TERMS AND CONDITIONS
These terms and conditions of sale which appear on all invoices are the terms and
conditions upon which Tech Data Corporation and its U.S. subsidiaries (together
"TDC") make all sales. TDC will not accept any other terms and conditions of sale,
unless Buyer and TDC have executed a written agreement which specifically modifies,
supersedes and/or replaces these terms and conditions. Acceptance of all purchase
orders is expressly made conditional upon Buyer's assent, expressed or implied,
to the terms and conditions set forth herein without modification or addition.
1. ACCEPTANCE OF PURCHASE ORDERS
Buyer's acceptance of these terms and conditions shall be indicated by any of the
following, whichever first occurs: (a) Buyer's making of an offer to purchase Product
from TDC; (b) Buyer's written acknowledgment hereof; (c) Buyer's acceptance of any
shipment of any part of the items specified for delivery (the "Products"); or (d)
any other act or expression of acceptance by Buyer. TDC's acceptance is expressly
limited to these terms and conditions in their entirety without addition, modification
or exception, and any term, condition or proposals hereafter submitted by Buyer
(whether oral or in writing) which is inconsistent with or in addition to these
terms and conditions is objected to and is hereby rejected by TDC. TDC's silence
or failure to respond to any such subsequent or different term, condition or proposal
shall not be deemed to be TDC's acceptance or approval thereof.
Unless otherwise agreed in writing, delivery shall be made in accordance with TDC's
shipping policy in effect on the date of shipment. The current TDC shipping policy
can be located www.techdata.com.
For all domestic transactions, unless otherwise stated on the front of the invoice,
title to the Products and all risk of loss or damage with respect to the Products
shall pass to Buyer upon delivery by TDC to the carrier or Buyer's representative
at TDC's logistics center.
International: For all international
transactions, the Product shall be sold FCA TDC's logistics center (Incoterms 2000).
TDC assumes no responsibility for charges related to customs clearance in the country
of delivery, customs duties, VAT or any other charges or taxes within the country
designated for delivery by the Buyer. Title shall pass to the Buyer upon delivery
to the Buyer or Buyer's representative at TDC's logistics center.
Delivery is subject to the payment provisions set forth herein and to TDC's receipt
of all necessary information and documentation from Buyer including all import certificates,
exemption and/or resale certificates, licenses and other documents as may be required
from Buyer for export of the Product. Buyer shall promptly notify TDC, in no event
later than five (5) business days after delivery, of any claimed shortages or rejection
as to any delivery. Such notice shall be in writing and shall be reasonably detailed,
stating the grounds for any such rejection. Failure to give any such notice within
such time shall be deemed an acceptance in full of any such delivery. TDC shall
not be liable for any shipment delays beyond the reasonable control of TDC which
affect TDC or any of TDC's suppliers, including, but not limited to, delays caused
by unavailability or shortages of Products from TDC's suppliers; natural disasters,
acts of war; acts or omissions of Buyer; fire, strike, riot, or governmental interference;
unavailability or shortage of materials, labor, fuel or power through normal commercial
channels at customary and reasonable rates; failure or destruction of plant or equipment
arising from any cause whatsoever; or transport failures.
3. PRICE AND PAYMENT
Buyer shall bear all applicable federal, state, municipal and other government taxes
(such as sales, use and similar taxes), as well as import or customs duties, license
fees and any other similar charges, however designated or levied on the sale or
delivery of the Products or measured by the purchase price paid for the Products.
TDC's prices set forth on the front side of the invoice do not include such taxes,
fees and charges. Exemption certificates must be presented to TDC prior to shipment
if they are to be honored.
Unless otherwise specified, the payment terms are COD. TDC, at its discretion, may
require reasonable advance assurances of payment through irrevocable bank letters
of credit or otherwise. All unpaid invoices shall bear interest at an amount equal
to 1-1/2% of the outstanding balance per month (or the maximum rate of interest
allowed to be contracted for by law, whichever is less), commencing upon the date
payment is due. Buyer's failure to make timely payment may result in such action
as commencement of proceedings for collection, revocation of credit, stoppage of
shipment, delay or cessation of future deliveries, repossession of unpaid delivered
goods and termination of any one or more sales agreements. Notwithstanding any "net"
payment provisions specified on the invoice, TDC shall have no continuing obligation
to deliver Products on credit, and any credit approval may be withdrawn by TDC at
any time and without prior notice. TDC retains (and Buyer grants to TDC by submitting
a purchase order) a security interest in the Products to secure payment in full
and compliance with these terms and conditions of sale. Buyer agrees to execute
any additional documents necessary to perfect such security interest.
Collections: In the event the sales
invoice shall be placed by TDC in the hands of an attorney or collection agency
for the purpose of collection, with or without litigation, or for the purpose of
enforcing TDC's security interest in the Products, the Buyer agrees to pay any and
all costs associated with such placement, including, without limitation, attorney's
fees and costs incurred prior to, during, or subsequent to trial, and including,
without limitation, collection, bankruptcy, or other creditor's rights proceedings.
If a sale is to occur, or the Product is to be shipped, outside of the United States,
Buyer acknowledges and agrees that the amount due TDC is contracted in U.S. Dollars
and that payment in U.S. Dollars is of the essence. Any payment by Buyer in local
currency or the receipt by TDC of local currency as a consequence of enforcement
procedures against Buyer will be deemed an authorization for TDC to use that local
currency to purchase U.S. Dollars or, if such purchase is prohibited by local law,
an authorization to purchase appropriate bonds or other instruments and export them
from the Buyer's country in order to convert the currency into U.S. Dollars and
apply the proceeds to the payment of any amounts owed to TDC by Buyer. Any deficiency
as a result of conversion of payment into U.S. Dollars shall be the responsibility
Any return of the Products purchased hereunder, whether for stock balancing purposes
or because such Products are claimed to be defective, shall be governed by TDC's
Product Return policies in effect on the date of the invoice, or as otherwise provided
by TDC to Buyer in writing. TDC's Product Return policies are located at www.techdata.com.
TDC reserves the right to modify or eliminate such policies at any time. Although
TDC's policies may permit Buyer to return Products claimed to be defective under
certain circumstances, TDC makes no representations or warranties of any kind with
respect to the Products. TDC HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES,
EXPRESS OR IMPLIED, AS TO THE PRODUCTS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED
WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.
TDC WILL NOT BE LIABLE FOR ANY DAMAGE, LOSS, COST OR EXPENSE FOR BREACH OF WARRANTY.
The right to return defective Products, as previously described, shall constitute
TDC's sole liability and Buyer's exclusive remedy in connection with any claim of
any kind relating to the quality, condition or performance of any Product, whether
such claim is based upon principles of contract, warranty, negligence or other tort,
breach of any statutory duty, principles of indemnity or contribution, the failure
of any limited or exclusive remedy to achieve its essential purpose, or otherwise.
In the event TDC issues a return authorization to Buyer allowing Buyer to return
Product to TDC, Buyer will deliver the Product to TDC's address in the United States,
if so required by TDC, and Buyer shall bear all applicable federal, state, municipal
and other government taxes (such as sales, use and similar taxes) as well as import
or customs duties, license fees and similar charges, however designated or levied,
on any replacement Product to be shipped by TDC to Buyer.
5. LIMITATION OF LIABILITY
TDC SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY
SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF
OR IN ANY WAY CONNECTED WITH THE AGREEMENT TO SELL PRODUCT TO BUYER OR THE PRODUCT,
INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOST PROFITS, LOSS OF USE, LOST DATA
OR FOR ANY DAMAGES OR SUMS PAID BY BUYER TO THIRD PARTIES, EVEN IF TDC HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY
SHALL APPLY WHETHER ANY CLAIM IS BASED UPON PRINCIPLES OF CONTRACT, WARRANTY, NEGLIGENCE
OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, PRINCIPLES OF INDEMNITY OR CONTRIBUTION,
THE FAILURE OF ANY LIMITED OR EXCLUSIVE REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE,
These terms and conditions shall constitute the final, complete and exclusive agreement
of the parties with respect to all sales by TDC to Buyer and shall supersede all
prior offers, negotiations, understandings and agreements. Unless Buyer and TDC
have executed a written agreement which specifically modifies, supersedes and/or
replaces these terms and conditions, it is expressly agreed that no prior or contemporaneous
agreement or understanding, whether written or oral, shall contradict, modify, supplement
or explain these terms and conditions. No additional or different terms or conditions,
whether material or immaterial, shall become a part of any sales agreement unless
expressly accepted in writing by an authorized officer of TDC in the United States.
Any waiver by TDC of one or more of these terms and conditions or any defaults hereunder
shall not constitute a waiver of the remaining terms and conditions or of any future
defaults. No failure or delay by either party in exercising or enforcing any right
hereunder shall operate as a waiver thereof or preclude any other exercise or enforcement
of its rights. Any provision of these terms and conditions that is prohibited or
unenforceable under the laws of the State of Florida shall be ineffective to the
extent of such prohibition or unenforceability, without impairing or invalidating
the remaining provisions of these terms and conditions. All sales agreements shall
be deemed made in, and shall be governed by, the laws of the State of Florida. The
venue for any disputes arising out of any sales agreement shall be, at TDC's sole
and exclusive option, Pinellas County, Florida or the courts with proper jurisdiction
at Buyer's location. ALL SALES TRANSACTIONS EXCLUDE THE APPLICATION OF THE 1980
UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE
a) Buyer acknowledges, represents and warrants that it currently complies with,
and at all times shall comply with, and shall not act to contravene, relevant laws,
codes, and regulations applicable to the purchase and sale of Products under these
terms and conditions. Buyer further acknowledges and agrees that the goods, software,
and technology subject to these terms and conditions are subject to the export control
laws and regulations of the United States, including, but not limited to, the Export
Administration Regulations ("EAR"), and sanctions regimes of the U.S. Department
of Treasury, Office of Foreign Asset Controls. Buyer shall not, without prior U.S.
government authorization, export, reexport, or transfer any goods, software, or
technology subject to these terms and conditions, either directly or indirectly,
to any country subject to a U.S. trade embargo or to any resident or national of
any such country, or to any person or entity listed on the "Entity List" or "Denied
Persons List" maintained by the U.S. Department of Commerce or the list of "Specifically
Designated Nationals and Blocked Persons" maintained by the U.S. Department of Treasury.
In addition, any goods, software or technology subject to these terms and conditions
may not be exported, re-exported, or transferred to an end-user engaged in activities
related to weapons of mass destruction. Such activities include, but are not necessarily
limited to, activities related to: (1) the design, development, production, or use
of nuclear materials, nuclear facilities, or nuclear weapons; (2) the design, development,
production, or use of missiles or support of missiles projects; and (3) the design,
development, production, or use of chemical or biological weapons.
b) Buyer recognizes that some Product sales are limited to a specified territory
and shall not sell Products outside that territory. Such sales may constitute copyright
or trademark infringement. Products purchased by Buyer may also be subject to additional
usage restrictions or authorizations imposed by the Product manufacturer or publisher.
Buyer is responsible for ensuring compliance with any such restrictions or authorizations.