The following terms and conditions shall apply to all sales by Leaner IT, LLC dba TrueCloud (“TRUECLOUD”) to the Purchaser of any and all Services and to all quotations and offers made by and purchase orders accepted by TRUECLOUD. Any different or additional terms and conditions contained in any other document submitted by the Purchaser are hereby rejected. Neither TRUECLOUD’s commencement of performance or delivery of Service shall be deemed or construed as acceptance of any additional or different terms and conditions proposed by Purchaser. Purchaser agrees that all orders placed by Purchaser, whether verbally or in writing, to include electronic correspondence, shall be governed by this Agreement, whether or not such terms and conditions accompany TRUECLOUD’s delivery of Services.
1. Purchase Price and Taxes. The purchase prices for Services shall be the amounts set forth in the sales order. Unless otherwise agreed in writing by TRUECLOUD, such prices are exclusive of any applicable sales, use, excise, property or other federal, state, county, municipal, local or foreign taxes, value-added or other indirect taxes, customs duties, tariffs or other imposts, and any related penalties and interest (collectively, the “Taxes”). Purchaser shall pay when due any Taxes (other than any tax based solely on the net income of TRUECLOUD) arising out of the transactions contemplated by this Agreement and shall indemnify and hold harmless TRUECLOUD from any and all such Taxes.
2. Terms of Payment and Delivery. Except where otherwise provided herein or specified in writing by TRUECLOUD (i) the terms of payment hereunder are net cash fifteen (15) days from the date of TRUECLOUD’s invoice, without deduction or setoff of any kind, (ii) all payments shall be made in United States dollars, unless TRUECLOUD’s credit application has been completed and approved. Most major credit cards are accepted. An invoice will be forwarded at the time of delivery, and TRUECLOUD shall use reasonable efforts to deliver Services in accordance with TRUECLOUD’s announced delivery schedule, however, that all delivery and delivery dates are approximate. Delivery of Services are in all cases subject to availability, and partial deliveries by TRUECLOUD of Services requested in the Purchase Order are permitted.
3. Returns. No returns or credit for services will be provided.
4. Risk of Loss. Anything herein or in applicable law to the contrary notwithstanding, Purchaser shall bear the risk of loss, deterioration or damage to the Services from the time they are placed by TRUECLOUD in the account or system of a Customer.
5. Reservation of Security Interest. TRUECLOUD reserves and retains a security interest in the Services and the proceeds thereof until payment therefore in full has been made by Purchaser. This contract constitutes a security agreement between Purchaser, as debtor, and TRUECLOUD, as secured party, under the Uniform Commercial Code, and TRUECLOUD has the rights and remedies of a secured party thereunder. Purchaser authorizes TRUECLOUD to file financing statements and to do any other act or thing necessary or useful in perfecting TRUECLOUD’s security interest in the Services and shall cooperate fully with TRUECLOUD in this regard.
6. Service Fee and Collection Costs. Purchaser shall pay a delinquency and service fee of ten percent (10%) per annum on amounts due TRUECLOUD, computed for each twenty-four (24) hour period during which payment remains in arrears.
7. Acceleration. TRUECLOUD may demand immediate payment of any and all amounts owed by Purchaser to TRUECLOUD hereunder or under another contract of sale between Purchaser and TRUECLOUD, and cancel any previously accepted Purchase Order, by written notice to Purchaser, upon any material breach by Purchaser of this Agreement.
8. Warranties and Purchaser’s Remedies. TRUECLOUD transfers to Purchaser all warranties, if any, that TRUECLOUD has received from the manufacturer only to the extent provided by the manufacturer and subject to all conditions of such manufacturer’s warranty. Should any Services be found not to conform with the manufacturer's warranty during the warranty period, Purchaser shall promptly notify TRUECLOUD, and TRUECLOUD shall, at its sole option, shall (i) contact the manufacturer and request that it provide to the Purchaser the remedy available from the manufacturer, if any; (ii) repair or replace the defective Service; or (iii) refund to Buyer or issue a credit to Buyer for the purchase price of the defective Service. Buyer must contact TRUECLOUD for a Return Material Authorization (“RMA”) number before returning any Service for warranty repair.
9. DISCLAIMER OF WARRANTIES. THE WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE. EXCEPT FOR THE EXPRESS WARRANTIES STATED HEREIN, TRUECLOUD DOES NOT MAKE ANY AND EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, OR ARISING BY USAGE OF TRADE OR COURSE OF DEALING, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND WARRANTY AGAINST INFRINGEMENT.
10. LIMITATION OF LIABILITY. TRUECLOUD’S LIABILITY TO PURCHASER FOR DEFECTIVE OR NON-CONFORMING SERVICES, FOR DELAY IN DELIVERY OR DELIVERY, OR FOR ANY OTHER BREACH OF THIS AGREEMENT, SHALL BE LIMITED TO ITS OBLIGATIONS AS STATED IN THIS AGREEMENT.
(a) NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, PURCHASER EXPRESSLY AGREES THAT TRUECLOUD SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF BUSINESS OR LOSS OF GOOD WILL, WHETHER CLAIMED UNDER CONTRACT, TORT, INDEMNITY OR ANY OTHER LEGAL THEORY.
(b) PURCHASER EXPRESSLY AGREES THAT UNDER NO CIRCUMSTANCES SHALL TRUECLOUD’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THESE TERMS AND CONDITIONS OR ANY SALE HEREUNDER (INCLUDING BUT NOT LIMITED TO ANY WARRANTY CLAIMS HEREUNDER) EXCEED THE TOTAL AMOUNT THAT PURCHASER PAYS TO TRUECLOUD HEREUNDER FOR THE PURCHASE OF THE SERVICE THAT IS THE SUBJECT OF SUCH LIABILITY.
(c) Any action for breach herein or any other action otherwise arising hereunder must be commenced within twelve (12) months after the cause of action accrues, or such action shall be deemed barred.
11. Purchaser’s Remedies Exclusive. The purchaser’s remedies set forth herein shall be the sole and exclusive remedies of purchaser and TRUECLOUD’s sole and exclusive liability.
12. Patent Indemnification. Purchaser shall hold TRUECLOUD harmless against any expense or liability from claims of unfair competition or infringement or contributory infringement of any patents, trademarks or copyrights related to Services sold hereunder or to Purchaser’s use of any Service in combination with Services not supplied by TRUECLOUD.
13. Force Majeure. TRUECLOUD shall be excused from liability for unusual delays or failure to deliver or fill any Purchase Order where caused by acts of God, fires, floods, strikes, work stoppages, accidents, allocations or other controls, or regulations, including export or import regulations of any foreign or U.S. federal, state or local government, shortage of trucks or any other means of transportation, fuels, materials or labor, or any other cause beyond TRUECLOUD’s reasonable control, whether or not similar in kind or class to those mentioned.
14. Miscellaneous. Any dispute or difference between the parties pertaining to these terms and conditions may be referred to arbitration and shall upon and after such reference be finally settled by arbitration to be held at Phoenix, Arizona, in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The terms and conditions shall be construed and enforced pursuant to laws of the State of Arizona, U.S.A., exclusive of the laws relating to conflict of laws. In the event of any arbitration, litigation or other dispute arising as a result of or by reason of these terms and conditions, the prevailing party in any such dispute shall be entitled, in addition to any other damages assessed, to its reasonable attorneys’ fees and all other costs and expenses incurred in connection with settling or resolving such dispute. A waiver by either party hereto of any term or condition hereof shall not be construed as a waiver or modification of any other term or condition hereunder or any other contract governing this contract. No rights or remedies are waived or modified by TRUECLOUD unless expressly waived in writing by TRUECLOUD. If any part of this Agreement is held void or unenforceable, such part shall be treated as severable, leaving valid the remainder. TRUECLOUD’s remedies herein provided shall be cumulative and in addition to any other or further remedies provided by law or equity.