Sales Terms

1. Scope.

Pursuant to the written offer (the "Quote") to sell certain services, support, hardware and/or software products (the "Solutions") which references these Sales Terms (the "Sales Terms"), Atlas7, LLC, a Delaware Limited Liability Company ("Atlas7"), hereby offers to sell to the client named therein ("Client") such Solutions referenced therein.

2. Acknowledgment.

CLIENT ACKNOWLEDGES AND AGREES THAT: (A) THE QUOTE AND ANY WRITTEN ORDER TO PURCHASE THE SOLUTIONS (A "PURCHASE ORDER") SENT BY CLIENT TO ATLAS7 IN REPLY TO SUCH QUOTE IS MADE SUBJECT TO THESE SALES TERMS; (B) THESE SALES TERMS GOVERN THE RELATIONSHIP BETWEEN ATLAS7 AND CLIENT AND PREVAIL NOTWITHSTANDING ANY DISCREPANCY OR CONFLICT WITH ANY TERMS CONTAINED IN ANY PURCHASE ORDER, STATEMENT OF WORK OR OTHER AGREEMENT SUBMITTED BY CLIENT TO ATLAS7; (C) ANY PRE-PRINTED OR OTHER TERMS OR CONDITIONS INCLUDED WITH OR IN ANY OF THE DOCUMENTS REFERENCED IN ITEM (B) WILL HAVE NO EFFECT WHATSOEVER; (D) ATLAS7 RESERVES THE RIGHT TO REFUSE OR ACCEPT ANY PURCHASE ORDER SUBMITTED BY CLIENT, AT ITS SOLE DISCRETION; AND (E) ATLAS7'S ACCEPTANCE OF ANY PURCHASE ORDER IS MADE PURSUANT TO CLIENT'S ACCEPTANCE OF THESE SALES TERMS.

3. Delivery.

Atlas7 will accept Client's Purchase Orders under these Sales Terms for requested delivery of Solutions pursuant to quote expiration date.

4. Prices.

Prices for Solutions will be shown on one or more invoices submitted by Atlas7 to Client (the “Invoices”) for payment. Prices for Solutions may be changed by Atlas7 prior to issuance of purchase order.

5. Payment Terms.

After approval by Atlas7, Client commits to payments on the date of issuance of the Invoice by Atlas7 to Client. Atlas7 may elect to extend credit terms. Atlas7 reserves the right to charge Client interest on any delinquent balance. Interest is accrued on a daily basis for each day of delinquency at the lesser of (a) 20% per year, or (b) the maximum rate permitted by law. Atlas7 reserves the right to refuse shipment of Solutions to Client if any delinquent Invoices are outstanding. Atlas7 reserves the right to invoice Client upon the shipment of Solutions to Client, including whole or partial orders and regardless of whether such Solutions are shipped to Client by Atlas7 or a Solutions distributor or manufacturer, and payment will be due after the date of issuance of such Invoice. Atlas7 may refuse to ship Solutions on credit for any reason or for no reason whatsoever. No payment by Client or receipt by Atlas7 of an amount lesser than the entire amount of an Invoice will be deemed to be other than on account of the earliest due amount, nor will any endorsement or statement on any check or letter accompanying any check or payment be deemed an accord and satisfaction, and Atlas7 may accept such check or payment without prejudice to Atlas7's right to recover the balance of any amount due or pursue any other remedy provided for in these Sales Terms. In connection with the foregoing, Atlas7 will have the absolute right in its sole discretion to apply any payment received from Client to any account of Client then not current and due and delinquent.

6. Security Interest.

Client hereby grants to Atlas7 a security interest covering the shipment of Solutions made in the full amount of the Invoice for such shipment, until payment on such Invoice is received in full by Atlas7. Client agrees to sign and execute any and all documents as required by Atlas7 to protect such security interest in the purchased Solutions.

7. Standard Order Procedure.

Solutions may only be ordered by Client via e-mailed Purchase Orders referencing these Sales Terms and stating the quantity, specific Solutions, applicable price, shipping instructions and requested delivery date. Client acknowledges that in the event any Purchase Order fails to reference these Sales Terms, these Sales Terms will nevertheless govern the relationship between Atlas7 and Client. Purchase Orders will be subject to written acceptance by Atlas7 and delivery schedules will be established in accordance with Solutions availability and Client's credit standing.

8. Change Orders, Cancellation and Rescheduling.

Any changes to previously submitted Purchase Orders requested by Client must be provided by e-mail and are subject to approval by Atlas7. Requests to move the ship date forward or increase quantities of ordered Solutions will be granted subject to Atlas7's ability to satisfy such request. Upon Atlas7 approval prior to shipment Client may make a written request via e-mail for cancellation. Atlas7 exclusively maintains all rights to approve such a cancellation request. No Solutions may be returned except in the event Client and Atlas7 have mutually agreed in writing to a trade-in for different Solutions.

9. Delivery; Risk of Loss; Title.

Delivery is F.O.B. Origin. Client is responsible for payment of all costs relating to the transportation, delivery and insurance of the Solutions. Atlas7 will make reasonable efforts, but will not be obligated, to deliver the Solutions in accordance with Client's shipping instructions and choice of carrier. Risk of loss or damage with respect to the Solutions will pass to Client on delivery of Solutions by Atlas7 or a Solutions distributor or manufacturer, as applicable, to Client’s common carrier. Solutions are deemed accepted by Client upon delivery to Client's common carrier. Title with respect to the Solutions will pass to Client once payment on the applicable Invoice is received in full by Atlas7.

10. Client to provide.

If deemed necessary, Client shall provide a Point of Contact person to whom all Atlas7 communications shall be addressed.  The Point of Contact will provide: Information and resources in a timely manner as needed by Atlas7 to enable Atlas7 to complete the Service; and Will be readily available when requested by Atlas7 for the duration of the Service. Client’s Point of Contact person will be responsible for receiving any deliverables and has full authority to provide any needed approvals for Client under the Change Control provision below. Client will provide the appropriate technical staff to participate in the engagement activities as required.

Client will provide the following to Atlas7 for the duration of Service: Access to all technology devices, software, facilities, personnel, and services in scope for this engagement such as storage arrays, hosts, servers, endpoints, and applications as needed for the Service, and access to manufacturing support associated with hardware and software components listed within the Services Scope.

11. Taxes and Duties.

Client will assume all responsibility for taxes on shipments (except taxes based on the gross or net income of Atlas7) or provide Atlas7 with a tax exemption certificate acceptable to the applicable taxing authorities. On orders for shipments outside the United States of America, all required import duties, licenses and fees will be payable by Client in addition to the stated prices for the Solutions.

12. Export Law Compliance.

Neither Atlas7 nor Client will export, directly or indirectly, any information acquired under these Sales Terms or any Solutions utilizing any such information to any country for which the government of the United States of America or any agency thereof at the time of export requires an export license or other governmental approval, without first obtaining such license or approval. With respect to any transactions under these Sales Terms, both parties will cooperate, in any reasonable manner, to effect compliance with foreign sales corporation rules as set forth in the Internal Revenue Code of 1986, as amended.

13. Solution Provider and Warranty Pass-Through

Client understands and agrees Solutions are subject to Solution Provider's terms when applicable. Client may be required to execute a customer agreement with Solution's Provider, and Client understands they may not have access or full use of Solution until they do so. In the event Atlas7 or its Solution Providers must be on-site, Client agrees to not require waivers of liability as a requirement for site access.

Atlas7’s sole responsibility to Client with respect to any Solutions manufactured by a third party will pass through to Client such original Solutions manufacturer's available product warranty, if any. The product warranty provided by said third parties does not cover (a) any Solutions which have been altered or modified by Client, including, without limitation, any change, addition or improvement, and (b) any damage, defects, malfunctions or service failures caused by: (i) Client’s failure to follow Atlas7’s or the original Solutions manufacturer's environmental, installation, operation or maintenance specifications or instructions; (ii) modifications, alterations or repairs made other than by Atlas7 or the original Solutions manufacturer; (iii) Client's mishandling, abuse, misuse, negligence or improper storage, servicing or operation of the Solutions (including, without limitation, use of Solutions that is not designed or suitable for use in conjunction with the Solutions purchased from Atlas7); and (iv) power failures, surges, fire, flood, accident, actions of parties or other like events outside Atlas7's control. Repairs necessitated during the warranty period by any of the foregoing causes specified in this Section 11 may be made by Atlas7, at its sole discretion, and Client will pay Atlas7 standard charges for time and materials, together with all shipping and handling charges arising from such repairs.

CLIENT ACKNOWLEDGES AND AGREES THAT ATLAS7 DOES NOT PROVIDE ANY WARRANTY, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE SOLUTIONS, INCLUDING, WITHOUT LIMITATION, THE WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

14. LIMITATION OF LIABILITY.

IN NO EVENT, WHETHER BASED IN CONTRACT OR TORT (INCLUDING NEGLIGENCE) WILL ATLAS7 BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND, OR FOR LOSS OF REVENUE OR PROFIT, LOSS OF BUSINESS OR OTHER FINANCIAL LOSS ARISING OUT OF OR IN CONNECTION WITH THE SALE, INSTALLATION, MAINTENANCE, USE, PERFORMANCE, FAILURE OR INTERRUPTION OF SOLUTIONS SOLD UNDER THESE SALES TERMS.

NOTWITHSTANDING ANY OTHER PROVISION OF THESE SALES TERMS, ATLAS7'S MAXIMUM LIABILITY FOR DAMAGES HEREUNDER WILL NOT EXCEED THE PURCHASE PRICE OF THE SOLUTIONS PURCHASED UNDER THESE SALES TERMS. THIS DISCLAIMER OF LIABILITY FOR DAMAGES WILL NOT BE AFFECTED IF ANY REMEDY PROVIDED HEREUNDER WILL FAIL. CLIENT HAS ACCEPTED THIS DISCLAIMER OF LIABILITY FOR DAMAGES AS PART OF A BARGAIN TO LOWER THE PRICE OF THE SOLUTIONS AND UNDERSTANDS THAT THE PRICE OF THE SOLUTIONS WOULD BE HIGHER IF ATLAS7 WERE REQUIRED TO BEAR ADDITIONAL LIABILITY FOR DAMAGES.

15. Solutions Changes.

Atlas7 reserves the right to change, improve or add Solutions or discontinue any Solutions at any time.

16. Indemnity.

Client agrees to indemnify and hold Atlas7 harmless from any claims or damages (inclusive of reasonable attorney's fees), including claims of infringement, made against Atlas7 as a result of alleged negligence, misrepresentation, error or omission on the part of Client or its affiliates, directors, officers, employees, agents or representatives.

17. Entire Agreement.

These Sales Terms are the complete, final and exclusive statement of the terms and conditions of sale for the Solutions between Atlas7 and Client and supersedes any and all other agreements between them relating to the subject matter hereof. These Sales Terms may not be modified except in a writing executed by both parties. These Sales Terms will prevail notwithstanding any variance or conflict with any terms contained in any Purchase Order statement of work or other agreement or instrument submitted by Client to Atlas7.

18. Force Majeure.

Atlas7 will not be liable to Client for any alleged loss or damages resulting from the delivery of the Solutions being delayed by acts of Client, acts of civil or military authority, governmental priorities, fire, floods, epidemics, quarantine, energy crises, strikes, labor trouble, war, riots, accidents, shortages, delays in transportation, or any other causes beyond the reasonable control of Atlas7.

19. Waiver.

A waiver of any default, or of any of these Sales Terms, will not be deemed to be a waiver of any other default or of any other term or condition, but will apply solely to the instance to which such waiver is directed. The exercise of any right or remedy provided in these Sales Terms will be without prejudice to the right to exercise any other right or remedy provided by law or equity.

20. Severability.

In the event any provision of these Sales Terms is found to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby.

21. Assignment.

Assignment of these Sales Terms by either party will be prohibited without the express written consent of the other party; provided, that (a) Atlas7 reserves the right to subcontract any support or maintenance obligation in connection with the sale of such Solutions, and (b) either party may assign these Sales Terms and its rights and obligations hereunder upon written notice to the other party in connection with a merger or sale of substantially all of its assets or capital stock. Any other attempted assignment in violation of this provision will be null and void.

22. Governing Law; Venue.

These Sales Terms will be construed in accordance with, and all disputes hereunder will be governed by, the laws of the State of California. Both parties agree that any action, suit or proceeding arising out of or relating to these Sales Terms will be initiated and prosecuted in a state court or United States District Court located in Orange County, California, and the parties irrevocably submit to the jurisdiction of any such court.

23. Attorney's Fees.

In any action to enforce these Sales Terms, the prevailing party will be awarded all court costs and attorney's fees incurred.