TERMS AND CONDITIONS
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THE TERMS AND CONDITIONS OF PRODUCT SALES AND SERVICE PROJECTS ARE LIMITED TO THOSE
CONTAINED HEREIN. ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS IN ANY FORM DELIVERED
BY YOU ("CUSTOMER") ARE HEREBY DEEMED TO BE MATERIAL ALTERATIONS AND NOTICE OF
OBJECTION TO THEM AND REJECTION OF THEM IS HEREBY GIVEN.
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BY ACCEPTING DELIVERY OF THE PRODUCTS OR BY ENGAGING DISTRIBUTED TECHNOLOGY GROUP, LLC
(“DTG”) TO PROVIDE PRODUCTS OR TO PERFORM OR PROCURE ANY SERVICES, CUSTOMER AGREES TO BE
BOUND BY AND ACCEPTS THESE TERMS AND CONDITIONS UNLESS CUSTOMER AND DTG HAVE SIGNED A
SEPARATE AGREEMENT, IN WHICH CASE THE SEPARATE AGREEMENT WILL GOVERN.
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ANY GENERAL DESCRIPTION OF THE TYPES OF PRODUCTS OR SERVICES AND RESULTS THEREOF POSTED
ON DTG’s WEBSITE OR IN OTHER MARKETING MATERIALS DO NOT CONSTITUTE PART OF THE
AGREEMENT BETWEEN DTG AND CUSTOMER. EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED IN THIS
AGREEMENT ONLY THE TERMS HEREIN SHALL APPLY.
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Important Information About These Terms and Conditions
These Terms and Conditions constitute a binding contract between Customer and Distributed Technology Group, LLC (“DTG”) and
are referred to herein as either "Terms and Conditions" or this "Agreement". Customer accepts these Terms and Conditions by making
a purchase from or placing an order with DTG or otherwise requesting certain products (the "Products") or engaging DTG to perform
or procure any Services (as this and all capitalized terms are defined herein). These Terms and Conditions are subject to change
without prior notice, except that the Terms and Conditions posted on a Site at the time Customer places an order or signs a Statement
of Work will govern the order in question, unless otherwise agreed in writing by DTG and Customer.
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Customer may issue a purchase order for administrative purposes only. Additional or different terms and conditions contained in any
such purchase order will be null and void. No course of prior dealings between the parties and no usage of trade will be relevant to
determine the meaning of these Terms and Conditions or any purchase order or invoice, or any document in electronic or written form
that is signed and delivered by each of the parties for the performance of Services other than Third Party Services (each, a "Statement
of Work"). This Agreement contains the entire understanding of the parties with respect to the matters contained herein and
supersedes and replaces in its entirety any and all prior communications and contemporaneous agreements and understandings,
whether oral, written, electronic or implied, if any, between the parties with respect to the subject matter hereof.
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Governing Law
THESE TERMS AND CONDITIONS, ANY STATEMENTS OF WORK, THE SERVICES HEREUNDER AND ANY SALE OF
PRODUCTS HEREUNDER WILL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
CONFLICTS OF LAWS RULES. ANY ARBITRATION, ENFORCEMENT OF AN ARBITRATION OR LITIGATION WILL BE
BROUGHT EXCLUSIVELY IN ONTARIO COUNTY, NEW YORK, AND CUSTOMER CONSENTS TO THE JURISDICTION
OF THE FEDERAL AND STATE COURTS LOCATED THEREIN, SUBMITS TO THE JURISDICTION THEREOF AND
WAIVES THE RIGHT TO CHANGE VENUE. CUSTOMER FURTHER CONSENTS TO THE EXERCISE OF PERSONAL
JURISDICTION BY ANY SUCH COURT WITH RESPECT TO ANY SUCH PROCEEDING. Except in the case of nonpayment,
neither party may institute any action in any form arising out of these Terms and Conditions more than one (1) year after the cause of
action has arisen. The rights and remedies provided to DTG under these Terms and Conditions are cumulative, are in addition to, and
do not limit or prejudice any other right or remedy available at law or in equity.
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Risk of Loss
If Customer provides DTG with Customer’s carrier account number or selects a carrier other than a carrier that regularly ships for
DTG, title to Products and risk of loss or damage during shipment pass from DTG to Customer upon delivery to the carrier (F.O.B.
Origin, freight collect). For all other shipments, title to Products and risk of loss or damage during shipment pass from DTG to
Customer upon delivery to the specified destination (F.O.B. Destination, freight prepaid and added). Notwithstanding the foregoing,
title to software will remain with the applicable licensor(s), and Customer's rights therein are contained in the license agreement
between such licensor(s) and Customer.
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Services
Customers may order services (collectively, "Services") from or through DTG from time to time. Certain Services, including, but not
limited to, extended warranty service by manufacturers, are sold by DTG as a distributor or sales agent ("Third Party Services").
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In the case of Third Party Services, the third party shall be the party responsible for providing the services to the Customer and
Customer will look solely to the third party for any loss, claims or damages arising from or related to the provision of such Third Party
Services. Customer hereby releases DTG from any and all claims arising from or relating to the purchase or provision of any such
Third Parties Services. Any amounts, including, but not limited to, taxes, associated with Third Party Services which may be collected
by DTG will be collected solely in the capacity as an independent sales agent.
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Where Services are ordered in a Statement of Work, each Statement of Work hereby incorporates these Terms and Conditions and
constitutes a separate agreement with respect to the Services performed. DTG may execute a Statement of Work. In the event of an
addition to or a conflict between any term or condition of the Statement of Work and these Terms and Conditions, the terms and
conditions of this Agreement will control, except as expressly amended in the applicable Statement of Work by specific reference to
this Agreement. Each such amendment will be applicable only with respect to such Statement of Work and not to future Statements of
Work. Changes to the scope of the Services described in a Statement of Work will be made only in a writing executed by authorized
representatives of both parties. DTG will have no obligation to commence work in connection with any such change, unless and until
the change is agreed upon in that writing executed by both parties. All such changes to the scope of the Services will be governed by
these Terms and Conditions and the applicable Statement of Work. Each Statement of Work may be signed in separate counterparts
each of which shall be deemed an original and all of which together will be deemed to be one original.
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Cooperation
In addition to any specific Customer duties set forth in any applicable Statement of Work, Customer agrees to cooperate with DTG in
connection with performance of the Services by providing (i) timely responses to DTG's inquiries and requests for approvals and
authorizations, (ii) access to any information or materials reasonably requested by DTG which are necessary or useful as determined
by DTG in connection with providing the Services, including, but not limited to, physical and computer access to Customer's
computer systems, and (iii) all Required Consents necessary for DTG to provide the Services. "Required Consents" means consents or
approvals required to give DTG, its Affiliates, and its and their subcontractors the right or license to access, use and modify all data
and third party products. Customer acknowledges and agrees that the Services are dependent upon the completeness and accuracy of
information provided by Customer and the knowledge and cooperation of the agents, employees or subcontractors (“Personnel”)
engaged or appointed by Customer who are selected by Customer to work with DTG.
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DTG will follow all reasonable Customer security rules and procedures, as communicated in writing by Customer to DTG from time
to time.
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Access
DTG may perform the Services at Customer's place of business, at DTG's own facilities or such other locations as DTG and Customer
deem appropriate. When the Services are performed at Customer's premises, DTG will attempt to perform such Services within
Customer's normal business hours unless otherwise jointly agreed to by the parties. Customer will also provide DTG access to
Customer's staff and any other Customer resources (and when the Services are provided at another location designated by Customer,
the staff and resources at such location) that DTG determines are useful or necessary for DTG to provide the Services. When the
Services are provided on Customer's premises or at another location designated by Customer, Customer agrees to maintain adequate
insurance coverage to protect DTG and Customer's premises and to indemnify and hold DTG, and its agents and employees harmless
from any loss, cost, damage or expense (including, but not limited to, attorneys' fees and expenses) arising out of any product liability,
death, personal injury or property damage or destruction occurring at such location in connection with the performance of the
Services, other than solely as a result of DTG's gross negligence or willful misconduct.
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Payment
Customer agrees to pay the total purchase price for the Products plus shipping (to the extent shipping is not prepaid by Customer),
including shipping charges that are billed to DTG. Terms of payment are within DTG's sole discretion. In connection with Services
being performed pursuant to a Statement of Work, Customer will pay for the Services in the amounts and in accordance with any
payment schedule set forth in the applicable Statement of Work. If no payment schedule is provided, Customer will pay for the
Services as invoiced by DTG. Invoices are due and payable within the time period specified on the invoice, measured from the date of
invoice, subject to continuing credit approval by DTG. DTG, may issue an invoice to Customer. DTG may invoice Customer
separately for partial shipments, and DTG may invoice Customer for all of the Services described in a Statement of Work or any
portion thereof. Customer agrees to pay interest on all past-due sums at the lower of one and one-half percent (1.5%) per month or the
highest rate allowed by law. Customer will pay for, and will indemnify and hold DTG harmless from, any applicable sales, use,
transaction, excise or similar taxes and any federal, state or local fees or charges imposed on, in respect of or otherwise associated
with any Statement of Work, the Products or the Services. Customer must claim any exemption from such taxes, fees or charges at the
time of purchase and provide DTG with the necessary supporting documentation. In the event of a payment default, Customer will be
responsible for all of DTG’s costs of collection, including, but not limited to, court costs, filing fees and reasonable attorneys’ fees. In
addition, if payments are not received as described above, DTG reserves the right to suspend the Services without penalty until
payment is received. Customer hereby grants to DTG a security interest in the Products to secure payment in full. Customer authorizes
DTG to file a financing statement reflecting such security interest.
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Except as otherwise specified on an applicable Statement of Work, Customer will reimburse DTG for all reasonable out-of-pocket
expenses incurred by DTG in connection with the performance of the Services, including, but not limited to, travel and living
expenses.
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Warranties
Customer understands that DTG is not the manufacturer of the Products purchased by Customer hereunder and the only warranties
offered are those of the manufacturer, not DTG. In purchasing the Products, Customer is relying on the manufacturer’s specifications
only and is not relying on any statements, specifications, photographs or other illustrations representing the Products that may be
provided by DTG. DTGAND ITS AFFILIATES HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES EITHER EXPRESS
OR IMPLIED, RELATED TO PRODUCTS, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF TITLE,
ACCURACY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF NONINFRINGEMENT,
OR ANY WARRANTY RELATING TO THIRD PARTY SERVICES. THE DISCLAIMER CONTAINED IN THIS PARAGRAPH
DOES NOT AFFECT THE TERMS OF ANY MANUFACTURER'S WARRANTY. Customer expressly waives any claim that it
may have against DTG based on any product liability or infringement or alleged infringement of any patent, copyright, trade secret or
other intellectual property rights (each a “Claim”) with respect to any Product and also waives any right to indemnification from DTG
against any such Claim made against Customer by a third party. Customer acknowledges that no employee of DTG is authorized to
make any representation or warranty on behalf of DTG that is not in this Agreement.
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DTG warrants that the Services will be performed in a good and workmanlike manner. Customer's sole and exclusive remedy and
DTG's entire liability with respect to this warranty will be, at the sole option of DTG, to either (a) use its reasonable commercial
efforts to re-perform or cause to be re-performed any Services not in substantial compliance with this warranty or (b) refund amounts
paid by Customer related to the portion of the Services not in substantial compliance; provided, in each case, Customer notifies DTG
in writing within five (5) business days after performance of the applicable Services. EXCEPT AS SET FORTH HEREIN OR IN
ANY STATEMENT OF WORK THAT EXPRESSLY AMENDS DTG'S WARRANTY, AND SUBJECT TO APPLICABLE LAW,
DTG MAKES NO OTHER, AND EXPRESSLY DISCLAIMS ALL OTHER, REPRESENTATIONS, WARRANTIES,
CONDITIONS OR COVENANTS, EITHER EXPRESS OR IMPLIED (INCLUDING WITHOUT LIMITATION, ANY EXPRESS
OR IMPLIED WARRANTIES OR CONDITIONS OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY,
DURABILITY, TITLE, ACCURACY OR NON-INFRINGEMENT) ARISING OUT OF OR RELATED TO THE PERFORMANCE
OR NON-PERFORMANCE OF THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY WARRANTY RELATING TO
THIRD PARTY SERVICES, ANY WARRANTY WITH RESPECT TO THE PERFORMANCE OF ANY HARDWARE OR
SOFTWARE USED IN PERFORMING SERVICES AND ANY WARRANTY CONCERNING THE RESULTS TO BE
OBTAINED FROM THE SERVICES. THIS DISCLAIMER AND EXCLUSION SHALL APPLY EVEN IF THE EXPRESS
WARRANTY AND LIMITED REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE. CUSTOMER
ACKNOWLEDGES THAT NO REPRESENTATIVE OF SELLER OR OF ITS AFFILIATES IS AUTHORIZED TO MAKE ANY
REPRESENTATION OR WARRANTY ON BEHALF OF DTG OR ANY OF ITS AFFILIATES THAT IS NOT IN THIS
AGREEMENT OR IN A STATEMENT OF WORK EXPRESSLY AMENDING DTG'S WARRANTY.
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Customer shall be solely responsible for daily back-up and other protection of its data and software against loss, damage or corruption.
Customer shall be solely responsible for reconstructing data (including but not limited to data located on disk files and memories) and
software that may be lost, damaged or corrupted during the performance of Services. DTG AND ITS SUPPLIERS,
SUBCONTRACTORS AND AGENTS ARE HEREBY RELEASED AND SHALL CONTINUE TO BE RELEASED FROM ALL
LIABILITY IN CONNECTION WITH THE LOSS, DAMAGE OR CORRUPTION OF DATA AND SOFTWARE, AND
CUSTOMER ASSUMES ALL RISK OF LOSS, DAMAGE OR CORRUPTION OF DATA AND SOFTWARE IN ANY WAY
RELATED TO OR RESULTING FROM THE SERVICES.
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DTG will not be responsible for and no liability shall result to DTG for any delays in delivery or in performance which result from any
circumstances beyond DTG’s reasonable control, including, but not limited to, Product unavailability, carrier delays, delays due to
fire, severe weather conditions, failure of power, labor problems, acts of war, terrorism, embargo, acts of God or acts or laws of any
government or agency. Any shipping dates or completion dates provided by DTG or any purported deadlines contained in a Statement
of Work or any other document are estimates only.
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Limitation of Liability
UNDER NO CIRCUMSTANCES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY
REMEDY SET FORTH HEREIN, WILL DTG OR ITS SUPPLIERS, SUBCONTRACTORS OR AGENTS BE LIABLE
FOR: (A) ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING BUT
NOT LIMITED TO, LOSS OF PROFITS, BUSINESS, REVENUES OR SAVINGS , EVEN IF DTG HAS BEEN ADVISED
OF THE POSSIBILITIES OF SUCH DAMAGES OR IF SUCH DAMAGES ARE OTHERWISE FORESEEABLE, IN EACH
CASE, WHETHER A CLAIM FOR ANY SUCH LIABILITY IS PREMISED UPON BREACH OF CONTRACT,
WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY OF LIABILITY; (B) ANY CLAIMS,
DEMANDS OR ACTIONS AGAINST CUSTOMER BY ANY THIRD PARTY; (C) ANY LOSS OR CLAIM ARISING OUT
OF OR IN CONNECTION WITH CUSTOMER'S IMPLEMENTATION OF ANY CONCLUSIONS OR
RECOMMENDATIONS BY DTG BASED ON, RESULTING FROM, ARISING OUT OF OR OTHERWISE RELATED TO
THE PRODUCTS OR SERVICES; OR (D) ANY UNAVAILABILITY OF THE PRODUCT FOR USE OR ANY LOST,
DAMAGED OR CORRUPTED DATA OR SOFTWARE. IN THE EVENT OF ANY LIABILITY INCURRED BY DTG, THE
ENTIRE LIABILITY OF DTG FOR DAMAGES FROM ANY CAUSE WHATSOEVER WILL NOT EXCEED THE
DOLLAR AMOUNT PAID BY CUSTOMER FOR THE PRODUCT(S) GIVING RISE TO THE CLAIM OR THE SPECIFIC
SERVICES GIVING RISE TO THE CLAIM.
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Confidential Information
Each party anticipates that it may be necessary to provide access to information of a confidential nature of such party, the Affiliates or
a third party (hereinafter referred to as "Confidential Information") to the other party in the performance of this Agreement and any
Statement of Work. "Confidential Information" means any information or data in oral, electronic or written form which the receiving
party knows or has reason to know is proprietary or confidential and which is disclosed by a party in connection with this Agreement
or which the receiving party may have access to in connection with this Agreement, including but not limited to the terms and
conditions of each Statement of Work. Confidential Information will not include information which: (a) becomes known to the public
through no act of the receiving party; (b) was known to the receiving party, or becomes known to the receiving party from a third
party having the right to disclose it and having no obligation of confidentiality to the disclosing party with respect to the applicable
information; or (c) is independently developed by agents, employees or subcontractors of the receiving party who have not had access
to such information. To the extent practicable, Confidential Information should be clearly identified or labeled as such by the
disclosing party at the time of disclosure or as promptly thereafter as possible, however, failure to so identify or label such
Confidential Information will not be evidence that such information is not confidential or protectable.
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Each party agrees to hold the other Party's Confidential Information confidential for a period of three (3) years following the date of
disclosure and to do so in a manner at least as protective as it holds its own Confidential Information of like kind but to use no less
than a reasonable degree of care. Disclosures of the other Party's Confidential Information will be restricted (i) to those individuals
who are participating in the performance of this Agreement or the applicable Statement of Work and need to know such Confidential
Information for purposes of providing or receiving the Products or Services or otherwise in connection with this Agreement or the
applicable Statement of Work, or (ii) to its business, legal and financial advisors, each on a confidential basis. Each party agrees not to
use any Confidential Information of the other Party for any purpose other than the business purposes contemplated by this Agreement
and the applicable Statement of Work. Upon the written request of a party, the other party will either return or certify the destruction
of the Confidential Information of the other party.
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If a receiving party is required by law, rule or regulation, or requested in any judicial or administrative proceeding or by any
governmental or regulatory authority, to disclose Confidential Information of the other Party, the receiving party will give the
disclosing party prompt notice of such request so that the disclosing party may seek an appropriate protective order or similar
protective measure and will use reasonable efforts to obtain confidential treatment of the Confidential Information so disclosed.
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Returns
DTG allows customer returns based on the policies of the original product manufacturer. Software is not returnable if the packaging
has been opened. If software was distributed electronically, it is not returnable if the licenses were downloaded. Customers should
contact their DTG account representative to schedule a return and for additional information. Customers must notify their DTG
account representative of any damaged Products within fifteen (15) days of receipt.
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Termination
Either party may terminate performance of a Service or a Statement of Work for cause if the other party fails to cure a material default
in the time period specified herein. Any material default must be specifically identified in a written notice of termination. After written
notice, the notified party will, subject to the provision of warranties herein, have thirty (30) days to remedy its performance except that
it will only have five (5) days to remedy any monetary default. Failure to remedy any material default within the applicable time
period provided for herein will give cause for immediate termination, unless such default is incapable of being cured within the time
period in which case the defaulting party will not be in breach (except for Customer’s payment obligations) if it used its reasonable
efforts to cure the default. In the event of any termination of the Services or a Statement of Work, Customer will pay DTG for all
Services performed and expenses incur red up to and including the date of termination plus any termination fee if one is set forth in the
applicable Statement of Work. In such event Customer will also pay DTG for any out-of-pocket demobilization or other direct costs
resulting from termination. Upon termination, all rights and obligations of the parties under this Agreement will automatically
terminate except for any right of action occurring prior to termination, payment obligations and obligations that expressly or by
implication are intended to survive termination (including, but not limited to, limitation of liability, indemnity, confidentiality, or
licensing of Work Product and this survival provision).
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Miscellaneous
DTG may assign or subcontract all or any portion of its rights or obligations with respect to the sale of Products or the performance of
Services or assign the right to receive payments, without Customer's consent. Customer may not assign these Terms and Conditions,
or any of its rights or obligations herein without the prior written consent of DTG. Subject to the restrictions in assignment contained
herein, these Terms and Conditions will be binding on and inure to the benefit of the parties hereto and their successors and assigns.
No provision of this Agreement or any Statement of Work will be deemed waived, amended or modified by either party unless such
waiver, amendment or modification is in writing and signed by both parties. The relationship between DTG and Customer is that of
independent contractors and not that of employer/employee, partnership or joint venture. If any term or condition of this Agreement or
a Statement of Work is found by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, the same shall not
affect the other terms or conditions hereof or thereof or the whole of this Agreement or the applicable Statement of Work. Notices
provided under this Agreement will be given in writing and deemed received upon the earlier of actual receipt or three (3) days after
mailing if mailed postage prepaid by regular mail or airmail or one (1) business day after such notice is sent by recognized overnight
courier or facsimile transmission. Any delay or failure by either party to exercise any right or remedy will not constitute a waiver of
that party to thereafter enforce such rights.
