Terms and Conditions of Sale for Persons or Entities Purchasing Products to Resell
Please read these terms and conditions carefully.
THESE TERMS AND CONDITIONS ("AGREEMENT") CONSTITUTE A BINDING AGREEMENT BETWEEN YOU AND BLACK BOX NETWORK SERVICES AUSTRALIA PTY LTD ("BLACK BOX"). YOU ACCEPT THIS AGREEMENT BY CLICKING "I ACCEPT" DURING THE REGISTRATION PROCESS AND/OR CHECK OUT PROCESS. THIS AGREEMENT SHALL GOVERN YOUR PURCHASES OF PRODUCTS AND/OR SERVICES FROM BLACK BOX EITHER THROUGH BLACK BOX'S WEBSITE (THIS "SITE") OR BY YOUR SUBMISSION OF AN ORDER VIA PHONE, FACSIMILE, EDI, MAIL OR OTHER MEANS, UNLESS YOU AND BLACK BOX HAVE ENTERED INTO A SEPARATE WRITTEN AGREEMENT, IN WHICH CASE SUCH SEPARATE WRITTEN AGREEMENT WILL GOVERN.
YOU CONSENT TO RECEIVING ELECTRONIC RECORDS, WHICH MAY BE PROVIDED VIA A WEB BROWSER OR E-MAIL APPLICATION CONNECTED TO THE INTERNET. YOU MAY WITHDRAW CONSENT TO RECEIVING ELECTRONIC RECORDS OR HAVE THE RECORD PROVIDED IN NON-ELECTRONIC FORM BY NOTIFYING BLACK BOX VIA email@example.com OR VIA OVERNIGHT DELIVERY OR REGULAR MAIL TO Warehouse 2, 22A Kalimna Ave, Mulgrave, Victoria 3170, ATTN.: Customer Service/Contact Center.
YOU AGREE AND REPRESENT THAT YOU ARE BUYING THE PRODUCTS ONLY FOR RESALE AND NOT FOR YOUR INTERNAL USE. BLACK BOX HAS SEPARATE TERMS AND CONDITIONS OF SALE GOVERNING THE SALE OF PRODUCTS AND SERVICES TO CUSTOMERS FOR THEIR INTERNAL USE.
1. You may resell products to end users ("End Users") approved by Black Box in Black Box's sole discretion. You may resell products only after you have added value to the product through the addition of installation or other services. You may not resell products through retail stores, manual auctions, retail websites or electronic auction/reverse auction websites without the prior written consent of Black Box. This Agreement is not exclusive, and Black Box may market, promote and sell any products and services directly or indirectly to any third party without any obligation or liability to you. You must sell the products directly to the End User. You may not indirectly resell the products to the End User through any reseller, distributor or agent without the prior written consent of Black Box. You determine the resale price of the products in your sole discretion. You shall receive no fee, commission or other remuneration from Black Box for your resale of the products. Black Box reserves the right in its sole discretion to restrict or prohibit your participation in any marketing, discount, promotional or other program offered by Black Box.
2. You may use the Black Box name and applicable product names solely to identify the products that you resell under this Agreement. You may not use any other Black Box trademark, service mark or copyrighted materials without the prior written consent of Black Box. You may not register or use any trademark, service mark or business name that is confusingly similar to any Black Box trademark, service mark or business name. You agree to immediately correct upon receipt of written notice from Black Box any misuse of Black Box's name, trademarks, service marks or copyrighted materials. In no event shall you represent yourself as an authorized reseller, distributor, agent, sales partner or joint venturer of Black Box without Black Box's prior written consent.
3. You shall represent the products to End Users accurately and fairly and shall not conduct any misleading or unethical business practices. You shall not make any warranties or representations to End Users beyond those expressly set forth in this Agreement.
4. You may issue a purchase order for administrative purposes only. Additional or different terms and conditions contained in any such purchase order are expressly rejected and will be null and void. Black Box's failure to specifically object to any such additional or different terms and conditions shall not constitute a waiver or acceptance of such additional terms and conditions. You agree that this Agreement and the terms and conditions set forth in Black Box's order acknowledgement will control. No course of prior dealings between the parties and no usage of trade will be relevant to determine the meaning of this Agreement.
5. The prices and other information shown on this Site do not represent unconditional offers to sell and are subject to change by Black Box at any time without notice to you. All orders are subject to product availability. Black Box reserves the right to cancel any order in whole or in party. Black Box cannot guarantee that it will be able to fulfill your orders.
6. Payment terms are net thirty (30) days from the date of Black Box's invoice. In the event that Black Box, in its sole discretion, deems your financial condition unsatisfactory, Black Box may require full or partial payment in advance. Upon your failure to submit full or partial payment, Black Box may cancel or delay any or all orders hereunder. Amounts past due are subject to a service charge equal to the lesser of 1.5% per month or the maximum rate permitted by law.
7. Any consumption, excise, sales, value added or other tax which may be applicable to the transactions conducted under this Agreement shall be invoiced to you as a separate item and shall be paid by you unless you furnish Black Box with a valid exemption certificate.
8. Black Box may revise and discontinue products at any time without notice to you. Black Box reserves the right to substitute the latest design or manufactured equivalent products where interchangeability does not materially affect form, fit or function. Parts used in repairing or servicing products may be new, equivalent to new or reconditioned.
9. Requested changes to orders are subject to Black Box's approval and acceptance in writing. You shall pay Black Box the then-current standard purchase price and/or fees for such accepted changes and for all reasonable increased costs and expenses incurred as a result of such accepted changes.
10. Cancellation of any order is subject to Black Box's receipt of your written notice of such cancellation before any product is shipped. In the event of any such whole or partial cancellation of any order, you shall pay to Black Box the reasonable costs and expenses incurred by Black Box prior to Black Box's receipt of the cancellation notice. Orders for non-standard, special or custom products are final and non-cancelable.
11. Products shall be shipped F.O.B. Black Box's facility. Title to, and risk of loss or damage to, the products shall pass to you upon Black Box's delivery of the products to a carrier for shipment. Title to software will remain with the applicable licensor(s). Black Box's prices do not include shipping and handling charges. Black Box reserves the right to use its own discretion in the manner and routing of shipments. You acknowledge that Black Box may receive volume discounts from its carriers and that such discounts will not be credited or refunded to you. Black Box shall be permitted to deliver products in separate lots.
12. You may only return products in accordance with Black Box's standard Return Policy in effect on the date of the return. If you fail to follow Black Box's Return Policy, Black Box is not responsible whatsoever for any returned product that is lost, damaged, modified or otherwise processed for disposal or resale. Black Box's Return Policy applies only to you. Black Box's Return Policy does not apply to any End User. In no event shall Black Box be required to accept any return from an End User. You must contact Black Box before attempting to return a product in order to obtain a Return Material Authorization ("RMA") number to include with the return. Black Box shall not be required to accept any return without an authorized RMA number. You must return the product in its original or equivalent packaging. You are responsible for all risk of loss and shipping and handling fees for returned products.
13. All delivery dates indicated on this Site or on Black Box's documents are approximate and are based upon the prompt receipt of all necessary information from you regarding products ordered. Black Box will use commercially reasonable efforts to meet the indicated delivery dates but shall not be liable for any breach of contract or held responsible for any costs or expenses incurred by you as a result of Black Box's failure to do so. In the event of any delivery delay caused by you, Black Box will store and handle all products ordered at your risk and will invoice you for the purchase price plus reasonable storage, insurance and handling charges incurred on or after the date on which the products are ready for delivery.
14. Until such time as Black Box is fully paid for products shipped, Black Box reserves, and you hereby grant to Black Box, a purchase money security interest in the products listed in the order confirmation in the amount of their purchase price plus all attorneys' fees and costs of collection. A copy of the order confirmation may be filed on Black Box's behalf with appropriate state authorities at any time as a financing statement in order to perfect Black Box's security interest. You will provide Black Box with reasonable assistance in perfecting its security interest. Black Box shall have all rights and remedies of a secured party under the applicable provisions of the Personal Property and Securities Act 2009 (Cth).
15. Black Box warrants that products sold by Black Box hereunder shall be free from defects in material and workmanship for a period commencing on the date of shipment and continuing until expiration of Black Box's applicable standard warranty period for such product as set forth in as set forth in product description on the Site. If products fail to meet their warranty hereunder, Black Box will, at its sole option, either: (i) refund the amount received by Black Box for defective products, or (ii) repair or replace any defective product free of charge. The foregoing is contingent upon you returning the defective product to Black Box (F.O.B. Black Box's facility) prior to the expiration of the applicable warranty period. The warranty set forth herein extends solely to you and does not extend to any End User or apply to any product that has been misused, modified, repaired by anyone other than Black Box, improperly installed, or otherwise abused. Any and all warranties granted hereunder shall be void if any portion of the purchase price has not been paid, in which case no warranty shall apply. TO THE EXTENT PERMITTED BY APPLICABLE LAW, BLACK BOX MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED. ALL WARRANTIES, EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE ANY WARRANTY OF NONINFRINGEMENT OR ANY WARRANTY ARISING FROM A COURSE OF DEALING, USAGE OF TRADE OR TRADE PRACTICE ARE HEREBY EXPRESSLY DISCLAIMED. BLACK BOX DOES NOT ACCEPT ANY LIABILITY BEYOND THE REMEDIES SET FORTH HEREIN.
16. Black Box will defend, at its expense, any action brought against you to the extent that it is based on a claim that your purchase and resale of any product under the terms and conditions of this Agreement infringes any patent, copyright, trademark, trade secret or other intellectual property right of a third party, and Black Box will indemnify you from any costs, damages and fees (including reasonable attorneys' fees) finally awarded against you in such action which are attributable to such claim. You agree to notify Black Box promptly in writing of any claim, to permit Black Box to have sole control of the defense, compromise or settlement of the claim and to provide all available information and assistance regarding such claim. Black Box shall not be liable for any costs or fees incurred by you on such action or claim unless authorized in writing by Black Box. Should any product purchased hereunder become, or in Black Box's opinion be likely to become, the subject of a claim for infringement of any such third-party intellectual property right, Black Box may (i) procure for you, at no cost to you, the right for you to continue to resell the product, (ii) replace or modify any product that you have in inventory, at no cost to you, to make such product non-infringing, provided that the replacement or modified product provides substantially similar functionality and performance or (iii) if neither (i) or (ii) are, in the sole discretion of Black Box, commercially practicable, terminate your right to resell such product, and grant you a credit against the purchase price of such previously purchased product that you have in inventory as depreciated on a straight line five (5) year basis from the date of shipment of the product to you. Black Box shall have no liability for any claim based upon: (i) the combination, operation or use of any such product with equipment, devices or software not supplied or specified by Black Box, (ii) the alteration or modification of any such product that was not made or approved by Black Box, (iii) the failure to use the most current version of such product or (iv) the use of such product other than in accordance with the applicable specifications, documentation or this Agreement. This Section 16 states the entire liability of Black Box with respect to infringement of any third party intellectual property rights, and Black Box shall have no additional liability with respect to any alleged or proven infringement. The obligations of Black Box under this Section 16 extend solely to you and not to any other third party. All illustrations, drawings, photographs and other descriptive information attached to Black Box's quotations shall remain the property of Black Box and shall not be copied or made accessible to third parties in any way without the prior written consent of Black Box. Tools made or acquired for the manufacture or modification of products or performance of services remain the property of Black Box notwithstanding that you may have been charged for all or part of the cost thereof. Black Box will use reasonable commercial efforts to safeguard your drawings and other property while in Black Box's possession, but Black Box shall not be liable to you for any loss or damage to such property, however caused, if you fail to take possession of such property within twenty-one (21) days of being notified to do so by Black Box.
17. TO THE EXTENT PERMITTED BY APPLICABLE LAW, BLACK BOX WILL NOT BE LIABLE FOR ANY CLAIM WHATSOEVER THAT EXCEEDS THE COST OF THE PRODUCTS GIVING RISE TO THE CLAIM, WHETHER BASED IN CONTRACT, WARRANTY, INDEMNITY OR TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE. IN NO EVENT SHALL BLACK BOX BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR OTHER INDIRECT DAMAGES, LOSS OF REVENUES, PROFITS OR OPPORTUNITIES, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, WHETHER OR NOT BLACK BOX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
18. All software is provided subject to the license agreement that is part of the software package. You agree that you and your End Users will comply with the terms and conditions of such license agreement and all other proprietary restrictions that are affixed to, or provided with, any products.
19. You shall defend, indemnify and hold harmless Black Box, its parent companies, subsidiary companies, and companies under common control therewith, and its and their officers, directors, employees, agents, representatives, attorneys, subcontractors, vendors and suppliers, from and against any and all claims, damages, losses or expenses, including, without limitation, attorneys' fees, and amounts paid in settlements of claims or suits, which arise out of (i) your failure to abide by any license agreements or other proprietary restrictions relating to such products, (ii) your misrepresentations, omissions, negligence or willful misconduct, or iii) your modification, addition, installation or handling of the products.
20. You agree to comply with all applicable laws and regulations. You shall not in any form export, re-export, resell, ship or divert, or cause to be exported, re-exported, resold, shipped or diverted, directly or indirectly, any product or technical data to any country for which the United States Government or any foreign government, or any agency of the United States Government or any foreign government, at the time of export or re-export, requires an export license or other governmental approval without first obtaining such license or approval.
21. Except for your payment of the purchase price, neither party shall be liable for any delay or failure to perform to the extent caused by fire, flood, explosion, war, riot, embargo, labor disputes, compliance with any laws, regulations, orders, acts or requirements from the government, civil or military authorities, terrorist attacks, acts of God or the public enemy, or any act or event of any nature reasonably beyond such party’s control. Neither electronic mail nor instant messaging shall be considered a writing sufficient to change, modify, extend or otherwise affect the terms of this agreement.
22. No condoning, excusing or waiver by Black Box of any default, breach or nonobservance by you at any time with respect to any terms set forth herein shall operate as a waiver of Black Box's rights with respect to any continuing or subsequent default, breach or nonobservance, and no waiver shall be inferred from or implied by any failure to exercise any such rights.
23. Should any provision of this Agreement be declared by any court of competent jurisdiction to be invalid or unenforceable, the remaining provisions shall not be affected thereby, it being the intent of the parties that they would have executed the remaining portion without including any such part or portion which for any reason was declared invalid.
24. This Agreement shall be governed by and construed in accordance with the laws of Victoria, Australia excluding its conflict of laws provisions and excluding the United Nations Convention on the International Sale of Goods. The parties hereby submit to the exclusive jurisdiction and venue of the courts situated in Victoria, Australia.
25. You and Black Box agree that this Agreement constitutes the complete and exclusive agreement regarding the subject matter of your order and supersedes any prior communications, representations or agreements of the parties and cannot be altered, amended, or modified except in "writing" executed by an authorized representative of each party. Neither electronic mail nor instant messaging shall be considered a writing sufficient to change, modify, extend or otherwise affect the terms of this Agreement.
26. Neither party may sell, assign or transfer its rights, duties or obligations under this Agreement without the prior written consent of the other party; provided, however, that Black Box may (i) assign its rights, duties and obligations hereunder to any parent company, subsidiary company or company under common control therewith, or to any successor in interest to all or substantially all of the business or assets of Black Box and (ii) subcontract the manufacture of products, without your consent. To the extent that assignment is permitted, this Agreement shall inure to the benefit of and be binding upon each party and its permitted successors and assigns.
TPS Web Terms Australia Rev1 Effective 6-2-2016