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Terms of Service
Catalyst PCs™ User Agreement & Conditions of Sale
These Terms of Service & Sale (“Agreement”) apply to your purchase of products and/or services and support (“Product”) sold in the United States by Catalyst PC™, including its affiliates or subsidiaries. By using the Catalyst PCs™ vPC Installer, you accept and are bound to the terms of this Agreement.
1. SCOPE OF AGREEMENT.
Supplier, upon acceptance of an Order placed by Buyer, will supply the products and services specified in the Order (the “Work”) to Buyer, pursuant to the terms and conditions of this Agreement and its exhibits and Supplier’s acceptance of such order submitted by Buyer is expressly limited to the terms and conditions of this Agreement notwithstanding any contrary provision contained in Buyer’s purchase orders, invoices, acknowledgements or other documents. The details of the Work (e.g. quantity, price, and product specifications) shall be set forth in the relevant Order.
2. PRICE AND TERMS.
Terms of payment are within Catalyst PCs’™ sole discretion and unless otherwise agreed to by Catalyst PC, payment must be received by Catalyst PCs™ prior to Catalyst PCs’™ acceptance of an order. Payment for the products will be made by credit card, wire transfer or some other prearranged payment method. Invoices are due and payable within the time period noted on your invoice, measured from the date of the invoice. Catalyst PCs™ may invoice parts of an order separately. Your order is subject to cancellation by Catalyst PC, in Catalyst PCs’™ sole discretion. Unless you and Catalyst PCs™ have agreed to a different discount, Catalyst PCs’™ standard pricing policy for Catalyst PCs™ branded systems, which include both hardware and services in one discounted price, allocates the discount off list price applicable to the service portion of the system to be equal to the overall calculated percentage discount off list price on the entire system. Catalyst PCs™ is not responsible for pricing, typographical or other errors in any offer by Catalyst PCs™ and reserves the right to cancel any orders arising from such errors. Invoices must be paid within 30 days of the invoice date.
3. Shipping Charges; Taxes; Title; Risk of Loss.
Shipping, handling and tax are additional unless otherwise expressly indicated at the time of sale. Title to products passes from Catalyst PCs™ to Customer upon shipment to Customer. Loss or damage that occurs during shipping by a carrier selected by Catalyst PCs™ is Catalyst PCs’ responsibility. Loss or damage that occurs during shipping by a carrier selected by you is your responsibility. You must notify Catalyst PCs™ within 21 days of the date of your invoice or acknowledgement if you believe any part of your purchase is missing, wrong or damaged. Unless you provide Catalyst PCs™ with a valid and correct tax exemption certificate applicable to your purchase of Product and the Product ship to location, you are responsible for sales and other taxes associated with the order. Shipping and delivery dates are estimates only.
4. BUYER MATERIALS AND DATA.
(a) Buyer represents and warrants that any matter it furnishes for performance of services by Supplier (i) does not infringe any copyright or trademark or other Intellectual Property Rights of any third party; (ii) is not libelous or obscene; (iii) does not invade any persons right to privacy; and (iv) does not otherwise violate any laws or infringe the rights of any third party. (b) Buyer warrants that it has the right to use and to have Supplier use on behalf of Buyer any data provided to Supplier or its Affiliates by Buyer including specifically customer names, identifying information, addresses and other contact information and related personal information (“Data”). Buyer further warrants that it will designate on the applicable Order if Data provided pursuant to that Order is subject to HIPAA, Gramm-Leach-Bliley or other statutes providing enhanced data protection or requiring enhanced data security procedures.
5. INTELLECTUAL PROPERTY.
Any and all inventions, discoveries, patent applications, patents, copyrights, trademarks and trade names, commercial symbols, trade secrets, work product and information embodying proprietary data existing and owned by Buyer as of the date of the Order or made or conceived by employees of Buyer during the Term of the Order shall be and remain the sole and exclusive property of Buyer provided that Buyer grants to Supplier a license to use, display and distribute (and to sub-license its affiliates and sub-contractors to use, display and distribute) any intellectual property rights delivered to Supplier as reasonably necessary to perform any Order. Any and all inventions, discoveries, patent applications, patents, copyrights, trademarks and trade names, commercial symbols, trade secrets, work product and information embodying proprietary data existing and owned by Supplier as of the date of the Order or made or conceived by employees, consultants, representatives or agents of Supplier during the term of this Agreement shall be and remain the sole and exclusive property of Supplier. Without limiting the generality of the foregoing, the parties agree that Supplier will own systems (including all web source code) related to the Services provided hereunder, including all modifications, upgrades and enhancements thereto made during the term of the Order. [Without limiting the generality of the foregoing, Buyer acknowledges and agrees that Supplier is in the business of developing customized print and e-commerce solutions, and the provision of print and fulfillment order services, and that Supplier shall have the right to provide to third parties services which are the same or similar to the services provided herein and to use or otherwise exploit any Supplier materials in providing such services.
6. CONFIDENTIAL INFORMATION.
Any information that parties receive or otherwise have access to incidental to or in connection with this Agreement (collectively, the “Confidential Information”), shall be and remain the property of the disclosing party. Confidential Information shall not include information which: (i) was in the possession of the Receiving Party at the time it was first disclosed by the Disclosing Party; (ii) was in the public domain at the time it was disclosed to the Receiving Party; (iii) enters the public domain through sources independent of the Receiving Party and through no breach of this provision by the Receiving Party; (iv) is made available by the Disclosing Party to a third party on an unrestricted, non-confidential basis; (v) was lawfully obtained by the Receiving Party from a third party not known by the Receiving Party to be under an obligation of confidentiality to the Disclosing Party; or (vi) was at any time developed by the Receiving Party independently of any disclosure by the Disclosing Party. Confidential Information may be used to the extent necessary to perform this Agreement and the parties shall not disclose Confidential Information to any third party, except to its agents (who have executed confidentiality agreements containing terms substantially similar to the terms) as necessary to provide the Work hereunder. In no event shall Buyer acquire any right, title or interest in and to any product or process information, including related know how, either existing or developed during the course of the business relationship with Supplier and Buyer, and in no event shall Supplier acquire and right, title, or interest in and to any materials or information provided to it by Buyer.
7. INDEMNIFICATION.
The indemnifying party, as Indemnitor, shall indemnify, defend and hold harmless the indemnified party, as Indemnitee, its officers, directors, employees, agents, subsidiaries, and other affiliates from and against any and all claims, damages, liabilities, and expenses (including attorney fees) arising from any third-party claim based on Indemnitor’s (or its agent’s) breach of any representation, warranty, covenant, agreement, or obligation under the Order or this Agreement , or Indemnitor’s (or its agent’s) grossly negligent and/or willful acts in carrying out its obligations under the Order or the Agreement, provided that in no event shall Supplier be responsible for any claims arising out of its compliance with instructions, requirements, or specifications provided by or required by Buyer (including the use of information, artwork, logos, and/or trademarks provided by Buyer). Neither party will be responsible for indemnifying another party hereto where the basis of the indemnity claim arises out of such other party’s own negligence or willful misconduct. In order to avail itself of this indemnity provision, Indemnitee shall promptly provide notice to Indemnitor of any such claim, tender the defense of the claim to Indemnitor, and cooperate with Indemnitor in the defense of the claim. Indemnitor shall not be liable for any cost, expense, or compromise incurred or made by Indemnitee in any legal action without the Indemnitor’s prior written consent.
8. Warranties.
THE LIMITED WARRANTIES APPLICABLE TO Catalyst PC-BRANDED PRODUCTS MAY COME WITH A 30-DAY warranty. Catalyst PCs™ MAKES NO OTHER WARRANTIES FOR Catalyst PC-BRANDED PRODUCT, AND MAKES NO WARRANTIES WHATSOEVER FOR SERVICE, SOFTWARE, MAINTENANCE OR SUPPORT OR FOR NON-Catalyst PCs™ BRANDED PRODUCT. SUCH PRODUCT, SOFTWARE, SERVICE, MAINTENANCE OR SUPPORT IS PROVIDED BY Catalyst PCs™ “AS IS” AND ANY THIRD-PARTY WARRANTIES, PRODUCTS, SOFTWARE, SERVICES, MAINTENANCE OR SUPPORT ARE PROVIDED BY THE ORIGINAL MANUFACTURER OR SUPPLIER, NOT BY Catalyst PC. SOME STATES DO NOT ALLOW LIMITATIONS OF IMPLIED WARRANTIES, SO THESE LIMITATIONS MAY NOT APPLY TO YOU. Catalyst PCs™ MAKES NO EXPRESS WARRANTIES EXCEPT THOSE STATED IN Catalyst PCs’™ APPLICABLE Catalyst PC-BRANDED WARRANTY IN EFFECT ON THE DATE OF THE INVOICE, PACKING SLIP OR ACKNOWLEDGEMENT. Catalyst PC-BRANDED WARRANTIES AND SERVICES ARE EFFECTIVE ON PAYMENT IN FULL, AND Catalyst PCs™ IS NOT OBLIGATED TO HONOR ANY WARRANTY OR PROVIDE SERVICE UNTIL Catalyst PCs™ RECEIVES PAYMENT IN FULL. Catalyst PCs™ MAY REQUEST CANCELLATION OF THIRD-PARTY-BRANDED SOFTWARE LICENSES, SERVICES, MAINTENANCE OR SUPPORT IF Catalyst PCs™ DOES NOT RECEIVE PAYMENT. IF YOU PURCHASE THIRD-PARTY-BRANDED PRODUCT, SERVICES, MAINTENANCE OR SUPPORT, ADDITIONAL THIRD-PARTY TERMS AND CONDITIONS MAY APPLY.
9. Software.
Software is subject to the separate software license agreement accompanying or made available to you in connection with the software. With respect to software made available to you by Catalyst PCs™ in connection with Services, if no license terms accompany the software, then subject to your compliance with the terms set forth in this Agreement, Catalyst PCs™ hereby grants you a personal, nonexclusive license to access and use such software only during the term of the Services and solely as necessary for you to enjoy the benefit of the Services as stated in the applicable Service Contract(s). A portion of the software may contain or consist of open source software, which you may use under the terms and conditions of the specific license under which the open-source software is distributed. You agree that you will be bound by any and all such license agreements. Title to software remains with the applicable licensor(s).
10. Changed or Discontinued Product.
Catalyst PCs’™ policy is one of ongoing update and revision. Catalyst PCs™ may revise and discontinue Product at any time without notice to you and this may affect information saved in your online “cart.” Catalyst PCs™ will ship Product that has the functionality and performance of the Product ordered, but changes between what is shipped and what is described in a specification sheet or catalog are possible.
11. Service and Support.
Catalyst PCs’™ policy is one of ongoing update and revision. Catalyst PCs™ may revise and discontinue Product at any time without notice to you and this may affect information saved in your online “cart.” Catalyst PCs™ will ship Product that has the functionality and performance of the Product ordered, but changes between what is shipped and what is describService offerings may vary. In addition to these Terms of Service & Sale, Catalyst PCs™ and/or your third-party service provider may provide such service and support to you. If you have purchased a service offering, please review the applicable service agreement carefully as it contains important rights and limitations. Your purchase of services is pursuant to this Agreement and any applicable service agreement and by purchasing the service offering you are bound by those terms including a requirement that you individually arbitrate any dispute relating in any way to this transaction including any use of any service under any warranty or service offering. Catalyst PCs™ has no obligation to provide service or support until Catalyst PCs™ has received full payment for the Product or service/support contract you purchased. Catalyst PCs™ is not obligated to provide third-party branded service or support, or service or support for any products or services that you purchased through a third party and not Catalyst PC. It is your responsibility to back up all existing data, software and programs before receiving services or support (including telephone or remote computer support). Catalyst PCs™ and/or your third-party service provider will have no liability for loss or recovery of data, programs or loss of use of system(s) arising out of the services or support or any act or omission, including negligence, by Catalyst PCs™ or your-third-party service provider. Catalyst PCs™ and/or your third-party service provider is not permitted by law to copy pirated or copyrighted materials or to copy or handle illegal data. Prior to Catalyst PCs™ and/or your third-party service provider providing service or support, you represent that your system(s) does not contain illegal files or data. You also represent that you own the copyright or have a license to make copies to all files on your system and do not have any data that would cause Catalyst PCs™ or your third-party service provider to be liable for copyright infringement if such data was copied by Catalyst PCs™ and/or your third-party service provider. Parts used in repairing or servicing Product(s) may be new, equivalent-to-new or reconditioned.ed in a specification sheet or catalog are possible.
12. COMPLIANCE WITH LAW.
Supplier shall comply with all state, federal and local laws and regulations applicable to its performance hereunder.
13. GOVERNING LAW.
The Order and this Agreement shall be governed by the laws of the State of Virginia (VA), without reference to conflicts of law principles. Any legal suit, action or proceeding arising out of or relating to the Order or these this Agreement shall be commenced in a federal court in VA in the State of Virginia, and the appellate courts thereof, and each party hereto irrevocably submits to the exclusive jurisdiction and venue of any such court in any such suit, action or proceeding. With respect to any litigation arising out of the Order or this Agreement, the parties expressly waive any right they may have to a jury trial and agree that any such litigation shall be tried by a judge without a jury and the prevailing party shall be entitled to recover its expenses, including reasonable attorney’s fees, from the other party.
14. Limitation of Liability.
Catalyst PCs™ DOES NOT ACCEPT LIABILITY BEYOND THE REMEDIES SET FORTH HEREIN, INCLUDING BUT NOT LIMITED TO ANY LIABILITY FOR PRODUCT NOT BEING AVAILABLE FOR USE, LOST PROFITS, LOSS OF BUSINESS OR FOR LOST OR CORRUPTED DATA OR SOFTWARE, OR THE PROVISION OF SERVICES AND SUPPORT. EXCEPT AS EXPRESSLY PROVIDED HEREIN, Catalyst PCs™ WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR FOR ANY CLAIM BY ANY THIRD PARTY. YOU AGREE THAT FOR ANY LIABILITY RELATED TO THE PURCHASE OF PRODUCT, Catalyst PCs™ IS NOT LIABLE OR RESPONSIBLE FOR ANY AMOUNT OF DAMAGES ABOVE THE AMOUNT INVOICED FOR THE APPLICABLE PRODUCT. SOME JURISDICTIONS MAY NOT ENFORCE ALL OF THESE LIMITATIONS, AND ONLY THE LIMITATIONS THAT ARE LAWFULLY APPLIED TO YOU IN YOUR JURISDICTION WILL APPLY.
15. Not For Resale or Export.
You agree to comply with all applicable laws and regulations of the various states and of the United States. You agree and represent that you are buying for your own internal use only, and not for resale or export. Catalyst PCs™ has separate terms and conditions governing resale of Product by third parties and transactions outside the United States. Product, which may include technology and software, is subject to U.S. export laws as well as the laws of the country where it is delivered or used. Product may not be sold, leased or transferred to restricted countries, restricted end users or for restricted end uses. You agree that Product purchased from Catalyst PCs™ will not to be used for activities related to weapons of mass destruction, including activities related to the design, development, production or use of nuclear materials, nuclear facilities or nuclear weapons, or chemical or biological weapons. You further agree that you will not sell, lease or otherwise transfer Product to end users engaged in these activities.
16. SURVIVAL.
In the event any provision of the Order or this Agreement is held by a tribunal of competent jurisdiction to be contrary to the law, the remaining provisions of the Order or this Agreement will remain in full force and effect. All sections herein relating to payment, ownership, confidentiality, indemnification and duties of defense, representations and warranties, waiver, waiver of jury trial and provisions which by their terms extend beyond the Term shall survive the termination of the Order and this Agreement.
17. ENTIRE AGREEMENT.
The Order, this Agreement and the operative provisions of any quotation issued by Supplier and any purchase order issued by Buyer, sets forth the entire agreement and understanding among the parties as to the subject matter hereof, and merges and supersedes all prior discussions, agreements, and understandings of every and any nature among them. No proposal, purchase order, order confirmation, acceptance, or any other document provided by either Party to the other, nor any electronic click-wrap, terms of use or similar online consent or acceptance language accompanying or set forth as a prerequisite to any electronic interface or utility associated with any Work, shall be deemed to amend the terms hereof and any such contradictory or additional terms shall be ineffective. No party shall be bound by any condition, definition, warranty, or representations, other than as expressly set forth or provided for in the Order or this Agreement, or as may be, on or subsequent to the date hereof set forth in writing and signed by the party to be bound thereby. In the event of any ambiguity or conflict between any of the terms and conditions contained in this Agreement and the terms and conditions contained in an Order, the terms and conditions of this Agreement shall control, unless the Parties have expressly provided in such Order that a specific provision in this Agreement is amended, in which case this Agreement shall be so amended, but only with respect to such Order. The Order or this Agreement may not be amended, supplemented, changed, or modified, except by agreement in writing signed by the parties to be bound thereby.