Terms and Conditions- Hardware Purchase

GMI Terms and Conditions – Hardware Purchase (Updated July 1, 2022)

 Global Market Innovators, Inc. (“GMI”) and Customer hereby agree to be bound by these Terms and Conditions as of the Effective Date, as attached and incorporated into the Order Form for Equipment. The communications between Customer set forth on the applicable Order Form, and GMI relating to the equipment sales may include electronic means. Each of GMI and Customer may be referred to as a “Party” and collectively as the “Parties”.

1. Sale of Hardware. Seller shall sell to Buyer and Buyer shall purchase from Seller the Hardware set forth on the Order Form (the “Hardware“) in the quantities and at the Prices (as defined in 7.3) and upon the terms and conditions set forth in this Agreement.
2. Delivery.
   • The Hardware will be delivered within a reasonable time after the date of this Agreement, subject to availability of finished Hardware. Seller shall not be liable for any delays, loss or damage in transit.
   • Seller shall deliver the Hardware to the address set forth on the Order Form (the “Delivery Point“) using Seller’s standard methods for packaging and shipping such Hardware.
   • Seller may, in its sole discretion, without liability or penalty, make partial shipments of Hardware 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 this Agreement.
   • If for any reason Buyer fails to accept delivery of any of the Hardware on the date fixed pursuant to Seller’s notice that the Hardware have been delivered at the Delivery Point, or if Seller is unable to deliver the Hardware at the Delivery Point on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Hardware shall pass to Buyer; (ii) the Hardware shall be deemed to have been delivered; and (iii) Seller, at its option, may store the Hardware until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
3. Non-Delivery. The quantity of any installment of Hardware as recorded by Seller on dispatch from Seller’s place of business is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary. Seller shall not be liable for any non-delivery of Hardware (even if caused by Seller’s negligence) unless Buyer gives written notice to Seller of the non-delivery within five (5) business days of the date when the Hardware would in the ordinary course of events have been received. Any liability of Seller for non-delivery of the Hardware shall be limited to delivering the Hardware within a reasonable time or adjusting the invoice respecting such Hardware to reflect the actual quantity delivered.
4. Title and Risk of Loss. Title and risk of loss pass to Buyer upon delivery of the Hardware at the Delivery Point.
5. Inspection and Rejection of Nonconforming Hardware.
   • Buyer shall inspect the Hardware within five (5) days of receipt (“Inspection Period“). Buyer will be deemed to have accepted the Hardware unless it notifies Seller in writing of any Nonconforming Hardware during the Inspection Period and furnishes such written evidence or other documentation as required by Seller. “Nonconforming Hardware” means only the following: (i) product shipped is different than identified in this Agreement; or (ii) the product’s label or packaging incorrectly identifies its contents.
   • If Buyer timely notifies Seller of any Nonconforming Hardware, Seller shall, in its sole discretion, (i) replace such Nonconforming Hardware with conforming Hardware, or (ii) credit or refund the Price for such Nonconforming Hardware. Buyer shall ship, at its expense and risk of loss, the Nonconforming Hardware to Seller’s facility at the address on the Order Form. If Seller exercises its option to replace Nonconforming Hardware, Seller shall, after receiving Buyer’s shipment of Nonconforming Hardware, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Hardware to the Delivery Point.
   • uyer acknowledges and agrees that the remedies set forth in this section are Buyer’s exclusive remedies for the delivery of Nonconforming Hardware.
6. Buyer shall purchase the Hardware from Seller at the price[s] (the “Price[s]“) set forth on the Order Form. All Prices are exclusive of all transportation, insurance, 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. 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.
7. Payment Terms. Buyer shall pay all invoiced amounts due to per Buyers’ terms with GMI but in no case shall the term be more than 30 days. 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.
8. No Setoff. Buyer shall not, and acknowledges that it will have no right, under this Agreement, any other agreement, document or law, to withhold, offset, recoup or debit any amounts owed (or to become due and owing to Seller or any of its affiliates, whether under this Agreement or otherwise, against any other amount owed (or to become due and owing) to it by Seller or its affiliates, whether relating to Seller’s or its affiliates’ breach or non-performance of this Agreement or any other agreement between Buyer or any of its affiliates, and Seller or any of its affiliates, or otherwise.
9. Limited Warranties; Disclaimer.
   • Seller warrants that for three (3) months from the date of shipment of the Hardware (“Warranty Period“), such Hardware will materially conform to Seller’s published specifications in effect as of the date of this Agreement. Such Hardware limited warranty only applies to Hardware provided by Seller and does not cover software, problems resulting from external causes, servicing not provided by Seller, normal wear and tear, or usage not in accordance with product instructions.
   • EXCEPT FOR THE WARRANTY SET FORTH ABOVE, SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE HARDWARE, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; OR (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
   • Products manufactured by a third party (“Third-Party Product“) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Hardware. Third-Party Products are not covered by the warranty above. For the avoidance of doubt, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) 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.
   • The Seller shall not be liable for a breach of the warranty set forth above unless: (i) Buyer gives written notice of the defect, reasonably described, to Seller within thirty (30) days of the time when Buyer discovers or ought to have discovered the defect; (ii) Seller is given a reasonable opportunity after receiving the notice to examine such Hardware and Buyer (if requested to do so by Seller) returns such Hardware to Seller’s place of business at Seller’s cost for the examination to take place there; and (iii) Seller reasonably verifies Buyer’s claim that the Hardware are defective.
   • The Seller shall not be liable for a breach of the warranty set forth above if: (i) Buyer makes any further use of such Hardware after giving such notice; (ii) the defect arises because Buyer failed to follow Seller’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Hardware; or (iii) Buyer alters or repairs such Hardware without the prior written consent of Seller.
   • Subject to this section and respect to any such Hardware during the Warranty Period, Seller shall, in its sole discretion, either: (i) repair or replace such Hardware (or the defective part) or (ii) credit or refund the price of such Hardware at the pro-rata contract rate provided that, if Seller so requests, Buyer shall, at Seller’s expense, return such Hardware to Seller.
   • THE REMEDIES SET FORTH IN SECTION 11 SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 9.
10. Limitation of Liability.
    • 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, OR IN CONNECTION WITH ANY BREACH OF THIS AGREEMENT, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT SELLER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (C) 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.
    • 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 HARDWARE PURCHASE PRICE.
11. Compliance with Law. 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.
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 and the cost of pursuing any insurance providers, incurred by Indemnified Party, arising out of or resulting from any claim of a third party [or Seller] arising out of or occurring in connection with 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. 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: (i) fails to pay any amount when due under this Agreement; (ii) has not otherwise performed or complied with any of the terms of this Agreement, in whole or in part; or (iii) 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.
14. Confidential Information. All non-public, confidential or proprietary information of Seller, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller to Buyer, 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 Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller 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 Buyer at the time of disclosure; or (c) rightfully obtained by the Buyer on a non-confidential basis from a third party.
15. Entire Agreement. These Terms and Conditions with the Order Form, constitute 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.
16. Survival. Subject to the limitations and other provisions of this Agreement: (a) the representations and warranties of the Parties contained herein shall survive the expiration or earlier termination of this Agreement; as well as any other 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.
17. 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 on 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). 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.
18. 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.
19. Amendments. No amendment to or modification of or rescission, termination or discharge o this Agreement is effective unless it is in writing and signed by an authorized representative of each Party.
20. Waiver. No waiver by any party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
21. 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.
22. 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.
23. Choice of Law. This Agreement is governed by, and construed in accordance with, the laws of the State of Arizona, without regard to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Arizona.
24. Choice of Forum. Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding of any kind whatsoever against the other Party in any way arising from or relating to this Agreement and all contemplated transactions in any forum other than the federal or state courts in Maricopa County, in the State of Arizona.
25. Counterparts. This Agreement 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.
26. Force Majeure. Notwithstanding any provision contained in this Agreement, neither Party shall be liable to the other to the extent fulfillment or performance of any terms or provisions of this Agreement is delayed or prevented by revolution or other civil disorders; wars; acts of enemies; strikes; labor disputes; electrical equipment or availability failure; fires; floods; acts of God; pandemics, federal, state or municipal action; statute; ordinance or regulation; or, without limiting the foregoing, any other causes not within its control, and which by the exercise of reasonable diligence it is unable to prevent, whether of the class of causes hereinbefore enumerated or not (each, a “Force Majeure Event”). This clause shall not apply to the payment of any sums due under this Agreement by either Party to the other, and it shall not extend the time periods under any disaster recovery plan entered into between the parties hereto in the event the Services are affected as a result of the foregoing events.

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 Agr