CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS. IF YOU AGREE WITH THESE TERMS, INDICATE YOUR ACCEPTANCE BELOW. YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS CONSTITUTES A BINDING AGREEMENT BETWEEN YOU AND KBZ COMMUNICATIONS, INC.
KBZ RESELLER TERMS AND CONDITIONS
All sales made by KBZ Communications, Inc. ("KBZ") to resellers with a resale account with KBZ ("Reseller") are subject to these terms and conditions. These terms and conditions apply to orders for, and sales of, all products described in KBZ's then-current comprehensive product listing ("Products") and all services described in KBZ's then-current comprehensive service listing ("Services"). Reseller shall indicate Reseller's acceptance of these terms and conditions by the earliest of: (i) Reseller clicking "Yes" to the question "Do you agree to the Terms and Conditions?" on the KBZ New Partner Application Form; (ii) Reseller issuing a Purchase Order (defined below) to KBZ; or (iii) Reseller's acceptance of any Product or Service provided by KBZ or its suppliers. If Reseller does not agree to these terms and conditions, Reseller shall click indicate "No" where indicated on the KBZ New Partner Application Form. Clicking "No" shall mean that Reseller will not be permitted to place orders for KBZ Products and Services. KBZ may modify these terms and conditions from time to time. Such modifications of these terms and conditions will not retroactively affect Purchase Orders (defined below) which have previously been submitted and accepted by KBZ.
1. ORDERING. KBZ shall only accept orders for Products and Services from Resellers with an active resale account with KBZ. Whether a resale account is active shall be determined by KBZ in its sole discretion. Reseller must submit written purchase orders to KBZ for the purchase of any Products and Services, including any and all Modifications as defined below ("Purchase Order"). Each Purchase Order submitted by Reseller shall constitute Reseller's agreement to these terms and conditions. The Purchase Order information shall include, at a minimum: (i) name and address of Reseller and its end user customer; (ii) destination (ship to) address; (iii) type and quantity of each Product and Service ordered, referencing the model number or other applicable identification number; (iv) delivery schedule; (v) billing contact and address; (vi) price; (vii) a copy of any additional agreements required by KBZ's suppliers for a Product or Service, if any, signed by customer; and (viii) any additional or special requirements related to the transaction. Reseller must be a Cisco-authorized partner to submit a Purchase Order for any Cisco-provided Products or Services. KBZ reserves the right to require additional information based on the requirements of any manufacturer or supplier of the Products or Services. To facilitate delivery of Products and Services, Reseller shall submit Purchase Orders to KBZ at least ten (10) business days prior to the requested delivery date. Reseller shall be bound by all Purchase Orders submitted to KBZ by or on behalf of Reseller. KBZ shall have no obligation to confirm the validity of any order placed or the authority of the person placing an order. The first Purchase Order submitted by Reseller to KBZ shall be accompanied by copies of resale certificates for each state within which Reseller conducts business. Purchase Orders modified or cancelled ("Modifications") less than two (2) business days prior to shipping may be subject to restocking fees, as determined by KBZ. Purchase Orders canceled after shipment shall incur a twenty percent (20%) restocking fee plus shipping charges to and from the manufacturing location of KBZ's suppliers.
2. ACCEPTANCE OF PURCHASE ORDER. Within five (5) business days after receipt of a Purchase Order or Modification that KBZ has accepted, KBZ will confirm in writing receipt and acceptance of each Purchase Order that complies with these terms and conditions in its entirety, provided KBZ may modify, accept or reject any Purchase Order in its sole discretion. With each acceptance of a Purchase Order, Reseller will receive an order confirmation number. All sales of Products and Services shall be subject to the terms set forth in these terms and conditions. All quotations, Purchase Orders, Modifications, releases, authorizations, acknowledgments and invoices issued pursuant to these terms and conditions are issued for convenience of the parties only and shall be subject to the provisions of these terms and conditions. Nothing contained in any Purchase Order, Modification or other document submitted to KBZ by Reseller shall in any way modify or add to the terms and conditions contained in these terms and conditions. KBZ, by these terms and conditions, objects to any modification of or addition to these terms and conditions. The parties acknowledge that the preprinted provisions on any quotation, Purchase Order, Modification, release, authorization, acknowledgment or invoice shall be deemed deleted and shall have no legal effect. No modification to these terms and conditions shall be valid without the prior written consent of KBZ.
3. PRICE. Pricing for Products and Services shall be quoted by an authorized KBZ representative in writing on an individual basis and is not subject to further discount. All pricing shall be quoted in U.S. Dollars. KBZ's prices are exclusive of insurance, shipping, handling and all sales, use and excise taxes levied upon, or measured by the sale, price or use of the Products and Services. Reseller shall have the sole responsibility for payment of all such insurance, shipping, handling, duties and taxes with respect to the purchase of Products and Services. Charges for insurance, shipping, handling, duties and taxes shall be billed to Reseller with the Product Invoice (defined below). All prices are subject to change without notice and will be established at the time of KBZ's acceptance of the Purchase Order. Prices for backordered Products are not guaranteed. Additional fees may apply on the date of shipment, as determined by KBZ.
4. SHIPMENT AND DELIVERY. All Products and Services delivered pursuant to these terms and conditions shall be packed and shipped by KBZ's supplier or an agent of KBZ and marked for shipment to Reseller or its customer, at the address set forth in the applicable Purchase Order. All Product and Service shipments will be made FOB origin. Risk of loss on the Products and Services shall pass to Reseller when the Products and Services are loaded on board the transporting carrier at the point of departure. Reseller shall be exclusively responsible for the cost of insurance, shipping, handling, duties and taxes. KBZ shall make shipments in accordance with the reasonable instructions of Reseller provided such instructions are in compliance with applicable shipping regulations and these terms and conditions, and KBZ, in its sole discretion, shall be permitted to select or substitute a shipper, at Reseller's cost.
5. PAYMENT TERMS. Reseller shall make full payment net thirty (30) calendar days from the date of KBZ's invoice for Products and Services ("Product Invoice"). Payments shall be in U.S. Dollars. Payments may be made by wire in accordance with the wire instructions set forth in the applicable Purchase Order. Any late payment by Reseller shall be subject to and Reseller shall pay KBZ: (i) an interest rate of one and one-half percent (1.5%) per month (or part thereof) or, if lower, the highest rate permitted by applicable law until payment is made; and (ii) KBZ's cost of collection, including, but not limited to, reasonable attorneys' fees.
6. CREDIT TERMS. Subject to the confidentiality provisions in these terms and conditions, Reseller shall furnish to KBZ all financial information reasonably requested by KBZ from time to time for the purpose of establishing or continuing Reseller's creditworthiness. KBZ shall have the right to decline to extend credit to Reseller and to require the applicable purchase price be paid prior to shipment. Reseller shall promptly notify KBZ of any change to Reseller's name or address and of any material adverse change to Reseller's financial condition. KBZ shall have the right from time to time, without notice, to modify or revoke Reseller's credit limit on the basis of changes in KBZ's credit policies or Reseller's financial condition or payment record. For KBZ to extend credit, Reseller must, at all times, maintain "Good Payment Status," which is determined by KBZ in its sole discretion but requires, at a minimum, that Reseller pay all Product Invoices from KBZ within thirty (30) calendar days from the date of each Product Invoice. KBZ reserves the right immediately, without notice, to suspend, limit or eliminate any credit extended to Reseller if at any time Reseller fails to maintain Good Payment Status. KBZ may from time to time, in its sole discretion, modify the requirements of Good Payment Status. To be eligible for any sales incentives or promotional programs offered by KBZ or its suppliers, Reseller must maintain Good Payment Status.
7. PRODUCT RETURNS. Returns of defective, damaged and incorrectly delivered Products or Services shall be handled in accordance with the then-current return process of KBZ and its suppliers, as determined in KBZ's sole discretion. Information regarding KBZ's and its suppliers' return processes may be made available to Reseller upon written request to KBZ.
8. BILLING AND SHIPPING DISCREPANCIES. Reseller shall have five (5) calendar days after receipt of Products and Services to notify KBZ in writing of any discrepancies in the billing or shipment, or both of Products and Services. Failure to timely notify KBZ in writing of a discrepancy shall be deemed an acceptance in full of the Products and Services by Reseller.
9. COPYRIGHT AND TRADEMARK NOTICES. Reseller shall not alter or remove, or permit any third parties to alter or remove, any trademarks, service marks, logos, icons or trade names included on or used in connection with the Products, Services, packages or other materials contained in the packages, Services or Products, or any other trademarks, service marks, logos, icons or trade names of KBZ or its suppliers (collectively, the "Trademarks"). All use of the Trademarks, including, but not limited to, use in promotional, marketing or other materials related to the Products or Services, shall be subject to the prior written approval of KBZ. Nothing in these terms and conditions shall grant Reseller any right, title or interest in the Trademarks. Notwithstanding the foregoing, Reseller may display KBZ's "Certified Reseller" logo on any of Reseller's marketing and promotional materials, provided Reseller uses such logo in the identical form as provided to Reseller by KBZ. Reseller shall maintain, and shall not remove, any copyright and trademark notices on any of the Products or contained in sales, marketing or other materials regarding the Products and Services.
10. CONFIDENTIAL INFORMATION. Each party shall maintain any and all Confidential Information (defined below) of the other party in the strictest confidence and shall not disclose, use, commercialize or otherwise appropriate, in whole or in part, any Confidential Information of the other party without the prior written consent of such party. Notwithstanding the foregoing, KBZ may share Confidential Information with financing institutions and its suppliers. Without limiting the foregoing, each party shall safeguard the Confidential Information of the other party and prevent its unauthorized, negligent or inadvertent use, copying or disclosure in a manner not less than that employed to protect such party's similar confidential information and always with at least a reasonable degree of care. "Confidential Information" means any information (written, oral or stored in any information storage or retrieval medium or device) that the disclosing party treats as confidential or proprietary, including, but not limited to, all information, documents and financial reports relating to the disclosing party or its business, operations, technical or financial information, including, but not limited to, research, products, costs, customer lists, marketing information, business studies, finances, information submitted pursuant to Section 6 of these terms and conditions, compositions, strategies, pricing information and any other information and materials that have not been made available to the general public. Without limiting the foregoing, KBZ's Confidential Information shall include, without limitation, KBZ's intellectual property, Products and Services pricing and all customer information. Failure of KBZ to identify any Confidential Information as confidential or proprietary shall not affect its status as Confidential Information under these terms and conditions.
11. WARRANTIES. Product and Service warranties, if any, are provided by the manufacturer or supplier of the Products and Services. Cisco-provided Products and Services have limited warranties, as set forth at the following URL:http://www.cisco.com/warp/public/cc/serv/mkt/sup/tsssv/wnty/. KBZ MAKES NO WARRANTIES, AND EXPRESSLY DISCLAIMS ALL WARRANTIES, IN CONNECTION WITH THESE TERMS AND CONDITIONS, THE PRODUCTS, THE SERVICES AND KBZ'S PERFORMANCE UNDER THESE TERMS AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, ORAL OR IN WRITING, IN FACT OR ARISING BY OPERATION OF LAW, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, AND RESELLER EXPRESSLY WAIVES ANY AND ALL SUCH WARRANTIES, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, TITLE AND NON-INFRINGEMENT.
12. INDEMNIFICATION. Reseller shall, at its cost, indemnify and, at KBZ's option, defend, KBZ (and its officers, directors, employees, agents and contractors) against any claims, demands, actions, causes of actions, proceedings, assessments, losses, damages, liabilities, settlements, judgments, fines, penalties, interest, costs and expenses (including, but not limited to, reasonable attorneys' fees), arising from or related to: (a) Reseller's breach of these terms and conditions; (b) any negligence or other tortious conduct by Reseller or its personnel; (c) any infringement of a third party's intellectual property or other proprietary rights arising from or related to action or inaction by Reseller or its personnel; (d) any violation of any applicable law, rule, regulation or order by Reseller or its personnel; and (e) any claims brought by Reseller's customers.
13. NO PATENT OR TRADEMARK INDEMNITY. KBZ shall have no duty to defend, indemnify or hold harmless Reseller from and against any or all damages and costs incurred by Reseller or its customers arising from the infringement of patents, trademarks, copyrights or any other proprietary rights by Products or Services, or the use or possession of Products or Services.
14. LIMITATION ON LIABILITY. IN NO EVENT SHALL KBZ BE LIABLE TO RESELLER OR ITS CUSTOMERS FOR ANY SPECIAL, EXEMPLARY, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, OR OTHER INDIRECT LOSS OR DAMAGE ARISING OUT OF THESE TERMS AND CONDITIONS OR THE USE OR POSSESSION OF PRODUCTS OR SERVICES HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), WHETHER BASED IN CONTRACT, TORT OR ANY OTHER CAUSE OF ACTION, EVEN IF KBZ HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL KBZ'S LIABILITY TO RESELLER OR RESELLER'S CUSTOMERS FOR ACTUAL DIRECT DAMAGES ARISING OUT OF THESE TERMS AND CONDITIONS, USE OF PRODUCTS OR SERVICES OR KBZ'S PERFORMANCE UNDER THESE TERMS AND CONDITIONS EXCEED IN THE AGGREGATE THE TOTAL AMOUNT PAID BY RESELLER TO KBZ UNDER THESE TERMS AND CONDITIONS IN THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY, WHICH SHALL BE RESELLER'S SOLE REMEDY UNDER THESE TERMS AND CONDITIONS.
15. DISCONTINUATION OF PRODUCTS OR SERVICES; COOPERATION. KBZ may at any time discontinue offering or providing any or all of the Products or Services without incurring any liability to Reseller or its customers. KBZ shall use commercially reasonable efforts to provide Reseller with prior notice of any such discontinuance. Reseller shall also cooperate with KBZ in complying with any standards or other requirements promulgated by KBZ's suppliers from time to time.
16. NOTICES. All notices, requests, demands and other communications ("Notice") must be in writing and shall be given by (i) personally delivering the Notice to an officer of the party, against a signed receipt, (ii) mailing the Notice by registered or certified mail, return receipt requested, or via nationally recognized courier services to the party at the address of such party as set forth below, at the official corporate address of such party, or such other address as the parties may hereinafter designate, or (iii) sending the notice by facsimile, subsequently to be confirmed in writing pursuant to (ii) above. Notices to KBZ shall be sent to: KBZ Communications, Inc., 2003 South Easton Road, Suite 308, Doylestown, PA 18901, Attention: Ken Zorzi, Facsimile: 215-348-7790. Notices shall be effective as of the date of receipt.
17. COMPLIANCE WITH LAWS. Reseller shall comply with any and all laws, regulations and orders that may be applicable to Reseller and the Products and Services, including, but not limited to, all product standards and applicable packaging and labeling requirements. Products and Services may be subject to export controls under the laws and regulations of the United States and any other applicable countries' laws and regulations. Reseller shall not export or otherwise distribute Products and Services or direct products of the Products and Services, in violation of any law or regulation of the United States. Reseller shall, at its own expense, obtain any and all import licenses and exchange control and other approvals required to permit the sale of and the purchase of Products and Services in the applicable jurisdictions where Reseller does business, including, but not limited to, to guarantee payment in U.S. Dollars of all amounts due to KBZ under these terms and conditions. Reseller warrants that it shall not export any Products or Services with knowledge that they will be used in the design, development, production or use of chemical, biological, nuclear or ballistic weapons, or in a facility engaged in such activities unless Reseller has obtained prior approval from the U.S. Department of Commerce. Reseller shall not knowingly sell Products or Services, or otherwise transfer Products or Services to, or make them available for use by or for, any government or military end-user located in or operating under the authority of any country not identified in Supplement No.1, Country Group A:1 to Part 740 of the EAR without the proper authorization and approval of the United States government. Reseller has not made, and shall not make, any direct or indirect payment, offer to pay, or authorization to pay, any money, gift, promise to give, or authorization of the giving, of anything of value to any U.S. or foreign government official, or the immediate family of any such official, for the purpose of influencing an act or decision of the government or such individual in order to assist, directly or indirectly, Reseller in obtaining business, retaining business or securing an improper advantage.
18. INDEPENDENT PARTIES. Reseller's relationship with KBZ shall be that of an independent contractor. Nothing contained in these terms and conditions shall be construed or implied to create an agency, association, partnership or joint venture between the parties. Reseller shall not have, and shall not represent that it has, any power, right or authority to bind KBZ, or to assume or create an obligation or responsibility, express, implied or by appearances, on behalf of KBZ or in KBZ's name, except as expressly provided in these terms and conditions. Reseller shall make no warranty, guarantee or representation, whether written or oral, on behalf of KBZ or KBZ's suppliers.
19. ASSIGNMENT/BINDING EFFECT. Reseller shall not assign or otherwise transfer any of its rights or duties, or both, under these terms and conditions, in whole or in part, directly or indirectly, by sale of Reseller, merger, sale of substantially all of Reseller's assets or otherwise, without the prior written consent of KBZ, at KBZ's sole discretion. KBZ shall be permitted to assign its rights and delegate its duties under these terms and conditions. Any such attempted assignment in contravention of this restriction shall be void and ineffective. These terms and conditions shall be binding upon and shall inure to the benefit of KBZ and Reseller and their respective representatives, successors, heirs and permitted assigns.
20. FORCE MAJEURE. Neither party shall be liable for any delay in or failure of performance, except for non-payment failures, resulting from fire, labor dispute, strike, war, insurrection, terrorist action, government restriction, act of God or other force majeure beyond its reasonable control, provided such party uses its best efforts to resume performance as promptly as possible following such an event.
21. MUTUAL HIRING PROTECTION. From the date of first establishing a resale account with KBZ until the later of the period of one (1) year after the opening of such account or one (1) year after Reseller's last Purchase Order, neither party, without the prior written consent of the other party, shall directly or indirectly recruit, cause to be recruited, hire, cause to be hired, entice or engage any employee, independent contractor or consultant of the other party who has been assigned to perform work directly or indirectly under the scope of these terms and conditions. In the event any party to these terms and conditions hires directly as an employee or retains as an independent contractor or consultant any personnel of the other party in violation of this Section 21, the hiring party shall pay the non-hiring party an amount equal to two hundred percent (200%) of the total first year compensation paid to such personnel as liquidated damages. These liquidated damages are not intended to be and should not be construed as a penalty, and are intended to fairly compensate the non-hiring party for the cost of finding, training and replacing such personnel.
22. WAIVER. The failure of either party to act upon any right, remedy or breach of these terms and conditions shall not constitute a waiver of that or any other right, remedy or breach. No waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.
23. GOVERNING LAW. The rights and obligations of the parties under these terms and conditions shall be governed by, and construed in accordance with the laws of the Commonwealth of Pennsylvania, including, but not limited to, its provision of the Uniform Commercial Code, and the United States of America, without regard to principles of conflicts of laws. These terms and conditions and the rights and obligations of the parties under these terms and conditions shall not be governed by the provisions of the United Nations Convention on Contracts for the International Sales of Goods or the United Nations Convention on the Limitation Period in the International Sales of Goods as amended.
24. CONSENT TO FORUM. The Bucks County Court of Common Pleas located in Doylestown, Pennsylvania and the United States District Court for the Eastern District of Pennsylvania located in Philadelphia, Pennsylvania shall have exclusive jurisdiction over any dispute or controversy arising under or related to these terms and conditions including, but not limited to, the collection of any amounts due to KBZ for the Products or Services. Each party consents to the personal and exclusive jurisdiction of such courts and waives any objection that it may have to the venue of any such proceeding and any claim or defense of inconvenient forum. Service of process may be made in accordance with the notice provision of these terms and conditions. Any award made by a court in conjunction with litigation between the parties regarding these terms and conditions shall include an award of all reasonable attorneys' fees and legal costs incurred by the party in whose favor the final decision is rendered.
25. INJUNCTIVE RELIEF. In the event of a breach or threatened breach of Sections 9, 10 or 21 of these terms and conditions, the non-breaching party shall be entitled to seek from a court of competent jurisdiction preliminary and permanent injunctive relief, which remedies shall be cumulative and in addition to any other rights and remedies to which the non-breaching party may be entitled at law or in equity, which may be exercised successively or concurrently and without necessity of posting bond or other security. Each party acknowledges that its breach of any of the covenants set forth in Sections 9, 10 or 21 would result in immediate and irreparable injury to the other party.
26. NO SETOFF. Reseller has no rights to set off against amounts due to KBZ for the Products and Services. In the event Reseller exercises a setoff, it shall constitute a breach of these terms and conditions and entitle KBZ to all rights and remedies available under these terms and conditions and any applicable law.
27. SEVERABLILITY. Any provision of these terms and conditions determined by a court of competent jurisdiction to be unenforceable or invalid shall be modified to the extent necessary to eliminate the invalidity or unenforceability and any remaining unenforceability or invalidity shall have no effect on any of the other terms of these terms and conditions which shall remain in full force and effect.
28. SURVIVAL. All provisions of these terms and conditions that expressly, by necessary implication, or which by their nature should survive or which relate to ownership, confidentiality, non-solicitation, warranties, limitations on liability and indemnification shall survive termination or expiration of these terms and conditions and remain in full force and effect. Termination or expiration of these terms and conditions shall not relieve either party from any of such party's obligations incurred prior to such termination.
29. INTERPRETATION. These terms and conditions shall be fairly interpreted in accordance with their terms and without any strict construction in favor of or against either party. Any ambiguity shall not be interpreted against the drafting party.
30. ENTIRE AGREEMENT. These terms and conditions constitute the entire agreement between KBZ and Reseller and supersede all prior negotiations and all agreements proposed or otherwise, whether written or oral, concerning the subject matter of these terms and conditions including without limitation the Standard KBZ Reseller Agreement ("Standard Agreement"), to the extent the Reseller and KBZ have previously executed a Standard Agreement. In the event of conflict between these terms and conditions and a Purchase Order or any other written document, these terms and conditions shall control and prevail.