These terms and conditions of sale listed (these “Terms”) are the only terms and conditions which govern the sale of products and services (collectively, the “Products”) by CCI Systems, Inc. (“CCI”) to the buyer placing an order (“Customer”). CCI’s accompanying written proposal, quotation, sales order, confirmation of sale or invoice (the “Sales Documents”) and these Terms (collectively, the “Agreement”) constitute the entire agreement between the parties with respect to all Product sales and shall supersede all prior or contemporaneous offers, negotiations, understandings and agreements (whether verbal or written). These Terms prevail over, and CCI expressly rejects and is not bound by, any of Customer’s general terms and conditions of purchase regardless of whether or when Customer has submitted its purchase order or such terms. If the terms and conditions set forth in these Terms conflict, or are otherwise inconsistent with, the terms and conditions set forth in the Sales Documents, then the terms and conditions of the Sales Documents will govern and control to the extent they are inconsistent with these Terms.
1. Acceptance of Purchase Orders:
Customer’s acceptance of these terms and conditions shall be indicated by any of the following, whichever occurs first: (i) Customer’s delivery of an order to purchase Products from CCI; (ii) Customer’s written acknowledgement thereof; (iii) Customer’s full or partial payment or acceptance of any shipment of the Products; or (iv) Any other act or expression of acceptance by the Customer. The purchase and sale of the Products is expressly made conditional upon Customer’s assent, expressed or implied, to the Terms set forth herein without modification or addition. CCI’s acceptance of Customer’s order is expressly limited to these Terms in their entirety without addition, modification or exception. Neither CCI’s silence or failure to respond to any of Customer’s terms, conditions or proposals nor CCI’s fulfillment of Customer’s order will (A) constitute CCI’s acceptance or approval thereof, or (B) serve to modify or amend these Terms.
2. Delivery:
All deliveries of Products to destinations in the United States, excluding its territories and possessions, will be made FOB origin manufacturer’s designated location and deliveries of Products to destinations outside of the United States will be made Ex Works (Incoterms 2020). Title to the Products and all liability and risk of loss or damage with respect to the Products shall pass to the Customer upon delivery to the carrier at the shipping point. Customer shall be responsible for all costs and expenses of Product shipment (including loading, freight and insurance) or storage and re-delivery costs if Customer fails to timely accept delivery. Delivery is subject to the payment provisions set forth herein and to CCI’s receipt of all necessary information and documentation from Customer including exemption and/or resale certificates, licenses, permits and other documents as may be required from Customer for the sale, export, installation or use of Product. Customer shall promptly notify CCI, in no event later than five (5) business days after delivery, of any claimed shortages or rejection as to any delivery. Such notice shall be in writing and shall be reasonably detailed, stating grounds for such rejection. Failure to give such notice within such time shall be deemed acceptance in full of any delivery. The only liability CCI will have with respect to any rejected Products will be the return rights set forth in Section 6.
CCI does not guarantee delivery dates and shall not be liable for any shipment delays, losses or damages beyond the reasonable control of CCI which affect CCI or any of CCI’s suppliers, including but not limited to, delays caused by unavailability or shortages of Products from CCI’s suppliers; epidemic/pandemic/disease or related delays, natural disasters, acts of war; acts or omissions of Customer; fire, strike, riot, or governmental interference; unavailability or shortage of materials, labor, fuel or power through normal commercial channels at customary and reasonable rates; failure or destruction of plant or equipment arising from any cause whatsoever; or transport failures.
3. Prices; Taxes:
All prices are as set forth on the Sales Documents. Prices are subject to change without notice, and do not include taxes, fees or charges. Customer shall bear all applicable federal, state, municipal and other governmental taxes (such as sales, use and similar taxes), as well as import or customs duties, license fees and any other similar charges, however designated or levied on the sale or delivery of the Products or measured by the price paid for the Products. Exemption certificates must be presented to CCI prior to shipment if they are to be honored.
CCI will add an additional 5% convenience fee/surcharge if Customer utilizes credit cards as a form of payment. This notification will serve as the communication per the requirements of Visa, MasterCard, American Express and Discover for rules to display a notice of surcharge at the point of sale.
4. Payment Terms:
Unless otherwise specified in the Sales Documents, the payment terms are 30 days from the date of the invoice. CCI, at its discretion, may require reasonable advance assurances of payment through irrevocable bank letters of credit or otherwise. All unpaid invoices shall bear interest at an amount equal to 1.5% of the outstanding balance per month (or the maximum rate of interest allowed to be contracted for by Law, whichever is less), commencing upon the date payment is due. Customer’s failure to make timely payment 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 Products and termination of any one or more sales agreements. Customer shall reimburse CCI for all costs incurred for collection of late payments, including attorney’s and collection agencies’ fees. Customer may not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with CCI.
Unless Customer has been approved for credit by CCI, all payments shall be made by Customer on a cash, credit card or check basis. Notwithstanding any “net” payment provisions specified on the invoice, CCI shall have no continuing obligation to deliver Products on credit, and any credit approval may be withdrawn by CCI at any time and without prior notice. CCI retains (and Customer grants to CCI by submitting a purchase order) a security interest in and to all of Customer’s right, title and interest in, to and under the Products to secure payment in full and compliance with these Terms. Customer agrees additional documents may be necessary to perfect such security interest, and Customer authorizes CCI to file any such documents.
5. Collections:
If a sale is to occur, or the Product is to be shipped, outside the United States, Customer acknowledges and agrees that the amount due CCI is contracted in U.S. Dollars and that payment in U.S. Dollars is of the essence. Any payment by Customer in local currency or receipt by CCI of local currency as a consequence of enforcement procedures against Customer will be deemed an authorization for CCI to use that local currency to purchase U.S. Dollars or, if such purchase is prohibited applicable Law, an authorization to purchase appropriate bonds or other instruments and export them from the Customer’s country in order to convert the currency into U.S. Dollars and apply the proceeds to the payment of any amounts owed to CCI by Customer. Any deficiency as a result of such conversion of payment into U.S. Dollars shall be the responsibility of the Customer.
6. Cancellations; Returns:
Any request to cancel, suspend or modify a Product order by Customer must be submitted to CCI in writing with a detailed summary of cancelled Product and reason for cancellation. Any cancellation request must be approved by CCI and the original Product manufacturer (the “OEM”), and are subject to OEM’s policies and guidelines (and CCI’s ability, pursuant to those policies and guidelines, to cancel, suspend or modify orders to it suppliers). Orders for non-standard Products, including any Products configured to Customer’s systems or specifications are non-cancelable and non-returnable.
Customer’s right to make any Product returns are subject in all cases to the applicable OEM return policies and guidelines that are in effect at the time of purchase (and CCI’s ability, pursuant to those policies and guidelines, to return Product to its suppliers). All Product orders that are identified by CCI as non-standard (or “NCNR”) are non-cancelable and non-returnable. CCI will not be required to accept any return of Products without an approved return merchandise authorization (RMA) number. If CCI issues an RMA from OEM to Customer allowing Customer to return Product to OEM, Customer will deliver such return Product to the specified return address in the United States and Customer shall bear all costs, fees or additional charges assessed or levied on such returned and any replacement Product.Returns must be made via an authorized carrier that allows the package to be tracked, and Customer must insure all returned products.
7. Disclaimer of Warranty/Limitation of Liability:
Customer acknowledges that CCI is not the manufacturer of the Products and all Product warranties, if any, are provided by the OEM of the Products (“Vendor”). CCI MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS, INCLUDING WITHOUT LIMITATION ANY (A) WARRANTY OF MERCHANTABILITY; OR (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) 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. To the extent authorized, CCI will pass through to Customer any transferable Product warranties, indemnities and remedies provided by a Vendor, including any warranties and indemnities for intellectual property infringement. Customer’s and its affiliates’ sole and exclusive remedy relating to the Products will be the remedy afforded to such parties by the applicable Vendor.
IN NO EVENT SHALL CCI BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA, SECURITY BREACH OR DIMINUTION IN VALUE, INJURY TO PERSONS OR PROPERTY, BUSINESS INTERRUPTION OR LOSS OF GOODWILL, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT CCI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL CCI'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO ANY PURCHASE ORDER, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED FIFTY PERCENT (50%) OF THE AGGREGATE AMOUNTS PAID TO CCI FOR THE PRODUCT GIVING RISE TO THE SPECIFIC CLAIM FOR DAMAGES.
8. Indemnification:
To the fullest extent permitted by applicable Law, Customer shall indemnify, defend and hold harmless CCI and its officers, directors, employees, shareholders, affiliates, agents, representatives, successors and assigns from and against any and all claims, actions, demands, legal proceedings, judgments, settlements, sums, costs, liabilities, losses, obligations, damages, penalties, fines, costs and other expenses (including but not limited to reasonable attorneys’ fees) relating to, arising out of or resulting from: (A) Customer’s shipment, storage, installation, use or disposal of the Products (except to the extent caused by the gross negligence or willful or intentional misconduct of CCI), (B) CCI’s or a Vendor’s compliance with the designs, modifications, specifications, drawings, or written instructions provided by Customer, including without limitation any claim, action or proceeding brought by a third party against CCI or a Vendor alleging an infringement or misappropriation of any patent, copyright, trade secret or other intellectual property right, (C) Customer’s negligence, willful or intentional misconduct, or material breach of its obligations under this Agreement, or (D) Customer’s violation of applicable Law.
CCI SHALL NOT BE REQUIRED TO INDEMNIFY, DEFEND OR HOLD HARMLESS CUSTOMER, ITS AFFILIATES OR ANY OTHER PARTY, FROM OR AGAINST ANY CLAIMS, DEMANDS OR CAUSES OF ACTION, INCLUDING ANY DAMAGES, COSTS OR EXPENSES INCURRED BY SUCH PARTIES, RELATING TO, ARISING OUT OF OR RESULTING FROM ACTUAL OR ALLEGED PRODUCT LIABILITY, BREACH OF SECURITY, LOSS OF DATA OR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS RELATED (DIRECTLY OR INDIRECTLY) TO THE MANUFACTURE, SALE OR USE OF THE PRODUCTS.
9. Confidential Information:
All non-public, confidential or proprietary information of CCI, including, without limitation, information relating to its products, specifications, technology, designs, processes, machinery, equipment, plans, policies, procedures, employees, assets, discoveries, know-how, trademarks, patents, copyrights, trade secrets, prices, marketing, expenses, business plans, financial statements, customers and suppliers and any other proprietary business and technical information, documents or data disclosed by CCI to Customer, whether disclosed orally or in writing or electronic or other form or media, and whether or not marked, designated or otherwise identified as confidential in connection with the Agreement is confidential, solely for the use of performing the Agreement and may not be disclosed or copied unless Customer receives advance written authorization from CCI. Upon CCI’s request, Customer shall promptly return all documents and other materials received from CCI. This Section does not apply to information that (A) is publicly available or becomes publicly available through no fault of Customer; (B) is already known to Customer at the time of disclosure; or (C) is rightfully obtained by Customer from a third party that is not obligated by an existing duty of confidentiality with respect to the information. CCI shall be entitled to injunctive relief for any violation of this Section.
10. End User Agreements; Recurring Services:
Customer agrees to abide by all product licensing provisions or end user agreements imposed by the OEM or publisher.
For Products made available on a subscription or recurring term basis ("Subscriptions"), Customer agrees that CCI may invoice Customer for automatic renewals and Subscriptions, using Customer’s initial purchase order number as authorization for subsequent invoices unless and until Customer properly cancels the applicable Subscription. Customer further agrees to notify end users of the applicable renewal Subscriptions and payments due and acknowledges that Customer’s obligation to pay is not conditioned on: (a) CCI’s invoice for Products, or (b) Customer’s placement of a renewal purchase order.
11. Compliance:
Customer shall at all times comply with all foreign, national, federal, state and local laws, ordinances, rules, regulations and requirements, including privacy and data security laws (“Law”) applicable to Customer’s performance of its obligations under the Agreement, Customer’s business operations and/or Customer’s shipment, storage, installation, use or disposal of the Products. Without limiting the generality of the foregoing, Customer shall (A) at its own expense, maintain all certifications, approvals, credentials, licenses, permits and other authorizations related to the purchase, installation and use of the Products, and (B) not engage in any activity or transaction involving the Products that violates any applicable Law. Customer shall comply with all applicable federal and foreign export and import Laws of all countries involved in its purchase, installation and use of the Products under the Agreement and complete all required undertakings (including obtaining any necessary export or import license or other governmental approval). Customer assumes all responsibility for shipments to any non-U.S. jurisdiction requiring any government import clearance and shall be responsible for compliance with all other Laws of such non-U.S. jurisdiction. In accordance with applicable Law, Customer shall be responsible, at its sole cost and expense, for collecting, disposing of and recycling any waste from supplied or obsolete Products.
Customer shall adhere to all applicable Vendor licenses, policies, requirements and restrictions, including without limitation Vendor restrictions regarding Product distribution, resale, prohibited customers, territory, installation and use of the Products. Customer is solely responsible for ensuring its adherence to any and all such Vendor policies, requirements and restrictions. Customer may not alter or modify the Products in any way or combine the Products with any other product or material not authorized in writing by CCI or Vendor, as applicable.
12. Privacy and Data Security
This Section 11 shall apply to the extent CCI performs any operation or service, including collecting, recording, storing, retaining, using, disclosing or otherwise accessing, (collectively, "Process," "Processed," or "Processing") on any information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular individual or household that Customer provides to CCI in connection with the Services ("Personal Data"), including without limitation any information that qualifies as “personal information” under applicable Law. CCI shall only Process Personal Data to fulfill its obligations under this Agreement, to comply with applicable Law, and in accordance with the instructions of Customer as detailed in the applicable order and applicable data privacy Law ("Privacy Laws"). CCI shall have the right to retain, use or disclose de-identified or aggregated data derived from Personal Data (“CCI Data”).
The Parties agree that Customer is responsible for obtaining any consents required by applicable Privacy Laws, as well as providing and ensuring the accuracy of any notices required to disclose Personal Data to CCI, CCI's Affiliates, or any CCI subcontractor providing Services for use in accordance with this Agreement. Furthermore, Customer warrants that all Personal Data provided to CCI is accurate and has been obtained, Processed, and provided to CCI in accordance with all applicable Laws. Customer acknowledges that CCI is reliant on Customer for instruction as to the extent to which CCI is entitled to use and Process Personal Data, and that CCI is not liable for any claim brought by a data subject to the extent that such claim arises from the Personal Data provided to CCI or Customer's instructions. CCI shall notify Customer of any request, complaint, claim, or other communication received by CCI or a subcontractor regarding its Processing of Personal Data. Upon request, CCI shall cooperate with and provide necessary assistance to Customer in responding to any such inquiries, to the extent possible and permitted by applicable Law. Notwithstanding anything to the contrary in this Agreement, Customer shall reimburse CCI for all out-of-pocket expenses in connection with such requests.
CCI uses commercially reasonable measures designed to protect the Personal Data provided by Customer to CCI. To the extent legally required by applicable Law, CCI shall notify Customer in the event CCI discovers or is notified of a known breach of security on CCI systems leading to unauthorized access of Personal Data. At Customer’s written request, CCI shall, either return or delete Personal Data from its systems unless otherwise required by Law or requested in any judicial or administrative proceeding or by any governmental or regulatory authority. Notwithstanding the foregoing, CCI shall not be required to delete any Personal Data from its archival back-up systems.
13. General:
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating an agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party will have authority to contract for or bind the other party in any manner whatsoever. This Agreement is for the sole benefit of the parties to this Agreement and their respective successors and permitted assigns, and nothing in this Agreement, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms. The sale of the Products shall in no way be deemed to confer upon Customer any right, title, license or other interest in any intellectual property relative to the Products. Customer shall receive only those rights as provided by the applicable Vendor. Unless Customer and CCI have executed a written agreement which specifically modifies, supersedes and/or replaces these Terms, it is expressly agreed that no prior or contemporaneous agreement or understanding, whether written or oral, shall contradict, modify, supplement or explain these terms or conditions. No additional or different terms or conditions, whether material or immaterial, shall become a part of any sales agreement unless expressly accepted in writing by an authorized officer of CCI. This Agreement may not be modified or amended unless in writing and signed by both parties. Any waiver by CCI 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. 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 its rights. Customer may not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of CCI. Any purported assignment or delegation in violation of this Section is null and void. Any provision of these Terms that is prohibited or unenforceable under applicable Law shall be ineffective of such prohibition or unenforceability, without impairing or invalidating the remaining provisions of these terms and conditions. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Michigan, without regard to any conflict of laws principles. The venue for any disputes arising out of this Agreement shall be, at CCI’s sole and exclusive option, Dickinson County, Michigan. Customer shall pay all costs and expenses, including reasonable attorneys’ fees, incurred by CCI in enforcing this Agreement. Provisions of these Terms that by their nature should apply beyond their terms will remain in force after delivery of the Products and any termination or expiration of this Agreement.
