General Terms and Conditions of Sale

Terms and Conditions

  1. PRICE, TAXES, AND PAYMENT TERMS: Client shall bear all applicable federal, state, municipal, and other government taxes (such as sales, use and similar taxes), however designated or levied on the sale of the Services (or delivery thereof) or measured by the purchase price paid for the Services. Vendor’s Services price set forth on the invoice does not include such taxes, fees, and charges which will appear, if applicable, as separate additional items on the invoice. Exemption certificates must be presented prior to service if they are to be honored. Unless otherwise specified in writing, payment is due upon receipt. Vendor, at its discretion, may require reasonable advance assurances of payment based on the scope of services and Client’s payment history. All unpaid invoices shall bear interest at an amount equal to 1½% (or the maximum rate of interest allowed by law) of the outstanding balances per month commencing upon the date payment is due. Client’s failure to make timely payments 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 and or purchase agreements. Vendor shall have no continuing obligation to deliver Services on credit, and Vendor may withdraw any credit approval at any time with prior notice. Client agrees to pay any and all costs associated with such actions, including without limitation, reasonable 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. Client acknowledges and agrees that all payments shall be remitted in U.S. Dollars.
  2. COMPENSATION: Vendor will invoice Client and Client agrees to pay Vendor the rates specified above for the services performed during the term of the Project unless specified otherwise. Vendor will invoice Client on a monthly basis for the services provided and Client agrees to pay invoices upon receipt and no later than thirty (30) days.
  3. NON-SOLICITATION: Vendor and Client agree not to solicit, discuss, offer, hire or otherwise utilize or directly engage the services of any employee(s) and/or any other representative of the other party for any services within or outside of this Project including, but not limited to direct employment. Vendor and Client further agree that In the event this provision is breached, the affected party shall be entitled to reasonable liquidated damages in the sum equal to $20,000 or fifty percent (50%) of such personnel’s annual billing rate for services provided or total employee compensation including benefits, commission, salary or other remuneration, whichever is greater. This provision shall remain in effect for two (2) year after final completion of all work of any kind between Client and Vendor.
  4. NON-DISCLOSURE OF PROPRIETARY INFORMATION: Client agrees to keep confidential any secrets or proprietary information regarding personnel and/or Vendor acquired as a result of Client contact with such that would otherwise not have been available to Client, during the term of this agreement and for all time after its expiration and/or termination. Vendor agrees to keep confidential any secrets, data, proprietary or confidential information Vendor might be exposed to, acquired as a result of contact with Client or learn of in performing the Services.
  5. ARBITRATION: The parties hereto agree that all disputes of whatever nature, excluding any claims arising for breach of confidentiality or any claims concerning intellectual property rights infringement arising under federal law, that may arise between them (except where injunction has been reserved as an option) which have not been resolved between the parties shall be resolved by binding arbitration using one neutral arbitrator selected through the procedures of the American Arbitration Association (“AAA”) then in effect. The arbitration shall take place in Nassau County and shall be conducted with the following guidelines:
    1. the party desiring arbitration shall notify the other in writing and if the parties cannot agree on an arbitrator within fifteen (15) days, the Nassau County branch of the AAA shall select an impartial arbitrator from the list of qualified, non-partial arbitrators (who shall be experienced business or commercial law attorneys and recognized experts in the field of computer and software license agreements) suggested by the AAA;
    2. the arbitration shall be governed by the then-applicable commercial arbitration rules promulgated by the AAA. The decision of the arbitrator shall be rendered within ten (10) days, or as soon as practical, following the close of the arbitration proceedings and shall be in writing and, except for reasons specified in Section 7511(b) and (c) of the New York Civil Practice Law and Rules, shall be final, binding, nonappealable, nonprecdential and completely confidential. The decision of the arbitrator, including the awarding of damages and/or the issuance of an injunction, may be entered as a judgment in any court of appropriate jurisdiction. The party violating the terms of the arbitrator’s award shall be liable of all costs of enforcement of such determination, including reasonable counsel fees and court costs. Each party shall pay one half the cost of the arbitrator and of the costs of arbitration (including the filing fee to engage the AAA as part of the arbitration process), with the losing party being liable for the winning party’s reasonable legal fees and expenses so paid, which amounts also shall be awarded by the arbitrator in his or her discretion based upon the nature of the final decision and a party’s degree of success.
  6. INSTALLATION: You acknowledge that (i) Hi-Tek Data is not responsible for installation maintenance, upgrading, enhancement, or error correction, of the Products or for any training or other services relating thereto and (ii) in order to obtain the benefits desired from the Products, you may need to obtain and integrate with the Products various other products which are not provided by Hi-Tek Data under this Agreement. You are responsible for obtaining any such additional services and products under a separate agreement from Hi-Tek Data the Product supplier related or other qualified third party. You shall not withhold any payment otherwise due to Hi-Tek Data based on the installation, testing, acceptance or performance of any Products.
  7. SEVERABILITY: Any waiver by Vendor 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 hereunder. 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 rights hereunder. Any provisions of these terms and conditions that is prohibited or unenforceable under the law of the State of New York shall be ineffective to the extent of such prohibition or unenforceability, without impairing or invalidating the remaining provisions of these terms and conditions.
  8. CANCELLATION OF PRODUCT ORDERS: Hi-Tek Data may cancel any or all of the Products in the Product Schedule if its supplier does not accept or cancels the applicable order from Hi-Tek Data.
  9. WARRANTIES: Hi-Tek Data provides products “as is” without warranties of any kind express or implied, including the implied warranties of merchantability and fitness for a particular purpose. However non hi-Tek data manufacturers or suppliers may provide their own warranties to CUSTOMER.
  10. LIMITATION OF LIABILITY Regardless of the basis of which you are entitled to claim damages from Hi-Tek Data (including fundamental breach, negligence, misrepresentation or other (contract or tort claim), Hi-Tek Data is liable only for the amount of any actual direct damages, which amount shall be limited in the aggregate to the charges (if recurring, up to a maximum of 12 months’ charge) actually paid by you for the Product that is the subject of the claim. This limit also applies to any of Hi-Tek Data’s suppliers and subcontractors, and is, the maximum for which Hi-Tek Data and its suppliers and subcontractors are collectively responsible. This limit does not apply to any damages for bodily injury (including death) and damage to real property and tangible personal property. In no event shall Hi-Tek Data or its suppliers or subcontractors be liable for any third-party claims against you for losses or damages (other than those under the immediately preceding sentence), for loss of or damage to your records or data or for special, incidental or consequential damages (including lost profits or savings), even if they are informed of their possibility.
  11. INDEMNIFICATION OF HI-TEK DATA, CORP.: You agree to defend, indemnify and hold harmless Hi-Tek Data, Corp., its affiliates and their respective present, former and future officers, directors, employees and agents, and their respective heirs, legal representatives, successors and assigns (collectively the "Hi-Tek Data, Corp. Indemnities"), from and against any and all losses, damages, costs, liabilities and expenses (including, without limitation, amounts paid in settlement and reasonable attorneys' fees) which any of the Hi-Tek Data, Corp. Indemnities may suffer, incur or sustain resulting from or arising out of (i) your breach of any representation, warranty, or obligation contained in this Agreement (including your obligation to pay all Fees), (ii) content stored by you on your server(s) or transmitted by you through the Hi-Tek Data, Corp. Network (including intellectual property claims); (iii) violation by you or your officers, directors, employees or agents of any applicable law, rule, regulation or order, or (iv) damage to the servers or other hardware of Hi-Tek Data, Corp. or its other customers caused by you or those acting on your behalf.
  12. GOVERNING LAW; JURISDICTION: This Agreement is governed by New York law, and all disputes arising under or in connection with this Agreement shall be brought exclusively in a court of competent jurisdiction in Nassau County, New York. By entering this Agreement, you irrevocably consent to the personal jurisdiction of such courts.
  13. ENTIRE AGREEMENT; AMENDMENTS: This Agreement, including all Schedules and referenced documents, is the entire agreement of the parties with respect to the matters covered hereby, and supersedes all prior discussions, oral and written. No additional terms or conditions relating to the subject matter of this Agreement shall be effective unless approved in writing by Hi-Tek Data, Corp. This Agreement shall not be modified or amended except by another agreement in writing executed by the parties hereto.
  14. WAIVER: No failure, partial failure, or delay on the part of any party hereto to exercise any right or remedy hereunder shall operate as a waiver of that right or remedy.
  15. LIMITATION OF ACTIONS: Other than actions by Hi-Tek Data, Corp. for payment of Fees, no action arising under this Agreement may be brought more than one year after the cause of action has arisen.
  16. INTERPRETATION: This Agreement shall not be more strictly construed against one party than the other.
  17. FORCE MAJEURE: Neither party shall be liable for any default or delay in the performance of any of its obligations under this Agreement (other than failure to make payments due hereunder) if such default or delay is caused, directly or indirectly, by forces beyond such party's reasonable control.