TERMS AND CONDITIONS of sale

TERMS AND CONDITIONS OF SALE

THESE TERMS AND CONDITIONS OF SALE (this “Agreement“) are made by and between Linfa System Solutions LLC. (“Seller”) a New York Limited Liability Company, and the entity which executes an Order Form (“Buyer”) which incorporates the terms and conditions of the Agreement. Each hereinafter may be referred to as a “Party” and collectively as the “Parties.”

This Agreement sets forth the terms and conditions upon which Seller agrees to sell to Buyer, and Buyer agrees to purchase certain computer hardware products described in the Order Form. For the purpose hereof “Order Form” means an ordering document specifying the products to be provided under the terms of this Agreement (as well as quantities, pricing, payment terms and other special provisions) that is entered into between Buyer and Seller, signed by both parties, and incorporates the terms and conditions of this Agreement.  

This Agreement is effective as of the last signature date (either Buyer or Seller) on the Order Form which incorporates this Agreement (the “Effective Date”).

NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

1. Sales of Goods. Sellers agrees to sell, and Buyer agrees to purchase the products set forth in the Order Form (the “Products”) in the quantities specified in the Order Form and at the Prices (as defined in Section ‎4) and upon the terms and conditions of this Agreement.
2. Delivery; Risk of Loss.
   1. The Products will be delivered within a reasonable time after the date of this Agreement, subject to availability. Shipping and delivery dates are approximate and are given (when applicable) by Seller in good faith, but are not guaranteed unless otherwise specially agreed in writing. Buyer shall be responsible for all storage and other costs relating to Buyer’s failure to accept delivery.
   2. Products sold may be delivered directly from the Product’s manufacturer (“Manufacturer”) or its designated distributor Blue Star Inc. (“Distributor”). Unless otherwise set forth in the Order Form, Seller shall deliver all Products F.O.B. Seller’s (or the Manufacturer’s or its designated Distributor’s, as applicable) warehouse (“Delivery Point”) in accordance with the Uniform Commercial Code in effect in New York. All risk of loss shall pass to Buyer upon delivery of the Products by Seller (or the Manufacturer or Distributor, as applicable) to a carrier.
   3. Seller may (or the Manufacturer or Distributor on its behalf, as applicable), in its sole discretion, without liability or penalty, make partial shipments of Products to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of the quantity purchased under the Order Form and this Agreement.
3. Inspection and Acceptance. Products delivered to Buyer shall be deemed accepted by the Buyer unless the Buyer notifies the Seller in writing, within 24 hours of delivery in the event of damage during shipment, or within four (4) days of delivery in the event of any defect or shortage of the Products under the terms hereof (“Inspection Periods”). All Product damaged during shipment must be signed in as damaged on the bill of lading, or the damage claim will not be processed. 
4. Price. Buyer shall purchase the Products from Seller at the price(s) (the “Price(s)”) set forth in the Order Form. 
5. Taxes. All Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Buyer, and any applicable import or customs duties, license fees and similar charges however designated or levied on the sale of the Products (or delivery thereof). Buyer shall be responsible for all such charges, costs, and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel or real or personal property, or other assets.
6. Payment Terms. Buyer shall pay all invoiced amounts due to Seller on receipt of Seller’s invoice and in advance, unless otherwise specified in the Order Form. TIME OF PAYMENT IS OF THE ESSENCE. Seller may at any time decline to make any shipment or delivery or perform any work except upon receipt of payment. Buyer shall make all payments hereunder by wire transfer or check or as otherwise specified in the Order Form or agreed between the parties and in US dollars. Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. 
7. No Setoff. Buyer shall not, and acknowledges that it will have no right, under this Agreement, any other agreement, Order Form, document, or law, to withhold, offset, recoup, or debit any amounts owed (or to become due and owing ) to Seller, whether under this Agreement or otherwise, against any other amount owed (or to become due and owing) to it by Seller, whether relating to Seller’s breach or non-performance of this Agreement or any other agreement between Buyer, and Seller, or otherwise
8. Return Policy. To the extent applicable, return is subject to Distributor’s policies as published from time to time and is made solely and directly between Buyer and Distributor. When returning Products, Buyer must follow the procedure set forth in the most recent return policy provided by Distributor or Distributor’s return policy as published on https://www.bluestarinc.com/gb-en/about-bluestar/policies/return-policy.html. No returns will be allowed without an RMA number. There will be a $50 diagnostic charge for items returned as defective that test good.
9. Warranties. PRODUCTS WARRANTIES AND MAINTENANCE SERVICES, IF ANY, ARE PROVIDED BY THE MANUFACTURER OF THE PRODUCTS (and may be subject to a separate purchase, unless otherwise explicitly specified in the Order Form). SELLER MAKES NO WARRANTIES WHATSOEVER WITH RESPECT TO THE PRODUCTS, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (iii) WARRANTY OF TITLE; OR (iv) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY;  WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE USAGE OF TRADE OR OTHERWISE.
10. Limitation of liability.
    1. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, AND/OR IN CONNECTION WITH ANY BREACH OF THIS AGREEMENT OR ANY OTHER LOSS CAUSED BY A DEFECT OR NONCONFORMITY IN ANY OF THE PRODUCTS, REGARDLESS OF (i) WHETHER SUCH DAMAGES WERE FORESEEABLE, (ii) WHETHER OR NOT SELLER
       WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (iii) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND (D) THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
    2. IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE PRODUCTS SOLD HEREUNDER.
11. Compliance.
    1. Buyer is in compliance with and shall comply with all applicable laws, regulations, and ordinances. Buyer has and shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement. 
    2. Buyer acknowledges that Seller has informed it that U.S. law and U.S. Export Administration Regulations govern, and may prohibit the re-export or other disposition of Products and related technical data received by Buyer or its customers without prior U.S. government approval.
    3. Buyer agrees that diversion of Products from destinations identifed in the Shipper’s Export Declaration constitutes a fundamental and material breach under this Agreement. If Products are diverted from intended destinations, the sale may be voided in the sole discretion of Seller, and all right, title and interest in Products shall revert to Seller (or the manufacture or original distributor, as applicable). In the event of such breach, Buyer shall be liable to Seller for all costs, fees and expenses incurred by Seller in connection with
       recovery of Products, including reasonable attorney fees.
    4. Buyer agrees and warrants that in performance of its obligations under these Terms and Conditions, it will comply with U.S. Foreign Corrupt Practices Act.
    5. To the extent applicable, Buyer is solely responsible for maintaining a written information security program consistent with law and industry standards, and for complying with all privacy and data security laws. To the extent Buyer provides personal information (“PI”) to Seller, (1) Buyer represents and warrants it has obtained all necessary consents and authorizations; (2) Seller shall use, store, disclose, and process PI only: (i) to perform services for Buyer and its customers; (ii) pursuant to Buyer’s documented instructions, or (iii) as required by law, and Seller informs Buyer before processing and minimizes any disclosure to the extent permitted by law. Seller shall not use, store, disclose, or process PI for a commercial purpose except providing services to Buyer and its customers.
12. Indemnification. Buyer shall indemnify, defend, and hold harmless Seller and its officers, directors, employees, agents, affiliates, successors, and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, fees and the costs of enforcing any right to indemnification under this Agreement, incurred by Indemnified Party, relating to/arising out of or resulting from any claim of a third party or Seller arising out of or occurring in connection with the Products purchased from Seller or Buyer’s negligence, willful misconduct, or breach of this Agreement. Buyer shall not enter into any settlement without Seller’s or Indemnified Party’s prior written consent. 
13. No Intellectual Property Indemnity. Seller shall have no duty to defend, indemnify, or hold harmless Buyer from and against any or all damages and costs incurred by Buyer arising from the infringement of patents or trademarks or the violation of copyrights related to the Products.
14. Termination. In addition to any remedies that may be provided in this Agreement, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (a) fails to pay any amount when due under this Agreement; (b) has not otherwise performed or complied with any of the terms of this Agreement, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
15. Confidential Information. All non-public, confidential, or proprietary information of either Party, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by one Party to the other Party, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential,” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized by the disclosing Party in writing. Upon the disclosing Party’s request, receiving Party shall promptly return all documents and other materials received from the disclosing Party. Disclosing Party shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; or (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party. Obligations of confidentiality shall survive the termination of this Agreement.
16. Entire Agreement. This Agreement, including and together with the Order Form, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and
    contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter.
17. No Conflicting PO. The terms and conditions set forth in this Agreement and Order Form shall constitute the sole and exclusive agreement between Seller and Buyer, and shall supersede any inconsistent terms or conditions in any purchase order, policy or other writing of Buyer, unless such changes are approved in writing by Seller.
18. Survival. Subject to the limitations and other provisions of this Agreement, any provision that, in order to give proper effect to its intent, should survive such expiration or termination, shall survive the expiration or earlier termination of this Agreement. 
19. Notices. All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement must be in writing and addressed to the other Party at its address set forth in the Order Form (or to such other address that the receiving Party may designate from time to time in accordance with this Section). Unless otherwise agreed herein, all notices must be delivered by personal delivery, nationally recognized overnight courier, or certified or registered mail (in each case, return receipt requested, postage prepaid) or by email (with receipt acknowledge). Except as otherwise provided in this Agreement, a notice is effective only (a) on receipt by the receiving Party, and (b) if the Party giving the Notice has complied with the requirements of this Section.
20. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal, or unenforceable, the court may modify this Agreement to effect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
21. Amendments and waivers. No amendment to or modification of the Agreement (including the Order Form) is effective unless it is in writing signed by authorized representative of each party. No waiver by any party of any provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the party against whom the waiver is to be charged.
22. Cumulative Rights. Buyer’s and Seller’s rights under this Agreement are cumulative and shall not be construed as exclusive of each other unless otherwise specified or required by law.
23. Assignment. Buyer shall not assign, transfer, delegate, or subcontract any of its rights or obligations under this Agreement without the prior written consent of Seller. Any purported assignment, transfer, delegation, or subcontract in violation of this Section shall be null and void. No assignment, transfer, delegation, or subcontract shall relieve Buyer of any of its obligations hereunder. Seller may at any time assign, transfer, delegate, or subcontract any or all of its rights or obligations under this Agreement without Buyer’s prior written consent.
24. Successors and Assigns. This Agreement is binding on and inures to the benefit of the Parties
    to this Agreement and their respective permitted successors and permitted assigns.
25. Choice of Law; Forum. This Agreement, including Order Form, and all matters arising out of or relating to this Agreement, are governed by, and construed in accordance with, the laws of the State of New York, United States of America, without regard to conflict of laws principals thereof. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts in state of New York and the United States District Court for the Southern District of New York. Each Party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT (INCLUDING THE ORDER FORM), IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ORDER FORM, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
26. Counterparts. The Order Form (incorporating this Agreement by reference) may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
27. Force Majeure. Any delay or failure of Seller to perform its obligations under this Agreement will be excused to the extent that the delay or failure was caused directly by an event beyond such Party’s control, without such Party’s fault or negligence and that by its nature could not have been foreseen by such Party or, if it could have been foreseen, was unavoidable (which events may include natural disasters, embargoes, explosions, riots, wars, acts of terrorism, strikes, labor stoppages or slowdowns or other industrial disturbances, and shortage of adequate power or transportation facilities)
28. Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, franchise, business opportunity, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever. No relationship of exclusivity shall be construed from this Agreement

Date Updated: November, 2022