Pursuant to the written offer (the “Quote”) to sell certain services, support, hardware and/or software products (the “Solutions”), which incorporates therein these Atlas7 Terms and Conditions (the “Terms and Conditions”), Atlas7, LLC, a Delaware Limited Liability Company (“Atlas7”), hereby offers to sell to the client, as a buyer, named therein on the Quote (“Client”) such Solutions referenced therein. Atlas7 and Client shall be collectively referred to as the Parties.
2. Quote Acknowledgment.
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. THE TERMS AND CONDITIONS OF THIS QUOTE AND Order ACHKNOWLEDGEMENT, INCLUDING THE TERMS AND CONDITIONS HEREIN, CONSTITUTE THE FINAL, COMPLETE, AND EXCLUSIVE AGREEMENT BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER HEREOF, AND SUPERCEDE ALL PRIOR OR CONTEMPORANEOUS PROPOSALS, UNDERSTANDINGS, REPRESENTATIONS, WARRANTIES, PROMISES, AND OTHER COMMUNICATIONS, WHETHER ORAL OR WRITTEN, RELATING TO SUCH SUBJECT MATTER (INCLUDING WITHOUT LIMITATION ANY PRIOR “STANDARD TERMS AND CONDITIONS” PUBLISHED BY CLIENT). ANY TERM OR CONDITION IN ANY ORDER, CONFIRMATION OR OTHER DOCUMENT FURNISHED BY CLIENT AT ANY TIME, WHICH IS IN ANY WAY INCONSISTENT WITH OR IN ADDITION TO THE TERMS AND CONDITIONS SET FORTH IN THIS QUOTE ACKNOWLEDGEMENT IS HEREBY EXPRESSLY REJECTED, AND CLIENT’S ACCEPTANCE OF NY QUOTE OR ORDER OF ATLAS7 IS EXPRESSLY MADE IN RELIANCE ON CLIENT’S ASSENT TO ALL TERMS AND CONDITIONS EXPRESSED HEREIN. ACCEPTANCE BY CLIENT OF THESE TERMS AND CONDITIONS, AND THOSE OF THE SOLUTION(S) PROVIDER, IS DEEMED TO BE MADE BY CLIENT’S SIGNATURE ON THE QUOTE, AND/OR A PURCHASE ORDER, AND WHICH INCORPORATES THEREIN THESE TERMS AND CONDITIONS, UNLESS ATLAS7 AND THE CLIENT AGREE IN WRITING TO ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS PURSUANT TO A MASTER TERMS AND CONDITIONS AGREEMENT EXECUTED BY ATLAS7’S CHIEF OPERATING OFFICER OR HIS/HER’S DESIGNEE.
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 TERMS AND CONDITIONS; (B) THESE TERMS AND CONDITIONS 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 TERMS AND CONDITIONS.
3. Shipment and Delivery.
Atlas7 will accept Client’s Purchase Orders under these Terms and Conditions for requested delivery of Solutions pursuant to quote expiration date. Client is responsible for payment of all costs relating to the transportation and delivery 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. In the absence of written shipping instructions from Client, Atlas7 shall select the carrier. If Atlas7 selects the carrier, Atlas7 will schedule shipment subject to Atlas7’s shipping capacity at the time Client’s order is accepted or as soon as reasonably practical thereafter. All products will be shipped by Atlas7 F.O.B. to Atlas7’s point of shipment to Client. Atlas7 may make partial shipments of Client’s orders, to be separately invoiced and paid for when due. Delay in delivery of any installment shall not relieve Client of its obligation to accept the remaining deliveries. Client agrees to pay a dock charge of 1% of the purchase price of the shipment per day if Client fails to pick up shipment on the date scheduled by Atlas7.
4. Prices, Taxes, Insurance, Freight, Resale Restrictions, and Reporting.
Prices for Solutions will be shown on one or more invoices submitted by Atlas7 to Client (the “Invoices”) for payment. Direct Order prices are exclusive of all taxes, insurance, shipping and handling charges, and expenses related to Client’s special packing requests (which must be approved in advance by Atlas7) which are Client’s sole responsibility. For products identified as “sample,” “evaluation,” or “test” products (“Sample Products”) in each case as set forth on the cover page to this Acknowledgment, no resale rights are granted and Client may not resale or transfer such products to a third party. For orders specifically identified in the Quote as “Resale Orders,” Client may resell products ordered thereunder (“Resale Products”) only in the US and Canada (“Territory”). Sale of Resale Products to other resellers or Client’s affiliates is strictly prohibited. For Resale Products, Client will only sell the products in face-to-face transactions located in the Territory and will not market or sell the Resale Products using any Internet site or mail order catalog without specific written authorization by Atlas7. Client agrees to provide weekly sell through and inventory information for all inventory locations. Resale of any Solution(s) not explicitly marked on the Quote as Resale Products, is strictly prohibited.
5. Payment Terms.
After approval by Atlas7, Client unconditionally commits to payments on the date of issuance of the Invoice by Atlas7 to Client. Atlas7’s invoices submitted to the Client shall be due and payable in U.S. Dollars upon acceptance and creation of the Purchase Order. 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 Solution Provider, 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. Neither payment by Client, nor payment 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. Neither any endorsement nor statement on any check or letter accompanying any check or payment shall be deemed an accord and satisfaction. Atlas7 may accept any check or payment from Client, or Client’s agent, without prejudice to Atlas7’s right to recover the balance of any amount due or pursue any other remedy provided for in these Terms and Conditions. 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. Unauthorized deductions by Client on payment of invoices to Atlas7 for any reason will not be accepted and Client agrees not to take such deductions without first receiving a credit memorandum from Atlas7.
6. Security Interest, Title, and Risk of Loss.
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. Title and risk of loss or damage to hardware products shall pass to the Client upon delivery by Atlas7 to the carrier at Atlas7’s point of shipment, provided that title to software and intellectual property rights therein is not transferred or licensed to the Client. Title to software, documentation and all intellectual property rights embodied in the products are retained by Atlas7 and/or its Solution(s) Providers.
7. Standard Order Procedure.
Solutions may only be ordered by Client via e-mailed Purchase Orders, referencing an Atlas7 Quote which incorporates these Terms and Conditions, stating the specific Solution(s), and applicable price. Client may elect to sign an Atlas7 Quote to act as a Purchase Order. 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. Shipping instructions are at Atlas7’s discretion to the address shown on the applicable Quote and agreed to by Atlas7 in writing. All Purchase Orders shall have a requested delivery date of As Soon As Possible unless otherwise specified on the Quote. Client acknowledges that in the event any Purchase Order fails to reference these Terms and Conditions, these Terms and Conditions will nevertheless govern the relationship between Atlas7 and Client.
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’s 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. Client Covenants.
If deemed necessary by Atlas7, 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 Solution delivery. The Point of Contact will be readily available to Atlas7 when requested by Atlas7 for the duration of the Solution delivery. Client’s Point of Contact person will be responsible for receiving any delivered Solutions and shall have full authority to provide any needed approvals for Client under the Change in Control provision in Section 18 below. Client will provide the appropriate technical staff to participate in the engagement activities as reasonably required by Atlas7.
Client shall not remove or destroy any copyright notices, trademarks or other proprietary markings on the products, software, documentation or other materials related to the products. Client shall not, and shall not knowingly permit any third party to, directly or indirectly: (a) remove, alter, cover or obfuscate any copyright notices or other proprietary rights notices placed on or embedded in the products; (b) reverse engineer, decompile, or otherwise attempt to derive source code from the products for any purpose; (c) create derivative works of the products; or (d) otherwise use the products in any manner other than as expressly authorized by Atlas7 or the Solution Provider.
Client will: (i) conduct business in a manner that reflects favorably at all times on Solutions and the good name, goodwill and reputation of Atlas7; (ii) avoid deceptive, misleading or unethical practices that are or might be detrimental to Atlas7 or Atlas7’s Solutions; (iii) make no false or misleading representations with regard to Atlas7 or Atlas7’s Solutions; (iv) not publish or employ, or cooperate in the publication or employment of, any misleading or deceptive advertising material with regard to Atlas7 or Atlas7’s Solutions; and (v) make no representations, warranties or guarantees to customers or to the trade with respect to the specifications, features or capabilities of Atlas7 Solutions that are inconsistent with any literature distributed by Atlas7.
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.
10. Export Law Compliance
Neither Atlas7 nor Client will export, directly or indirectly, any information acquired under these Terms and Conditions 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 Terms and Conditions, 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.
11. Solution Provider and Warranty Pass-Through.
Client understands and agrees Solution(s) is/are subject to Solution(s) Provider’s own terms and/or conditions when applicable. All standard warranties offered by Solution(s) Provider shall pass from Solution(s) Provider to Client in all cases where the Client is the end user of the Solution(s). Atlas7 hereby sells to Client the Solution(s) subject to Solution(s) Provider’s end user agreement(s), the terms of which Client will agree to abide pursuant to Client’s signature on the Purchase Order. If there is any conflict between the Atlas7 Terms and Conditions and the Solution(s) Provider’s Terms and Conditions, or any applicable end user agreement, then The Solution(s) Provider’s Terms and Conditions and /or end user agreement shall control. Client may be required to execute a customer agreement with the Solution(s) Provider, and Client understands it may not have access or full use of Solution(s) until they do so. In the event Atlas7, or its Solution(s) Provider, must be on-site, Client agrees to not require waivers of liability as a requirement for site access.
Client agrees and understands that Atlas7’s will not be responsible, legally or otherwise, to Client for any Solution(s) Provider’s product or service warranty, including any limited warranty (“Warranty”). Client and Atlas7 agree that any Solution Warranty shall benefit Client as the Solution(s) end user. Any Solution(s) Warranty provided by said Solution(s) Provider may not cover (a) any Solution(s) 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 the original Solution(s) Provider’s environmental, installation, operation or maintenance specifications or instructions; (ii) modifications, alterations or repairs made other than by Atlas7 or the original Solution(s) Provider; (iii) Client’s mishandling, abuse, misuse, negligence or improper storage, servicing or operation of the Solution(s) (including, without limitation, use of Solution(s) that is not designed or suitable for use in conjunction with the Solution(s) 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.
12. 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, DELAY, FORCE MAJEURE, 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 TERMS AND CONDITIONS.
NOTWITHSTANDING ANY OTHER PROVISION OF THESE TERMS AND CONDITIONS, ATLAS7’S MAXIMUM LIABILITY FOR DAMAGES HEREUNDER WILL NOT EXCEED THE PURCHASE PRICE OF THE SOLUTIONS PURCHASED UNDER THESE TERMS AND CONDITIONS, OR TEN THOUSAND DOLLARS ($10,000.00), WHICH EVER IS LESS. 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.
13. Solutions Changes.
Atlas7 reserves the right to change, improve, or add Solutions or discontinue any Solutions at any time.
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.
15. 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 unforeseeable and unavoidable events including but not limited to acts of Client, acts of civil or military authority, governmental priorities, acts of god, fire, floods, an earthquake, a hurricane, a tornado, an epidemic, a pandemic, COVID-19, quarantine, energy crises, strikes, labor trouble, war, riots, accidents, shortages, delays in transportation, or any other causes beyond the reasonable control of Atlas7.
A waiver of any default, or of any of these Terms and Conditions, 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 Terms and Conditions will be without prejudice to the right to exercise any other right or remedy provided by law or equity.
In the event any provision of these Terms and Conditions is found to be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions will remain in full force and effect in such jurisdiction and will not in any way affect or impair the validity, legality or enforceability of any other provision in these Terms and Conditions.
Assignment of these Terms and Conditions by either Client or Atlas7 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 Terms and Conditions and its rights and obligations hereunder upon written notice to the other party in connection with a merger, sale of substantially all of its assets or capital stock, or other change in control. Any other attempted assignment in violation of this provision will be null and void.
19. Governing Law; Venue.
These Terms and Conditions 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 Terms and Conditions 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.
Atlas7 retains the right to modify the Terms and Conditions or any aspect of it, at any time. Atlas7 will provide Client with notice of Terms and Condition changes through its webpage. Client is responsible for regularly, and with each new Purchase Order, checking the Terms and Conditions. Client’s continuing participation in, and performance under, the Terms and Conditions shall be deemed to be Client’s acceptance of such changes as of the effective date of any Terms and Condition modifications.
21. Attorney's Fees.
In any action to enforce these Terms and Conditions, the Client and Atlas7 shall each bear their own attorney fees and costs.
V110122 - Last Revised November 1, 2022