Terms and Conditions
Terms and Conditions of Purchase
- Either of the following constitutes your ("Seller") acceptance of these T&Cs: (a) Seller's execution or acknowledgement of a purchase or work order ("Order"); or (b) Seller's commencement of performance of the Order (e.g., promising or commencing performance); provided, however, we ("Buyer") may treat the offer made by the Order as having lapsed before acceptance if Seller fails to so accept within a reasonable period of time. Except as provided in Section 3 (only as to an extended warranty period) and Section 10 below, Orders are subject to and governed exclusively by, and Seller's acceptance thereof is expressly limited to, these T&Cs. Buyer hereby expressly rejects and objects to any prior or subsequently proposed term, condition or alteration. No modification or waiver of these T&Cs shall be binding on Buyer unless expressly accepted in writing by Buyer's authorized officer. Any reference to Seller's quote, bid or proposal does not constitute acceptance of any legal terms or condition thereof.
- Orders may be issued electronically or in writing. The purchase price for goods ("Products") and services sold to Buyer shall be as listed on the Order or as otherwise agreed in writing by the parties. Buyer will pay undisputed portions of valid invoices within sixty (60) days of Buyer's receipt. Buyer may cancel or change Orders without penalty upon at least ten (10) days' notice. If Seller believes any such change will affect the price or delivery date, Seller shall so notify Buyer in writing (with reasonable supporting documentation) within three (3) days of receiving said written direction or the change shall be deemed accepted without modification to the price or date of delivery. Any such modification to price and/or delivery date must be pre-approved by Buyer in writing. No substitutions shall be made without Buyer's prior written consent. Products shall be tendered by Seller in a single delivery unless otherwise agreed. Shipments shall be F.O.B. (INCOTERMS 2010) Buyer's designated destination or otherwise in accordance with shipping terms on the Order. No charge will be allowed for packing, shipping or handling unless stated in the Order. Seller shall pay for damaged Products resulting from improper packing or marking. Itemized packing lists must accompany each shipment. Buyer's count will be final and conclusive on shipments not accompanied by Seller's itemized packing list. Time is of the essence. Seller shall promptly notify Buyer of any actual or anticipated delay and shall take all commercially reasonable steps to avoid or end delays without additional cost to Buyer.
- Seller represents, warrants, and covenants that: (i) it has and will transfer good title to Products upon delivery, free and clear of all liens, claims and encumbrances of any kind; (ii) Products will conform to Seller's standard technical specifications and to all specifications, descriptions, drawings and standards provided by Buyer or otherwise agreed to by Seller, and they will be new, meet the highest industry standards, fit for the purpose(s) normally intended (or specifically intended if such intent is communicated to Seller in the Order or otherwise), and Products and services will be free from defects in design, materials and workmanship; (iii) Products and their use, sale, lease and distribution will not infringe, misappropriate, or violate trademarks, service marks, copyrights, patents, patent rights, trade secrets or other intellectual property rights of a third party; (iv) it will utilize all necessary or desirable protective equipment and devices, whether suggested or required by safety associations, government agencies, municipalities or otherwise; (v) that all services shall be done with the utmost skill, care and diligence, in a good and workmanlike manner, in accordance with the terms hereof and good industry standards of performance and in a timely manner; (vi) it and the Products and services provided to Buyer will comply with all applicable laws, codes, standards and regulations (including, but not limited to anti-corruption and anti-bribery, child labor, affirmative action and conflict minerals); and (vii) it will comply with all aspects of Buyer's Cyber Security Requirements outlined in Appendix 1 as applicable. The foregoing warranties are enforceable by Buyer and its direct and indirect customers receiving such Products (together, "Customers"), and each shall remain valid for the longer of: (1) eighteen (18) months from the date of shipment from Seller; (2) such longer period as is offered by Seller in its then standard warranty; or (3) such longer period as is required by applicable law. If Seller breaches any of the foregoing warranties, Seller shall, at Buyer's election and at Seller's sole cost and expense (including, but not limited to, all transport, packaging, removal, testing, re-install and other labor costs): (a) repair or replace Products or services to Buyer's complete satisfaction; (b) reimburse Buyer for the purchase price paid for such Products or services; or (c) reimburse Buyer for the cost of substitute products or services obtained by Buyer from third-parties. Warranties shall begin anew on the date of repair or replacement pursuant to this Section 3.
- Seller shall indemnify, defend and hold harmless Buyer, its parent, subsidiaries, Customers and affiliates, and its/their officers, directors, employees, agents, contractors and representatives, from and against any and all actual or asserted claims, actions, damages, injuries, fines, penalties, settlements, judgments, losses, costs and expenses (including court costs and attorneys' fees) (collectively "Losses") arising out of, in connection with, or resulting directly or indirectly from: (i) Seller's breach of any representation, warranty or covenant hereunder; (ii) the use, sale, lease or distribution of Products (including, without limitation, for Losses that are attributable, in whole or in part, to contamination, pollution or environmental damage (including clean-up costs), data or security breaches, or any inaccurate or misleading representations or omissions from any Product literature, communication, packaging, warning or instruction relating thereto); (iii) recall of Product initiated or required by Seller, a governmental agency or applicable laws, rules, orders or regulations; or (iv) negligence, gross negligence, recklessness, fraud, strict liability, fault, violation of law, or willful misconduct of Seller, its employees, suppliers, manufacturers, contractors, officers, directors, guests, invitees or agents. Seller acknowledges and agrees that its indemnity obligations under this Section 4 shall be enforceable against Seller regardless of whether or not insurance Seller maintains covers such indemnity obligations. The foregoing shall not be construed to negate, abridge, or otherwise reduce any other right or obligation that would otherwise exist as to any party or person described herein. In the event that any indemnity provisions herein are contrary to applicable law, then such indemnity obligations shall be construed to apply to the fullest extent allowed by applicable law.
- TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY, OR ITS PARENT OR AFFILIATES, OR ANY OF ITS/THEIR DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS, BE LIABLE HEREUNDER FOR ANY SPECIAL, RELIANCE, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR INDIRECT DAMAGES, INCLUDING, WITHOUT LIMIT, FROM DAMAGES TO PROPERTY, FOR LOSS OF PROFITS, INCOME, USE OR TIME, WHETHER IN TORT, CONTRACT, OR OTHERWISE RESULTING FROM PERFORMANCE OR NON-PERFORMANCE HEREUNDER, AND WHETHER OR NOT IT/THEY KNEW OF THE POSSIBILITY THEREOF; PROVIDED, HOWEVER, THIS SECTION 5 SHALL NOT LIMIT SELLER'S OBLIGATIONS UNDER SECTIONS 4 OR 12.
- Unless otherwise expressly agreed in writing by Buyer, Seller shall not, and shall not authorize any other party to, use, modify, reproduce or replicate any trademark, logo or trade name owned or claimed by Buyer ("Buyer Marks") in any way. Seller shall not contest Buyer's right of exclusive use of any Buyer Mark. Upon expiration or termination of the Order, Seller will remove and not thereafter use any sign, catalogue, brochure or other material (whether print or electronic) containing any Buyer Mark and Seller will, at Buyer's option, immediately destroy or return to Buyer such material in its possession or under its control containing Buyer Marks. In addition, Seller agrees not to use any Buyer Marks in any promotional material, including without limitation, customer lists, advertisements, or press releases, without Buyer's advance written authorization.
- The occurrence of any one or more of the following shall constitute an "Event of Default": (i) delivery of services or Products failing to conform to any provision hereof ("Non-Conforming Products"); (ii) Seller's breach or failure to perform its obligations hereunder; or (iii) Seller's breach or misrepresentation of any representation or warranty herein. Upon an Event of Default, Buyer shall be entitled, but not required, to exercise any or all of the following: (i) for late delivery or performance, Buyer may extend the time therefore and/or require expedited shipping/services, and such Products/services shall be provided in the manner and per the timelines specified by Buyer, at Seller's sole cost; (ii) with respect to Non-Conforming Products, Buyer shall have all of the rights and remedies available under Sections 3 and 4 above; (iii) reject or revoke acceptance, as the case may be, of all or any portion of the shipment of Products containing any Non-Conforming Products; and/or (iv) exercise any other rights and remedies specified in the Order or otherwise available under applicable law. Buyer may exercise any one or more of the foregoing rights and remedies by notifying Seller of such intent. Buyer shall not be liable to Seller on account of exercising any such rights or remedies. Seller acknowledges and agrees that the occurrence of an Event of Default constitutes a substantial impairment of value to Buyer of the shipment at issue, the entire Order, and any other then pending Orders, so as to entitle Buyer to exercise any and/or all of the remedies specified herein, in the Order, and at law, and Seller hereby waives its right to cure the default in question, unless otherwise agreed in writing by Buyer. The making of or failure to make any inspection of or payment for the Products shall in no way impair Buyer's right to reject Non-Conforming Products, nor be deemed acceptance by Buyer of the Products, nor affect in any way Seller's obligations hereunder, notwithstanding Buyer's opportunity to inspect the Products, Buyer's knowledge of the non-conformity or defect, its substantiality or the ease of its discovery, nor Buyer's earlier failure to reject the Products.
- All questions pertaining to the validity, construction, execution and performance of the Order and the relationship of the parties hereto shall be construed and governed by the laws of Delaware and the USA, without giving effect to the principles of (i) comity of nations; or (ii) conflicts or choice of law provisions thereof, and the Order shall not be governed by the U.N. Convention on Contracts for the International Sale of Goods. Exclusive jurisdiction shall be in the appropriate state or federal court in the state of Buyer's principal place of business.
- Seller certifies that it has an affirmative action policy ensuring equal employment opportunity without regard to, and that it maintains no employee facilities segregated on the basis of, race, color, national origin, sex, age, sexual orientation, religion or handicap, and that it is not debarred or suspended from being awarded Federal or Federally assisted contracts. If applicable, the following laws, orders and regulations, as amended, are hereby incorporated: Executive Order 11246; Vietnam Era Veterans Readjustment Act; Rehabilitation Act of 1973; Veterans Compensation, Education and Employment Act; 41 CFR 60-1.4 (Equal Employment Opportunity); 41 CFR 60-250.4 ?(Veterans Affirmative Action); 41 CFR 60-741.4 (Handicap Affirmative Action); 41 CFR 601.40 (Affirmative Action Plans); 41 CFR 601.7 (EE01 Reports); 41 CFR 61650 (Veterans Employment Reports). Seller certifies and warrants that it is and shall remain in compliance with all applicable anti-corruption and anti-bribery laws and that the Products are produced in compliance with the Fair Labor Standards Act of 1938, as amended, and the regulations and orders of the U.S. Department of Labor issued thereunder, and that each invoice it submits is correct and authentic and the only one issued for the Products at issue, and that all Products comply with the Occupational Safety and Health Act of 1970, as amended, and the applicable state plans approved under same, and the regulations thereunder, to the extent applicable. Seller shall notify Buyer in writing if Products are subject to laws or regulations relating to hazardous or toxic substances, or when disposed of, to regulations governing hazardous wastes, or to any other health, safety and/or environmental regulations. Seller shall furnish all appropriate shipping certifications, labeling in compliance with the Workplace Hazardous Materials Information System, Material Safety Data Sheets in compliance with the Workplace Hazardous Materials Information System, and instructions for shipping, safety, handling, exposure and disposal in a form sufficiently clear for use and actions to be taken by Buyer's and its Customer's non-technical personnel.
- Without limiting Seller's obligations or liabilities hereunder, Seller shall, on the date an Order is accepted and for a period of two (2) years thereafter, at its sole expense, purchase and maintain the following insurance coverage with carriers that have A.M. Best ratings of not less than A- and with a minimum financial rating of Class VII: (a) Commercial General Liability Insurance that covers all liabilities for bodily injury and property damages arising from the Products, services and/or the performance of an Order, with limits of liability of at least $5,000,000 for each occurrence and in the aggregate. Coverage must include Products/Completed Operations, Personal and Advertising Injury and Blanket Contractual Liability (CG 20 10 or its equivalent must be provided). Such CGL insurance may be maintained through any applicable combination of CGL and Excess/Umbrella Coverage; (b) Automobile Liability Insurance that covers all liabilities for bodily injury and property damages arising from the use of all owned, hired or non-owned vehicles, with limits of liability of at least $1,000,000 for each occurrence and in the aggregate; (c) Workers Compensation Insurance shall be statutory by state law and Employer's Liability Insurance with limits of liability of at least $1,000,000; (d) Product Liability Insurance that covers the Products with limits of liability of at least $5,000,000 in the aggregate; and (e) Technology Errors & Omissions Liability Insurance, with a minimum limit of $5,000,000 per claim and in the aggregate, covering all Products including failure of information technology security, data privacy breach and software copyright infringement (if coverage is on a claims-made basis, the policy must contain a retro date which precedes the effective date of the Order and continuity must be maintained for 1 (one) year following termination or expiration of the Order). All insurance coverage required herein for Seller shall extend to and protect Buyer and its subsidiaries, parent company and/or affiliates to the full amount of such coverage, and all deductibles and/or self-insured retentions (if any), including those related to defense cost, are the sole responsibility of Seller and, upon Buyer's request, Seller shall disclose the same to Buyer. All policies, except the Workers' Compensation insurance, shall be endorsed to name Buyer, its parent and affiliated entities, and its/their directors, officers, employees, representatives, and agents, as an additional insured and such policies shall be endorsed to waive all express or implied rights of subrogation against Buyer, its parent and affiliated entities. The insurance coverage set forth above shall be primary to any liability insurance or other insurance carried by Buyer, its affiliates or parent and Buyer's, its affiliate's and parent's other insurance shall be excess and non-contributory for claims and losses arising out of the performance of an Order. Seller shall provide a coverage endorsement for each category of insurance required above, except for Workers' Compensation, which includes a cross liability clause, stating that the Seller and Buyer shall each be considered as a separate entity. The policies shall not be canceled, terminated or materially reduced without thirty (30) days' advance written notice to Buyer. Seller shall provide Buyer with a Certificate of Insurance evidencing the above-required types and amounts of insurance coverage and other requirements prior to selling Products and providing services to Buyer and on an annual basis thereafter. Failure of the Seller to provide Buyer the Certificate of Insurance or failure of Buyer to specifically request such certificate, shall in no way limit or release the Seller of its obligations or liabilities under this Section 10. In the event the Seller or its insurance carrier defaults on any obligation hereunder, Seller agrees that it will be liable for all reasonable expenses and attorneys' fees incurred by Buyer or its affiliates to enforce the provisions hereunder.
- Unless Buyer and Seller are currently entered into a separate, written agreement that specifically governs their business relationship and the subject matter of the Order, and unless that written agreement specifically contains a merger clause that addresses conflicting terms and conditions in purchase orders, invoices, etc., then these T&Cs constitute the entire agreement and understanding between the parties, and supersede and replace all prior negotiations and agreements, proposed or otherwise, whether written or oral, concerning the subject matter hereof. No course of dealing, usage of trade or course of performance shall be relevant to explain, supplement or modify any express provision of these T&Cs.
- Buyer may disclose Confidential Information (as defined below) to Seller in connection with its purchase of Products and services from Seller. Seller shall not disclose any Confidential Information or any portion thereof to any person or entity and shall only use such Confidential Information to fulfill its obligations hereunder, it being understood that such Confidential Information provides Buyer with a competitive advantage in its trade because it is not generally known or available to the public. In that regard, Seller acknowledges and agrees that Buyer has taken and is taking reasonable steps to protect the confidentiality of, and its legitimate interests in, the Confidential Information. The term "Confidential Information" means information concerning Buyer's business, personnel, data, financial and marketing plans, intellectual property rights (including, without limitation, patents, trademarks, copyrights and trade secrets), forecasts, strategies and statements, and Customer related information. To the extent allowed by law, Seller shall notify Buyer in writing in advance of any disclosure of Confidential Information required by law, court or administrative order.
- All notices permitted, required or provided for herein shall be made in writing, and shall be deemed adequately delivered if delivered by hand, certified mailing in the U.S. mail with return receipt requested, or by a recognized courier service that regularly maintains records of its pick-ups and deliveries, to the parties at their respective addresses, as set forth on the face of the Order or as otherwise designated by a party hereto. Any waiver of any of the provisions herein or of any inaccuracy in or non-fulfillment of any of the representations, warranties or obligations hereunder or contemplated hereby, shall not be effective unless made in writing and signed by the party against whom the enforcement of such waiver is sought. Any provision of these T&Cs that is deemed invalid or unenforceable in any jurisdiction shall, as to such jurisdiction only, be ineffective only to the extent of such invalidity or unenforceability, without rendering invalid or unenforceable or otherwise affecting the remaining terms and provisions hereof. Neither party may assign or otherwise delegate any of its rights or obligations hereunder without the prior written consent of the other party, which consent will not be unreasonably withheld, delayed or conditioned; provided, however, Buyer shall have the right to assign Orders without Seller's consent to an affiliate of Buyer. The provisions hereof that by their nature are intended to survive the termination, cancellation, completion or expiration of the Order shall continue as valid and enforceable obligations of the parties notwithstanding any such termination, cancellation, completion or expiration. To the maximum extent permitted by applicable law: (i) Seller's warranties are fully-enforceable by Buyer and its Customers (as intended third-party beneficiaries); and (ii) the indemnities provided hereunder are fully-enforceable by Buyer and/or any or all of the other indemnitees identified above in Section 4.
Cyber Security Requirements
- Seller shall ensure all Products have been developed in accordance with principles of secure software development consistent with software development industry best practices, including, but not limited to, security design review, secure coding practices, risk based testing and remediation requirements. Seller must use reasonable measures to secure the software development environment of the Products from unauthorized access.
- Seller shall include cyber security guidance in the Product documentation provided to Buyer. This documentation shall include guidance on how to configure the Products and/or the surrounding environment to best ensure security. It shall also include guidance on which logical or physical ports are required for the Product to function. If authentication is used to protect access to any service or capability of the Products, regardless of the intended user of that service/capability, the Seller shall ensure:
2.1 the Products shall not provide access to that service or capability using a default account/password;
2.2 the Products shall not provide access to that service or capability using a "Backdoor" account or password;
2.3 the Products' associated authentication and password change processes shall be implemented with an appropriately secure cryptographic level; and
2.4 Buyer shall be able to change any passwords supported by the Products.
- In the event that any wireless technology is incorporated in any Product, Seller shall document that the wireless technology complies with standard operational and security requirements specified in applicable wireless standard(s) or specification(s) (e.g., applicable IEEE standards, such as 802.11).
- In the event that any cryptographic systems are contained in the Product, Seller shall only use cryptographic methods that are "Approved" as defined in the Federal Information Processing Standard (FIPS) Security Requirements for Cryptographic Modules (FIPS 140-2), and Seller shall provide an automated remote key-establishment (update) method that protects the confidentiality and integrity of the cryptographic keys.
- Seller must develop and maintain an up-to-date Cyber Security Susceptibility management plan designed to promptly identify, prevent, investigate, and mitigate any Cyber Security Susceptibilities and perform any required recovery actions to remedy the impact. "Cyber Security Susceptibility (ies)" is defined as any bug, software defect, design flaw, or other issue with software associated with a Product that could adversely impact the confidentiality, integrity or availability of information or processes associated with the Product.
- Seller shall notify Buyer within a reasonable period, in no event to exceed five (5) business days after discovery, or shorter if required by applicable law or regulation, of any potential Cyber Security Susceptibility. Seller shall report any Cyber Security Susceptibility to Buyer. Within a reasonable time thereafter, Seller shall provide Buyer, free of charge, with any upgrades, updates, releases, maintenance releases and error or bug fixes necessary to remediate any Cyber Security Susceptibility. Seller shall reasonably cooperate with Buyer in its investigation of a Cyber Security Susceptibility, whether discovered by Seller, Buyer, or a third party, which shall include providing Buyer a detailed description of the Cyber Security Susceptibility, the remediation plan, and any other information Buyer reasonably may request concerning the Cyber Security Susceptibility, as soon as such information can be collected or otherwise becomes available. Buyer or Buyer's agent shall have the right to conduct a cyber security assessment of the applicable Products, and the Product development lifecycle, which includes tests intended to identify potential Cyber Security Susceptibilities. Seller shall designate an individual responsible for management of the Cyber Security Susceptibility, and shall identify such individual to Buyer promptly.
- Seller represents, warrants and covenants that all open source software contained within the Products are and shall be in material compliance with the terms and conditions of the applicable licenses governing their use, and the Products or the use thereof by Buyer shall not cause Buyer or Buyer's intellectual property rights to be subject to the terms or conditions of a copyleft license, or require Buyer to fulfill any open source license obligations for any open source software contained within the Products.
- Seller represents, warrants, and covenants that the Products shall be free of viruses, malware, and other harmful code (including, without limitation, time-out features) which may interfere with the use of the Products regardless of whether Seller or its personnel purposefully placed such code in the Products. In addition to exercising any of Buyer's other rights and remedies under the Order or otherwise at law or in equity, Seller shall provide Buyer, free of charge, with any and all new versions, upgrades, updates, releases, maintenance releases, and error or bug fixes of the Products (collectively, "Revised Code") which prevents a breach of any of the warranties provided under the Order or corrects a breach of such warranties. Revised Code contained in the Products constitutes Products for purposes of the Order.
Terms and Conditions of Sale
General. These Terms and Conditions of Sale ("Terms") apply to any order from or sale to a customer of Irby (any such customer as well as any applicant for credit with Irby may be referred to as a "Customer") and are part of any application for credit with Irby. These Terms also apply to any proposal, estimate or quote that Irby makes. These Terms may not be changed or superseded by any different or additional terms and conditions contained in any Customer purchase order, acknowledgement, form or other document. Irby hereby objects to and rejects any such additional or different terms and conditions. Additional or different terms shall only apply if an officer of Irby (Vice President or higher only) approves the additional or different terms in a signed writing expressing the officer's intent to bind Irby to the additional or different terms and conditions. The Customer agrees not to assert Uniform Commercial Code § 2-207 ("§ 2-207") or any statute based on § 2-207 to avoid, modify or add to these Terms.
Type of Business. Customer certifies that it qualifies as the business type stated on page 2 of the Irby Credit Application and shall notify Irby of any changes which might affect its liability for sales and/or use tax on any future purchase.
Payment. Terms of all sales are cash or check (payable in U.S. dollars). No payment may be made by credit, debit or charge card. If an invoice or obligation of Customer is not paid by the net due date indicated on Irby's invoice to Customer, Irby shall levy a "service charge" to cover the additional cost of handling the account in an amount equal to one and one-half percent (1.5%) per month or part thereof until paid. Customer acknowledges and agrees that this charge is a "service charge" levied by Irby to reimburse Irby for the additional cost of carrying its delinquent account and that such charge is not an interest charge. Irby reserves the right at any time to revoke or decrease any credit extended to the Customer, require payment security satisfactory to Irby or cancel any order if Customer's account is delinquent, Customer fails to pay any obligation when due or, in Irby's opinion, there is an adverse change in Customer's financial condition. Delays in delivery or nonconformities in any installments delivered shall not relieve Customer of its obligation to accept and pay for remaining installments.
Collection Costs. If it becomes necessary for Irby to retain an attorney or collection agency assistance to collect an overdue account, Customer shall pay all such reasonable and necessary attorneys’ fees and costs of same, including any necessary and related incidental expenses.
Prices. Unless otherwise specified in writing by Irby, all proposals expire thirty (30) days from the date thereof. Prices do not include any federal, state or local property, license, privilege, sales, use, excise, gross receipts, or other like taxes. Such taxes, if any, shall be added to the purchase price and shall be paid by Customer unless Customer provides Irby with an exemption certificate acceptable to the taxing authorities. Any such taxes which Irby may be required to pay or collect under any existing or future law shall be for the account of Customer, who shall promptly pay the amount thereof to Irby upon demand.
Jurisdiction. If a dispute arises between the parties, regardless of its nature, the parties submit to the exclusive jurisdiction and venue of the state and federal courts located in Jackson, Mississippi or within thirty (30) miles of Jackson, Mississippi. Litigation between the parties in any other venue or forum is prohibited. This provision is mandatory. It is not permissive. All depositions that are part of a litigated dispute between the parties will take place in Hinds County, Mississippi, and all documents and electronically stored information that the parties are entitled to obtain through discovery requests will be produced in Hinds County, Mississippi.
Choice of Law. The laws of the State of Mississippi shall govern these Terms and shall govern any dispute that may arise between Irby and Customer.
Security Interest. To secure the payment and performance in full of all of Customer's debts and obligations under and in connection with any Agreement and any order, Customer hereby grants to Irby a security interest in any unpaid Goods purchased from Irby, and all proceeds and products thereof. Customer hereby irrevocably authorizes Irby at any time and from time to time to file in any filing office any initial financing statements and amendments thereto, and to take such other actions as Irby deems necessary to protect Irby's rights in such Goods.
All Sales Final. All purchases are final and no Goods purchased from Irby shall be returned for credit without prior written approval and acceptance of Irby. All items returned are subject to restocking charges.
Shipment. All shipments are F.O.B. point of origin and Customer is responsible for all claims with carriers and shipping insurance costs. Customer shall bear risk of loss upon tender of Goods by Irby to Customer, Customer's representative or a common carrier. Claims for Goods damaged or lost in transit should be made by Customer to the common carrier as Irby's responsibility ceases upon tender of goods to Customer, Customer's representative or a common carrier.
No Waiver. Irby's failure to insist upon the strict performance of any term or condition herein shall not be deemed a waiver of Irby's rights or remedies hereunder, nor of its right to insist upon strict performance of the same or any other term herein in the future. No waiver of any term or condition herein shall be valid unless in writing and signed by an authorized representative of Irby.
Force Majeure. Irby's failure to perform any term or condition of an order or Agreement as a result of conditions beyond its control such as, but not limited to, war, strikes, fires, floods, acts of God, governmental restrictions, power failures, or damage or destruction of any facilities or infrastructure, shall not be deemed a breach of an order or Agreement.
DISCLAIMER OF WARRANTIES. ALL WARRANTIES ON GOODS ARE SOLELY THE MANUFACTURERS'. IRBY EXPRESSLY DISCLAIMS AND MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTIBILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE. IRBY'S SOLE RESPONSIBILITY IS LIMITED TO RETURN OF GOODS AND REPAYMENT OF THE PRICE OR TO THE REPAIR AND REPLACEMENT OF NON-CONFORMING GOODS OR PARTS. IN NO EVENT SHALL IRBY, ITS SUPPLIERS OR SUBCONTRACTORS BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER IN CONTRACT, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUE, LOSS OF USE OF GOODS, COST OF CAPITAL, COST OF SUBSTITUTE GOODS, FACILITIES OR SERVICES, DOWNTIME COSTS, DELAYS, AND CLAIMS OF CUSTOMERS OF THE CUSTOMER OR OTHER THIRD PARTIES FOR ANY DAMAGES. IRBY NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON TO ASSUME FOR IT ANY LIABILITY IN CONNECTION WITH ANY SALE OF GOODS.
1. Acceptance of Terms
3. Other Sonepar web sites
4. Specific terms
6. Limitation of damages
7. Linking to this web site
8. Trademarks and service marks
9. User Conduct
10. Jurisdiction and Choice of Law
1/ Acceptance of Terms
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3/ Other Sonepar web sites
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4/ Specific terms
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Irby Electrical Distributor endeavors to provide current and accurate information on the Web Site. However, misprints, errors, inaccuracies, omissions (including incorrect specifications for products) or other errors may sometimes occur. You should independently evaluate the accuracy of the information and the usefulness for your particular needs of any product or service available through the Web Site. Irby Electrical Distributor cannot guarantee that products and services advertised on the Web Site will be available when ordered or thereafter. Specifications for products and services are subject to change without notice, and Irby Electrical Distributor reserves the right to make changes to processing, materials or configuration without notice. Irby Electrical Distributor does not warrant that the content of the Website including, without limitation, product descriptions or photographs, is accurate or complete.
Irby Electrical Distributor reserves the right to reject any order you place with us, and/or or to limit quantities on any order, without giving any reason. If we reject your order, we will generally attempt to notify you using the e-mail address you gave us when you placed the order.
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6/ Limitation of damages
Although care has been taken to ensure the accuracy of the information on this Web Site, Irby Electrical Distributor assumes no responsibility therefore ALL CONTENT IS PROVIDED "AS IS" AND "AS AVAILABLE". Irby Electrical Distributor HEREBY EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, NON-INFRINGEMENT, OR AS TO THE OPERATION OF THIS WEB SITE OR THE CONTENT. Irby Electrical Distributor DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS AS TO THE SECURITY OF THIS WEB SITE. YOUR USE OF THIS WEB SITE IS AT YOUR OWN RISK YOU ACKNOWLEDGE ANY INFORMATION SENT MAY BE INTERCEPTED. Irby Electrical Distributor DOES NOT WARRANT THAT THE WEB SITE OR THE SERVERS WHICH MAKE THIS WEB SITE AVAILABLE OR ELECTRONIC COMMUNICATIONS SENT BY Irby Electrical Distributor ARE FREE FROM VIRUSES OR ANY OTHER HARMFUL ELEMENTS.
IN NO EVENT SHALL Irby Electrical Distributor, ITS PARENT COMPANY OR ANY OF ITS AFFILIATES BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, PUNITIVE, SPECIAL OR INCIDENTAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, CONTRACT, REVENUE, DATA, INFORMATION OR BUSINESS INTERRUPTION) RESULTING FROM, ARISING OUT OF OR IN CONNECTION WITH THE USE OF, OR INABILITY TO USE THIS WEB SITE OR THE CONTENT, EVEN IF Irby Electrical Distributor HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ANY ACTION BROUGHT AGAINST Irby Electrical Distributor PERTAINING TO OR IN CONNECTION WITH THIS WEB SITE MUST BE COMMENCED AND NOTIFIED TO Irby Electrical Distributor IN WRITING WITHIN ONE (1) YEAR AFTER THE DATE THE CAUSE FOR ACTION AROSE.
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7/ Linking to this web site
This Web Site may provide links to other web sites that are not under the control of Irby Electrical Distributor. Irby Electrical Distributor shall not be responsible in any way for the content of such other web sites. North East provides such links only as a convenience to the user of this Web Site, and the inclusion of any link to any such web sites does not imply endorsement by Irby Electrical Distributor of the content of such web sites or, unless expressly disclosed otherwise, any sponsorship, affiliation or association with its owner, operator or sponsor, nor does Irby Electrical Distributor's inclusion of the links imply that Irby Electrical Distributor is authorized to use any trade name, trademark, logo, legal or official seal or copyrighted symbol that may be reflected in the linked web site.
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8/ Trademarks and service marks
Unless otherwise explicitly stated, copyright and all other proprietary rights in the Content (including but not limited to software, audio, video, text and photographs) rests with Sonepar USA or any of its affiliates or their licensees, irrespective of whether a copyright symbol or statement is present. There are a number of proprietary logos, service marks, trademarks, slogans and product designations found on this Site. By making them available on this Site, Sonepar USA or any of its affiliates are not granting you a license to use in any fashion. Access to this Site does not confer upon you a license under any of Sonepar's USA or any of its affiliates or any third party's intellectual property rights. Except as otherwise provided, the Content published on this Web Site may be reproduced or distributed in unmodified form for personal non-commercial use only. Any other use of the Content, including without limitation distribution, reproduction, modification, display or transmission without the prior written consent of Sonepar USA or any of its affiliates is strictly prohibited. All copyright and other proprietary notices shall be retained on all reproductions. Our policy is to comply with all intellectual property laws, and to act expeditiously upon receiving any notice of claimed infringement. If you believe that your work has been reproduced on this website in a manner that constitutes copyright infringement, please provide a notice of copyright infringement identifying the original copyrighted work and the portions of the Irby Electrical Distributor site that is claimed to be infringing such copyright. Any material or information sent through or in connection with this Web Site by you ("User Materials") will be treated as non-confidential and non-proprietary, and immediately become the property of North East or any of its affiliates, subject to any privacy policies posted on this Web Site. Irby Electrical Distributor may use such User Materials as it deems fit, anywhere in the world, without obligation for compensation, and free of any moral rights, intellectual property rights and/or other proprietary rights in or to such User Materials.
The Web Site may contain references to specific products and services that may not be (readily) available in a particular country. Any such reference does not imply or warrant that any such products or services shall be available at any time in any particular country. Please contact your local Irby Electrical Distributor business contact for further information.
Software made available for downloading from or through this Web Site is licensed subject to the terms of the applicable license agreement. Except as set forth in the applicable license agreement, the software is made available for use by end users only and any further copying, reproduction or redistribution of the software is expressly prohibited. WARRANTIES, IF ANY, WITH RESPECT TO SUCH SOFTWARE SHALL ONLY APPLY AS EXPRESSLY SET FORTH IN THE APPLICABLE LICENSE AGREEMENT. Irby Electrical Distributor HEREBY EXPRESSLY DISCLAIMS ALL FURTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE OR NON-INFRINGEMENT WITH RESPECT TO THE SOFTWARE.
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The user agrees a) not to use this Web Site in any manner which could damage, disable, overburden or impair this Web Site; b) not to interfere with the security of, or otherwise abuse, this Web Site, or any services, system resources, accounts, servers or networks connected to or accessible through this Site or affiliated or linked sites; c) not to disrupt or interfere with any other person's use and enjoyment of this Site or affiliated or linked sites; d) not to upload, post or otherwise transmit on this Web Site any viruses or other harmful, disruptive or destructive files or computer programs; e) not to use any robot, spider or other automatic device, or manual process to monitor or copy the web pages or the content contained at this Site; f) not to use or attempt to use another's account, service or system without authorization from Irby Electrical Distributor, or create or use a false identity on this Web Site; g) not to transmit on this Site spam, chain letters, junk mail or any other type of unsolicited mass e-mail; and h) not to attempt to obtain unauthorized access to this Site or portions of this Site which are restricted from general access. In addition, you agree that you are solely responsible for actions and communications undertaken or transmitted to or for your account, and that you will comply with all applicable laws that relate to your use or activities on this Web Site.
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10/ Jurisdiction and Choice of Law
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