TERMS AND CONDITIONS
ADAPTURE TECHNOLOGY GROUP, LLC
RESALE OF EQUIPMENT AND SOFTWARE
PLEASE READ THESE TERMS AND CONDITIONS VERY CAREFULLY
THE TERMS AND CONDITIONS OF ADAPTURE’S RESALE OF EQUIPMENT AND SOFTWARE ARE LIMITED TO THOSE CONTAINED HEREIN. ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS IN ANY FORM DELIVERED BY YOU (“CLIENT”) ARE HEREBY DEEMED TO BE MATERIAL ALTERATIONS AND NOTICE OF OBJECTION TO THEM AND REJECTION OF THEM IS HEREBY GIVEN.
BY ACCEPTING DELIVERY OF THE EQUIPMENT OR SOFTWARE OR BY ENGAGING ADAPTURE TO PROVIDE EQUIPMENT OR SOFTWARE, CLIENT AGREES TO BE BOUND BY AND ACCEPTS THESE TERMS AND CONDITIONS, UNLESS CLIENT AND ADAPTURE HAVE SIGNED A SEPARATE AGREEMENT SPECIFICALLY COVERING THE RESALE OF EQUIPMENT AND/OR SOFTWARE, IN WHICH CASE THE SEPARATE AGREEMENT WILL GOVERN.
ANY GENERAL DESCRIPTION OF THE TYPES OF PRODUCTS OR SERVICES AND RESULTS THEREOF POSTED ON ANY ADAPTURE WEBSITE OR MOBILE APPLICATION DO NOT CONSTITUTE PART OF THE AGREEMENT BETWEEN ADAPTURE AND CLIENT.
Important Information About These Terms and Conditions
These Terms and Conditions constitute a binding contract between Client and Adapture and are referred to herein as either “Terms and Conditions” or this “Agreement”. Client accepts these Terms and Conditions by making a purchase from or placing an order with Adapture or shopping on any Adapture Website or Mobile Application (each, a “Site”) or otherwise requesting Equipment or Software (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 Client places an order or signs a Statement of Work will govern the order in question unless otherwise agreed in writing by Adapture and Client.
Client consents to receiving electronic records, which may be provided via a Web browser or e-mail application connected to the Internet; Client may withdraw consent to receiving electronic records or have the record provided in non-electronic form by contacting Adapture. In addition, Internet connectivity requires access services from an Internet access provider. Contact your local access provider for details. Electronic signatures (or copies of signatures sent via electronic means) are the equivalent of written and signed documents.
Client 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.
Equipment and Software. This Agreement shall apply to sales by Adapture to Client of third party equipment (“Equipment”) and third party software (“Software”) on a reseller basis. Orders or quotes (“Orders”) for Equipment and/or Software must be in writing and shall specify a purchase order number, product costs, any special delivery time or freight upgrade, the Equipment and/or Software to be purchased or licensed, the quantities, and the desired delivery location. Orders will be subject to acceptance by Adapture. Client is not committed to any minimum purchase or aggregate dollar volume during the term of this Agreement. Purchases shall be initiated by Client’s purchase orders.
Prices for Equipment and Software; Payment.
Prices for Equipment and Software purchased through Adapture hereunder will be set forth in the Order. Adapture reserves the right to make adjustments to pricing, Equipment, and Software offerings for reasons including, but not limited to, changing market conditions, Equipment or Software discontinuation, Equipment or Software unavailability, manufacturer price changes, supplier price changes and errors in advertisements. All orders are subject to Equipment or Software availability. Therefore, Adapture cannot guarantee that it will be able to fulfill Client’s Orders. Unless otherwise specified on the Order, prices for Equipment and Software will be exclusive of delivery and installation charges.
Client shall pay the price for the Equipment and Software purchased hereunder within thirty (30) days of invoice date. All payments must reference the Client number shown on the Order and must be sent to the address specified on the invoice. Client agrees to provide Adapture with written notice of any disputed invoice items within thirty (30) days of the invoice date. In the event of any dispute over amounts invoiced, Client shall pay all undisputed amounts within such 30 day period and the parties shall use commercially reasonable efforts to resolve any dispute as quickly as possible.
Out-of-pocket expenses, as pre-approved in writing by Client, shall be re-billed to Client at cost, and shall be reimbursed by Client. Adapture shall invoice Client for such expenses and said invoices shall be accompanied by sufficient detail to substantiate expenses.
In the event of litigation or collection activity arising out of Client’s non-payment, Adapture will be entitled to reasonable costs and expenses incurred, including reasonable attorneys’ fees. Adapture reserves the right to suspend performance of any Services if Client is in arrears in payment.
Client is solely responsible for payment of any taxes (including sales or use taxes, intangible taxes, and property taxes) resulting from its purchase or use of the Equipment and/or Software, other than taxes based on the income or property of Adapture. Client shall indemnify and hold Adapture harmless from all claims and liability, including without limitation, any fines or penalties, arising from Client’s failure to report or pay such taxes.
Delivery, Title and Risk of Loss. The delivery schedule for Equipment and Software shall be shown on the Order. The risk of loss or damage to Equipment and Software shall pass from Adapture to Client upon delivery to the transportation or freight company. Transportation and insurance charges shall be prepaid and billed to Client. Acceptance of all Equipment and Software by Client shall occur upon delivery of said Equipment and Software to Client’s facility, and may only be returned subject to the policies of the original Equipment manufacturer or Software licensor and Adapture’s guidelines for returns. Title of Equipment shall pass to Client, subject to the applicable Equipment manufacturer’s standard terms and conditions, upon full payment of the purchase price for such Equipment. Upon full payment for the Software, the license for any Software licensed by Client through Adapture is hereby passed through to Client by Adapture to the extent allowed by the Software licensor and shall be subject to the licensor’s standard terms and conditions.
Documentation. For Equipment purchased or Software licensed hereunder, Adapture shall supply Client with one set of the manufacturer’s documentation (or make such documentation available electronically) that Adapture normally furnishes with that Equipment or Software. Client may use the copies of all documentation for Client’s internal use and only in accordance with the applicable Equipment manufacturer’s or Software licensor’s standard terms and conditions.
No Warranty. Client understands that Adapture is a reseller, and is not the manufacturer or licensor, of the Equipment purchased and/or Software licensed by Client hereunder and the only warranties and indemnification that apply are those of the Equipment manufacturer and/or the Software licensor, not Adapture or its affiliates. In purchasing the Equipment and/or Software, Client is relying on the manufacturer’s or licensor’s specifications only and is not relying on any statements, specifications, photographs or other illustrations representing the Equipment and/or Software that may be provided by Adapture or its affiliates. The warranty for any Equipment leased or purchased by Client through Adapture and/or Software licensed by Client through Adapture is hereby passed through to Client by Adapture to the extent allowed by the applicable manufacturer or licensor and shall be subject to the applicable manufacturer’s or licensor’s standard terms and conditions. Adapture provides no warranty on Equipment or Software whatsoever. Neither the Equipment nor the Software will be considered deliverables, work product or work made for hire.
No Infringement Warranty or Indemnification. Client expressly waives any claim that it may have against Adapture 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 Equipment or Software and also waives any right to indemnification from Adapture against any such Claim made against Client by a third party. Client acknowledges that no employee of Adapture is authorized to make any representation or warranty on behalf of Adapture that is not in this Agreement. For the sake of clarity, Adapture shall not indemnify nor be liable to Client and/or its affiliate(s) for any infringement of intellectual property rights arising out of any Equipment or Software purchased or licensed by Client through Adapture hereunder and Client shall look solely to the Equipment manufacturer or Software licensor for any losses or other costs incurred by Client related thereto.
Client Certifications. Client certifies that all purchases made pursuant to this Agreement are for its own use and not for resale or sublicense. Client represents and warrants that the Equipment purchased or Software licensed pursuant to this Agreement is not for export. Adapture assumes no liability whatsoever for any damages arising out of any use of the Equipment or Software.
Limitation of Liability. EXCEPT TO THE EXTENT THAT LIABILITY ARISES FROM INSTANCES OF EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, WHETHER IN AN ACTION IN CONTRACT OR TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) RESULTING FROM ITS PERFORMANCE OR ANY FAILURE TO PERFORM UNDER THIS AGREEMENT INCLUDING, BUT NOT LIMITED TO, LOSS OF ANTICIPATED PROFITS OR BENEFITS OR LOSS OF DATA, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT TO THE EXTENT THAT LIABILITY ARISES FROM INSTANCES OF ADAPTURE’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, ADAPTURE’S LIABILITY FOR DAMAGES UNDER THIS AGREEMENT, WHETHER IN AN ACTION IN NEGLIGENCE, CONTRACT OR TORT OR BASED ON A WARRANTY, SHALL IN NO EVENT EXCEED THE FEES PAYABLE FOR THE EQUIPMENT AND/OR SOFTWARE THAT GIVES RISE TO THE LIABILITY.
Termination. Client may terminate this Agreement upon at least 90 days prior written notice to Adapture, provided that Client shall pay for Equipment and/or Software delivered to Client and for authorized expenses incurred prior to the effective date of such termination.
Confidentiality. Any information, whether or not protected by a patent or copyright, which has been provided in oral, written, or electronic forms by the disclosing party or any of its affiliates to the receiving party pursuant to this Agreement (hereinafter “Confidential Information”), shall be treated by the receiving party as being the proprietary information of the disclosing party, and shall be held in strict confidence by the receiving party. Confidential Information shall remain at all times during and after the term of this Agreement the exclusive property of the disclosing party. With respect to all Confidential Information, the receiving party shall (i) not provide or make available the Confidential Information in any form to any person other than those employees or contractors of the receiving party who have a need to know such Confidential Information in order for the receiving party to exercise its rights or perform its obligations under this Agreement; (ii) not reproduce the Confidential Information except for use reasonably necessary for the receiving party to exercise its rights and perform its obligations under this Agreement; and (iii) not exploit or use the Confidential Information for any purpose other than as required for the receiving party to exercise its rights and perform its obligations under this Agreement. In the event that the receiving party is specifically authorized by this Agreement to disclose any Confidential Information to a third party, then the receiving party shall have in place with the third party a Confidentiality Agreement the terms of which shall be no less restrictive than the terms set forth herein. Notwithstanding the foregoing, Adapture may disclose Confidential Information to an Equipment manufacturer or Software licensor if such disclosure is required in connection with the performance by Adapture hereunder, provided that Adapture notifies such manufacturer or licensor of this obligation of confidentiality. Notwithstanding the foregoing to the contrary, “Confidential Information” will not include information that (i) was in the public domain prior to the receipt of same by the receiving party or comes into the public domain through no fault or breach by the receiving party; (ii) was in the receiving party’s possession or known to the receiving party prior to its receipt hereunder as evidenced by written documentation and was not acquired directly or indirectly from the disclosing party; (iii) was received by the receiving party from a third party where the receiving party was without an obligation of secrecy with respect thereto and was not acquired directly or indirectly from the disclosing party; or (iv) was independently developed by the receiving party without use of access or reference to, nor any benefit of the disclosing party’s Confidential Information. In the event that a subpoena or other legal process in any way concerning the Confidential Information is served upon the receiving party, or the receiving party is otherwise required by law to disclose any Confidential Information. the receiving party shall promptly notify the disclosing party, to the extent permitted by law, prior to such disclosure and shall reasonably cooperate with the disclosing party, at the expense of the disclosing party, in any lawful effort by the disclosing party to contest the legal validity of such subpoena or other legal process, limit the disclosure, or seek confidential treatment of the Confidential Information required to be disclosed. A party shall notify the other party immediately of any loss or unauthorized access, possession, use, or knowledge, or attempt thereof, of the other party’s Confidential Information and agrees to follow such party’s subsequent instructions to mitigate the impact of such an event, which cost shall be the sole responsibility of the notifying party. The notifying party shall promptly provide the other party with full details of any such event and use commercially reasonable resources to prevent a recurrence of any such event. The parties agree that monetary damages will not be an adequate remedy if this Confidentiality section is breached and therefore, a disclosing party shall, in addition to any other legal or equitable remedies, be entitled to seek injunctive relief against any breach or threatened breach of this Confidentiality section. The covenants, rights and obligations set forth in this Confidentiality section will survive for a period of three years following the expiration or termination of this Agreement; provided, however, that with respect to any Confidential Information that constitutes a trade secret under applicable law, the obligations of this Agreement shall survive for the longer of three years or so long as such information remains a trade secret under applicable law, excluding failure to so qualify as a result of breach of this Agreement.
Notices. Except as otherwise provided in this Agreement, written notices required under the terms of this Agreement shall be sent by (a) Priority U.S. mail, return receipt requested, (b) personal delivery including Federal Express, UPS, or other reputable express courier services, or (c) facsimile or email, provided written confirmation of receipt is received, and a copy is sent by either the method described in (a) or (b). Notices shall be addressed to Adapture at Adapture Technology Group, LLC, 5 Concourse Parkway, Suite 975, Atlanta, GA 30328, Attention: President; and to Client at its address shown in this Agreement; or such other address as shall be provided by Adapture or Client in writing to the other. Notices shall be effective upon actual receipt.
Compliance with Laws. During the term of this Agreement, each party shall comply with all applicable federal, state and local laws.
Assignment. This Agreement is not assignable without the prior written consent of the other party, except that either party may assign this Agreement in connection with the sale of all or substantially all of its business or assets. This Agreement shall bind and inure to the benefit of the parties to the Agreement and their respective successors, representatives, and permitted assigns.
Governing Law and Venue. This Agreement shall be governed by, interpreted, and construed in accordance with, the laws of the State of Georgia without reference to the body of law controlling conflicts of law. In the event of any litigation, the prevailing party shall be awarded its reasonable attorneys’ fees and other direct costs associated with the litigation. Venue of any action brought hereunder shall be exclusively in the County of Gwinnett, State of Georgia.
General Terms. No waiver, alteration or modification of any provision hereof shall be binding unless in writing and signed by duly authorized representatives of both parties. The failure of either party to exercise any of its rights hereunder shall not constitute or be deemed a waiver or forfeiture of such rights nor shall it preclude the future exercise of such rights. Adapture assumes no liability whatsoever for any damages arising out of any use of the Equipment or Software. If any printed term or condition contained in any purchase order or other form used by Client to order products or services pursuant to this Agreement, or in any acknowledgment or other form used by Client is inconsistent with any term or condition contained herein, the provisions hereof shall apply and take precedence. Headings used in this Agreement are for reference purposes only and shall not be considered in construing this Agreement. If any provision of this Agreement is adjudged by any court or arbitration board of competent jurisdiction to be invalid or unenforceable, then such provision shall be modified to the extent possible and necessary to preserve the original intentions of the parties, and the validity or enforceability of the remaining provisions shall not in any way be affected or impaired thereby. Unless otherwise expressly provided, all rights, remedies, powers and privileges conferred under this Agreement upon the parties shall be cumulative and shall not be deemed to exclude any other right that either party may have at law or in equity.
Version Date: February 1, 2024
