AXELLIANT LLC TERMS AND CONDITIONS

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE E-COMMERCE PORTAL WEBSITE AND BEFORE MAKING ANY PURCHASE USING ANY AXELLIANT SYSTEM. This Sales Agreement (“Agreement”) contains the terms and conditions that apply to any purchase by you (including your employer and/or any of its affiliates, or any other entity on whose behalf you are acting, “you” or “Customer”) from Axelliant, LLC (“Supplier”, “Axelliant, LLC”, “we” or “us”) using any Axelliant system and/or the Axelliant website (the “Site”). By using the Site, placing an order and/or submitting a purchase order to Axelliant, LLC , Customer agrees to be bound by this Agreement. If Customer and an authorized representative of Axelliant, LLC have both signed a separate purchase agreement or purchase order, then the separate agreement or purchase order shall govern, to the extent of any conflict between its terms and those of this Agreement. Use of Axelliant’s e-commerce systems is limited to Axelliant, LLC and its approved and contracted customers.

OTHER DOCUMENTS

This Agreement incorporates the following documents: (1) the Axelliant, LLC Terms of Service, which governs the use of the Site; and (2) the Axelliant, LLC Privacy Policy, which governs submissions of personal information through or in Axelliant, LLC with the Site.

CHANGES TO THIS AGREEMENT

Axelliant, LLC reserves the right at any time to change the terms and conditions of this Agreement by posting a revised version on the Site. All revisions to this Agreement will be effective for transactions that occur after the revised Agreement is posted.

ORDER ACCEPTANCE POLICY

Orders are not binding on Axelliant, LLC, until accepted by Axelliant, LLC. Axelliant, LLC reserves the right to accept or decline a Customer’s order for any reason, and/or to supply less than the quantity Customer ordered of any item without prior notice. Customer’s receipt of an electronic or other form of order confirmation does not signify Axelliant, LLC’s acceptance of Customer’s order, nor does it constitute confirmation of Axelliant, LLC offer to sell. Until delivery of goods or performance of services Axelliant, LLC reserves the right to reject any order (or any portion thereof to the extent goods remain undelivered or services remain unperformed), for any reason. Axelliant, LLC is a reseller to end user customers and does not accept orders from computer dealers, exporters, wholesalers, or others who intend to resell the goods offered by Axelliant, LLC.

PURCHASE PRICE AND PAYMENT

Prices, specifications and availability of goods are subject to change without notice. Customer will pay the price established by Axelliant, LLC for all goods ordered by Customer or using Customer’s account. Full payment shall be made before delivery of the goods, unless otherwise agreed in writing by Axelliant, LLC. Any amount that Axelliant, LLC agrees may be paid after delivery is due to Axelliant, LLC within thirty (30) days, or less as determined by Axelliant, LLC after Customer receives Axelliant, LLC invoice. In addition to the purchase price and any shipping costs, Customer will pay all taxes, including but not limited to sales, telecom, use, value added, gross receipts, privilege, excise and personal property taxes, levied on or measured by the purchase price or arising from the use of the goods and any parts or maintenance supplied. Prices do not – unless otherwise specified – include supplies (e.g., cartridges, paper, primer, ribbons, ink rollers, etc.). Customer agrees to pay interest on all past-due sums at the lesser of 1.5% per month or the highest rate allowed by law.

DELIVERY

TITLE. Delivery of goods occurs when possession passes to Customer or Customer’s agent unless otherwise agreed in writing. Title to purchased goods passes to Customer upon delivery in all circumstances; provided, however that title to software and other licensed items will remain with the applicable licensor(s).

SHIPPING AND INSURANCE; RISK OF LOSS

Customer shall pay all shipping costs. Customer shall not return goods to Axelliant, LLC unless permitted to do so hereunder. In the event that Customer returns goods, Customer shall insure, at Customer’s expense, all goods shipped in an amount at least equal to the unpaid purchase price of the goods. CUSTOMER ASSUMES ALL RISK OF LOSS IN Axelliant, LLC WITH THE SHIPMENT OF RETURNED GOODS.

RETURNS POLICY

• Software. All software sales are final; Customer has no right to reject software delivered by Axelliant, LLC except for a right, if any, conferred by the publisher to Customer in publisher’s warranties or license agreements for such software.
• Non-software Goods. With respect to all goods other than software, unless Customer notifies the Axelliant, LLC Returns Department of Customer’s intent to return such goods within three (3) days after delivery, Customer and Axelliant, LLC shall conclusively presume that the goods were delivered operable and in good repair and that Customer accepts the goods as delivered. Customer shall not return goods to Axelliant, LLC unless Customer gives the Axelliant, LLC Returns Department notice of its intention to return goods and notice of any defects or discrepancies within three (3) days after delivery. After three (3) days from delivery to Customer, Customer must make any returns and/or replacement requests directly to the manufacturer in accordance with the terms of the manufacturer’s warranty.
• Non-defective Goods. Axelliant, LLC may, in its sole discretion, allow Customer to return non-defective goods, provided that Axelliant, LLC must have prior written authorization from the manufacturers of such goods allowing Axelliant, LLC to return such goods to manufacturers upon receiving them from Customer; Customer acknowledges that some manufacturers may not provide such authorization to Axelliant, LLC and agrees that, in the event that Axelliant, LLC does not have such authorization, Customer shall not be allowed to return such goods to Axelliant, LLC . Customer agrees to pay a 15% restocking and all shipping costs related to its return of non-defective goods.
• Returns Procedures. Before returning any goods, Customer must contact the Axelliant, LLC Returns Department by telephone at 424-535-1100 or by email at returns@Axelliant.com for a Return Merchandise Authorization number (RMA). No returns will be accepted without an RMA number. The RMA numbers are valid for fifteen (15) business days; goods for which they are issued must be returned to Axelliant, LLC at 21250 Hawthorne Blvd, Suite 500, Torrance CA 90503 within such period. The item(s) being returned must match the goods authorized for return and must be in the condition as represented by Customer in Axelliant, LLC with the RMA number at the time the request was made. Returned goods must be in their original condition (no dents, scratches, discoloration, etc.) and in their original packaging, with all original accessories, power cords, manuals, software, parts and other documents that shipped with the goods. Returned goods that are not in their original condition or are missing any parts or other items will be charged back to Customer. Due to limited stock, replacement goods may not be available and cannot be guaranteed.
• Restocking Fee:If in any case Axelliant has approved to return open boxes, Axelliant may charge you 15% to 25% restocking fee depending upon the item.
• Freight Damaged products: The Package/shipments which have been damaged at the time of delivery should be rejected right away or signed damaged on carrier receipt, in case the damaged product have been received it should be notified to Axelliant within 3 days of delivery to arrange for a carrier inspection and a pickup of the damaged Products.
• Defective/Dead on Arrival (DOA): Report DOAs to Axelliant Rep within 4 days of receipt of shipment. Some manufacturers and publishers require DOAs to be handled directly through them. In such cases, Axelliant will provide the manufacturer’s contact information and end user will have to contact Manufacturer directly.
• Warranty: Products with warranty for any Item return should be directly contacted to manufacturer, Axelliant can help to provide contact information if it is not available on Box or packaging.
• Non-returnable product: The following Products cannot be returned to Axelliant:
  • Discontinued items.
  • Items for which manufacturers will not accept returns.
  • Custom build or configurations orders.
  • Open units, or unsealed packaging.
  • Phased-out, remanufactured and refurbished Products.

PURCHASE MONEY SECURITY INTEREST

Customer hereby grants to Axelliant, LLC, and Axelliant, LLC hereby reserves, a purchase money security interest in all goods purchased hereunder, and in any proceeds thereof, to secure the unpaid purchase price of such goods, if any. Upon request by Axelliant, LLC, Customer shall sign any document required to perfect such security interest. Payment in full of an invoice by Customer for the total of the purchase price as shown on the invoice shall release the security interest of Axelliant, LLC on the invoiced goods.

SOFTWARE LICENSES AND SUBSCRIPTION

All software is provided subject to any publisher’s license agreement(s) and/or end user agreement(s) that are provided with it. Customer will be bound by all such licenses and/or end user agreements.

1. Any Pricing Subject to Change The pricing set out in Axelliant Cloud Solutions Provider Quote is subject to change if Microsoft changes its pricing to Axelliant.
2. Subscription Modification Licenses and/or Subscription quantities can be increased anytime during the contract and will be billed accordingly. Cancelation of any subscription would depend on Publisher’s terms and conditions. For Microsoft (a) Annual Commitment: Licenses and/or Subscription quantities can be decreased only within 7 days of increase/order, after this customer can only decrease the quantities on an anniversary date of the subscription. (b) Month to Month Commitment: Licenses and/or Subscription quantities can be decreased only within 7 days of increase/order, after this customer can only decrease the quantities on a monthly anniversary date of the subscription.
3. Right to Use Subject to the terms and conditions of this Agreement, Axelliant and its suppliers grant Customer the right to access and use the Services and to install and use any software included with Customer’s subscription for the Services, as further described in this Agreement. Axelliant and its suppliers reserve all other rights.
4. Prohibited Activities Customer may use the Services only in accordance with this Agreement. Customer may not reverse engineer, decompile, disassemble, or work around technical limitations in the Services, except to the extent applicable law permits it despite these limitations. Customer may not disable, tamper with, or otherwise attempt to circumvent any mechanism that meters Customer’s use of the Services. Customer may not rent, lease, lend, resell, transfer, or host the Services, or any portion thereof, to or for third parties.
5. Acceptable Use Customer shall comply with the then current acceptable use policy for the Services. Neither Customer, nor those that access any Services through Customer, may use the Services (a) in a way prohibited by law, regulation, governmental order or decree; (b) to violate the rights of others; (c) to try to gain unauthorized access to or disrupt any service, device, data, account or network; (d) to spam or distribute malware; (e) in a way that could harm the Services or impair anyone else’s use of it; or (f) in any application or situation where failure of the Services could lead to the death or bodily injury of any person, or to severe physical or environmental damage. Customer agrees that any violation of the terms of this section may result in Axelliant or its suppliers immediately suspending Customer’s use of the Services without liability to Customer.
6. Customer Data Customer is solely responsible for the content of all data (including all text, sound, video, image files, and software) that are provided by or on behalf of Customer through use of the Services (“Customer Data”). Customer will secure and maintain all rights in Customer Data necessary for the Services to be provided to Customer without violating the rights of any third party or otherwise obligating Axelliant or its suppliers to Customer or to any third party. Axelliant and its suppliers do not and will not assume any obligations with respect to Customer Data or to Customer’s use of the Services other than as expressly set forth in this Agreement or as required by applicable law.
7. Responsibility for Customer’s Accounts Customer is responsible for maintaining the confidentiality of any authentication credentials associated with Customer’s use of the Services. Customer is responsible for the actions of all individuals who use the Services through Customer’s account. Customer must promptly notify Axelliant and its suppliers about any possible misuse of Customer’s accounts or authentication credentials or any security incident related to the Services.
8. Support Axelliant will provide commercially reasonable operational and technical support to Customer for all Services ordered under this Agreement.
9. Fees and Payment The initial fees for the Services are set forth on the applicable Axelliant Cloud Solutions Provider Quote. Fees for additional Services shall be charged by Axelliant at its then current rates. Customer shall pay all sales, use, value added, or other applicable taxes, duties, or similar charges except income taxes of Axelliant. All payments are due within 30 days after the date of Axelliant’ invoice. Any amounts not paid when due shall accrue interest at 2.0% per month or the maximum amount allowed by law, whichever is less. Customer is liable to Axelliant for all reasonable fees and expenses, including reasonable attorney’s fees, collection agency fees, and other costs that Axelliant may incur to collect invoiced amounts. Overage. All overages would be charged at the committed rate, in arrears, to the client which customer is liable to pay.

MANUFACTURER WARRANTIES

Axelliant, LLC does not warrant the performance or integrity of any goods (including software), but merely passes through to customer the end-user warranty (if any) provided by the manufacturer to the extent that Axelliant, LLC is permitted to do so. Axelliant, LLC assigns to customer, upon delivery, all rights of Axelliant, LLC if any, under any warranty of the manufacturer available to Axelliant, LLC for all goods purchased by and delivered to customer, to the extent that the manufacturer permits such assignment. Manufacturers’ warranties vary from product to product. Extended warranties may be available directly from certain manufacturers. Manufacturer information is subject to change without notice.

DISCLAIMER OF WARRANTIES

All goods and services provided by Axelliant, LLC are provided “as is” without warranty of any kind except those expressly conferred by the manufacturer. Axelliant, LLC disclaims all warranties, either express, implied or statutory, including without limitation warranties of merchantability, fitness for a particular purpose and noninfringement.

LIMITS OF LIABILITY

In no event shall Axelliant, LLC its parent, subsidiaries or affiliates, or their respective officers, directors, employees, representatives or agents, be liable for any damages whatsoever, including direct, indirect, incidental, consequential, loss of business profits or special damages, however caused, arising from the use of any goods or services, even if Axelliant, LLC or its suppliers have been advised of the possibility of such damages. Some states do not allow the exclusion or limitation of liability for consequential or incidental damages so the foregoing limitation may not apply to the extent such state’s law is applicable to this agreement. Customer agrees that customer’s sole remedy shall be to return goods in accordance with the terms of this agreement and, if applicable, to obtain a refund of the amount of the purchase price paid by customer to Axelliant, LLC less all sums, if any, customer owes Axelliant, LLC.

DELAYS IN PERFORMANCE

Any delivery times provided by Axelliant, LLC are estimates only. Axelliant, LLC shall not be liable for delivery delays, nor shall Axelliant, LLC be liable for any delay in performance due to unforeseen circumstances or to causes beyond its control including, but not limited to, acts of nature, acts of government, labor disputes, delays in transportation and delays in delivery or inability of suppliers to deliver.

ALTERATION OR ATTACHMENT TO THE GOODS

Any alteration, modification, addition, improvement or attachment to the goods (“Alteration”) not authorized in writing by Axelliant, LLC shall be solely at Customer’s expense and risk. In the event of any such unauthorized Alterations every warranty under this Agreement, including without limitation any warranty of merchantability or fitness of use that may be implied despite Axelliant, LLC express disclaimer of any such warranty, shall be deemed waived by Customer and null and void, and Axelliant, LLC shall have no obligation to Customer under any such warranty, nor will Customer be able to return altered goods at any time.

DEPOSIT

Without limiting any rights available to Axelliant, LLC, in the event that Axelliant, accepts a deposit from Customer for goods ordered: (a) if Customer fails to meet any schedule of payments listed on the invoice, or to complete the purchase for any reason other than for cancellation of goods not delivered, Axelliant, LLC will have the right to, within one hundred and twenty (120) days of the deposit date, retain all cash, checks and credit card deposits as liquidated damages; and (b) if Customer chooses to pick up ordered goods rather than ship them, and if Customer fails to pick up ordered goods within two (2) weeks of the posting of the arrival notice by Axelliant, LLC in the U.S. Mail, Customer agrees to forfeit all cash, check or credit card deposits for the goods.

TRAINING

If indicated on the invoice or otherwise agreed to in writing by Axelliant, LLC upon delivery and/or installation, Axelliant, LLC or its designee will provide training in the operation of the goods to a member of Customer’s staff. All training will be performed at a mutually agreeable time at the hourly training rate currently in effect at the time the training is performed. Training is not offered as vocational training or as qualifying for any particular employment.

MAINTENANCE

Axelliant, LLC agrees to provide maintenance and/or service (“maintenance”) to customer as described on the invoice accompanying goods shipped to customer or in a separate agreement for maintenance. All maintenance will be at Axelliant, LLC service department or at another location chosen by Axelliant, LLC unless otherwise agreed between Axelliant, LLC and customer under a separate agreement for maintenance. All maintenance except that performed under manufacturer’s warranty will be performed at Axelliant, LLC standard rates in effect at the time the maintenance is performed. Axelliant, LLC has no obligation to provide maintenance, warranty or support services to customer until Axelliant, LLC has received full payment for any goods purchased.

NOT FOR EXPORT/RESALE; APPLICABLE LAW

Customer represents and warrants that it is not purchasing goods for export and/or resale. Customer agrees to comply with all applicable laws and regulations, including but not limited to U.S. Commerce Department regulations and State Department restrictions governing export from the United States.

GOVERNING LAW; VENUE

This Agreement shall be governed by the laws of the State of California without regard to conflicts of laws rules. Wherever a term defined by the Uniform Commercial Code (the “Code”) is used in this Agreement, the definition contained in the Code as adopted by the State of California on the date of this Agreement is to control. All sales shall be deemed made in the State of California, U.S.A. regardless of Customer’s location. Customer agrees that any dispute with Axelliant, LLC arising out of Customer’s purchase from Axelliant, LLC and/or use of the E-Commerce Systems shall be brought by Customer exclusively in the state or federal courts situated in the County of Los Angeles in the State of California; and Customer hereby agrees that such venue is appropriate and that Axelliant, LLC agreement to sell and deliver goods to Customer is dependent on this provision.

ASSIGNMENT

This Agreement is not assignable by Customer without written permission from Axelliant, LLC. Any attempt at assignment without such permission is void.

SEVERABILITY

If any provision of this Agreement is held to be invalid, illegal or unenforceable, that shall not affect or impair, in any way, the validity, legality or enforceability of the remainder of this Agreement.

ORDER OF PRECEDENCE

This Agreement and any documents expressly incorporated herein take precedence over Customer’s additional or different terms and conditions, to which notice of objection is hereby given. Acceptance by Customer is limited to the terms and conditions of this Agreement and any documents expressly incorporated herein. Neither Customer’s nor Axelliant, LLC commencement of performance, nor delivery, shall be deemed or construed as acceptance of Customer’s additional or different terms and conditions.

HEADINGS

The headings used in this Agreement are for convenience only and shall not be used for constructing or interpreting this Agreement.

ENTIRE AGREEMENT

This Agreement and the documents expressly incorporated herein contains the complete and exclusive statement of the terms and conditions that govern the sale of goods and services by Axelliant, LLC. No course of prior dealings between the parties and no usage of the trade shall be relevant to supplement or explain any term or condition in this Agreement. No agent, employee or representative of Axelliant, LLC has any authority to bind Axelliant, LLC to any affirmation, representation or warranty concerning the goods and services that is not included in the terms and conditions of this Agreement. These terms and conditions may not be modified or rescinded except in a document signed by Customer and Axelliant, LLC or their authorized agents. A waiver in one instance by Axelliant, LLC of any right granted by law or by the terms and conditions of this Agreement shall not constitute a waiver in any other instance.