The sale of products and services (“Products”) by Softweb Solutions Inc. (“Softweb”) to a customer (“Customer”) are subject to these terms and conditions (“Agreement”) regardless of other terms or conditions in any purchase order, document, or other communication of Customer (“Order”)”). Softweb objects to such other terms. This Agreement may only be modified in writing signed by authorized representatives of both Softweb and Customer.
Unless otherwise stated on the quote, Softweb quotes are invitations to tender and are subject to change at any time without notice. All Orders are subject to acceptance by Softweb. Contracts between Customer and Softweb are formed upon Softweb’s written acceptance, Electronic Data Interchange (“EDI”) acknowledgment or execution of Customer’s Order and are subject to this Agreement. All Orders for Products that Softweb identifies as non-standard or “NCNR” are non-cancelable and non-returnable. Softweb may identify Products as non-standard or “NCNR” by various means including quotes, Products lists, attachments or exhibits. Customer may not change, cancel or reschedule Orders for Products without Softweb’s consent. Softweb reserves the right to allocate the sale of Products among its customers.
Unless otherwise stated on Softweb’s proposal, quote or invoice, prices are for Products only and do not include taxes, freight, duties, tariffs or any other charges or fees for additional services (collectively, “Additional Fees”). Unless otherwise stated on Softweb’s proposal, quote or invoice, Customer is responsible for any and all Additional Fees. Prices are subject to change due to manufacturers’ price increase, change in exchange rate or quoting errors.
Payment is due as stated on Softweb’s invoice without offset or any deduction for withholding taxes or any other reason. On any past due invoice, Softweb may charge interest from the payment due date to the date of payment at eighteen percent (18%) per annum or the maximum amount allowed by applicable law, plus reasonable attorneys’ fees and collection costs, with a minimum fee of forty (40) Euros for sales in the European Union as required by the applicable law. At any time, Softweb may change the terms of Customer’s credit. Softweb may apply payments to any of Customer’s accounts. If Customer defaults on any payment, Softweb may reschedule or cancel any outstanding delivery or Order and declare all outstanding invoices due and payable immediately. Unless otherwise provided by applicable law, Customer credits provided by Softweb will expire if unused within twelve (12) months.
Unless otherwise stated by Softweb in writing, all Softweb deliveries from the European Union are CPT customer’s delivery location, and all Softweb deliveries from outside the European Union are FCA Softweb’s warehouse or, for drop shipments, FCA the manufacturer’s warehouse (INCOTERMS 2020). Softweb’s delivery dates are estimates only and subject to Softweb’s timely receipt of supplies. Softweb shall not be responsible or liable for any costs, losses or damages arising out of or related to: (i) any failure to deliver Products within the time prescribed therefor; (ii) delay in delivery; (iii) partial delivery; or (iv) early delivery. Customer shall accept Products notwithstanding delayed, partial or early delivery. Customer may not cancel any other Orders based on delayed delivery of any part of an Order.
For sales from outside the European Union or Australia, title shall pass to Customer upon delivery of the Products to the carrier. For sales from the European Union or Australia, as a form of payment security, title shall pass to Customer upon payment in full for the Product by Customer. In case of an onwards sale, Customer assigns all rights in the related receivables to Softweb until Customer has made payment in full. Once the Product is processed or combined with other items (“Processed Product”), Softweb’s retained title transfers to a share in the title in the Processed Product reflecting the value of the Product relative to the value of the Processed Product. This section does not apply to sales of Software (as defined below) and services.
Software is the machine readable (object code) version of computer programs (“Software”). Customer’s use of Software and any related documentation shall be governed by the license agreement applicable to the Software. Software embedded in or bundled with hardware must be used solely with the hardware for which it was intended and may not be transferred separately.
Customer acknowledges that Softweb is not the manufacturer of the Products. Softweb shall pass through to Customer any transferable Product warranties, indemnities, and remedies provided to Softweb by the manufacturer, including those for intellectual property infringement, if any, to the extent it is permitted to do so. If required by law, Softweb warrants that at the time of delivery, Products will conform to the specifications stated by the manufacturer in its published data sheet for the Products. All warranty claims shall be time-barred twelve (12) months from the time of delivery of the non-conforming Products. If Softweb performs value-added work such as integration work, tape-and-reel, or programming, Softweb warrants such value-added work will conform to Customer’s written specifications accepted by Softweb for ninety (90) days after delivery by Softweb. Customer shall be deemed the manufacturer of such value-added Products. Customer’s sole remedies for breach of Softweb’s warranty are, at Softweb’s choice: (i) repair of the Products; (ii) replacement of the Products; (iii) re-performance of the value-added work; or (iv) refund of Customer’s purchase price for the Products. Softweb makes no representation or warranty with respect to Software and will have no liability in connection therewith. Unless it is specifically stated in the Software’s applicable license agreement, SOFTWARE IS PROVIDED “AS IS” WITH NO ADDITIONAL WARRANTY.
SOFTWEB MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, SUCH AS WARRANTY OF MERCHANTABILITY, FITNESS FOR PURPOSE OR NON-INFRINGEMENT. UNLESS WARRANTED AS DESCRIBED IN THIS SECTION, PRODUCTS ARE PROVIDED “AS IS”.
In any action under or relating to this Agreement, whether based in contract, warranty, tort (including negligence) or any other legal theory, Softweb shall not be liable for any indirect, special, incidental, punitive or consequential damages, including loss of profits, loss of revenue, loss of data, loss of use, rework, repair, manufacturing expense, costs of product recall, injury to reputation or loss of customers even if Softweb has been advised of the possibility of such damages and notwithstanding the failure of essential purpose of any remedy in this Agreement. In no event shall Softweb’s liability arising out of or in connection with this Agreement exceed the total amount paid to Softweb for the specific Products at issue. To the extent Softweb cannot lawfully disclaim any implied or statutory warranties, Customer’s statutory warranty rights are not affected by this limitation of liability.
Softweb will not be in breach of this Agreement and will not be liable for failure to fulfill its obligations under this Agreement, if any such failure or delay is due to or arising out of any legal theory of force majeure, an act of nature, act or omission of Customer, act of a governmental authority, including laws, regulations, orders or decrees, operational disruptions, man-made or natural disaster, epidemic, pandemic, shortage of labor, energy, fuel, materials or Products, strike, labor action, criminal act, war, terrorism, civil unrest, delay in delivery or transportation, inability to obtain labor, materials or Products through regular sources, communication or power failures, Act of God, or any cause beyond its reasonable control.
Customer shall comply with the manufacturer’s Product specifications. Products are not authorized for use in life support systems, human implantation, nuclear facilities or any other application where Product failure could lead to loss of life or property damage. If Customer uses or sells the Products for use in such applications or fails to comply with the manufacturer’s Product specifications, Customer acknowledges that such use, sale, or non-compliance is at Customer’s sole risk. Customer shall indemnify, defend and hold Softweb harmless from any claims resulting from or arising out of: (i) Softweb’s compliance with Customer’s designs, specifications, or instructions; (ii) modification of any Product by a party other than Softweb; (iii) use of Products in combination with other products; (iv) use of Products not authorized as described above; or (v) use of Products and related technology in chemical, biological or nuclear weapons, rocket systems (including ballistic missile systems, space launch vehicles and sounding rockets) or unmanned air vehicles capable of delivering same, or in the development of any weapons of mass destruction.
Certain Products and related technology (”Items”) sold by Softweb are subject to export control regulations of the United States, the European Union, Japan, and/or other countries, excluding boycott laws (“Export Laws”). Customer shall comply with such Export Laws and obtain any license, or permit or other approval required to transfer, export, re-export or import the Items. Customer acknowledges that related technology consists of “Technical Data” and “Technical Assistance”. Technical Data may be in the form of blueprints, plans, diagrams, models, tables, engineering, design and specifications, manuals and instructions written or recorded on media or devices such as disk, tape, or read-only memories. Technical Assistance may be in the form of instructions, skills training, working knowledge, or consulting services. Customer shall not directly or indirectly export, re-export, or transfer (or cause to be exported, re-exported or transferred) any Items to any country, jurisdiction, individual, corporation, organization, or entity to which such export, re-export, or transfer is restricted or prohibited by Export Laws, including sanctions or embargoes administered by the United States Government, the European Union, Japan or by any other applicable government authority.
If any part of the purchase and sale of Products, including Customer’s NCNR acknowledgment or demand forecast, uses EDI, Customer’s internal portal, third party portal or any other electronic means (“Electronic Purchase Order”), this Agreement will continue to apply to the purchase and sale of Products between Customer and Softweb. Customer’s acceptance of Softweb’s acknowledgment request or Softweb’s specification of details with respect to Electronic Purchase Orders via writing, email or other EDI is binding on Customer.
Where applicable, Customer is responsible for all obligations and liabilities under the European Union’s (i) Waste Electrical and Electronic Equipment Directive (2012/19/EU), (ii) Packaging Waste Directive (94/62/EC) and (iii) Batteries Directive (2006/66/EC), all as amended and all related national implementing measures in force from time to time.
Customer shall collect, process, store, and transfer all personal data provided by Softweb under this Agreement in strict accordance with applicable law including, but not limited to, the California Consumer Privacy Act of 2018 and related regulations (“CCPA”) and EU data protection principles and requirements. Customer shall use and store personal data solely for the purpose of facilitating communication and collaboration and for purchasing Products from Softweb under this Agreement and for no other purposes. Customer shall implement and maintain security procedures and practices appropriate to the nature of the personal data it collects, processes, stores, or transfers consistent with industry best practices. If personal data of EU residents is being transferred to countries outside the EU / EEA, Customer shall ensure by appropriate means that such personal data continues to be handled and processed in accordance with the data protection principles of purpose limitation and necessity; data accuracy, data quality and proportionality; data security and confidentiality. Rights of data subjects (access, rectification, deletion, and objection) must be ensured. In addition, Customer shall reasonably assist Softweb to promptly comply with inquiries it receives under applicable data protection laws. In the event Customer discovers or is notified of a data breach involving personal data provided by Softweb, Customer shall notify Softweb of the data breach as soon as practicable, but no later than twenty-four (24) hours after Customer became aware of the data beach. Customer shall take all actions necessary to contain the data breach and provide Softweb with all reasonably necessary information on the data breach and remedial actions. As required by the CCPA, Customer certifies its understanding of the obligations and restrictions in this Section and its compliance with such obligations and restrictions.
Softweb is a distributor of “Commercial Items” as defined in FAR 2.101. Softweb does not intend to sell Products to the U.S. Government or a higher-tier contractor that fail to meet the “commercial item” definition in FAR 2.101. Accordingly, Softweb agrees only to the clauses in the Federal Acquisition Regulation (“FAR”) and agency FAR supplements (as applicable based on the U.S. Government customer) that are explicitly required to be inserted in a subcontract for commercial items, as set forth in FAR 52.244-6(c)(1) or an agency FAR supplement. In accordance with FAR 12.211, Customer will receive only those rights in technical data customarily provided to Softweb by the manufacturers. By no means will this be interpreted as providing to Customer unlimited rights in data, software, or intellectual property rights provided by the manufacturers or any other third party. Softweb specifically rejects the flow down of the requirements of the: (i) Trade Agreements Act, FAR 52.225-5 or DFARS 252.225-7021; and (ii) the Buy American Act, FAR 52.225-1 or DFARS 252.225-7001. Softweb cannot comply with any Preference for Domestic Specialty Metals regulation unless (A) there is an applicable exception or (B) the manufacturer represents and warrants that the Products are compliant.