THIS AGREEMENT IS A BINDING CONTRACT AND APPLIES TO CUSTOMER’S PURCHASE OF PRODUCTS FROM ARITEX. NO ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS IN ANY FORM DELIVERED BY CUSTOMERTO ARITEX APPLY; SUCH ADDITIONAL OR DIFFERENT TERMS ARE HEREBY DEEMED TO BE MATERIAL ALTERATIONSAND NOTICE OF OBJECTION TO AND REJECTION OF SUCH TERMS IS HEREBY GIVEN BY ARITEX.BY MAKING A PURCHASE FROM OR PLACING AN ORDER WITH ARITEX, CUSTOMER AGREES TO BE BOUND BY ANDACCEPTS THESE TERMS AND CONDITIONS UNLESS CUSTOMER AND ARITEX HAVE AGREED TO A SEPARATECONTRACT FOR THE RESALE OF PRODUCTS BY ARITEX TO CUSTOMER, IN WHICH CASE SUCH SEPARATE,FULLY-EXECUTED WRITTEN CONTRACT BETWEEN THE PARTIES OR CLICKTHROUGH CONTRACT PROVIDED BY ARITEX AND ACCEPTED BY CUSTOMER WILL GOVERN.
Orders placed by Customer are not binding until accepted by Aritex. This Agreement is subject to changewithout prior notice; however, the version of this Agreement posted on the Website at the time that Customer placed an order will govern such order unless otherwise agreed in writing by Aritex and Customer.
3. Warranty Disclaimer. If applicable and permitted by the Third Party Provider, Aritex will pass through to Customer any warranties provided to Aritex by the Third Party Provider for a Product. This limited obligation to pass through warranties provided by the Third Party Provider to Customer is Customer’s sole remedy and Aritex’s sole obligation in connection with representations, warranties and conditions related to Products. ARITEX MAKES NO WARRANTIES, REPRESENTATIONS OR CONDITIONS IN CONNECTION WITH THE PRODUCTS WHETHER EXPRESS OR IMPLIED, IN FACT OR IN LAW, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABLE QUALITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. Customer acknowledges that no employee of Aritex is authorized to make any representation or warranty on behalf of Aritex that is not in this Agreement.
4. No Indemnification from Aritex. To the extent that a Third Party Provider provides indemnities to Aritex, including but not limited to, indemnification against liability for infringement of a third party’s proprietary rights, and to the extent that such Third Party Provider permits the transfer of such indemnities to Customer, Aritex will pass such indemnities through to Customer. Aritex does not directly provide anyindemnities in connection with the Products. Further, Customer expressly waives any claim that it may have or allege to have against Aritex based on any product liability or infringement or alleged infringement of anypatent, copyright, trade secret or other intellectual property right with respect to any Product and also waives any right to indemnification from Aritex against any such claim made against Customer by a third party.
5. LIMITATION OF LIABILITY.
7. Payment Terms. Unless otherwise agreed by Aritex in writing, Customer shall pay the invoice itreceives from Aritex in respect of the Products purchased within thirty (30) days of the invoice date. Customer is responsible for any applicable sales, use, or other taxes, or federal, provincial, state or local fees orassessments associated with its purchase of Products. Unless otherwise agreed by Aritex in writing,payments shall be made in the lawful currency of the United States. Customer hereby grants to Aritex asecurity interest in the Products to secure payment in full. Customer authorizes Aritex to file afinancing statement reflecting such security interest. Aritex reserves the right to make adjustments to pricingand Product offerings for reasons including, but not limited to, changing market conditions, Productdiscontinuation, Product unavailability, manufacturer price changes, supplier price changes, foreignexchange changes and fluctuations, and errors in advertisements. All orders are subject to Productavailability. Therefore, Aritex cannot guarantee that it will be able to fulfill Customer’s orders.
9. Delivery. Aritex cannot and does not guarantee that it can fulfill Customer’s requests for Products. Delivery times are estimates only and Aritex shall not be liable for delays.
10. Returns. The return of hardware (including accessories, peripherals, parts), and software products (including software licenses, software as a service, and other cloud computing products) purchased from Aritex (collectively, "Product(s)") is subject to specific manufacturer, supplier, publisher or distributor (each, a “Vendor”) restrictions. Aritex will not be responsible for any Third Party Provider’s refusal to accept the return of any Product for any reason.
11. Export Sales. Customer agrees that it will not divert, use, export or re-export such items contrary to any federal, state or provincial laws in the United States or Canada. Customer expressly acknowledges and agrees that it will not export, re-export, or provide such items to any entity or person within any country that is subject to United States or Canada economic sanctions imposing comprehensive embargoes without obtaining prior authorization from the applicable authority. Customer also expressly acknowledges and agrees that it will not export, reexport, or provide such items to entities and persons that are ineligible under United States or Canada law to receive such items.
12. Entire Agreement. Subject to a separate, written, fully-executed agreement between Aritex and Customer for the sale of Products or a click-through contract provided by Aritex and accepted by Customer for the sale of Products, this Agreement contains the complete agreement between Aritex and Customer relating to the purchase and provision of the Products and supersedes all prior negotiations, representations and understandings. For greater certainty, purchase orders issued by Customer are issued for administrative purposes only; terms and conditions contained in any such purchase order shall be null and void.
13. Choice of Law. This Agreement shall be governed by the laws in effect in the State of Delaware without regard to its conflict of laws rules. The parties hereby irrevocably attorn to the exclusive jurisdiction of the courts of the State of Delaware and the United States federal courts located therein. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
14. No Waiver. No provision of this Agreement may be waived, by any act or omission of either Aritex or the Customer, and this Agreement may not be amended except by the express written consent of both parties. For greater certainty, forbearance or indulgence by either Aritex or the Customer in any regard shall not constitute a waiver of any provision of this Agreement.
15. Assignment. Customer may not assign this Agreement or any rights or obligations under this Agreement to a third party without the prior written consent of Aritex.
16. Severability. In case any one or more of the provisions contained in this Agreement should be invalid, illegal, or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not be in any way affected or impaired thereby.
17. Force Majeure. Except for a party’s obligation to pay the other party any amount owed in accordance with this Agreement, neither party will be deemed to be in default hereunder or liable for a failure or delay in performance that is caused, in whole or in part, by circumstances including, acts of God, acts, omissions or delays of carriers, embargo, explosion, fire, flood, order of civil or military authority, disease, strike, lockout, war, Product unavailability, or any other causes beyond its control where such event renders impossible or delays a party’s performance. In such an event that impacted party will promptly notify the other in writing and will use commercially reasonable efforts to minimize any resulting delay in or interference with the performance of its obligations under this Agreement. Delivery and performance dates will be equitably extended to the extent of any such delays.