Terms and Conditions

Purchasing Agreement

McCormick Computer Resale, Inc.’s
Terms & Purchasing Agreement

This order is subject to all of the terms and conditions all pages of this order. Purchaser objects to the inclusion of any different or additional Terms proposed by seller in seller’s confirmation or acceptance of this order, and if they are Included in seller’s acceptance, a contract for sale will result upon purchaser’s terms stated herein.

Seller will pack the Equipment for shipment using the Equipment manufacturer’s standard packing procedures and identical or similar packaging materials, using ANSI 2020 ESD controls and will deliver the Equipment to the loading dock at the locations identified as “PICK UP LOCATION” on the face of this Order. Unless otherwise specified, Purchaser will be responsible for transporting the Equipment from the specified loading dock or equivalent location. If seller does not have a loading dock or equivalent location, Seller will reimburse Purchaser for any additional fees, costs or charges Purchaser may incur in loading the Equipment.

Risk of Loss
Title to the equipment shall vest in Purchaser upon delivery. Notwithstanding any provision herein to the contrary, all risk of loss or damage to the Equipment shall be on the Seller until the Equipment is actually received by Purchaser at its warehouse or at the receiving point(s) specified herein or is accepted by Purchaser’s carrier.

Seller warrants that it is the lawful owner of the Equipment, that it has full right, power and authority to sell the Equipment to Purchaser, and that the Equipment is free and clear of all security interests, liens, claims and encumbrances of any kind. Seller shall deliver to Purchaser, upon receipt of payment in full, in form requested by Purchaser, a Bill of Sale warranting title to the Equipment. Seller further warrants that the Equipment is presently operational and fully-functioning according to the manufacturer’s published specifications and that upon delivery to Purchaser, the Equipment will be certified as eligible for a maintenance contract with the manufacturer. Seller will provide Purchaser with a maintenance agreement qualification letter or equivalent from the manufacturer certifying that the Equipment has been maintained to the manufacturer’s standards up to the point in time that it was deinstalled and stating that the Equipment was in good working order up to the point it was deinstalled. Seller agrees that the Equipment will be deinstalled by the manufacturer unless otherwise agreed to in writing by Purchaser.

Condition of Equipment
Purchaser, or its agent, shall have the right to inspect the Equipment up to and including the date of delivery for general appearance and operating condition and also to inspect the Equipment’s log book. Seller agrees to maintain or cause the Equipment to be maintained hereafter so that no excessive deterioration or use other than normal wear and tear shall occur before the delivery of the Equipment, or, if such excessive deterioration or use shall occur, Seller shall use all commercially reasonable efforts to correct or to cause said excessive deterioration or use to be corrected to assure the acceptable appearance and condition of the Equipment. At time of delivery the Equipment will have all manuals, cables, terminators where required, connectors, shields, kick-plate, covers, diagnostics, wiring diagrams, special tools that are generally provided by the manufacturer, any form stands that generally accompany the Equipment, “ON” keys and/or “MGR” keys and/or “AUX” keys where appropriate, cash tills, front, side, rear panels and battery where appropriate, logics, maintenance, parts and theory of operations manuals where appropriate, and any other accessories which were originally supplied by the manufacturer. Seller shall be liable for the replacement costs of any of the foregoing if missing at time of delivery.

Inspection and Rejection
All Equipment is subject to inspection at Purchaser’s premises. If any Equipment is found at any time to be defective in material or workmanship or otherwise not in conformity with Purchaser’s specifications, Purchaser, in addition to any other rights which it may have under warranties or otherwise, shall have the right to reject such Equipment in whole or in part. The right to reject shall not be deemed to have been waived by the fact that payment has been made therefor, nor, in the event of a latent defect, the fact that the Equipment has been inspected. Equipment rejected as not conforming to this Order shall be held at Seller’s risk for a reasonable time after its rejection and shall be returned or disposed of at Seller’s expense, including transportation both ways and handling costs, and according to Seller’s instructions. No Equipment returned shall be replaced by Seller without written authorization from Purchaser.

Purchaser and Seller agree that all documents and information shared by one with the other, whether or not directly related to this Order, shall be kept confidential.

Timely delivery of the Equipment is the essence of the order. Seller agrees to deliver the goods by the specified delivery date. If goods are not delivered by specified delivery date, McCormick Computer Resale has the right to cancel the Purchase Order without penalty.

Purchaser warrants that it is in the business of buying and selling computer equipment and that the purchase of the Equipment is for resale only. Except as may otherwise be provided in this Order, the contract price includes all applicable, Federal, State and local taxes in effect on the date of this Order.

Force Majeure
Purchaser shall not be liable for failure to take delivery of the Equipment, or for any postponement in taking delivery of the Equipment, if such failure is caused by labor disputes, wars, riots, insurrection, civil commotion, fire, flood, earthquake, shortages in transportation, storm or any act of God or any other similar or dissimilar cause beyond Purchaser’s control.

In the event of any proceedings, voluntary or involuntary, in bankruptcy or insolvency by or against Seller, or any other proceedings under any Federal or State law for the relief of debtors, or in the event of the appointment, with or without Seller’s consent, of an assignee for the benefit of creditors or of a receiver trustee, or similar functionary for Seller, then Purchaser shall be entitled to cancel any unfilled part of this Order without any liability whatsoever.

Written Notice
Any notice hereunder required shall be in writing and shall be deemed to be given when delivered or, if mailed on the third day after mailing by registered or certified mail, postage prepaid and addressed to Purchaser or Seller at their respective addresses as set forth on the face of this Order or by facsimile transmission.

A waiver by Purchaser of strict performance of or failure to perform any one or more of the conditions in regard to any part of this Order shall not act as a waiver of or as an excuse for nonperformance by Seller as to any other part of this Order. No waiver shall be effective unless made in writing signed by a duly authorized officer of Purchaser.

In the event any provision or term of this Purchase Order or the contract arising from it shall be declared invalid or nonenforceable by a court of competent jurisdiction, all other provisions and terms shall remain valid and binding. Headings are for convenience of reference only and shall not limit or govern the interpretation of the provisions hereof.

(a) This Order constitutes the entire agreement between Seller and Purchaser with respect to the purchase and sale of the Equipment and no representation or statement not contained herein shall be binding upon Seller or Purchaser as a warranty or otherwise unless in writing and executed by the Party to be bound thereby.
(b) This Order and the agreement resulting therefrom shall be governed by and construed under the laws of the State of Minnesota. The parties consent and agree that in the event a suit, action or proceeding is filed arising out of or relating to this Order, such suit action or proceeding shall be commenced in a Federal, State or local court having situs in the City of Apple Valley, State of Minnesota.
(c) Seller agrees to and shall indemnify and hold Purchaser harmless from and against all liens, costs, expenses, damages or claims arising out of the performance of Seller’s obligations hereunder, the breach of any Seller’s obligation hereunder, or any misrepresentation of Seller hereunder.