agreement in writing, acceptance of any goods or services shall be deemed acceptance of the terms and conditions stated herein.
This agreement and performance by the parties hereunder shall be construed in accordance with the laws of the State of Colorado. Client agrees to submit to the jurisdiction of Boulder County, Colorado courts for all disputes. The prevailing party shall be entitled to an award of reasonable attorney fees. All agreements, covenants, condition and provisions contained herein shall ap- ply to and bind the assignees and successors in interest of Client. If any provision or portion of this agreement is held to be invalid, illegal, unconscionable or unenforceable, the other provisions and portions hereof shall not be affected.
CLIENT ACKNOWLEDGES AND AGREES THAT GLOBAL MAKES NO EXPRESS OR IMPLIED WARRANTIES WITH REGARD TO PERFORMANCE OR QUALITY OF THE PROPERTY, NOR WITH REGARD TO THE USE OF THE PROPERTY OR GOODS, NOR WITH REGARD TO ANY SERVICE RENDERED TO CLIENT.
GENERAL TERMS & CONDITIONS, GLOBAL IMAGING, INC.
All equipment, materials and services, as applicable (the “Equipment”) distributed by Global Imaging, Inc., its subsidiaries or affiliates (“Distributor”) are distributed pursuant to these General Terms and Conditions (these “Terms”) and a system purchase agreement, purchase order or other definitive agreement between Distributor and buyer as defined therein (“Buyer”) (the “Agreement”). No other terms or conditions in any documentation that conflicts with or adds to the Agreement or these Terms will be binding on Distributor. These Terms prevail over any of Buyer’s general terms and conditions regardless whether or when Buyer has submitted such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms. Buyer’s acceptance of any Equipment or execution of the Agreement constitutes Buyer’s acceptance of these Terms.
Distributor may procure freight insurance and arrange carrier for delivery to Buyer’s requested delivery address in the Agreement at Buyer’s sole cost and expense. Distributor will not be liable for any non-delivery, delays, loss or damage in transit. Distributor is not obligated to or liable for delay of any estimated dates for shipping or installation set forth in the Agreement.
3. Shipping Terms.
Unless expressly agreed to otherwise in writing by the Parties, Distributor will select the method of shipment of, and the carrier for, the Equipment. Distributor may, in its sole discretion, without liability or penalty, make partial shipments to Buyer. Each shipment will constitute a separate sale, and Buyer will pay for the Equipment received whether such shipment is in whole or partial. Unless otherwise set forth in the Agreement, the Equipment will be shipped FOB shipping origin.
4. Title and Risk of Loss.
Upon final payment of Purchase Price, title passes to Buyer. Risk of loss passes to Buyer upon delivery of the Equipment at the shipping origin. As collateral security for the payment of the Purchase Price of the Equipment, Buyer hereby grants Distributor a lien on, and security interest in and to, all of Buyer’s right, title and interest in, to and under the Equipment, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Colorado Uniform Commercial Code.
5. Amendment and Modification.
These Terms may be amended by Distributor from time to time effective upon notice posted on its website.
Buyer will purchase the Equipment from Distributor at the price (the “Purchase Price”) set forth in the Agreement. The Purchase Price excludes all shipping charges, insurance costs, sales, use, excise, and any other similar taxes, duties and charges of any kind. Buyer will be responsible for, and hold Distributor harmless from, all such charges, costs and taxes.
7. Payment Terms.
Buyer will pay Distributor all amounts due in accordance with the Agreement. Buyer will pay interest on all late payments at the lesser of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer will reimburse Distributor for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under the Agreement, these Terms or at law or in equity, Distributor will be entitled to suspend the delivery of any Equipment if Buyer fails to pay any amounts when due hereunder and such failure continues for 5 days following written notice to Buyer. Buyer will not withhold payment of any amounts due by reason of any set-off or dispute with Distributor or manufacturer, whether relating to Distributor’s breach, bankruptcy or otherwise.
Distributor makes no warranty whatsoever with respect to the Equipment, including any: (a) warranty of merchantability; (b) warranty of fitness for a particular purpose; (c) warranty of title; or (d) warranty against any infringement of intellectual property rights of a third party; whether express or implied by law, course of dealing, course or performance, usage of trade or otherwise.
Buyer will defend, indemnify, and hold harmless Distributor and its affiliates, officers, directors, stockholders, employees, agents, representatives, successors and assigns (“Distributor Indemnified Parties”) from and against any and all claims, threats, liabilities, taxes, interest, fines, penalties, suits, actions, proceedings, demands, damages, losses, costs and expenses (including attorneys’ fees and court costs) of every kind and nature (“Losses”), arising out of, resulting from, or in connection with its acquisition or use of the Equipment, including without limitation any claims of personal injury or property damage or claims by third parties against Buyer with respect to the Equipment and any non-fulfillment, failure to comply or breach by Buyer of any covenant, promise, agreement, representation or warranty made by Buyer in the Agreement or these Terms. Buyer’s indemnification obligations to Distributor Indemnified Parties under these Terms will include, without limitation, the obligation and duty to indemnify, defend and hold harmless Distributor Indemnified Parties from and against any Losses directly or indirectly resulting from Buyer’s failure to pay any fees or charges directly assessed by the manufacturer of the Equipment.
10. Limitation of Liability.
In no event will Distributor be liable for any consequential, indirect, incidental, special, exemplary, or punitive damages, lost profits or revenues or diminution in value, arising out of, or relating to, any breach of the Agreement or these Terms, whether or not the possibility of such damages has been disclosed in advance to Buyer or could have been reasonably foreseen by Buyer, regardless of the legal or equitable theory (contract, tort or otherwise) upon which the claim is based, and notwithstanding the failure of any agreed or other remedy of its essential purpose. If the equipment does not operate as represented by manufacturer or is unsatisfactory for any reason whatsoever, buyer will not make any claim against distributor for any damages.
11. Compliance with Laws.
Buyer will comply with all applicable laws, regulations and ordinances and will maintain in effect all licenses, permits, and consents that it needs to carry out its obligations under the Agreement and these Terms. Buyer acknowledges that the Equipment is subject to export laws and regulations of the United States of America, including U.S. Export Administration Regulations, International Traffic in Arms Regulations and Emergency Economic Powers Act. Buyer will comply with all export and import laws of all countries involved in the sale of the Equipment under the Agreement or any resale of the Equipment by Buyer. Buyer assumes all costs and responsibilities for shipments of Equipment requiring any government import clearance. Distributor may terminate the Agreement if any governmental authority imposes anti-dumping or countervailing duties or any other penalties on the Equipment.
12. Intellectual Property.
Buyer acknowledges and agrees that (a) any and all of Distributor’s industrial or other intellectual property (“Distributor’s Intellectual Property”) are the sole and exclusive property of Distributor or its licensors, and (b) Buyer will not acquire any ownership interest in any of Distributor’s Intellectual Property under the Agreement or these Terms.
In addition to any remedies that may be provided under the Agreement or these Terms, Distributor may cancel the Agreement with immediate effect upon written notice to Buyer.
14. Assumption of Risk.
Buyer assumes all risk and liability for the results obtained by the use of the Equipment, whether in terms of operating costs, general effectiveness, success or failure and regardless of any oral or written statement made by Distributor, by way of technical advice or otherwise, related to the Equipment.
No waiver by Distributor of any of the provisions of the Agreement or these Terms is effective unless explicitly set forth in writing and signed by Distributor. No failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from the Agreement or these Terms operates or may be construed as a waiver thereof.
16. Confidential Information.
All non-public, confidential or proprietary information of Distributor disclosed by Distributor to Buyer, whether orally, in writing, or in any other electronic form, whether or not marked, designated or otherwise identified as “confidential,” in connection with the Agreement are confidential, solely for the use of performing under the Agreement and these Terms, and may not be disclosed or copied unless authorized in advance by Distributor in writing. Distributor will be entitled to injunctive relief for any violation of this section.
17. Further Assurances.
Upon Distributor’s request, Buyer will, at its sole cost and expense, execute and deliver all such further documents and instruments, and take all such further acts, necessary to give full effect to the Agreement and these Terms.
18. Entire Agreement.
Together with the Agreement, and all related exhibits, schedules, attachments and appendices, these Terms constitute the sole and entire agreement of the Parties with respect to the subject matter contained herein and therein and supersede all prior and contemporaneous understandings, agreements, representations, warranties, both written and oral, with respect to such subject matter.
19. Force Majeure.
Distributor will not be liable or responsible to Buyer, nor be deemed to have defaulted or breached the Agreement or these Terms for any failure or delay in fulfilling or performing any term of the Agreement or these Terms when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Distributor, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion, hostilities, terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes, or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
Buyer will not assign any of its rights or delegate any of its obligations under the Agreement or these Terms without the prior written consent of Distributor. Any purported assignment or delegation in violation of this section is null and void. No assignment or delegation relieves Buyer of any of its obligations under the Agreement or these Terms.
21. Relationship of the Parties.
The relationship between the Parties is that of independent contractors. Nothing contained in the Agreement or these Terms will be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party will have authority to contract for or bind the other Party in any manner whatsoever.
22. No Third Party Beneficiaries.
The Agreement and these Terms are for the sole benefit of the Parties and their respective successors and permitted assigns and nothing therein or herein, express or implied, is intended to or will confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
23. Governing Law.
All matters arising out of or relating to the Agreement or these Terms is governed by and construed in accordance with the internal laws of the State of Colorado without giving effect to any choice or conflict of law provision or rule (whether of the State of Colorado or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Colorado. Any legal suit, action or proceeding arising out of or relating to the Agreement or these Terms will be instituted in the federal court for the District of Colorado or the courts of the State of Colorado in each case located in the City and County of Boulder, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
Any notice, demand or request required or permitted under these Terms or the Agreement (“Notice”) shall be in writing and shall be sent to Distributor by a nationally recognized overnight courier service or prepaid certified or registered mail return receipt requested and delivery confirmed to at 2011 Cherry Street, Suite 116, Louisville, Colorado 80027, Attention: [contact person]. Any Notice to Buyer shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or electronic mail (with confirmation of transmission), or certified or registered mail (in each case, return receipt requite, postage prepaid) at the address set forth in the Agreement. Except as otherwise provided in the Agreement, a Notice is effective only (a) upon delivery to the receiving Party, and (b) if the Party giving Notice has complied with the requirements of this section. Notwithstanding the foregoing, Distributor may modify these Terms at any time and from time to time and such modifications will be effective upon posting the modified Terms to the Distributor’s website.
If any term or provision of the Agreement or these Terms is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other term or provision of the Agreement or these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction.
Provisions of these Terms which by their nature should apply beyond their terms will remain in force and effect after any termination or expiration of the Agreement.