PCS WIRELESS LLC
SALES TERMS AND CONDITIONS
These sales terms and conditions (“Terms” or “Agreement”) apply to and govern every sale, transfer and shipment of Products (defined below) from PCS Wireless, LLC (“PCS”), including its subsidiaries and affiliates (“Seller”) to you, the customer (the “Purchaser”), unless such PCS subsidiary or affiliate and Purchaser have agreed to a different governing version of terms and conditions in writing. Purchaser and Seller are hereinafter also referred collectively as “Parties” and individually as a “Party.”
All sales, transfers, and shipments made by Seller to the Purchaser is expressly made conditional on and are subject to these Terms. Purchaser’s acceptance of these Terms shall be deemed by; (i) Purchaser’s signature below (electronic signature or .pdf acceptable); (ii) customer’s signed credit application with Seller; (iii) Purchaser providing a Purchase Order to Seller; and/or (ii) Purchaser’s acceptance of any Products from Seller; whichever occurs first.
These Terms and any document(s) referred to in them constitute the entire agreement between the Parties controlling and governing Seller’s sale, transfer, and shipment of the Products to Purchaser and supersedes and replaces any prior oral or written agreements or all prior understandings, arrangements and agreements between the Parties.
1. ACCEPTANCE OF TERMS
1.1 These Terms of purchase are considered an ongoing contract between you, the “Purchaser” and Seller and apply to your purchase of Products (defined below) from Seller, in consideration of the mutual promises and such other good and valuable consideration. These Terms shall govern your purchase of Products. If you do not agree to these Terms, you will not be able to purchase Products from Seller.
2.1 “Confidential Information” means any discussions between the Parties and information concerning each of the Parties’ businesses and other information, including but not limited to intellectual property, computer software, technology and programs, product plans, designs, formulae, processes, techniques, drawings, diagrams, visual demonstrations, ideas, concepts, costs, prices, names, customer lists, vendor lists, finances, marketing plans, advertising, commercial or sales materials, business opportunities, personnel, research, development or know-how, and other data in oral, written, graphic, electronic, or any other form or medium whatsoever will be considered confidential even if it is not marked “confidential”. For their mutual benefit, the Parties named above plan to exchange certain Confidential Information and shall be referred to as the “Discloser” and “Recipient”. Confidential Information shall not include information that: (1) is now or subsequently becomes generally available to the public through no fault or breach on the part of the Recipient; (2) the Recipient can demonstrate to have had rightfully in its possession prior to disclosure to the Recipient by the Discloser provided that such prior possession is capable of being proven via written evidence alone that would be admissible in a court of law; (3) is independently developed by the Recipient without the use of any of the Discloser’s Confidential Information, provided that such independent development is capable of being proven via written evidence alone that would be admissible in a court of law; (4) the Recipient rightfully obtains from a third party who has the right to transfer or disclose it; or (5) is required to be disclosed by court order or other lawful governmental action, but only to the extent so ordered, and provided that the Recipient shall promptly notify the Discloser so that the Discloser may attempt to obtain a protective order either restricting or preventing such disclosure.
2.2 “Seller” means either PCS Wireless LLC, or the subsidiary, licensee, joint venture or affiliate that is identified as the Seller on Seller’s Invoice.
2.3 “Intellectual Property” means all trademarks, copyright and other intellectual property rights.
2.4 “Purchaser” means the person, business or company that is the purchaser of the Products and as more specifically identified by the signature block below.
2.5 “Products” means any products including, but not limited to, cellular and mobile telephones, tablets, laptop computers, accessories, and ancillary products or services, where applicable, sold, transferred, and/or shipped to Purchaser by Seller and described in Seller’s invoice.
2.6 “Purchase Order” means a written request by Purchaser to Seller for the purchase of Products.
2.7 “Invoice” means the written document from Seller in response to a Purchase Order that, among other things, details the Products to be purchased by Purchaser, the payment terms, and shipping terms.
2.8 “Signed in handwriting by the Parties” means a manuscript signature or authorized signature via DocuSign, adobe sign or other digital format by a Party or authorized Party representative. A signed writing for the purpose of amending, supplementing or modifying this agreement shall not include any (i) signature block, (ii) so-called “e-signature”, (iii) email, instant messenger or similar electronic communication or series of communications, or (iv) course of dealing or conduct.
3.1 Seller may at its sole discretion make available to Purchaser a list of Products together with their respective purchase prices and other terms which are available for sale.
3.2 If Purchaser desires to purchase any Products from Seller, Purchaser shall submit a written Purchase Order to Seller (email acceptable).
3.3 Seller shall thereafter notify Purchaser if its Purchase Order is accepted and shall issue an Invoice to the Purchaser (email acceptable).
3.4 Unless otherwise set forth in Seller’s Invoice, after receipt of payment pursuant to the terms of the Invoice, Seller shall cause to be fulfilled and ready for shipment the Products for each accepted Purchase Order within five (5) business days (“Shipment Date”) after Seller’s Invoice date. If Seller cannot meet the Shipment Date for the Purchase Order, then it shall promptly notify Purchaser. Purchaser may either extend the Shipment Date or Purchaser may cancel the Purchase Order and be entitled to a refund from Seller for any payments received by Seller pursuant to the Purchase Order.
3.5 Seller may reject any Purchase Order placed by Purchaser.
3.6 Seller will not be bound by any terms attached to a Purchaser Order. Unless otherwise modified in Seller’s Invoice, the Terms of this Agreement may not be amended, supplemented or modified, nor may any obligation hereunder be waived orally unless expressly agreed in writing and signed in handwriting by the Parties. A signed writing for the purpose of amending, supplementing or modifying this agreement shall not include any (i) signature block, (ii) so-called “e-signature”, (iii) email, instant messenger or similar electronic communication or series of communications, or (iv) course of dealing or conduct. Any different or additional terms and conditions in any Purchase Order, invoice or other such document submitted by Purchaser are hereby expressly rejected and shall have no force or effect.
4.1 The currency for all payments shall be in US Dollars, unless otherwise agreed in writing as set forth on Seller’s Invoice.
4.2 Purchaser shall pay for Products in accordance with the terms and conditions set forth herein unless modified on each of Seller’s Invoice.
4.3 Seller may, in its sole discretion, suspend, terminate, or modify any credit facility that it may make available to Purchaser at any time for any reason.
4.4 If Purchaser fails to make payment in accordance with the terms set forth on Seller’s Invoice, all amounts owing by Purchaser to Seller on any account will immediately become due and payable together with legal costs of enforcement.
4.5 Purchaser will be liable to pay interest on any overdue amount at the rate of the lower of 3% per month or the highest amount permitted pursuant to applicable law. Interest will accrue daily from the date payment became overdue until Seller has received payment of the overdue amount, together with any interest accrued.
4.6 Purchaser must pay to Seller any amount Purchaser owes to Seller in full. Purchaser waives any right of set-off that Purchaser may have.
4.7 Unless stated otherwise in these Terms (or in a Seller’s Invoice), all prices quoted for Products are exclusive of all taxes, handling, delivery, agents’ charges and any other charge, duty or impost.
4.8 Unless otherwise stated on Seller’s Invoice, Purchaser must pay Seller, on demand, any tax (other than income tax) payable under these Terms, any matter or thing done under these Terms or any payment, receipt or other transaction contemplated by these Terms, including any goods and services tax, customs duty, excise duty, stamp duty, other duty, governmental charge, fee, levy or impost, together with any fine, penalty or interest payable because of a default by Purchaser.
4.9 Unless otherwise stated on Seller’s Invoice, Purchaser shall pay the full amount due to Seller under this clause and shall not deduct from that amount any tax in relation to purchase of the Products. Purchaser shall reimburse Seller for any taxes Seller pays on its behalf.
4.10 Taxes: Each Party shall be liable for its own tax obligations arising from any transactions under this Agreement.
5.1 Unless otherwise specified on an Invoice, Purchaser shall be responsible for all transport costs.
5.2 Unless otherwise set forth on Seller’s Invoice, all delivery times are estimates only, and in no event shall Seller be liable for any delay in delivery or assume liability in connection with shipment or delivery. Part shipments shall be permitted. Except as set forth herein, all Products shall be delivered FCA (Incoterms 2022) from the point of shipment.
5.3 Unless otherwise set forth on Seller’s Invoice, Purchaser shall bear all shipping costs of the Products from Seller to Purchaser.
5.4 If Seller’s shipper is used, Purchaser shall not have any right to sue or assert any claims against Seller’s shipper. Seller’s shipper will not have responsibility to Purchaser for direct, indirect, consequential or purely economic losses, including but not limited to the costs of any alternative means of transport, loss of profits, loss of business opportunities or loss of revenue resulting from loss of use, arising from any loss of or damage or delay to a shipment (or part thereof), whether or not a value has been declared in respect of the relevant shipment.
6. TITLE AND RISK OF LOSS
6.1 Title to the Products and the risk of loss will be at Purchaser’s risk immediately upon:
(a) shipment of the Products to the Purchaser if Seller’s carrier is used; or
(b) collection of the Products by Purchaser, the Purchaser’s nominated carrier or Purchaser’s agent.
6.2 Purchaser is advised to obtain insurance in sufficient amounts to cover the loss of such Products as shippers limit their liability and Purchaser bears the risk of loss upon shipment.
6.3 The risk of loss of any Products approved by Seller (via RMA Portal) to be returned by Purchaser to Seller shall remain with Purchaser until such Products are received by the Seller at Seller’s designated location.
6.4 Once risk of loss has transferred to Purchaser pursuant to paragraph 6.1 above, the risk of loss in the Products will remain with Purchaser at all times unless and until Seller retakes possession of any of the Products in accordance with these Terms as may be modified by Seller’s Invoice.
6.5 If Purchaser has breached these Terms, Purchaser authorizes Seller, at any time, to enter onto any premises upon which Seller’s Products are stored to enable Seller to:
(a) inspect the Products; and/or
(b) reclaim the Products.
6.6 If Purchaser sells, disposes of or otherwise deals with Products or any part thereof before full payment has been received by Seller, Purchaser must advise Seller in writing, at such times as Seller may request, specifying full details of the Products sold, disposed of, utilized or otherwise dealt with.
6.7 Purchaser agrees that the provisions of this clause apply despite any arrangement under which Seller grants credit to Purchaser.
7. INSPECTION AND ACCEPTANCE
7.1 Unless otherwise stated on Seller’s Invoice, upon receipt of Products purchased by Purchaser at Purchaser’s address set forth on Seller’s Invoice (the “Receipt Date”), Purchaser shall promptly inspect any shipment of Product to determine whether any part of it fails to conform to the applicable Purchase Order and Seller Invoice.
7.2 If Purchaser claims any part of the shipment fails to conform to the applicable Purchase Order, Purchaser must notify Seller in writing within three (3) business days from the Receipt Date (“Inspection Deadline”) or such order shall be deemed to conform and accepted by Purchaser.
7.3 If Purchaser claims a short shipment in addition to providing Seller notice on or before the Inspection Deadline, Purchaser shall supply Seller with documentary evidence including clear and unobstructed video showing no tampering to the packaging and showing Purchaser removing such Products in a manner that demonstrates the number of Products contained in such packaging. The issue on whether there was a shortage will be decided by Seller and any decision shall be conclusive.
7,4 Except as otherwise provided herein, non-conformity of Products shall be governed by the RMA Policy between Seller and Purchaser.
8. PRODUCT RETURNS
8.1 Returns will be subject to Seller’s return merchandise authorization policy (“RMA Policy”) as amended by Seller from time to time, a copy of which is available on request and at Customer RMA portal.
8.2 Unless otherwise stated on Seller’s Invoice, Purchaser must notify Seller in writing of any Products it wishes to return as per RMA Policy (“Rejection Deadline”) from the Receipt Date.
8.3 Unless otherwise stated on Seller’s Invoice, only non-conforming Products may be returned and only if Purchaser notifies Seller by the Rejection Deadline. Transportation of such Products shall be as per the process found on the RMA portal. At Seller’s option, Products rejected as non-conforming will be either promptly replaced with conforming Products, at Seller’s sole cost, or, Seller will reimburse Purchaser for the amount paid by Purchaser to Seller for the non-conforming Products.
8.4 Unless otherwise stated on Seller’s Invoice, any substitute Products to be shipped to Purchaser in accordance with the Returns Policy will be sent by Seller to Purchaser by ordinary freight pre-paid.
8.5 Seller will not be liable for any damage or defects in the Products that have been caused by the improper storage, warehousing or transport, or by any neglect, abuse or improper use, installation, maintenance or unauthorized repair of the Products.
9. FORCE MAJEURE
9.1 If the performance of Seller’s obligations under these Terms is prevented, restricted or affected by force majeure including acts of God, fire, earthquake, floods, hurricane, drought or any other weather related phenomenon; pandemics or epidemics; shortages of or limitations on the availability of energy or water; acts of war or terrorism, civil or military disturbances, nuclear catastrophes ,strike, lock out, raw material shortage, breakdown of plant, transport or equipment or any other cause beyond the reasonable control of Seller, Seller will give notice of such cause to Purchaser and after 60 days from the receipt by Purchaser of such notice, either Party may terminate any affected orders without penalty.
10. PURCHASER’S CANCELLATION
10.1 Unless otherwise agreed in writing by an authorized officer of Seller, Purchaser may not cancel an order which has been accepted by Seller.
10.2 Seller’s decision to accept Purchaser’s request to cancel an order may only be done if it is agreed to by an authorized officer of Seller in a signed document. Purchaser must thereafter confirm that the order is cancelled by providing notice in writing to Seller not later than seven (7) days after Seller consents to such cancellation.
11. DEFAULT OF PURCHASER
11.1 Without prejudice to any of Seller’s other rights under these Terms, if Purchaser breaches any of these Terms, Seller may, in its sole discretion, and without further liability to Purchaser:
(a) refuse to make further sales, transfers and/or shipments to Purchaser; and/or
(b) terminate the relationship with Purchaser without notice.
12. “AS IS” AND “WHERE IS” WARRANTY; DISCLAIMER OF IMPLIED WARRANTIES; LIMITATION OF LIABILITY
12.1 Seller warrants and represents to Purchaser that Seller has good and marketable title to all of the Products set forth on the Offer List, free and clear of all security interests, liens, pledges, claims, charges, escrows, encumbrances, restrictions or other covenants, agreements, understandings, obligations, defects or irregularities affecting title to any of the Products.
12.2 EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, SELLER IS NOT A MANUFACTURER AND MAKES NO REPRESENTATIONS AND PROVIDES NO WARRANTIES WHATSOEVER, DIRECTLY OR INDIRECTLY, EXPRESSED OR IMPLIED, AS TO THE SUITABILITY, DURABILITY, FITNESS FOR USE, OR MERCHANTABILITY, OF THE PRODUCTS. THE PRODUCTS ARE PROVIDED BY SELLER TO PURCHASER “AS IS” AND “WHERE IS.” TO THE MAXIMIUM LIMIT PERMITED BY APPLICABLE LAW SELLER HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OROTHERWISE, WITH RESPECT TO THE PRODUCTS OR THESE TERMS, INCLUDING WITHOUT LIMITATION THE PRODUCTS’ CONDITION OR QUALITY OR THE WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
IN NO CASE SHALL SELLER BE LIABLE TO PURCHASER OR ANYONE ELSE FOR ANY LOST PROFITS OR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES UNDER OR IN CONNECTION WITH THE PRODUCTS OR THIS AGREEMENT, UPON ANY BASIS OR THEORY OF LIABILITY WHATSOEVER, INCLUDING, WITHOUT LIMITATION, IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR THE LOSS OR DAMAGE IS CAUSED BY SELLERS’ OWN NEGLIGENCE OR FAULT. FURTHER, SELLER SHALL HAVE NO LIABILITY FOR ANY PERSONAL INJURY, PROPERTY DAMAGE OR OTHER LOSS BASED ON THE USE OF THE PRODUCT IN COMBINATION WITH OR INTEGRATED INTO ANY OTHER INSTRUMENT OR DEVICE. IN NO EVENT WILL SELLER’S LIABILITY FOR ANY LOSS OR DAMAGE ARISING UNDER THIS AGREEMENT WARRANTY OR OTHERWISE, REGARDLESS OF CAUSE OR ORIGIN, EXCEED THE PURCHASE PRICE OF THE APPLICABLE PRODUCT. IN THOSE JURISDICTIONS THAT DO NOT ALLOW SUCH EXCLUSIONS, THE LIMITATIONS NOT PERMITTED MAY NOT APPLY TO YOU. IN NO EVENT SHALL SELLER’S LIABILITY FOR ANY AND ALL LOSSES OR DAMAGES RESULTING FROM THESE TERMS AND THE PRODUCTS, EXCEED THE PURCHASE PRICE PAID BY PURCHASER TO SELLER FOR THE PRODUCTS AT ISSUE. THIS LIMITATION OF LIABILITY SHALL SURVIVE EACH PURCHASE TRANSACTION.
13. INTELLECTUAL PROPERTY
13.1 Purchaser acknowledges that:
(a) Intellectual Property embodied in or in connection with the Products and any related documentation, parts or software are the sole property of Seller, its suppliers, or the Product manufacturers or their licensors; and
(b) all Intellectual Property of Seller, its suppliers, or the Product manufacturers or their licensors may only be used by Purchaser with the express written consent of Seller, its suppliers, the Product manufacturers or their licensors, whichever applicable, and such consent extends only to use essential for the purposes stated in it.
13.2 Purchaser must not register or use any trademarks, trade name, domain name, trading style or commercial designation or design used by Seller, its suppliers, or the Product manufacturers or their licensors in connection with the Products.
13.3 Purchaser will indemnify Seller against all liabilities, damages, costs and expenses which Seller may suffer or incur as a result of any work performed by Seller in accordance with Purchaser’s specifications or as a result of the combination or use of the Products with other equipment, parts or software not supplied by Seller, and which results in the infringement of any Intellectual Property of any person.
13.4 Seller shall have no duty to defend, indemnify, or hold harmless Purchaser from and against any or all damages and cost incurred by Purchaser arising from any claim that the Products infringe a third party’s Intellectual Property rights.
14.1 Non-Disclosure. Throughout the term of this Agreement and for a period of five (5) years after the last transaction between the Parties, the Parties agree to keep secret and retain in strictest confidence and not disclose, use, publish, sell or distribute any Confidential Information obtained, produced, learned or otherwise acquired by the Party at any time in connection with, or as a result of, this Agreement. Neither Party may deliver, reproduce or in any way allow any Confidential Information to be transferred, transmitted, delivered to or used by any third parties without the specific direction or consent of Discloser.
14.2 Legal Requests for Disclosure. In the event either Party receives a subpoena or other notice legally compelling the other Party to testify about or disclose any Confidential Information, the noticed Party agrees to give the other Party prompt notice of receipt of the notification (unless such notice is not legally permitted), in order to allow that Party time to seek to quash the subpoena or otherwise oppose the disclosure. The Parties agree to cooperate with each other in any opposition to such disclosure. If a Party decides not to oppose a specific disclosure in any particular circumstance, this will not constitute a waiver of that Party’s right to oppose any future or additional disclosure.
14.3 Ownership of Confidential Information. Each of the Parties acknowledges and agrees that all Confidential Information is and shall remain the exclusive property of the Discloser and nothing in this or any document relating to Recipient’s engagement with the Discloser or any course of conduct between Discloser and Recipient shall be deemed to grant Recipient any right in or to all or any portion of the Confidential Information.
14.4 Return of Confidential Documents. Recipient shall return all documents containing Confidential Information to the Discloser (without retaining any copies, extracts or other reproductions in whole or in part thereof) upon the earlier of a request by the Discloser or termination of Recipient’s engagement with the Discloser. If any such writing or material has been destroyed, an adequate response to the return request will be a written verification of such destruction executed by an appropriate signing officer of Recipient. Notwithstanding the foregoing, Recipient shall be entitled to retain any documents or records containing or reflecting the Confidential Information to the extent required by applicable law or regulation or Recipient’s document retention policies, or retained in any automated electronic mail back-up record or archive system; provided, however, that any Confidential Information retained pursuant to this paragraph will be subject to the confidentiality provisions set forth in this Agreement for the term hereof.
14.5 No Warranty. Each of the Parties warrants that it has the right to disclose the Confidential Information to the other Party. Otherwise, all information is provided “AS IS” and without any warranty, express, implied or otherwise, regarding its accuracy or performance. A Recipient will return all tangible Confidential Information, including but not limited to all computer programs, documentation, notes, plans, drawings, and copies thereof, to the Discloser immediately upon the Discloser’s written request.
14.6 Scope of Agreement. Each of the Parties hereby specifically acknowledges that this Agreement shall in no way detract from or limit the power of a Discloser to carry on any other negotiations or otherwise deal with its Confidential Information in any manner whatsoever.
14.7 Injunctive Relief. Each of the Parties hereby acknowledges and expressly agrees that any breach by it of this Agreement which does or may result in loss of confidentiality of the Confidential Information will cause the other Party irreparable harm for which damages will not be an adequate remedy and, therefore, each Party hereby agrees that, in the event of any breach by it of this Agreement, the other Party shall have the right to seek injunctive relief or similar equitable relief such as specific performance against the continuing or further breach, without the necessity of proof of actual damages. This right to seek injunctive relief or similar equitable relief such as specific performance without necessity of proof of damage shall be in addition to any other right which such other Party may have under this Agreement or otherwise in law or in equity.
15. RESTRICTION ON RESALE AND COMPLIANCE
15.1 Purchaser acknowledges that some Products may be controlled under export laws in force at the material time. Purchaser shall not export, re-export, or distribute Products, in violation of any such export control laws or regulations.
15.2 Consistent with Seller’s high standards for business ethics and its determination to be a responsible corporate citizen, Seller places a high priority on compliance with laws regulating exports, imports and supply chain security. Seller’s compliance responsibilities may include appropriate screening, contractual and security requirements that agents, distributors, suppliers and other parties doing business with Seller may have to meet. In addition to meeting Seller’s requirements, agents, distributors, suppliers and other parties doing business with Seller are also required to comply with the letter and spirit of all applicable laws regulating exports, imports, and supply chain security.
15.3 Purchaser will comply with all applicable laws and regulations in its purchase and resale thereafter of the Products, and utilize, at the very least, commercially reasonable practices of the industry. Purchaser shall not sell to any country unless it meets all territory restrictive resale guidelines and regulations, local, state or federal law, including but not limited to export/import control laws, Foreign Corrupt Practices Act, US Sanctioned Countries and national laws, credit card rules, NACHA rules, the Patriot Act, Fair and Accurate Credit Transaction Act’s Red Flag Rule.
15.4 Purchaser shall not resell, transfer or ship the Products to the specific persons or entities that appear on the United States Department of Commerce list referenced in the Export Administration Regulations under Part 764, Supplement No. 2 that can be accessed on-line at http://www.bis.doc.gov/dpl/default.shtm; or to those specific persons or entities to which exports are subject to special licensing requirements found in Supplement No. 4 to Part 744 of the Export Administration Regulations and, as of the SOW effective date, can be accessed on-line at https://www.bis.doc.gov/index.php/documents/regulations-docs/232 6-supplement-no-4-to-part-744-entity-list-4/file; or, the US Department of Treasury’s list containing the names of specific persons or entities that the Department of the Treasury, Office of Foreign Assets Control, has determined to be associated with governments in targeted foreign countries, terrorism sponsoring organizations, and international narcotics traffickers that can be accessed on-line at http://www.treasury.gov/resource-center/sanctions/SDN-List/Pages/d efault.aspx).
15.5 Purchasers located in China and Hong Kong warrant: (i) that none of the Products purchased and/or received from Seller will be used or are for a military end use; and (ii) neither Purchaser nor any party Purchaser resells, transfers or ships the Products to in China or Hong Kong is a military end user; as the terms military end use and military end user are defined by EAR § 744,21, items which have an export classification identified in Supplement No. 2 to Part 744 of the Export Administration Regulations (“EAR”).
15.6 Purchaser warrants that it complies and will continue to comply in all of its respective business dealings with applicable laws against bribery, corruption and money-laundering including the US Foreign Corrupt Practices Act 1977.
15.7 Purchaser acknowledges that certain Products may be subject to license requirements or other restrictions specific to certain transactions. Where applicable, Purchaser agrees to be bound by any such terms and conditions and/or restrictions and shall indemnify Seller for any liability suffered by it arising from Purchaser’s breach.
15.8 Purchaser’s Responsibilities: At Purchaser’s sole cost and expense, it shall do the following prior to reselling any Product purchased from Seller, and Purchaser shall indemnify and hold Seller harmless from claims of Purchaser’s failure to adhere to the following obligations:
1. Compliance with the Law. Purchaser will comply with all applicable laws and regulations in its purchase and resale thereafter of the Products, and utilize, at the very least, the best practices of the industry.
2. Privacy Compliance. Purchaser acknowledges that Seller’s Products should already be data cleared, but Purchaser undertakes that prior to resale of the Products by Purchaser to check each of the Products and make sure each of the Products will comply with all data security, marketing and consumer protection laws that apply to the use of a consumer’s private information. Purchaser will completely remove all consumer data from the Products based on Department of Defense or country equivalent standards (i.e., GDPR standards) and shall at the very least use privacy removal standards at least as restrictive as those of Seller. Seller standards shall be available to Purchaser upon request by Purchaser.
3. Environmental Compliance. Purchaser shall be compliant with all environmental rules and regulation and shall be compliant with the standards of R2, ISO 140001, NAID, and ISO 180001.
4. Restricted Territory. Purchaser shall not sell to any country unless it meets all territory restrictive resale guidelines and regulations, local, state or federal law, including but not limited to export/import control laws, Foreign Corrupt Practices Act, US Sanctioned Countries and national laws, credit card rules, NACHA rules, the Patriot Act, Fair and Accurate Credit Transaction Act’s Red Flag Rule. Purchaser shall also not sell Products as delineated by Seller in the Seller Invoice.
16.1 The status of the Parties shall be that of independent contractors, and not that of agents or employees of the other. Nothing herein shall be deemed to create a partnership, joint venture or agency relationship between the Parties and each Party is solely responsible for and controls its responsibilities hereunder. Neither Party has the authority to enter into any agreement on behalf of the other. Neither Party shall use the other Party’s name or other intellectual property without prior written consent of the other Party.
17. MANDATORY BINDING ARBITRATION; JURISDICTION; GOVERNING LAW; JURY WAIVER
17.1 To ensure the rapid and economical resolution of disputes that may arise in connection with this Agreement or any transaction between the Parties, the Parties agree that any and all disputes, claims, or causes of action, in law or equity, shall be resolved exclusively pursuant to the U.S. Federal Arbitration Act to the fullest extent permitted by law, by final, binding and confidential arbitration conducted in accordance with the then applicable Commercial Arbitration Rules and Mediation Procedures for commercial disputes of the American Arbitration Association (“AAA”) before a single arbitrator. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. All arbitration proceedings and hearings will take place in Morris County, New Jersey. All arbitration proceedings shall be governed by and construed according to the laws of the State of New Jersey, without regard for any conflict of laws provisions. Both Parties waive any right either of them may have to institute or conduct litigation or arbitration in any other forum or location, or before any other body. Arbitration is final and binding on both Parties. Each Party shall bear its own expenses, including legal fees and disbursements, however, Purchaser shall bear all the costs and fees of arbitration and costs and fees of the arbitrator.
17.2 For any action or proceeding not subject to arbitration, this Agreement shall be governed and construed in accordance with the laws of the State of New Jersey, without regard to its choice of law or conflicts of law provisions.
17.3 For any action or proceeding not subject to arbitration, the Parties hereby submit irrevocably to the exclusive jurisdiction of the courts in the state of New Jersey, Morris County and as may be applicable the federal courts of the State of New Jersey, to resolve any dispute between them including for any action arising under this agreement, Purchase Order, Invoice, the Products, or any transaction between the Parties.
17.4 EACH PARTY HERETO HEREBY IRREVOCALY WAIVES ANY AND ALL RIGHTS IT MAY HAVE TO DEMAND THAT ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT OR THE RELATIONSHIPS OF THE PARTIES HERETO BE TRIED BY A JURY. THIS WAIVER EXTENDS TO ANY AND ALL RIGHTS TO DEMAND A TRIAL BY JURY ARISING FROM ANY SOURCE INCLUDING, BUT NOT LIMITED TO, THE CONSTITUTION OF THE UNITED STATES OR ANY STATE THEREIN, COMMON LAW OR ANY APPLICABLE STATUTE OR REGULATIONS. EACH PARTY HERETO ACKNOWLEDGES THAT IT IS KNOWINGLY AND VOLUNTARILY WAIVING ITS RIGHT TO DEMAND TRIAL BY JURY.
18.1 Purchaser (“Indemnifying Party”) shall defend, indemnify and hold harmless Seller, its parents, subsidiaries and affiliates, and its and their respective members, directors, officers, partners, employees, contractors, agents, successors and assigns (“Indemnified Parties”) from any and all claims, demands, lawsuits, judgments, damages, liabilities and expenses, including attorneys’ fees, settlements and penalties of every kind (“Claims”) resulting in whole or part from Purchaser’s breach of this Agreement and/or Purchaser’s acts or omissions related to the Products, including, but not limited to their resale, marketing, advertising, packaging, shipping, exporting, repairing, modifying, or harvesting of parts from the Products.
19.1 Seller may amend these Terms at any time, by giving Purchaser notice by mail, e-mail or by posting a notice on Seller’s website. By continuing to place orders for Products, Purchaser will be deemed to have accepted the revised Terms.
19.2 Any provision of these Terms which is invalid or unenforceable will be read down to the extent necessary, and the remaining provisions will continue unaffected.
19.3 Waiver/Severability: A failure of any Party at any time to enforce or require performance of any of the provisions, terms or requirements of this Agreement shall in no way affect the full right of that Party to enforce or require performance at any time thereafter. In the event that any one of the provisions, terms or requirements of this Agreement are for any reason held to be invalid, illegal or unenforceable, the remaining provisions, terms and requirements shall remain valid, legal and enforceable.
19.4 Purchaser may not assign or attempt to assign any of its rights and obligations under these Terms.
19.5 Attorney’s Fees. In the event of any action or proceeding brought by either Party against the other under this Agreement, the prevailing Party will be entitled to recover reasonable costs and expenses, including court costs and reasonable attorneys’ fees.
19.6 Notices to Seller: Notices required under this Agreement to Seller shall be in writing and shall be given or made by means of certified or registered mail, nationally known courier or hand deliver to the respective Parties as follows. Notices via electronic mail (email) shall be deemed acceptable ONLY if receipt is confirmed or acknowledged by the recipient.
PCS Wireless, LLC
11 Vreeland Road
Florham Park, NJ 07932
Attention: Legal Department
Last updated (September 2023)