CityHosted Avaya IP Office Master Service Agreement ("MSA")
Updated 8/15/17
By installing and using the services, Buyer acknowledges acceptance of the following Terms and Conditions of Sale as well as the Cityhosted MSA.
i. “Authorized Representative” means any person who holds the job title and office of General Manager, Finance Director or Vice-President.
ii. “Buyer” means [ ].
iii. “Conditions” means these Terms and Conditions of Sale
iv. “Contract” means any agreement for the purchase and sale of Products from CITYHOSTED to Buyer which result from a Purchase Order submitted to and accepted by CITYHOSTED.
v. “Contract Date” means the date upon which a Purchase Order is accepted by CITYHOSTED.
vi. “Force Majeure” means, without limitation, any acts of God, government, war, terrorism, riot, fire, floods, earthquakes, explosions, strikes, lockouts, cessation of labour, trade disputes, breakdowns, accidents of any kind or any other causes which are beyond the reasonable control of CITYHOSTED (including delay or shortages by its Suppliers).
vii. “Goods” means any Supplier’s goods and/or software, or any instalment or parts thereof, which are supplied by CITYHOSTED to Buyer pursuant to a Contract, including any Supplier documentation related thereto.
viii. “Non–standard Products” means Goods that are: (a) custom ordered; (b) custom manufactured; (c) custom programmed; (d) built or configured to Buyer’s specifications; (e) published as configured, non-standard or non-cancellable on the Supplier’s price list; (f) included in any Supplier’s policy as non-cancellable; (g) not maintained in CITYHOSTED’s inventory; (h) discontinued, end of life or withdrawn; (i) Goods that the Supplier will not accept on return without imposing any restocking or freight charges; or (j) Services unless the Statement of Work includes a description of cancellation rights.
viii. “Products” means any combination of Goods, Non-standard Products and Services which are supplied by CITYHOSTED to Buyer pursuant to a Contract.
ix. “Purchase Order” means Buyer’s oral, written or electronic order for Products and shall include any order that Buyer places online through CITYHOSTED’s eCommerce tool or transmits via email or facsimile.
x. “Services” means any Supplier’s services which are supplied by CITYHOSTED to Buyer pursuant to a Contract.
xii. “Supplier” means the supplier, licensor, publisher, manufacturer or other third party provider of Products.
xiii. “CITYHOSTED” means MJ2 IP, LLC dba City Hosted Solutions with a registered office at 5425 E. Bell Road, Suite 141, Phoenix, AZ 85254 and any of its subsidiaries.
b. As used in these Conditions, (i) any reference to a statute shall be construed as a reference to that statute as amended, reenacted or otherwise modified from time to time, (ii) the term “including” will always be deemed to mean “including, without limitation”, (iii) a definition is equally applicable to the singular and plural forms of the feminine, masculine and neuter forms of the term defined, and (iv) any headings in the Conditions are for convenience only and shall not affect the interpretation of any terms.
c. To the extent that Buyer is purchasing Cloud Services from CITYHOSTED, Buyer confirms that the Cloud Services shall be provided in accordance with the applicable terms and conditions posted on CITYHOSTED’s website at https://www.citycommunications.com/legal (“Terms”). Buyer agrees to be bound by the Terms (as amended by CITYHOSTED from time to time) applicable at the time of provision of Cloud Services. Buyer has been provided ample opportunity to review the Terms. Buyer takes particular notice that the Terms include specific clauses including, but not limited to: (A) LIMITATION OF LIABILITY; (B) SUBSCRIPTION TERMS; (C) RESELLER AGREEMENT; (D) SUSPENSION OF ACCESS; (E) INDEMNIFICATION AND LIMITATION OF LIABILITY, and certifies that such clauses have been brought to Buyer’s attention. By signing these Conditions, Buyer agrees to be bound by the Terms as applicable to Cloud Services.
2. General Ordering Terms.
Buyer may purchase Products under these Conditions by issuing a Purchase Order to CITYHOSTED. Only a Purchase Order submitted by Buyer shall constitute an offer to contract subject to these Conditions, however, a Purchase Order shall not be deemed a Contract unless and until the earlier date upon which: (i) written confirmation is provided by CITYHOSTED, or (ii) CITYHOSTED proceeds with the fulfilment of the Purchase Order (“Purchase Order Acceptance”). No additional or alternative terms or conditions or any alteration to these Conditions proposed by the Buyer contained or referred to in a Purchase Order or other form submitted to CITYHOSTED shall be deemed to apply unless they are expressly accepted in writing by an Authorized Representative of CITYHOSTED with respect to that Purchase Order.
3. Cancelling & Rescheduling Purchase Orders.
a. Except as set forth below, no Purchase Order which has been accepted by CITYHOSTED may be cancelled or rescheduled by Buyer except with written agreement by CITYHOSTED.
b. Buyer may cancel, reschedule or modify a Purchase Order for Goods any time prior to shipment.
c. If Buyer has elected to purchase Non-standard Products, Buyer understands and agrees that any Contracts for Non-standard Products may not be cancelled, withdrawn, rescheduled or otherwise modified by Buyer, unless such cancellation, withdrawal, rescheduling or modification occurs prior to CITYHOSTED’s placement of the order with the Supplier. Buyer further understands and agrees that such Non-standard Products, except as set forth under Section 11 (“Warranty Assistance”), may not be returned, refused or rejected for any reason whatsoever. Further, Buyer shall not be entitled to a credit or refund for such Non-standard Products for any reason whatsoever.
d. Where an order is shipped in installments, once the time to cancel the initial instalment has passed (as determined by the terms of this Agreement), subsequent instalments may not be cancelled unless otherwise agreed in writing by an authorized representative of CITYHOSTED.
e. Any cancellation, rescheduling or modification of a Purchase Order is conditioned upon Buyer reimbursing CITYHOSTED for all reasonable, verifiable costs (including the cost of all labor and materials used), damages and expenses actually incurred by CITYHOSTED as a result of such action, which may include, but is not limited to, CITYHOSTED’s costs and expenses of recovering Products delivered or in transit and, in CITYHOSTED’s sole discretion, a fifteen percent (15%) restocking fee. CITYHOSTED will use commercially reasonable efforts to mitigate any such costs, damages and expenses.
Prices.
a. The price of Products on the Contract Date shall be: (i) the quoted price (which shall be given formally in writing and be valid for seven (7) days following the date of quotation), or (ii) the list price in CITYHOSTED’s then current published price list on the date of Contract, where no price has been quoted or a quoted price has expired. All prices and charges are exclusive of, and Buyer shall be responsible for, the cost of handling, packaging, interest, shipping, delivery, insurance (unless as otherwise agreed), configuration, fulfilment, cancellation, or rescheduling charges, and other services, as well as applicable duties, fees, sales, use, consumption, privilege, and other taxes (other than taxes based upon CITYHOSTED’s net income), for which the Buyer shall be additionally liable for paying to CITYHOSTED. CITYHOSTED shall, upon request, quote the additional costs of such items to Buyer. Buyer shall make all payments of any such taxes to CITYHOSTED without reduction. All taxes shall be paid by Buyer to CITYHOSTED unless user provides CITYHOSTED with a valid certificate of exemption acceptable to the appropriate taxing authority.
b. In the event a Supplier should grant a special pricing consideration, promotion or discount to CITYHOSTED and such Supplier pricing is made available to Buyer (“Pass-Through Discounts”), the Buyer agrees to adhere to the terms and conditions of such Pass-Through Discounts, which may include the obligation to trade in certain products or provide for limited use credits (“Pass-Through Discount Terms”), and agrees to indemnify CITYHOSTED for any Supplier claims against CITYHOSTED for Buyer’s failure to comply with such Pass-Through Discount Terms. Buyer agrees that payment and receipt of benefits under Pass-Through Discount Terms are contingent upon Buyer’s compliance with such terms, and further agrees to pay any costs or fees, if any, charged to CITYHOSTED by the Supplier for participation in Pass-Through Discounts.
Payment.
a. Buyer shall pay the undisputed purchase price, without any deduction or set-off, within thirty (30) days from the date of the invoice, which shall be issued to Buyer on the date that Products are shipped CITYHOSTED may charge Buyer interest, both pre- and post-judgment, on any unpaid past due amount that is not in dispute, at the rate of 1.5% per month until full payment is made. For clarity, a part of a month shall be treated as a full month for the purpose of calculating interest. CITYHOSTED reserves the right to withhold shipment of all or any part of an order, or to require prepayment, in the event CITYHOSTED determines in its sole judgment that Buyer is unable to make timely payment.
b. Buyer grants CITYHOSTED, and CITYHOSTED retains, a purchase money security interest in the Product. Buyer agrees to cooperate with CITYHOSTED to perfect CITYHOSTED’s security interest. Buyer authorizes CITYHOSTED to file any such instrument, including without limitation, any UCC Financing Statements without Buyer’s signature or on behalf of Buyer as Buyer’s irrevocably appointed attorney-in-fact.
c. All express deliveries are subject to additional shipping charges regardless of invoice value.
d. If (i) Buyer fails to make any payment under any Contract when due; (ii) any distress or execution is levied upon Buyer’s property or assets; (iii) Buyer makes or offers any arrangement or composition with its creditors; (iv) Buyer is a body corporate and any resolution or petition to wind up Buyer’s business (other than for the purpose of amalgamation or reconstruction) is passed or presented; (v) a receiver, administrator, manager or analogous person is appointed in respect of the undertaking, property or assets of Buyer or any part thereof; (vi) Buyer is an individual or a partnership, and any grounds arise for the presentation of a petition for a bankruptcy order made under Part IX Chapter 1 Insolvency Act 1986 or any statutory re-enactment or modification thereof or on the presentation of such a petition (an “Act of Bankruptcy”); or (vii) Buyer exceeds its credit limit then, without prejudice to any other right or remedy available to CITYHOSTED, the full price of all Products delivered to Buyer under any Contract, but not paid, shall become immediately due (notwithstanding any previously agreed credit terms) and CITYHOSTED may take any or all of the following courses of action:
i. by notice, suspend or terminate any Contract or any part thereof, without liability, stop any Products in transit;
ii. set-off any amounts due against any credit note, balance or other liability issued by CITYHOSTED to Buyer; and/or,
iii. alter Buyer’s payment terms, which may include withdrawing or altering any credit limit previously granted, requiring prepayment, and demanding adequate assurance of due performance by Buyer through the provision of a bank guarantee.
6. Delivery.
a. Any dates quoted for delivery of the Products are approximate only and CITYHOSTED shall not be liable for any delay in delivery of the Products however caused. Any Products may be delivered by CITYHOSTED in advance of the quoted delivery date upon giving reasonable notice to Buyer.
b. Delivery of the Products shall be coordinated by CITYHOSTED to the location identified in the Purchase Order and shipped FCA (IncoTerms 2010 ) point of shipment.
c. Insurance coverage, transportation costs and all other expenses applicable to delivery from CITYHOSTED to Buyer’s identified place of delivery will be at Buyer’s sole expense. Buyer shall have the option to waive insurance coverage in writing.
d. Claims for non-delivery of Products or damage must be made in writing to CITYHOSTED within five (5) working days from (i) the date of invoice, or (ii) receipt of the delivered Products. Buyer agrees to notify CITYHOSTED promptly in the event Buyer receives the invoice prior to receipt of the Products.
e. Buyer agrees to accept partial delivery of Products ordered unless otherwise mutually agreed by the parties in writing. Where the parties agree in writing that a shipment must be sent complete, Buyer agrees to accept allocations of Product in the event of shortage by Supplier. Where the Products are delivered in instalments, each delivery shall constitute a separate Contract. Failure by WGI to deliver any one or more of the instalments in accordance with these Conditions or any claim by Buyer in respect of any one or more instalments shall not entitle Buyer to treat a Contract as repudiated or to cancel any other instalment.
f. If Buyer fails to take delivery of the Products or fails to give CITYHOSTED adequate delivery instructions in its Purchase Order then, without prejudice to any other right or remedy available, CITYHOSTED may: (i) store the Products until actual delivery and charge Buyer for the reasonable costs thereof, including insurance costs; or (ii) terminate the Contract forthwith and sell the Products.
g. Buyer shall bear any and all costs (including original and return carriage costs) associated with any unjustified refusal of delivery of Products ordered pursuant to a Contract.
7. Title & Risk.
a. Risk of loss or damage to the Products shall pass to Buyer in accordance with the FCA point of shipment (INCOTERM 2010) . Notwithstanding delivery and the passing of risk in the Products, Buyer agrees that title to the Products shall not pass to Buyer until CITYHOSTED has cleared funds received as payment for the price of the Products, and all other sums which are then currently outstanding to CITYHOSTED by Buyer.
b. Until such time as title in the Products passes to Buyer, Buyer shall (i) hold the Products as CITYHOSTED’s fiduciary agent and bailee, (ii) store all of the Products in such a way as to be clearly separate and identifiable from Buyer’s inventory, (iii) keep the Products in their original packaging, properly stored, protected, insured and identified as CITYHOSTED’s property.
c. Until such time as the title in the Products passes to Buyer, CITYHOSTED shall be entitled to require Buyer to return the Products to CITYHOSTED. If Buyer should fail to immediately comply with CITYHOSTED’s request, CITYHOSTED shall have the right to enter on or in any premises or vehicles of Buyer where the Products are loaded or stored for the purpose of repossessing said Products if Buyer is in breach of any of these Conditions or a Contract.
d. Buyer’s right to possess any Products, for which payment has not been received by CITYHOSTED and cleared, shall immediately cease (i) after the appointment of a receiver to its property; (ii) after it has been placed in liquidation or administration; (iii) when and if Buyer makes an arrangement for the benefit of creditors generally, suffers or permits the appointment of an administrator, administrative receiver or receiver for its business or assets, or avails itself or becomes subject to any proceeding under any applicable bankruptcy laws; (iv) if Buyer is unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986; (v) if Buyer, not being a company, has committed an Act of Bankruptcy; or (vi) if Buyer otherwise ceases to trade or threatens to cease to trade.
8. Damage & Loss in Transit.
a. CITYHOSTED shall not be liable in respect of error in delivery, loss, damage or destruction to any Products during transportation of the Products to Buyer. In the event of damage or destruction during transportation by carrier, Buyer shall notify the carrier in writing of any such error, loss or damage and shall in all cases enter a note of the same upon the carrier’s bill of lading or other delivery receipt. Buyer shall be solely responsible for risk of loss from carrier.
9. Publications & Specifications.
a. Any and all specifications, descriptions, photographs, measurements, capacities or illustrations contained in any catalogues, price lists, brochures, leaflets, proposals, advertising matter, publications of CITYHOSTED or a Supplier are intended to be illustrative and approximate only and shall not form part of a Contract or constitute a representation, warranty or condition regarding any Products unless specifically agreed by written agreement between the Buyer and CITYHOSTED. No employee or agent of CITYHOSTED has any authority to make any representation regarding the Products. Buyer acknowledges that it has not been induced to accept these Conditions by any representations or statement, oral or written, not expressly contained herein.
10. Warranty.
a. Buyer understands that CITYHOSTED is not the Supplier of the Products. Accordingly, all Products are sold subject to the express warranty terms, if any, specified by the original Supplier of the Products.
b. CITYHOSTED warrants, for a period of fourteen (14) days from delivery, that any Non-standard Products will be delivered subject to the configuration set forth on the Purchase Order. CITYHOSTED’s sole and exclusive liability, and Buyer’s sole remedy, for a breach of the warranty in this Section 10(b) shall be to repair or replace the Non-standard Products, at its sole and absolute discretion in accordance with the warranty set forth in Section 10(a). CITYHOSTED does not make any warranty that the requested configuration is appropriate for Buyer’s environment.
d. Buyer may not make or pass on any warranty terms or representations in addition to those described in Section 9 (a) (e.g. the warranty provided by the Supplier), and shall take all measures necessary to ensure that neither it nor any of its agents or employees shall make or pass on, any such warranty or representation relating to a Product provided by CITYHOSTED or Supplier.
e. Any warranties, conditions or other terms implied by common law or statute or otherwise in connection with these Conditions (except to title, in the case of Products) are hereby expressly excluded to the fullest extent permitted by law, save for fraudulent misrepresentation. CITYHOSTED does not make any representations or warranties regarding the Product, including, among other things, the Product’s fitness for a particular purpose, functionality, interoperability or compatibility with third-party products.
11. Warranty Assistance.
a. Buyer shall immediately notify CITYHOSTED if any Products supplied to Buyer prove to be defective in quality or condition within the Supplier’s warranty period (the “Claim”). Upon receipt of notification of such Claim from Buyer, CITYHOSTED shall notify Buyer whether, as a matter of Supplier policy, the Claim must be handled directly with the Supplier or indirectly through CITYHOSTED. In the event the Claim must be handled directly between Buyer and Supplier, CITYHOSTED shall provide contact information to enable Buyer to contact Supplier. In the event the Claim will be handled by CITYHOSTED, then CITYHOSTED shall provide Buyer with a return material authorization (“RMA”) for Buyer to return the Products to CITYHOSTED, and Buyer shall return such Products to CITYHOSTED in accordance with these Conditions and CITYHOSTED’s then current RMA policy (which shall be made available to Buyer upon request). No Products may be returned to CITYHOSTED without a valid RMA number displayed on the Products packaging. Any Products returned without a valid RMA number displayed on the Products packaging will be refused or returned. CITYHOSTED shall not be obligated to ship replacement Products to Buyer until CITYHOSTED is in receipt of the original Products being returned.
b. Buyer agrees that CITYHOSTED’s sole liability to Buyer regarding any Product defect claims is limited to the administration of such claims with the Supplier and is expressly contingent upon CITYHOSTED’s ability to obtain a refund, credit or new replacement Products from the Supplier. CITYHOSTED has no obligation to accept a return of Products where the Buyer fails to comply with Supplier’s policy on Product returns.
c. CITYHOSTED shall not be liable or responsible for administering any defect or other claim which arises from normal wear and tear, misuse, negligence, accident, abuse, use not in accordance with Supplier’s Product documentation, modification or alteration not authorized by Supplier, or use in conjunction with a third party product. CITYHOSTED reserves the right to determine whether any Products are defective.
d. All transport charges incurred in returning or replacing Products are the responsibility of Buyer.
12. Warranty Returns.
a. Any Products returned pursuant to an RMA issued by CITYHOSTED must be returned to CITYHOSTED within five (5) working days of the date of such RMA.
b. Buyer irrevocably authorizes CITYHOSTED to carry out any necessary tasks related to the repair or replacement of Products on behalf of Buyer under these Conditions.
c. Unless CITYHOSTED collects Products using its own carrier, Buyer agrees that CITYHOSTED shall not be liable for any loss or damage to Products returned to CITYHOSTED.
13. Software License.
a. Any software supplied to Buyer pursuant to a Contract is supplied subject to the provisions of the Supplier’s licensing terms. Buyer shall not translate, reverse compile or disassemble any software.
14. Limitation of Liability.
a. CITYHOSTED’S LIABILITY FOR ANY DIRECT LOSS OR DAMAGE ARISING OUT THESE CONDITIONS AND ANY CONTRACT SHALL BE LIMITED TO, AND SHALL UNDER NO CIRCUMSTANCES EXCEED THE PRICE PAID BY BUYER FOR THE PRODUCTS GIVING RISE TO THE CLAIM.
b. EXCEPT AS EXPRESSLY PROVIDED IN THESE CONDITIONS, CITYHOSTED AND ITS SUPPLIERS SHALL NOT BE LIABLE TO BUYER FOR ANY FINANCIAL, CONSEQUENTIAL OR OTHER LOSS OR DAMAGE CAUSED TO BUYER BY REASON OF ANY REPRESENTATION, WARRANTY (EITHER EXPRESS OR IMPLIED), CONDITION OR OTHER TERM, OR ANY DUTY AT COMMON LAW; OR FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFITS, REVENUE, RECORDS OR DATA, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, DAMAGE TO REPUTATION OR GOODWILL, OR ANY MATTER BEYOND ITS REASONABLE CONTROL) OR FOR ANY OTHER CLAIMS FOR COMPENSATION HOWEVER CAUSED (WHETHER CAUSED BY THE NEGLIGENCE OF CITYHOSTED, ITS EMPLOYEES, AGENTS, SUPPLIERS OR OTHERWISE) WHICH ARISE OUT OF OR IN CONNECTION WITH THESE CONDITIONS OR A CONTRACT HEREUNDER, EVEN IF CITYHOSTED OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, LIABILITY OR DAMAGES.
c. Nothing contained herein shall be construed as excluding or limiting CITYHOSTED’s liability for death or personal injury caused by CITYHOSTED’s negligence, or for breach of implied title to Products.
15. Intellectual Property Rights.
a. Buyer acknowledges that the Products are the intellectual property of the Suppliers. Except as may be provided for in the applicable Supplier’s licensing terms, nothing contained herein shall be deemed to grant any right or title to such intellectual property to Buyer. Buyer will not remove, alter or destroy any form of copyright notice, proprietary markings, serial numbers, or confidential legends placed upon or contained within any Product
b. Buyer understands and agrees that CITYHOSTED will not and has no duty to indemnify, defend or hold Buyer or a third party harmless from or against any claims, losses, liabilities, damages, costs and expenses, judgments or settlement amounts arising out of or in connection with the actual or alleged infringement of a third party’s intellectual property rights, except and only to the extent that a Supplier has expressly agreed to offer such indemnification and defence to Buyer on a pass through basis.
c. Nothing contained herein shall be construed as authorizing or granting to Buyer any right or license to use any logo, trademark or trade name of CITYHOSTED or any Supplier, any license of which shall be subject to separate agreement including any then current policies of CITYHOSTED or its Suppliers, as appropriate.
16. Force Majeure.
a. Neither party shall be liable to the other party or be deemed in breach of these Conditions or any Contract by reason of delay or failure to perform if such delay or failure to perform was caused by Force Majeure.
b. In the event of a Force Majeure event: (i) the party claiming Force Majeure shall, as soon as commercially practicable, notify the other party of such Force Majeure event provided the notifying party shall incur no liability for its failure to give such notice; (ii) the notifying party’s duty to perform shall be suspended for the duration of the Force Majeure event; and (iii) the time of performance for the party impacted by the Force Majeure event shall be extended by a period equal to the duration of said Force Majeure event.
c. In the event a Force Majeure event should continue for more than ninety (90) days either party may, by written notice to the other, cancel a Contract insofar as Products remain undelivered under said Contract. Upon such cancellation, CITYHOSTED shall have no obligation to deliver and Buyer will have no obligation to accept delivery of or pay for the undelivered Products, but the Contract shall remain in full force and effect regarding all Products delivered prior to the date of cancellation.
17. Compliance with Laws; Export.
a. Buyer acknowledges that the Products and any technical data related thereto is licensed or sold subject to and controlled by the export laws of the United States (“US”), including its Export Administration Regulations, and any other government with jurisdiction (collectively the “Export Control Laws”) and Buyer hereby agrees not to export, re-export or otherwise distribute Products, or direct products thereof, in violation of any Export Control Laws. Buyer acknowledges that such Export Control Laws and/or the applicable government authority may require licensing or other authorization prior to export.
b. Buyer warrants that it will not export or re-export any Products with knowledge that they 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 written approval from the appropriate department of the US Government or any other government with jurisdiction. Buyer further warrants that it will not export or re-export, directly or indirectly, any Products to embargoed countries or sell Products to companies or individuals listed on the Denied Persons List published by the US Department of Commerce.
c.In the event Buyer elects to export or re-export the Product after receipt, Buyer must notify CITYHOSTED in advance and seek consent to expand the territory of these Conditions and/or Contract prior to any attempted export of the Product.
d. Buyer and CITYHOSTED warrant they will not to take any action or permit or authorize any action which will render the other party liable for a violation of the US Foreign Corrupt Practices Act (the “Act”) or similar legislation in any territory where Buyer operates, which prohibits the offering, giving or promising to offer or give, directly or indirectly, money or anything of value to any official of a government, political party or instrumentality thereof in order to assist in obtaining or retaining business and (a) will not violate or cause the other party to violate such Act in connection with the sale and distribution of the Products; and (b) will notify the other party in writing if any of its owners, partners, principals, directors or officers are or become officials, officers or representatives of any government or political party or candidate for political office.
e. Buyer shall indemnify, defend and hold CITYHOSTED harmless from any violation or alleged violation by Buyer of the terms of this Section 17.
Non-Solicitation.
During the term of this Agreement and for a period of twelve (12) months following the date of any Contract hereunder, Buyer hereby agrees not to solicit, induce or hire any employee of CITYHOSTED involved in the marketing, promotion, sale or distribution of Products to Buyer to leave their employment or terminate or breach their contract for services with CITYHOSTED as the case may be. Notwithstanding the foregoing, solicitation of either party’s current employees or independent contractors who are not involved in the performance of this Agreement by means of a general media solicitation or trade publication or advertisement shall not constitute a breach of this provision.
19. Confidential Information.
a. “Confidential Information” means any and all information, in any medium, which is provided by one party to this Agreement (“Discloser”) to the other party (“Recipient”), that is either (i) related to these Conditions, including any Contracts, pricing, Product descriptions, business practices, financial statements, financial information, customers, methods, techniques, processes, apparatuses, and employee data; (ii) marked using a legend such as “confidential”, “proprietary” or similar words, or if disclosed orally, confirmed as such by the Discloser; or (iii) any information which the Recipient should have reasonably considered to be confidential under the circumstances surrounding disclosure. All Confidential Information is provided “AS IS” without any representation or warranty, either express or implied, as to accuracy or completeness.
b. Each party acknowledges that during the course of performing its obligations hereunder it may receive Confidential Information. Each party will employ the same degree of care to protect the secrecy and confidentiality of the Confidential Information of the other party as it uses to protect its own Confidential Information of a similar nature, but in no event less than a reasonable degree of care. Each party will restrict the release, access and use of Confidential Information to those of its employees, officers, directors, consultants and agents who must have access to the Confidential Information in order perform its obligations under this Agreement, provided such employees, officers, directors, consultants and agents are subject to written agreements which contain confidentiality obligations in substance, at least as strict as those set forth herein, in order to enable each party to comply with the provisions of this Agreement.
c. Confidential Information herein shall not include information that
(i) the Recipient can demonstrate by its written records to have had in its possession prior to disclosure to the Recipient by the Discloser;
(ii) was part of the public knowledge or literature, not as a result of any action or inaction of the Recipient;
(iii) was subsequently disclosed to the Recipient from a source other than the Discloser who was not bound by an obligation of confidentiality to the Discloser;
(iv) the Recipient can demonstrate by its written records to have been independently developed by the Recipient without the use, directly or indirectly, of any Information; or
(v) the Recipient is required to disclose pursuant to a court order or as otherwise required by law; provided, however, that Recipient notifies the Discloser within sufficient time to give the Discloser a reasonable period to contest such order.
20. Additional Terms of Sale.
a. Notwithstanding anything to the contrary herein and solely with regard to Products that have not shipped, CITYHOSTED and its Suppliers reserve the right to make any changes in the specifications of the Products, without notice to Buyer, which are required in order to conform to any statutory or other legal requirements or which do not materially affect the performance of the relevant Products.
b. Where Services relate to the provision of training, CITYHOSTED reserves the right to provide such Services at a venue or venues other than CITYHOSTED’s premises and to provide personnel of its own selection. CITYHOSTED further reserves the right to refuse or curtail any training Services if a delegate or substitute delegate attending on behalf of Buyer fails to satisfy any training requirements for which Buyer was notified prior to the commencement of such training.
c. Any Products which are subject to guidelines, restrictions or provisions imposed by a Supplier are sold, supplied and delivered to Buyer subject to any such guidelines, restrictions or provisions, which will be provided to Buyer upon request.
21. Choice of Law & Venue.
These Conditions and any Purchase Order placed under them, shall be governed by the laws and jurisdiction of the State of New York without regard to its conflicts of law principles. The UN Convention on Contracts for the International Sale of Goods does not apply. Each Party waives any right it may have to claim that the chosen jurisdiction under this Agreement is not a convenient forum and expressly waives any right to a jury trial regarding disputes related to this Agreement.
22. Miscellaneous.
a. Assignment. Buyer may not transfer or assign these Conditions to a third party by operation of law or otherwise without the prior written consent of CITYHOSTED. CITYHOSTED may assign any Purchase Order in whole or in part as it relates to a particular CITYHOSTED subsidiary outside the US without the consent of the Buyer. CITYHOSTED shall endeavor to provide prompt notice of any assignment to the Buyer.
b. Waiver. Failure by either party to enforce any provision of these Conditions or a Contract shall not be deemed a waiver of the right
c. Severability. In the event that any provision of these Conditions is held by a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions of these Conditions will remain in full force and effect.
d. Audit Rights. Buyer shall keep and maintain true and complete records pertaining to its performance of these Conditions or any Contract hereunder in sufficient detail to permit CITYHOSTED to accurately determine whether Buyer has fully complied with their terms. Buyer shall make such records available upon reasonable notice, during regular business hours, for inspection and copying by CITYHOSTED and its representatives. Buyer shall maintain such records for at least two (2) years after the end of the calendar year to which they pertain.
e. Reporting. Buyer agrees that CITYHOSTED may collect, store and use Buyer data for the purpose of facilitating the sale of the Products and fulfilment of Purchase Orders issued by Buyer, and Buyer hereby consents to such collection, storage and use of Buyer databy CITYHOSTED for these purposes. Notwithstanding the foregoing, CITYHOSTED agrees not to share personal data with third parties without Buyer’s prior consent. Buyer further consents to the use of such data for communicating Product and promotional information to Buyer via email or other electronic means unless Buyer notifies CITYHOSTED in writing that it does not wish to receive such promotional information.
f. Notices. All notices shall be in writing and shall be sufficiently given if delivered personally or by a reputable overnight carrier with proof of delivery or mailed by first class certified mail, return receipt requested, to ( ____________________________ ) and to MJ2 IP, LLC dba City Hosted Solutions, 5425 E. Bell Road, Suite 141, Phoenix, AZ 85254, Attention: Legal Department or to such other address or addressee as either party may from time to time specify by notice in accordance with this Clause. Notices shall be deemed given upon receipt by the addressee.
g. Counterparts and Electronic Copies. This Agreement may be executed contemporaneously in one or more counterparts, each of which shall be deemed an original, but which together shall constitute one instrument.
23. Entire Agreement. This Agreement constitutes the entire agreement between the parties as to the subject matter hereof and supersedes and cancels any and all of Buyer’s terms and conditions, or other written or oral agreements previously existing between the parties and/or their affiliates with respect to such subject matter. Notwithstanding the foregoing, and unless Buyer has also provided a personal guarantee herein, any personal guarantee(s) previously provided by Buyer in any Agreement with CITYHOSTED shall continue in full force and effect. Buyer acknowledges that it is not entering this Agreement on the basis of any representations not expressly contained herein. Every Contract between CITYHOSTED and the Buyer or any of its subsidiaries shall be subject to the Conditions.
24. Electronic Signatures. Original signature transmitted and received via facsimile or other electronic transmission of a scanned document, (e.g., .pdf or similar format) are true and valid signatures for all purposes hereunder and shall bind the Parties to the same extent as that of an original signature. This Amendment may be executed in multiple counterparts, each of which shall be deemed to constitute an original but all of which together shall constitute only one document.
- Definitions
i. “Authorized Representative” means any person who holds the job title and office of General Manager, Finance Director or Vice-President.
ii. “Buyer” means [ ].
iii. “Conditions” means these Terms and Conditions of Sale
iv. “Contract” means any agreement for the purchase and sale of Products from CITYHOSTED to Buyer which result from a Purchase Order submitted to and accepted by CITYHOSTED.
v. “Contract Date” means the date upon which a Purchase Order is accepted by CITYHOSTED.
vi. “Force Majeure” means, without limitation, any acts of God, government, war, terrorism, riot, fire, floods, earthquakes, explosions, strikes, lockouts, cessation of labour, trade disputes, breakdowns, accidents of any kind or any other causes which are beyond the reasonable control of CITYHOSTED (including delay or shortages by its Suppliers).
vii. “Goods” means any Supplier’s goods and/or software, or any instalment or parts thereof, which are supplied by CITYHOSTED to Buyer pursuant to a Contract, including any Supplier documentation related thereto.
viii. “Non–standard Products” means Goods that are: (a) custom ordered; (b) custom manufactured; (c) custom programmed; (d) built or configured to Buyer’s specifications; (e) published as configured, non-standard or non-cancellable on the Supplier’s price list; (f) included in any Supplier’s policy as non-cancellable; (g) not maintained in CITYHOSTED’s inventory; (h) discontinued, end of life or withdrawn; (i) Goods that the Supplier will not accept on return without imposing any restocking or freight charges; or (j) Services unless the Statement of Work includes a description of cancellation rights.
viii. “Products” means any combination of Goods, Non-standard Products and Services which are supplied by CITYHOSTED to Buyer pursuant to a Contract.
ix. “Purchase Order” means Buyer’s oral, written or electronic order for Products and shall include any order that Buyer places online through CITYHOSTED’s eCommerce tool or transmits via email or facsimile.
x. “Services” means any Supplier’s services which are supplied by CITYHOSTED to Buyer pursuant to a Contract.
xii. “Supplier” means the supplier, licensor, publisher, manufacturer or other third party provider of Products.
xiii. “CITYHOSTED” means MJ2 IP, LLC dba City Hosted Solutions with a registered office at 5425 E. Bell Road, Suite 141, Phoenix, AZ 85254 and any of its subsidiaries.
b. As used in these Conditions, (i) any reference to a statute shall be construed as a reference to that statute as amended, reenacted or otherwise modified from time to time, (ii) the term “including” will always be deemed to mean “including, without limitation”, (iii) a definition is equally applicable to the singular and plural forms of the feminine, masculine and neuter forms of the term defined, and (iv) any headings in the Conditions are for convenience only and shall not affect the interpretation of any terms.
c. To the extent that Buyer is purchasing Cloud Services from CITYHOSTED, Buyer confirms that the Cloud Services shall be provided in accordance with the applicable terms and conditions posted on CITYHOSTED’s website at https://www.citycommunications.com/legal (“Terms”). Buyer agrees to be bound by the Terms (as amended by CITYHOSTED from time to time) applicable at the time of provision of Cloud Services. Buyer has been provided ample opportunity to review the Terms. Buyer takes particular notice that the Terms include specific clauses including, but not limited to: (A) LIMITATION OF LIABILITY; (B) SUBSCRIPTION TERMS; (C) RESELLER AGREEMENT; (D) SUSPENSION OF ACCESS; (E) INDEMNIFICATION AND LIMITATION OF LIABILITY, and certifies that such clauses have been brought to Buyer’s attention. By signing these Conditions, Buyer agrees to be bound by the Terms as applicable to Cloud Services.
2. General Ordering Terms.
Buyer may purchase Products under these Conditions by issuing a Purchase Order to CITYHOSTED. Only a Purchase Order submitted by Buyer shall constitute an offer to contract subject to these Conditions, however, a Purchase Order shall not be deemed a Contract unless and until the earlier date upon which: (i) written confirmation is provided by CITYHOSTED, or (ii) CITYHOSTED proceeds with the fulfilment of the Purchase Order (“Purchase Order Acceptance”). No additional or alternative terms or conditions or any alteration to these Conditions proposed by the Buyer contained or referred to in a Purchase Order or other form submitted to CITYHOSTED shall be deemed to apply unless they are expressly accepted in writing by an Authorized Representative of CITYHOSTED with respect to that Purchase Order.
3. Cancelling & Rescheduling Purchase Orders.
a. Except as set forth below, no Purchase Order which has been accepted by CITYHOSTED may be cancelled or rescheduled by Buyer except with written agreement by CITYHOSTED.
b. Buyer may cancel, reschedule or modify a Purchase Order for Goods any time prior to shipment.
c. If Buyer has elected to purchase Non-standard Products, Buyer understands and agrees that any Contracts for Non-standard Products may not be cancelled, withdrawn, rescheduled or otherwise modified by Buyer, unless such cancellation, withdrawal, rescheduling or modification occurs prior to CITYHOSTED’s placement of the order with the Supplier. Buyer further understands and agrees that such Non-standard Products, except as set forth under Section 11 (“Warranty Assistance”), may not be returned, refused or rejected for any reason whatsoever. Further, Buyer shall not be entitled to a credit or refund for such Non-standard Products for any reason whatsoever.
d. Where an order is shipped in installments, once the time to cancel the initial instalment has passed (as determined by the terms of this Agreement), subsequent instalments may not be cancelled unless otherwise agreed in writing by an authorized representative of CITYHOSTED.
e. Any cancellation, rescheduling or modification of a Purchase Order is conditioned upon Buyer reimbursing CITYHOSTED for all reasonable, verifiable costs (including the cost of all labor and materials used), damages and expenses actually incurred by CITYHOSTED as a result of such action, which may include, but is not limited to, CITYHOSTED’s costs and expenses of recovering Products delivered or in transit and, in CITYHOSTED’s sole discretion, a fifteen percent (15%) restocking fee. CITYHOSTED will use commercially reasonable efforts to mitigate any such costs, damages and expenses.
Prices.
a. The price of Products on the Contract Date shall be: (i) the quoted price (which shall be given formally in writing and be valid for seven (7) days following the date of quotation), or (ii) the list price in CITYHOSTED’s then current published price list on the date of Contract, where no price has been quoted or a quoted price has expired. All prices and charges are exclusive of, and Buyer shall be responsible for, the cost of handling, packaging, interest, shipping, delivery, insurance (unless as otherwise agreed), configuration, fulfilment, cancellation, or rescheduling charges, and other services, as well as applicable duties, fees, sales, use, consumption, privilege, and other taxes (other than taxes based upon CITYHOSTED’s net income), for which the Buyer shall be additionally liable for paying to CITYHOSTED. CITYHOSTED shall, upon request, quote the additional costs of such items to Buyer. Buyer shall make all payments of any such taxes to CITYHOSTED without reduction. All taxes shall be paid by Buyer to CITYHOSTED unless user provides CITYHOSTED with a valid certificate of exemption acceptable to the appropriate taxing authority.
b. In the event a Supplier should grant a special pricing consideration, promotion or discount to CITYHOSTED and such Supplier pricing is made available to Buyer (“Pass-Through Discounts”), the Buyer agrees to adhere to the terms and conditions of such Pass-Through Discounts, which may include the obligation to trade in certain products or provide for limited use credits (“Pass-Through Discount Terms”), and agrees to indemnify CITYHOSTED for any Supplier claims against CITYHOSTED for Buyer’s failure to comply with such Pass-Through Discount Terms. Buyer agrees that payment and receipt of benefits under Pass-Through Discount Terms are contingent upon Buyer’s compliance with such terms, and further agrees to pay any costs or fees, if any, charged to CITYHOSTED by the Supplier for participation in Pass-Through Discounts.
Payment.
a. Buyer shall pay the undisputed purchase price, without any deduction or set-off, within thirty (30) days from the date of the invoice, which shall be issued to Buyer on the date that Products are shipped CITYHOSTED may charge Buyer interest, both pre- and post-judgment, on any unpaid past due amount that is not in dispute, at the rate of 1.5% per month until full payment is made. For clarity, a part of a month shall be treated as a full month for the purpose of calculating interest. CITYHOSTED reserves the right to withhold shipment of all or any part of an order, or to require prepayment, in the event CITYHOSTED determines in its sole judgment that Buyer is unable to make timely payment.
b. Buyer grants CITYHOSTED, and CITYHOSTED retains, a purchase money security interest in the Product. Buyer agrees to cooperate with CITYHOSTED to perfect CITYHOSTED’s security interest. Buyer authorizes CITYHOSTED to file any such instrument, including without limitation, any UCC Financing Statements without Buyer’s signature or on behalf of Buyer as Buyer’s irrevocably appointed attorney-in-fact.
c. All express deliveries are subject to additional shipping charges regardless of invoice value.
d. If (i) Buyer fails to make any payment under any Contract when due; (ii) any distress or execution is levied upon Buyer’s property or assets; (iii) Buyer makes or offers any arrangement or composition with its creditors; (iv) Buyer is a body corporate and any resolution or petition to wind up Buyer’s business (other than for the purpose of amalgamation or reconstruction) is passed or presented; (v) a receiver, administrator, manager or analogous person is appointed in respect of the undertaking, property or assets of Buyer or any part thereof; (vi) Buyer is an individual or a partnership, and any grounds arise for the presentation of a petition for a bankruptcy order made under Part IX Chapter 1 Insolvency Act 1986 or any statutory re-enactment or modification thereof or on the presentation of such a petition (an “Act of Bankruptcy”); or (vii) Buyer exceeds its credit limit then, without prejudice to any other right or remedy available to CITYHOSTED, the full price of all Products delivered to Buyer under any Contract, but not paid, shall become immediately due (notwithstanding any previously agreed credit terms) and CITYHOSTED may take any or all of the following courses of action:
i. by notice, suspend or terminate any Contract or any part thereof, without liability, stop any Products in transit;
ii. set-off any amounts due against any credit note, balance or other liability issued by CITYHOSTED to Buyer; and/or,
iii. alter Buyer’s payment terms, which may include withdrawing or altering any credit limit previously granted, requiring prepayment, and demanding adequate assurance of due performance by Buyer through the provision of a bank guarantee.
6. Delivery.
a. Any dates quoted for delivery of the Products are approximate only and CITYHOSTED shall not be liable for any delay in delivery of the Products however caused. Any Products may be delivered by CITYHOSTED in advance of the quoted delivery date upon giving reasonable notice to Buyer.
b. Delivery of the Products shall be coordinated by CITYHOSTED to the location identified in the Purchase Order and shipped FCA (IncoTerms 2010 ) point of shipment.
c. Insurance coverage, transportation costs and all other expenses applicable to delivery from CITYHOSTED to Buyer’s identified place of delivery will be at Buyer’s sole expense. Buyer shall have the option to waive insurance coverage in writing.
d. Claims for non-delivery of Products or damage must be made in writing to CITYHOSTED within five (5) working days from (i) the date of invoice, or (ii) receipt of the delivered Products. Buyer agrees to notify CITYHOSTED promptly in the event Buyer receives the invoice prior to receipt of the Products.
e. Buyer agrees to accept partial delivery of Products ordered unless otherwise mutually agreed by the parties in writing. Where the parties agree in writing that a shipment must be sent complete, Buyer agrees to accept allocations of Product in the event of shortage by Supplier. Where the Products are delivered in instalments, each delivery shall constitute a separate Contract. Failure by WGI to deliver any one or more of the instalments in accordance with these Conditions or any claim by Buyer in respect of any one or more instalments shall not entitle Buyer to treat a Contract as repudiated or to cancel any other instalment.
f. If Buyer fails to take delivery of the Products or fails to give CITYHOSTED adequate delivery instructions in its Purchase Order then, without prejudice to any other right or remedy available, CITYHOSTED may: (i) store the Products until actual delivery and charge Buyer for the reasonable costs thereof, including insurance costs; or (ii) terminate the Contract forthwith and sell the Products.
g. Buyer shall bear any and all costs (including original and return carriage costs) associated with any unjustified refusal of delivery of Products ordered pursuant to a Contract.
7. Title & Risk.
a. Risk of loss or damage to the Products shall pass to Buyer in accordance with the FCA point of shipment (INCOTERM 2010) . Notwithstanding delivery and the passing of risk in the Products, Buyer agrees that title to the Products shall not pass to Buyer until CITYHOSTED has cleared funds received as payment for the price of the Products, and all other sums which are then currently outstanding to CITYHOSTED by Buyer.
b. Until such time as title in the Products passes to Buyer, Buyer shall (i) hold the Products as CITYHOSTED’s fiduciary agent and bailee, (ii) store all of the Products in such a way as to be clearly separate and identifiable from Buyer’s inventory, (iii) keep the Products in their original packaging, properly stored, protected, insured and identified as CITYHOSTED’s property.
c. Until such time as the title in the Products passes to Buyer, CITYHOSTED shall be entitled to require Buyer to return the Products to CITYHOSTED. If Buyer should fail to immediately comply with CITYHOSTED’s request, CITYHOSTED shall have the right to enter on or in any premises or vehicles of Buyer where the Products are loaded or stored for the purpose of repossessing said Products if Buyer is in breach of any of these Conditions or a Contract.
d. Buyer’s right to possess any Products, for which payment has not been received by CITYHOSTED and cleared, shall immediately cease (i) after the appointment of a receiver to its property; (ii) after it has been placed in liquidation or administration; (iii) when and if Buyer makes an arrangement for the benefit of creditors generally, suffers or permits the appointment of an administrator, administrative receiver or receiver for its business or assets, or avails itself or becomes subject to any proceeding under any applicable bankruptcy laws; (iv) if Buyer is unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986; (v) if Buyer, not being a company, has committed an Act of Bankruptcy; or (vi) if Buyer otherwise ceases to trade or threatens to cease to trade.
8. Damage & Loss in Transit.
a. CITYHOSTED shall not be liable in respect of error in delivery, loss, damage or destruction to any Products during transportation of the Products to Buyer. In the event of damage or destruction during transportation by carrier, Buyer shall notify the carrier in writing of any such error, loss or damage and shall in all cases enter a note of the same upon the carrier’s bill of lading or other delivery receipt. Buyer shall be solely responsible for risk of loss from carrier.
9. Publications & Specifications.
a. Any and all specifications, descriptions, photographs, measurements, capacities or illustrations contained in any catalogues, price lists, brochures, leaflets, proposals, advertising matter, publications of CITYHOSTED or a Supplier are intended to be illustrative and approximate only and shall not form part of a Contract or constitute a representation, warranty or condition regarding any Products unless specifically agreed by written agreement between the Buyer and CITYHOSTED. No employee or agent of CITYHOSTED has any authority to make any representation regarding the Products. Buyer acknowledges that it has not been induced to accept these Conditions by any representations or statement, oral or written, not expressly contained herein.
10. Warranty.
a. Buyer understands that CITYHOSTED is not the Supplier of the Products. Accordingly, all Products are sold subject to the express warranty terms, if any, specified by the original Supplier of the Products.
b. CITYHOSTED warrants, for a period of fourteen (14) days from delivery, that any Non-standard Products will be delivered subject to the configuration set forth on the Purchase Order. CITYHOSTED’s sole and exclusive liability, and Buyer’s sole remedy, for a breach of the warranty in this Section 10(b) shall be to repair or replace the Non-standard Products, at its sole and absolute discretion in accordance with the warranty set forth in Section 10(a). CITYHOSTED does not make any warranty that the requested configuration is appropriate for Buyer’s environment.
d. Buyer may not make or pass on any warranty terms or representations in addition to those described in Section 9 (a) (e.g. the warranty provided by the Supplier), and shall take all measures necessary to ensure that neither it nor any of its agents or employees shall make or pass on, any such warranty or representation relating to a Product provided by CITYHOSTED or Supplier.
e. Any warranties, conditions or other terms implied by common law or statute or otherwise in connection with these Conditions (except to title, in the case of Products) are hereby expressly excluded to the fullest extent permitted by law, save for fraudulent misrepresentation. CITYHOSTED does not make any representations or warranties regarding the Product, including, among other things, the Product’s fitness for a particular purpose, functionality, interoperability or compatibility with third-party products.
11. Warranty Assistance.
a. Buyer shall immediately notify CITYHOSTED if any Products supplied to Buyer prove to be defective in quality or condition within the Supplier’s warranty period (the “Claim”). Upon receipt of notification of such Claim from Buyer, CITYHOSTED shall notify Buyer whether, as a matter of Supplier policy, the Claim must be handled directly with the Supplier or indirectly through CITYHOSTED. In the event the Claim must be handled directly between Buyer and Supplier, CITYHOSTED shall provide contact information to enable Buyer to contact Supplier. In the event the Claim will be handled by CITYHOSTED, then CITYHOSTED shall provide Buyer with a return material authorization (“RMA”) for Buyer to return the Products to CITYHOSTED, and Buyer shall return such Products to CITYHOSTED in accordance with these Conditions and CITYHOSTED’s then current RMA policy (which shall be made available to Buyer upon request). No Products may be returned to CITYHOSTED without a valid RMA number displayed on the Products packaging. Any Products returned without a valid RMA number displayed on the Products packaging will be refused or returned. CITYHOSTED shall not be obligated to ship replacement Products to Buyer until CITYHOSTED is in receipt of the original Products being returned.
b. Buyer agrees that CITYHOSTED’s sole liability to Buyer regarding any Product defect claims is limited to the administration of such claims with the Supplier and is expressly contingent upon CITYHOSTED’s ability to obtain a refund, credit or new replacement Products from the Supplier. CITYHOSTED has no obligation to accept a return of Products where the Buyer fails to comply with Supplier’s policy on Product returns.
c. CITYHOSTED shall not be liable or responsible for administering any defect or other claim which arises from normal wear and tear, misuse, negligence, accident, abuse, use not in accordance with Supplier’s Product documentation, modification or alteration not authorized by Supplier, or use in conjunction with a third party product. CITYHOSTED reserves the right to determine whether any Products are defective.
d. All transport charges incurred in returning or replacing Products are the responsibility of Buyer.
12. Warranty Returns.
a. Any Products returned pursuant to an RMA issued by CITYHOSTED must be returned to CITYHOSTED within five (5) working days of the date of such RMA.
b. Buyer irrevocably authorizes CITYHOSTED to carry out any necessary tasks related to the repair or replacement of Products on behalf of Buyer under these Conditions.
c. Unless CITYHOSTED collects Products using its own carrier, Buyer agrees that CITYHOSTED shall not be liable for any loss or damage to Products returned to CITYHOSTED.
13. Software License.
a. Any software supplied to Buyer pursuant to a Contract is supplied subject to the provisions of the Supplier’s licensing terms. Buyer shall not translate, reverse compile or disassemble any software.
14. Limitation of Liability.
a. CITYHOSTED’S LIABILITY FOR ANY DIRECT LOSS OR DAMAGE ARISING OUT THESE CONDITIONS AND ANY CONTRACT SHALL BE LIMITED TO, AND SHALL UNDER NO CIRCUMSTANCES EXCEED THE PRICE PAID BY BUYER FOR THE PRODUCTS GIVING RISE TO THE CLAIM.
b. EXCEPT AS EXPRESSLY PROVIDED IN THESE CONDITIONS, CITYHOSTED AND ITS SUPPLIERS SHALL NOT BE LIABLE TO BUYER FOR ANY FINANCIAL, CONSEQUENTIAL OR OTHER LOSS OR DAMAGE CAUSED TO BUYER BY REASON OF ANY REPRESENTATION, WARRANTY (EITHER EXPRESS OR IMPLIED), CONDITION OR OTHER TERM, OR ANY DUTY AT COMMON LAW; OR FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFITS, REVENUE, RECORDS OR DATA, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, DAMAGE TO REPUTATION OR GOODWILL, OR ANY MATTER BEYOND ITS REASONABLE CONTROL) OR FOR ANY OTHER CLAIMS FOR COMPENSATION HOWEVER CAUSED (WHETHER CAUSED BY THE NEGLIGENCE OF CITYHOSTED, ITS EMPLOYEES, AGENTS, SUPPLIERS OR OTHERWISE) WHICH ARISE OUT OF OR IN CONNECTION WITH THESE CONDITIONS OR A CONTRACT HEREUNDER, EVEN IF CITYHOSTED OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, LIABILITY OR DAMAGES.
c. Nothing contained herein shall be construed as excluding or limiting CITYHOSTED’s liability for death or personal injury caused by CITYHOSTED’s negligence, or for breach of implied title to Products.
15. Intellectual Property Rights.
a. Buyer acknowledges that the Products are the intellectual property of the Suppliers. Except as may be provided for in the applicable Supplier’s licensing terms, nothing contained herein shall be deemed to grant any right or title to such intellectual property to Buyer. Buyer will not remove, alter or destroy any form of copyright notice, proprietary markings, serial numbers, or confidential legends placed upon or contained within any Product
b. Buyer understands and agrees that CITYHOSTED will not and has no duty to indemnify, defend or hold Buyer or a third party harmless from or against any claims, losses, liabilities, damages, costs and expenses, judgments or settlement amounts arising out of or in connection with the actual or alleged infringement of a third party’s intellectual property rights, except and only to the extent that a Supplier has expressly agreed to offer such indemnification and defence to Buyer on a pass through basis.
c. Nothing contained herein shall be construed as authorizing or granting to Buyer any right or license to use any logo, trademark or trade name of CITYHOSTED or any Supplier, any license of which shall be subject to separate agreement including any then current policies of CITYHOSTED or its Suppliers, as appropriate.
16. Force Majeure.
a. Neither party shall be liable to the other party or be deemed in breach of these Conditions or any Contract by reason of delay or failure to perform if such delay or failure to perform was caused by Force Majeure.
b. In the event of a Force Majeure event: (i) the party claiming Force Majeure shall, as soon as commercially practicable, notify the other party of such Force Majeure event provided the notifying party shall incur no liability for its failure to give such notice; (ii) the notifying party’s duty to perform shall be suspended for the duration of the Force Majeure event; and (iii) the time of performance for the party impacted by the Force Majeure event shall be extended by a period equal to the duration of said Force Majeure event.
c. In the event a Force Majeure event should continue for more than ninety (90) days either party may, by written notice to the other, cancel a Contract insofar as Products remain undelivered under said Contract. Upon such cancellation, CITYHOSTED shall have no obligation to deliver and Buyer will have no obligation to accept delivery of or pay for the undelivered Products, but the Contract shall remain in full force and effect regarding all Products delivered prior to the date of cancellation.
17. Compliance with Laws; Export.
a. Buyer acknowledges that the Products and any technical data related thereto is licensed or sold subject to and controlled by the export laws of the United States (“US”), including its Export Administration Regulations, and any other government with jurisdiction (collectively the “Export Control Laws”) and Buyer hereby agrees not to export, re-export or otherwise distribute Products, or direct products thereof, in violation of any Export Control Laws. Buyer acknowledges that such Export Control Laws and/or the applicable government authority may require licensing or other authorization prior to export.
b. Buyer warrants that it will not export or re-export any Products with knowledge that they 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 written approval from the appropriate department of the US Government or any other government with jurisdiction. Buyer further warrants that it will not export or re-export, directly or indirectly, any Products to embargoed countries or sell Products to companies or individuals listed on the Denied Persons List published by the US Department of Commerce.
c.In the event Buyer elects to export or re-export the Product after receipt, Buyer must notify CITYHOSTED in advance and seek consent to expand the territory of these Conditions and/or Contract prior to any attempted export of the Product.
d. Buyer and CITYHOSTED warrant they will not to take any action or permit or authorize any action which will render the other party liable for a violation of the US Foreign Corrupt Practices Act (the “Act”) or similar legislation in any territory where Buyer operates, which prohibits the offering, giving or promising to offer or give, directly or indirectly, money or anything of value to any official of a government, political party or instrumentality thereof in order to assist in obtaining or retaining business and (a) will not violate or cause the other party to violate such Act in connection with the sale and distribution of the Products; and (b) will notify the other party in writing if any of its owners, partners, principals, directors or officers are or become officials, officers or representatives of any government or political party or candidate for political office.
e. Buyer shall indemnify, defend and hold CITYHOSTED harmless from any violation or alleged violation by Buyer of the terms of this Section 17.
Non-Solicitation.
During the term of this Agreement and for a period of twelve (12) months following the date of any Contract hereunder, Buyer hereby agrees not to solicit, induce or hire any employee of CITYHOSTED involved in the marketing, promotion, sale or distribution of Products to Buyer to leave their employment or terminate or breach their contract for services with CITYHOSTED as the case may be. Notwithstanding the foregoing, solicitation of either party’s current employees or independent contractors who are not involved in the performance of this Agreement by means of a general media solicitation or trade publication or advertisement shall not constitute a breach of this provision.
19. Confidential Information.
a. “Confidential Information” means any and all information, in any medium, which is provided by one party to this Agreement (“Discloser”) to the other party (“Recipient”), that is either (i) related to these Conditions, including any Contracts, pricing, Product descriptions, business practices, financial statements, financial information, customers, methods, techniques, processes, apparatuses, and employee data; (ii) marked using a legend such as “confidential”, “proprietary” or similar words, or if disclosed orally, confirmed as such by the Discloser; or (iii) any information which the Recipient should have reasonably considered to be confidential under the circumstances surrounding disclosure. All Confidential Information is provided “AS IS” without any representation or warranty, either express or implied, as to accuracy or completeness.
b. Each party acknowledges that during the course of performing its obligations hereunder it may receive Confidential Information. Each party will employ the same degree of care to protect the secrecy and confidentiality of the Confidential Information of the other party as it uses to protect its own Confidential Information of a similar nature, but in no event less than a reasonable degree of care. Each party will restrict the release, access and use of Confidential Information to those of its employees, officers, directors, consultants and agents who must have access to the Confidential Information in order perform its obligations under this Agreement, provided such employees, officers, directors, consultants and agents are subject to written agreements which contain confidentiality obligations in substance, at least as strict as those set forth herein, in order to enable each party to comply with the provisions of this Agreement.
c. Confidential Information herein shall not include information that
(i) the Recipient can demonstrate by its written records to have had in its possession prior to disclosure to the Recipient by the Discloser;
(ii) was part of the public knowledge or literature, not as a result of any action or inaction of the Recipient;
(iii) was subsequently disclosed to the Recipient from a source other than the Discloser who was not bound by an obligation of confidentiality to the Discloser;
(iv) the Recipient can demonstrate by its written records to have been independently developed by the Recipient without the use, directly or indirectly, of any Information; or
(v) the Recipient is required to disclose pursuant to a court order or as otherwise required by law; provided, however, that Recipient notifies the Discloser within sufficient time to give the Discloser a reasonable period to contest such order.
20. Additional Terms of Sale.
a. Notwithstanding anything to the contrary herein and solely with regard to Products that have not shipped, CITYHOSTED and its Suppliers reserve the right to make any changes in the specifications of the Products, without notice to Buyer, which are required in order to conform to any statutory or other legal requirements or which do not materially affect the performance of the relevant Products.
b. Where Services relate to the provision of training, CITYHOSTED reserves the right to provide such Services at a venue or venues other than CITYHOSTED’s premises and to provide personnel of its own selection. CITYHOSTED further reserves the right to refuse or curtail any training Services if a delegate or substitute delegate attending on behalf of Buyer fails to satisfy any training requirements for which Buyer was notified prior to the commencement of such training.
c. Any Products which are subject to guidelines, restrictions or provisions imposed by a Supplier are sold, supplied and delivered to Buyer subject to any such guidelines, restrictions or provisions, which will be provided to Buyer upon request.
21. Choice of Law & Venue.
These Conditions and any Purchase Order placed under them, shall be governed by the laws and jurisdiction of the State of New York without regard to its conflicts of law principles. The UN Convention on Contracts for the International Sale of Goods does not apply. Each Party waives any right it may have to claim that the chosen jurisdiction under this Agreement is not a convenient forum and expressly waives any right to a jury trial regarding disputes related to this Agreement.
22. Miscellaneous.
a. Assignment. Buyer may not transfer or assign these Conditions to a third party by operation of law or otherwise without the prior written consent of CITYHOSTED. CITYHOSTED may assign any Purchase Order in whole or in part as it relates to a particular CITYHOSTED subsidiary outside the US without the consent of the Buyer. CITYHOSTED shall endeavor to provide prompt notice of any assignment to the Buyer.
b. Waiver. Failure by either party to enforce any provision of these Conditions or a Contract shall not be deemed a waiver of the right
c. Severability. In the event that any provision of these Conditions is held by a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions of these Conditions will remain in full force and effect.
d. Audit Rights. Buyer shall keep and maintain true and complete records pertaining to its performance of these Conditions or any Contract hereunder in sufficient detail to permit CITYHOSTED to accurately determine whether Buyer has fully complied with their terms. Buyer shall make such records available upon reasonable notice, during regular business hours, for inspection and copying by CITYHOSTED and its representatives. Buyer shall maintain such records for at least two (2) years after the end of the calendar year to which they pertain.
e. Reporting. Buyer agrees that CITYHOSTED may collect, store and use Buyer data for the purpose of facilitating the sale of the Products and fulfilment of Purchase Orders issued by Buyer, and Buyer hereby consents to such collection, storage and use of Buyer databy CITYHOSTED for these purposes. Notwithstanding the foregoing, CITYHOSTED agrees not to share personal data with third parties without Buyer’s prior consent. Buyer further consents to the use of such data for communicating Product and promotional information to Buyer via email or other electronic means unless Buyer notifies CITYHOSTED in writing that it does not wish to receive such promotional information.
f. Notices. All notices shall be in writing and shall be sufficiently given if delivered personally or by a reputable overnight carrier with proof of delivery or mailed by first class certified mail, return receipt requested, to ( ____________________________ ) and to MJ2 IP, LLC dba City Hosted Solutions, 5425 E. Bell Road, Suite 141, Phoenix, AZ 85254, Attention: Legal Department or to such other address or addressee as either party may from time to time specify by notice in accordance with this Clause. Notices shall be deemed given upon receipt by the addressee.
g. Counterparts and Electronic Copies. This Agreement may be executed contemporaneously in one or more counterparts, each of which shall be deemed an original, but which together shall constitute one instrument.
23. Entire Agreement. This Agreement constitutes the entire agreement between the parties as to the subject matter hereof and supersedes and cancels any and all of Buyer’s terms and conditions, or other written or oral agreements previously existing between the parties and/or their affiliates with respect to such subject matter. Notwithstanding the foregoing, and unless Buyer has also provided a personal guarantee herein, any personal guarantee(s) previously provided by Buyer in any Agreement with CITYHOSTED shall continue in full force and effect. Buyer acknowledges that it is not entering this Agreement on the basis of any representations not expressly contained herein. Every Contract between CITYHOSTED and the Buyer or any of its subsidiaries shall be subject to the Conditions.
24. Electronic Signatures. Original signature transmitted and received via facsimile or other electronic transmission of a scanned document, (e.g., .pdf or similar format) are true and valid signatures for all purposes hereunder and shall bind the Parties to the same extent as that of an original signature. This Amendment may be executed in multiple counterparts, each of which shall be deemed to constitute an original but all of which together shall constitute only one document.
