Terms And Conditions of Sale!

U.S. Terms and Conditions of Sale - Direct (Applies to all direct purchases-by internet, phone, or Penguins 4 Sale Direct Store) PLEASE READ THIS DOCUMENT CAREFULLY! IT CONTAINS VERY IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND EXCLUSIONS THAT MAY APPLY TO YOU. THIS DOCUMENT CONTAINS A DISPUTE RESOLUTION CLAUSE. These terms and conditions ("Agreement") apply to your purchase of products and/or services and support ("Product") sold in the United States by Penguins 4 Sale, including its affiliates or subsidiaries. By accepting delivery of the Product, you accept and are bound to the terms and conditions of this Agreement. If you do not wish to be bound by this Agreement, you must notify Penguins 4 Sale and return your purchase pursuant to Penguins 4 Sale's Return Policy. See: http://www.Penguins4Sale.com/terms.htm THIS AGREEMENT SHALL APPLY UNLESS (I) YOU HAVE A SEPARATE PURCHASE AGREEMENT WITH Penguins 4 Sale, IN WHICH CASE THE SEPARATE AGREEMENT SHALL GOVERN; OR (II) OTHER Penguins 4 Sale TERMS AND CONDITIONS APPLY TO THE TRANSACTION. 1. Other Documents. This Agreement may NOT be altered, supplemented, or amended by the use of any other document(s) unless otherwise agreed to in a written agreement signed by both you and Penguins 4 Sale. If you do not receive an invoice or acknowledgement in the mail, via e-mail, or with your Product, information about your purchase may be obtained at https://support.Penguins 4 Sale.com/Penguins 4 Salecare/Invoice.aspx or by contacting your sales representative. 2. Payment Terms; Orders; Quotes; Interest. Terms of payment are within Penguins 4 Sale's sole discretion, and unless otherwise agreed to by Penguins 4 Sale, payment must be received by Penguins 4 Sale prior to Penguins 4 Sale's acceptance of an order. Payment for the products will be made by credit card, wire transfer, or some other prearranged payment method unless credit terms have been agreed to by Penguins 4 Sale. Invoices are due and payable within the time period noted on your invoice, measured from the date of the invoice. Penguins 4 Sale may invoice parts of an order separately. Your order is subject to cancellation by Penguins 4 Sale, in Penguins 4 Sale's sole discretion. Unless you and Penguins 4 Sale have agreed to a different discount, Penguins 4 Sale's standard pricing policy for Penguins 4 Sale-branded systems, which include both hardware and services in one discounted price, allocates the discount off list price applicable to the service portion of the system to be equal to the overall calculated percentage discount off list price on the entire system. Penguins 4 Sale is not responsible for pricing, typographical, or other errors in any offer by Penguins 4 Sale and reserves the right to cancel any orders resulting from such errors. 3. Shipping Charges; Taxes; Title; Risk of Loss. Shipping and handling are additional unless otherwise expressly indicated at the time of sale. Title to products passes from Penguins 4 Sale to Customer on shipment from Penguins 4 Sale's facility. Loss or damage that occurs during shipping by a carrier selected by Penguins 4 Sale is Penguins 4 Sale's responsibility. Loss or damage that occurs during shipping by a carrier selected by you is your responsibility. You must notify Penguins 4 Sale within 21 days of the date of your invoice or acknowledgement if you believe any part of your purchase is missing, wrong or damaged. Unless you provide Penguins 4 Sale with a valid and correct tax exemption certificate applicable to your purchase of Product and the Product ship-to location, you are responsible for sales and other taxes associated with the order. Shipping dates are estimates only. 4. Warranties. THE LIMITED WARRANTIES APPLICABLE TO Penguins 4 Sale-BRANDED HARDWARE PRODUCT CAN BE FOUND AT http://www.Penguins4Sale.com/terms.htm OR IN THE DOCUMENTATION Penguins 4 Sale PROVIDES WITH Penguins 4 Sale-BRANDED PRODUCT. Penguins 4 Sale MAKES NO WARRANTIES FOR SERVICE, SOFTWARE, OR NON-Penguins 4 Sale BRANDED PRODUCT, SERVICE, MAINTENANCE OR SUPPORT. SUCH PRODUCT, SOFTWARE, SERVICE, MAINTENANCE OR SUPPORT IS PROVIDED BY Penguins 4 Sale "AS IS" AND ANY THIRD-PARTY WARRANTIES, SERVICES, MAINTENANCE AND SUPPORT ARE PROVIDED BY THE ORIGINAL MANUFACTURER OR SUPPLIER, NOT BY Penguins 4 Sale. Penguins 4 Sale MAKES NO EXPRESS WARRANTIES EXCEPT THOSE STATED IN Penguins 4 Sale'S APPLICABLE Penguins 4 Sale-BRANDED WARRANTY OR SERVICE DESCRIPTION IN EFFECT ON THE DATE OF THE INVOICE, PACKING SLIP OR ACKNOWLEDGEMENT. Penguins 4 Sale-BRANDED WARRANTIES AND SERVICES ARE EFFECTIVE ON PAYMENT IN FULL, AND Penguins 4 Sale IS NOT OBLIGATED TO HONOR ANY WARRANTY OR PROVIDE SERVICE UNTIL Penguins 4 Sale RECEIVES PAYMENT IN FULL. Penguins 4 Sale MAY REQUEST CANCELLATION OF THIRD-PARTY-BRANDED SOFTWARE LICENSES, SERVICES, MAINTENANCE OR SUPPORT IF Penguins 4 Sale DOES NOT RECEIVE PAYMENT. IF YOU PURCHASE THIRD-PARTY-BRANDED PRODUCT, SERVICES, MAINTENANCE, OR SUPPORT, ADDITIONAL THIRD-PARTY TERMS AND CONDITIONS MAY APPLY. 5. Software. All software is provided subject to a license agreement and you agree that you will be bound by such license agreement in addition to these terms. Title to software remains with the applicable licensor(s). 6. Return Policies; Exchanges. Penguins 4 Sale's return policy can be found at http://www.Penguins4Sale.com/terms.htm and you agree to those terms. You must contact us directly before you attempt to return Product to obtain a Return Material Authorization Number for you to include with your return. You must return Product to us in their original or equivalent packaging. You are responsible for risk of loss, shipping and handling fees for returning or exchanging Product. Additional fees may apply. If you fail to follow the return or exchange instructions and policies provided by Penguins 4 Sale, Penguins 4 Sale is not responsible for Product that is lost, damaged, modified or otherwise processed for disposal or resale. At Penguins 4 Sale's discretion, credit for partial returns may be less than invoice or individual component prices due to bundled or promotional pricing. 7. Changed or Discontinued Product. Penguins 4 Sale's policy is one of ongoing update and revision. Penguins 4 Sale may revise and discontinue Product at any time without notice to you and this may affect information saved in your online "cart." Penguins 4 Sale will ship Product that has the functionality and performance of the Product ordered, but changes between what is shipped and what is described in a specification sheet or catalog are possible. Parts used in repairing or servicing Product may be new, equivalent-to-new, or reconditioned. 8. Service and Support. Service offerings may vary from Product to Product. In addition to these terms and conditions, Penguins 4 Sale and/or your third-party service provider may provide such service and support to you in the United States in accordance with the term and conditions located at http://www.Penguins4Sale.com/terms.htm or as otherwise delivered to you. Penguins 4 Sale and/or your third-party service provider may in their discretion revise their general and optional service and support programs and the terms and conditions that govern them without prior notice to you. Penguins 4 Sale has no obligation to provide service or support until Penguins 4 Sale has received full payment for the Product or service/support contract you purchased. Penguins 4 Sale is not obligated to provide third-party branded service or support, or service or support for any products or services that you purchased through a third-party and not Penguins 4 Sale. It is your responsibility to backup all existing data, software, and programs before receiving services or support (including telephone support). Penguins 4 Sale and/or your third-party service provider will have no liability for loss or recovery of data, programs or loss of use of system(s) arising out of the services or support or any act or omission, including negligence, by Penguins 4 Sale or your-third-party service provider. Penguins 4 Sale and/or your third-party service provider is not permitted by law to copy pirated or copyrighted materials or to copy or handle illegal data. Prior to Penguins 4 Sale and/or your third-party service provider providing service or support, you represent that your system(s) does not contain illegal files or data. You also represent that you own the copyright or have a license to make copies to all files on your system and do not have any data that would cause Penguins 4 Sale to be liable for copyright infringement if those files were copied by Penguins 4 Sale and/or your third-party service provider. 9. Limitation of Liability. Penguins 4 Sale DOES NOT ACCEPT LIABILITY BEYOND THE REMEDIES SET FORTH HEREIN, INCLUDING BUT NOT LIMITED TO ANY LIABILITY FOR PRODUCT NOT BEING AVAILABLE FOR USE, LOST PROFITS, LOSS OF BUSINESS OR FOR LOST OR CORRUPTED DATA OR SOFTWARE, OR THE PROVISION OF SERVICES AND SUPPORT. EXCEPT AS EXPRESSLY PROVIDED HEREIN, Penguins 4 Sale WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY. YOU AGREE THAT FOR ANY LIABILITY RELATED TO THE PURCHASE OF PRODUCT, Penguins 4 Sale IS NOT LIABLE OR RESPONSIBLE FOR ANY AMOUNT OF DAMAGES ABOVE THE AMOUNT INVOICED FOR THE APPLICABLE PRODUCT. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, THE REMEDIES SET FORTH IN THIS AGREEMENT SHALL APPLY EVEN IF SUCH REMEDIES FAIL THEIR ESSENTIAL PURPOSE. 10. Not For Resale or Export. You agree to comply with all applicable laws and regulations of the various states and of the United States. You agree and represent that you are buying only for your own internal use only, and not for resale or export. Penguins 4 Sale has separate terms and conditions governing resale of Product by third parties and transactions outside the United States. Terms and conditions for resale are located at: http://www.Penguins4Sale.com/terms.htm 11. Governing Law. THE PARTIES AGREE THAT THIS AGREEMENT, ANY SALES THERE UNDER, OR ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER PREEXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, AND EQUITABLE CLAIMS) BETWEEN CUSTOMER AND Penguins 4 Sale arising from or relating to this agreement, its interpretation, or the breach, termination or validity thereof, the relationships which result from this agreement, Penguins 4 Sale's advertising, or any related purchase SHALL BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO CONFLICTS OF LAW. 12. Binding Arbitration. ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER PREEXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT AND EQUITABLE CLAIMS) BETWEEN CUSTOMER AND Penguins 4 Sale, its agents, employees, principals, successors, assigns, affiliates (collectively for purposes of this paragraph, "Penguins 4 Sale") arising from or relating to this Agreement, its interpretation, or the breach, termination or validity thereof, the relationships which result from this Agreement (including, to the full extent permitted by applicable law, relationships with third parties who are not signatories to this Agreement), Penguins 4 Sale's advertising, or any related purchase SHALL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION ADMINISTERED BY THE NATIONAL ARBITRATION FORUM (NAF) under its Code of Procedure then in effect (available via the Internet at http://www.arb-forum.comExternal link, or via telephone at 1-800-474-2371). In the event of any inconsistency or conflict between NAF Code of Procedure and this Agreement, this Agreement shall control. The arbitration will be limited solely to the dispute or controversy between customer and Penguins 4 Sale. NEITHER CUSTOMER NOR Penguins 4 Sale SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS, OR ARBITRATE ANY CLAIM AS A REPRESENTATIVE OR CLASS ACTION OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. The individual (non-class) nature of this dispute provision goes to the essence of the parties' arbitration agreement, and if found unenforceable, the entire arbitration provision shall not be enforced. This transaction involves interstate commerce, and this provision shall be governed by the Federal Arbitration Act 9 U.S.C. sec. 1-16 (FAA). Any award of the arbitrator(s) shall be final and binding on each of the parties, and may be entered as a judgment in any court of competent jurisdiction. Penguins 4 Sale will be responsible for paying any individual customer arbitration fees. If any customer prevails on any claim that affords the prevailing party attorneys' fees, or if there is a written agreement providing for fees, the Arbitrator may award reasonable fees to the prevailing party, under the standards for fee shifting provided by law. Otherwise, each party shall pay for its own costs and attorneys' fees, if any. Information may be obtained and claims may be filed with the NAF at P.O. Box 50191, Minneapolis, MN 55405. (REV 03/17/08) Retail Purchaser End User Agreement (Applies to all purchases from retail sellers, including QVC, Costco, Sam's Club and Wal-Mart) PLEASE READ THIS DOCUMENT CAREFULLY! IT CONTAINS VERY IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND EXCLUSIONS THAT APPLY TO YOU. THIS DOCUMENT CONTAINS A BINDING ARBITRATION CLAUSE. This Retail Purchaser End User Agreement ("Agreement") governs your retail purchase and use of products and/or services and support ("Product") sold in the United States by Penguins 4 Sale, including its affiliates or subsidiaries. BY PURCHASING AND USING THE PRODUCT, YOU ("CUSTOMER") AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE, DO NOT USE THE PRODUCT, AND RETURN THE PRODUCT TO YOUR PLACE OF PURCHASE (subject to its return policy). 1. Other Documents. This Agreement may NOT be altered, supplemented, or amended by the use of any other document(s) unless otherwise agreed to in a written agreement signed by both you and Penguins 4 Sale. 2. Warranties. THE LIMITED WARRANTIES APPLICABLE TO Penguins 4 Sale-BRANDED HARDWARE PRODUCT CAN BE FOUND AT http://www.Penguins4Sale.com/terms.htm OR IN THE DOCUMENTATION FOUND WITH YOUR Penguins 4 Sale-BRANDED PRODUCT. Penguins 4 Sale MAKES NO WARRANTIES FOR SERVICE, SOFTWARE, OR NON-Penguins 4 Sale BRANDED PRODUCT, SERVICE, MAINTENANCE OR SUPPORT. SUCH PRODUCT, SOFTWARE, SERVICE, MAINTENANCE OR SUPPORT IS PROVIDED BY Penguins 4 Sale "AS IS" AND ANY THIRD-PARTY WARRANTIES, SERVICES, MAINTENANCE AND SUPPORT ARE PROVIDED BY THE ORIGINAL MANUFACTURER OR SUPPLIER, NOT BY Penguins 4 Sale. Penguins 4 Sale MAKES NO EXPRESS WARRANTIES EXCEPT THOSE STATED IN Penguins 4 Sale'S APPLICABLE Penguins 4 Sale-BRANDED WARRANTY OR SERVICE DESCRIPTION IN EFFECT ON THE DATE OF THE PURCHASE OF YOUR PRODUCT. Penguins 4 Sale-BRANDED WARRANTIES AND SERVICES ARE EFFECTIVE WHEN YOU HAVE TRANSFERRED THE OWNERSHIP OF THE PRODUCT INTO YOUR NAME, ALTHOUGH THE WARRANTY PERIOD COMMENCES ON THE DATE OF THE PURCHASE. YOU MAY FIND THE INSTRUCTIONS FOR HOW TO TRANSFER OWNERSHIP INTO YOUR NAME IN THE DOCUMENTATION FOUND WITH YOUR COMPUTER OR BY VISITING http://www.Penguins4Sale.com/terms.htm. LIKE YOUR USE OF THE PRODUCT, TRANSFERRING OWNERSHIP OF THE PRODUCT INTO YOUR NAME EXPRESSES YOUR INTENT TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU PURCHASE THIRD-PARTY-BRANDED PRODUCT, SERVICES, MAINTENANCE, OR SUPPORT ADDITIONAL THIRD-PARTY TERMS AND CONDITIONS MAY APPLY. 3. Software. All software is provided subject to a license agreement and you agree that you will be bound by such license agreement in addition to these terms. Title to software remains with the applicable licensor(s). 4. Return Policies; Exchanges. Returns and exchanges are governed by the policies of the retailer where you purchased the Product. 5. Service and Support. Service offerings may vary from Product to Product. In addition to this Agreement's terms and conditions, Penguins 4 Sale and/or your third-party service provider may provide such service and support to you in the United States in accordance with the terms and conditions located at http://www.Penguins4Sale.com/terms.htm or as otherwise delivered to you. Penguins 4 Sale and/or your third-party service provider may in their discretion revise their general and optional service and support programs and the terms and conditions that govern them without prior notice to you. Penguins 4 Sale has no obligation to provide service or support until Penguins 4 Sale has received full payment for the service/support contract you purchased. Penguins 4 Sale is not obligated to provide third-party branded service or support, or service or support for any products or services that you purchased through a third-party and not Penguins 4 Sale. It is your responsibility to backup all existing data, software, and programs before receiving services or support (including telephone support). Penguins 4 Sale and/or your third-party service provider will have no liability for loss or recovery of data, programs or loss of use of system(s) arising out of the services or support or any act or omission, including negligence, by Penguins 4 Sale or your third-party service provider. Neither Penguins 4 Sale nor your third-party service provider is permitted by law to copy pirated or copyrighted materials or to copy or handle illegal data. Prior to Penguins 4 Sale and/or your third-party service provider providing service or support, you represent that your system(s) does not contain illegal files or data. You also represent that you own the copyright or have a license to make copies to all files on your system and do not have any data that would cause Penguins 4 Sale to be liable for copyright infringement if those files were copied by Penguins 4 Sale and/or your third-party service provider. Parts used in repairing or servicing Product may be new, equivalent-to-new, or reconditioned. 6. Limitation of Liability. Penguins 4 Sale DOES NOT ACCEPT LIABILITY BEYOND THE REMEDIES SET FORTH HEREIN, INCLUDING BUT NOT LIMITED TO ANY LIABILITY FOR PRODUCT NOT BEING AVAILABLE FOR USE, LOST PROFITS, LOSS OF BUSINESS OR FOR LOST OR CORRUPTED DATA OR SOFTWARE, OR THE PROVISION OF SERVICES AND SUPPORT. EXCEPT AS EXPRESSLY PROVIDED HEREIN, Penguins 4 Sale WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY. YOU AGREE THAT FOR ANY LIABILITY RELATED TO THE PURCHASE OF PRODUCT, Penguins 4 Sale IS NOT LIABLE OR RESPONSIBLE FOR ANY AMOUNT OF DAMAGES ABOVE THE AMOUNT YOU PAID FOR THE APPLICABLE PRODUCT. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, THE REMEDIES SET FORTH IN THIS AGREEMENT SHALL APPLY EVEN IF SUCH REMEDIES FAIL THEIR ESSENTIAL PURPOSE. 7. Not For Resale or Export. You agree to comply with all applicable laws and regulations of the various states and of the United States. You agree and represent that you are buying for your own internal use only, and not for resale or export. Penguins 4 Sale has separate terms and conditions governing resale of Product by third parties and transactions outside the United States. Terms and conditions for resale are located at: http://www.Penguins4Sale.com/terms.htm 8. Governing Law. THE PARTIES AGREE THAT THIS AGREEMENT, THE PURCHASE AND USE OF THE PRODUCT, OR ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER PREEXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, AND EQUITABLE CLAIMS) BETWEEN CUSTOMER AND Penguins 4 Sale arising from or relating to this Agreement, its interpretation, or the breach, termination or validity thereof, the relationships which result from this Agreement, Customer's purchase or use of the Product, Penguins 4 Sale's advertising, or any related purchase SHALL BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO CONFLICTS OF LAW. 9. Binding Arbitration. ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER PREEXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT AND EQUITABLE CLAIMS) BETWEEN CUSTOMER AND Penguins 4 Sale, ITS AGENTS, EMPLOYEES, PRINCIPALS, SUCCESSORS, ASSIGNS, AFFILIATES (COLLECTIVELY FOR PURPOSES OF THIS PARAGRAPH, "Penguins 4 Sale") arising from or relating to this Agreement, its interpretation, or the breach, termination or validity thereof, the relationships which result from this Agreement (including, to the full extent permitted by applicable law, relationships with third parties who are not signatories to this Agreement), Customer's purchase or use of the Product, Penguins 4 Sale's advertising, or any related purchase SHALL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION ADMINISTERED BY THE NATIONAL ARBITRATION FORUM (NAF) under its Code of Procedure then in effect (available via the Internet at http://www.arb-forum.com, or via telephone at 1-800-474-2371). In the event of any inconsistency or conflict between NAF Code of Procedure and this Agreement, this Agreement shall control. The arbitration will be limited solely to the dispute or controversy between Customer and Penguins 4 Sale. NEITHER CUSTOMER NOR Penguins 4 Sale SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS, OR ARBITRATE ANY CLAIM AS A REPRESENTATIVE OR CLASS ACTION OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. The individual (non-class) nature of this dispute provision goes to the essence of the parties' arbitration agreement, and if found unenforceable, the entire arbitration provision shall not be enforced. This transaction involves interstate commerce, and this provision shall be governed by the Federal Arbitration Act 9 U.S.C. sec. 1-16 (FAA). Any award of the arbitrator(s) shall be final and binding on each of the parties, and may be entered as a judgment in any court of competent jurisdiction. Penguins 4 Sale will be responsible for paying any individual customer arbitration fees. If any Customer prevails on any claim that affords the prevailing party attorneys' fees, or if there is a written agreement providing for fees, the Arbitrator may award reasonable fees to the prevailing party, under the standards for fee shifting provided by law. Otherwise, each party shall pay for its own costs and attorneys' fees, if any. Information may be obtained and claims may be filed with the NAF at P.O. Box 50191, Minneapolis, MN 55405. (REV 3/25/08) Terms and Conditions of Sale for Persons or Entities Purchasing to Resell (applies to all purchases of Products that buyer intends to resell to others) PLEASE READ THIS DOCUMENT CAREFULLY. IT CONTAINS VERY IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND EXCLUSIONS THAT APPLY TO YOU. These terms and conditions ("Agreement") apply to your purchase and resale of computer systems, related products, services, and support in the United States or Canada ("Products") by the Penguins 4 Sale entity named on your invoice ("Penguins 4 Sale") or on other documents provided to you by Penguins 4 Sale. This Agreement does not apply to you if you are buying for your own end use. By accepting delivery of the Products, you agree to be bound by and accept the terms and conditions of this Agreement. These terms and conditions are subject to change at any time in Penguins 4 Sale's sole discretion without prior written notice. If you do not wish to be bound by this Agreement, you must promptly notify Penguins 4 Sale. Products must remain in the boxes in which they were shipped and you must notify us immediately to arrange a Product return, for which YOU WILL BE RESPONSIBLE FOR SHIPPING & HANDLING CHARGES. ADDITIONAL RETURN OR RESTOCKING FEES MAY APPLY. THIS AGREEMENT SHALL APPLY UNLESS YOU HAVE A SEPARATE WRITTEN AGREEMENT WITH Penguins 4 Sale. 1. Other Documents. This Agreement may NOT be altered, supplemented or amended by the use of any other document(s) unless otherwise agreed to in a separate written agreement signed by both you and Penguins 4 Sale. If you do not receive an invoice or acknowledgement in the mail or with your Product, information about your purchase may be obtained at support.http://www.Penguins4Sale.com/terms.htm (or in Canada at http://www.Penguins4Sale.com/terms.htm) or by contacting your sales representative. 2. Reselling. You may resell Products to end-users approved by Penguins 4 Sale, in Penguins 4 Sale's sole discretion, only after you have added value to the Products through the addition of hardware, software, or services. Approval by Penguins 4 Sale shall not be deemed from the sale of Product to you. You may not resell to end-users outside the country or territory covered by the Penguins 4 Sale entity from which you purchased your Product. You may not resell to Consumer, Education, Healthcare, Federal, State, Provincial or Local or other Public-sector customers, or to distributors or third-party sales agents, and you may not remarket or resell through retail storefronts or auction-type web sites. This Agreement is not exclusive. Penguins 4 Sale may market Products to any third-party directly or indirectly without any obligation or liability to you. This Agreement does not guarantee that you will make any sales of the Products. You determine or set your resale Product pricing. Penguins 4 Sale reserves the right to restrict or prohibit your participation in certain promotions, and to add, modify, or discontinue pricing, Products, or parts. Penguins 4 Sale may require you to meet additional obligations not outlined herein, which will be disclosed to you prior to your purchase of Products. You will provide Penguins 4 Sale such information and reports as may reasonably be requested by Penguins 4 Sale. 3. Trademarks; Copyrights. You may use the "Penguins 4 Sale" name and Penguins 4 Sale's product names solely for the purpose of accurately identifying the Penguins 4 Sale-branded Products you market or sell under this Agreement. You agree to change or correct, at your own expense, any material or activity that Penguins 4 Sale decides is inaccurate, objectionable or misleading, or a misuse of Penguins 4 Sale's name, trademarks, service marks, or Penguins 4 Sale's logos or copyrighted works. You may not use the Penguins 4 Sale name or Penguins 4 Sale's product names for any other purpose. You may not use other Penguins 4 Sale trademarks or service marks, or Penguins 4 Sale's logos or copyrighted works, at any time. You are prohibited from referring to yourself as an authorized reseller of Penguins 4 Sale, implying that you and Penguins 4 Sale are legal partners, creating the impression that Penguins 4 Sale is affiliated with you or has sponsored, authorized, approved or endorsed your business, or any offer or any marketing, advertising, or promotion thereof in any manner other than that provided expressly by the terms of the PartnerDirect program. You may not register or use any domain name or business name containing or confusingly similar to any name or mark of Penguins 4 Sale's. You will clearly and prominently identify yourself in all offers and advertising, marketing, and promotional materials relating to this Agreement. 4. Quotes; Orders; Payment Terms; Interest. Payment terms are within Penguins 4 Sale's sole discretion. You agree not to violate the terms of any offer or concession made available by Penguins 4 Sale. Penguins 4 Sale may invoice or ship parts of an order separately. Penguins 4 Sale reserves the right to cancel an order or transaction, in whole or in part. If you breach the provisions of this Agreement or the terms of any offer, Penguins 4 Sale may charge or re-debit your account or credit card the full list price for your purchase (in lieu of a discounted or special price included in the offer). You agree to pay interest on all past-due sums at the highest rate allowed by law. You hereby grant Penguins 4 Sale, and Penguins 4 Sale hereby retains, a purchase money security interest and lien on any and all of your rights, title, and interest in Products, wherever located, and all replacements or proceeds of the Products, until the invoice for the applicable Products is paid in full, including any late charges and costs of collection. You consent to Penguins 4 Sale''s use of this Agreement, as well as Product invoices, as financing statements for protecting this security interest and appoint Penguins 4 Sale as your agent for service of process. Unless you and Penguins 4 Sale have agreed to a different discount, Penguins 4 Sale's standard pricing policy for Penguins 4 Sale-branded systems, which include both hardware and services in one discounted price, allocates the discount off list price applicable to the service portion of the system to be equal to the overall calculated percentage discount off list price on the entire system. 5. Shipping Charges; Taxes. Shipping dates provided by Penguins 4 Sale are estimates only. Shipping and handling are additional and will be shown on the invoice(s) or other documentation. Loss or damage that occurs during shipping by a carrier selected by Penguins 4 Sale is Penguins 4 Sale's responsibility. Loss or damage that occurs during shipping by a carrier selected by you is your responsibility. Unless you provide Penguins 4 Sale with a valid and correct tax-exemption certificate applicable to the Product ship-to location at the time of purchase, you will be responsible for sales, goods, and services, and all other taxes and fees associated with the order, however designated, except for Penguins 4 Sale's franchise taxes and taxes on Penguins 4 Sale's net income. 6. Title; Risk of Loss; Insurance. Title to products passes from Penguins 4 Sale to you on shipment from Penguins 4 Sale's facility or third-party manufacturer's facility. Title to software will remain with the applicable licensor(s). You will maintain comprehensive general liability, including products liability, insurance in an amount appropriate for your business, but in no event less than $1,000,000.00 (US) with an insurance company having a Best rating of A. Upon Penguins 4 Sale's request, you will provide to Penguins 4 Sale a certificate of such insurance (including any new or amended certificates of insurance) and/or name Penguins 4 Sale as an additional insured. 7. Warranties. Penguins 4 Sale MAKES NO EXPRESS WARRANTIES EXCEPT THOSE STATED IN THIS SECTION AND IN Penguins 4 Sale'S APPLICABLE LIMITED WARRANTY STATEMENT IN EFFECT ON THE DATE OF THE INVOICE, PACKING SLIP, OR ACKNOWLEDGEMENT FOUND AT http://www.Penguins4Sale.com/terms.htm OR THE DOCUMENTATION PROVIDED WITH THE PRODUCT(S). Penguins 4 Sale DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. THERE ARE NO WARRANTIES BY Penguins 4 Sale FOR NON-Penguins 4 Sale BRANDED PRODUCTS, SERVICE, OR SOFTWARE PRODUCTS. ALL SUCH PRODUCTS ARE PROVIDED BY Penguins 4 Sale "AS IS." NO REVISION IN LIMITED WARRANTIES WILL AFFECT PRODUCTS ALREADY ORDERED BY YOU. 8. Additional Remedies & Responsibilities. Penguins 4 Sale RESERVES THE RIGHT TO DISCONTINUE OR OTHERWISE VOID ANY WARRANTY, SERVICE, MAINTENANCE, OR SUPPORT IT OFFERS IN WHOLE OR IN PART. Penguins 4 Sale MAY REQUEST CANCELLATION OF THIRD PARTY-BRANDED SOFTWARE LICENSES, SERVICES, MAINTENANCE, OR SUPPORT IF Penguins 4 Sale DOES NOT RECEIVE PAYMENT. IF YOU PURCHASE THIRD-PARTY-BRANDED PRODUCTS, SERVICES, MAINTENANCE, OR SUPPORT, ADDITIONAL THIRD-PARTY TERMS AND CONDITIONS MAY APPLY. YOU SHALL BE SOLELY RESPONSIBLE FOR ANY AND ALL REPRESENTATIONS AND OMISSIONS YOU MAKE OR FAIL TO MAKE TO YOUR CUSTOMERS OR TO THE PUBLIC. YOU WILL INFORM YOUR CUSTOMERS OF Penguins 4 Sale'S RIGHTS AND YOUR OBLIGATIONS UNDER THIS AGREEMENT. 9. Software. All software is provided subject to the license agreement that is provided with the Product. You agree that you and your customers will be bound by such license agreement. 10. No Returns. All sales are final. Neither you nor your customers may return Products to Penguins 4 Sale. 11. Products. Penguins 4 Sale's policy is one of ongoing Product update and revision. Penguins 4 Sale may revise and discontinue Products at any time without notice to you. Penguins 4 Sale will ship Products that have the functionality and performance of the Products ordered, but changes between what is shipped and what is described in a specification sheet or catalog are possible. The parts and assemblies used in building Products and spare parts are selected from new, equivalent-to-new, or reconditioned parts and assemblies. 12. Limitation of Liability. Penguins 4 Sale DOES NOT ACCEPT LIABILITY BEYOND THE REMEDIES SET FORTH HEREIN, INCLUDING BUT NOT LIMITED TO ANY LIABILITY FOR PRODUCTS NOT BEING AVAILABLE FOR USE, OR FOR LOST OR CORRUPTED DATA OR SOFTWARE, LOST PROFITS, LOSS OF BUSINESS, YOUR BREACH OF THIS AGREEMENT, OR THE PROVISION OF SERVICES OR SUPPORT. Penguins 4 Sale WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY EXCEPT AS EXPRESSLY PROVIDED HEREIN. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT OR ON OUR WEB SITE TO THE CONTRARY, Penguins 4 Sale IS NOT RESPONSIBLE FOR INFORMATION OR DATA YOU PROVIDE TO US UNLESS YOU HAVE A SEPARATE WRITTEN AGREEMENT TO THE CONTRARY. YOU AGREE THAT FOR ANY LIABILITY ARISING FROM OR RELATED TO THE PURCHASE OF ANY PRODUCTS, Penguins 4 Sale IS NOT LIABLE OR RESPONSIBLE FOR ANY AMOUNT OF DAMAGES ABOVE THE AGGREGATE DOLLAR AMOUNT INVOICED BY Penguins 4 Sale FOR THE RESPECTIVE PRODUCTS. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, THE REMEDIES SET FORTH IN THIS AGREEMENT SHALL APPLY EVEN IF SUCH REMEDIES FAIL THEIR ESSENTIAL PURPOSE. 13. Service and Support. Service offerings may vary from product to product. In addition to these terms and conditions, Penguins 4 Sale or your third-party service provider may provide such service and support to you in the United States or Canada in accordance with the terms and conditions located at http://www.Penguins4Sale.com/terms.htm (in Canada at http://www.Penguins4Sale.com/terms.htm) or as otherwise delivered to you. Penguins 4 Sale or your third-party service provider may at its discretion, revise its general and optional service or support programs and the terms and conditions that govern those programs without prior notice to you. Penguins 4 Sale HAS NO OBLIGATION TO PROVIDE SERVICE OR SUPPORT TO YOU OR YOUR CUSTOMERS UNTIL Penguins 4 Sale HAS RECEIVED FULL PAYMENT FOR THE PRODUCT OR SERVICES/SUPPORT CONTRACT THAT YOU PURCHASED. Penguins 4 Sale is not obligated to provide third-party-branded service or support, or service or support for any product or services that you purchased through a third-party and not from Penguins 4 Sale. It is your responsibility to back-up all existing data, software, and programs before receiving service or support (including telephone support). Penguins 4 Sale or your third-party service provider will have no liability for loss or recovery of data, programs, or loss of use of system(s) arising out of the services or support or any act or omission, including negligence, by Penguins 4 Sale or your-third-party service provider. Penguins 4 Sale or your third-party service provider is not permitted by law to copy pirated or copyrighted materials or to copy or handle illegal data. Prior to Penguins 4 Sale's or your third-party service provider's providing service or support, you represent that your system does not contain illegal files or data. You also represent that you own the copyright or have a license to make copies to all files on your system and that you do not have any data that would cause Penguins 4 Sale to be liable for copyright infringement if those files were copied by Penguins 4 Sale or your third-party service provider. To transfer service, contact Penguins 4 Sale's customer service or go to support. http://www.Penguins4Sale.com/terms.htm (in Canada at http://www.Penguins4Sale.com/terms.htm). 14. Your Indemnity to Penguins 4 Sale. To the fullest extent permitted by law, you will indemnify, defend, and hold harmless Penguins 4 Sale, including Penguins 4 Sale's officers, directors, agents, employees, subsidiaries, affiliates, parents, successors and assigns, from any claim, demand, cause of action, debt, or liability (including reasonable attorneys' or legal fees, expenses, and court costs) that relates to: (a) your modification of or addition to Product(s); (b) your breach of this Agreement; (c) your omission, misrepresentation, or negligence; and (d) damage to a third party by the Products sold by you to the extent such claim is based on (i) your modification of or addition to the Products, misuse or abuse of the Products, negligence, or breach of any provision in this Agreement; (ii) your failure to abide by all applicable laws, rules, regulations, and orders that affect the Products; (iii) your omission, misrepresentation, or negligence; or (iv) intentional harm to any person or property caused by you. Indemnified claims, debts, and liabilities include the amount of any discount in price or concession that is made available by Penguins 4 Sale to you. 15. Dispute Resolution. The parties will attempt to resolve any claim, dispute, or controversy (whether in contract, tort or otherwise) against Penguins 4 Sale, its agents, employees, successors, assigns, or affiliates (collectively for purposes of this paragraph, "Penguins 4 Sale") arising out of or relating to this Agreement, Penguins 4 Sale's advertising, or any related purchase (a "Dispute") through face-to-face negotiation with persons fully authorized to resolve the Dispute or through mediation utilizing a mutually agreeable mediator, rather than through litigation. If the parties are unable to resolve the Dispute through negotiation or mediation within a reasonable time after written notice from one party to the other that a Dispute exists, the Dispute will be settled by binding arbitration in accordance with the then current CPR Rules for Non-Administered Arbitration. The Arbitration will be conducted before three (3) independent and impartial arbitrators. Penguins 4 Sale will appoint one (1) arbitrator and the other party or parties will appoint one (1) arbitrator. The two (2) appointed arbitrators will then select a third arbitrator, who shall be the presiding arbitrator. The arbitration hearing shall take place in Austin, Texas and will be governed by the United States Federal Arbitration Act to the exclusion of any inconsistent state laws. The arbitrators shall base their award on the terms of this Agreement, and will follow the law and judicial precedents that a United States District Judge sitting in the Western District of Texas would apply to the Dispute. (For Canadian entities: the arbitration hearing shall take place in Toronto, Ontario and will be governed by the Arbitration Act of Ontario and the applicable laws of Ontario and Canada.) The arbitrators shall render their award in writing and will include the findings of fact and conclusion of law upon which their award is based. Judgment upon the arbitration award may be entered by any court of competent jurisdiction. The existence or results of any negotiation, mediation, or arbitration will be treated as confidential. Notwithstanding the foregoing, either party will have the right to obtain from a court of competent jurisdiction a temporary restraining order, preliminary injunction, or other equitable relief to preserve the status quo or prevent irreparable harm, although the merits of the underlying Dispute will be resolved in accordance with this paragraph. 16. Independent Contractors. No provision of this Agreement will or shall be deemed to create a partnership, joint venture, or other combination between Penguins 4 Sale and you. You and Penguins 4 Sale are independent contractors. Neither party will make any warranties or representations or assume any obligations on the other party's behalf. Neither party is or will claim to be a legal representative, partner, franchisee, agent, or employee of the other party. Each party is responsible for the amounts it incurs arising from this Agreement and for the direction and compensation, and is liable for the actions of, its employees and subcontractors. 17. Governing Law. THE PARTIES AGREE THAT THIS AGREEMENT, ANY SALES THERE UNDER, OR ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER PREEXISTING, PRESENT, OR FUTURE, AND INCLUDING STATUTORY, COMMON LAW, AND EQUITABLE CLAIMS) BETWEEN CUSTOMER AND Penguins 4 Sale arising from or relating to this agreement, its interpretation, or the breach, termination, or validity thereof, the relationships which result from this agreement, Penguins 4 Sale's advertising, or any related purchase SHALL BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS (OR FOR CANADIAN ENTITIES, THE PROVINCE OF ONTARIO), WITHOUT REGARD TO CONFLICTS-OF-LAWS RULES. 18. Export. You acknowledge that the purchased goods licensed or sold under this Agreement, and the transaction contemplated by this Agreement, which may include technology and software, are subject to the customs and export control laws and regulations of the United States ("U.S.") or Canada and may also be subject to the customs and export laws and regulations of the country in which the products are manufactured or received. You acknowledge that it is your sole responsibility to comply with and abide by those laws and regulations. Further, under U.S. law, the goods shipped pursuant to this Agreement may not be sold, leased, or otherwise transferred to restricted countries or utilized by restricted end-users or an end-user engaged in activities related to weapons of mass destruction, including without limitation, activities related to the design, development, production or use of nuclear weapons, materials, or facilities, missiles or the support of missile projects, and chemical or biological weapons. You agree not to provide any written regulatory certifications or notifications on behalf of Penguins 4 Sale. Penguins 4 Sale has not tested Products for use in high-risk activities including but not limited to any life sustaining, chemical, or mission critical use. Penguins 4 Sale WILL NOT HAVE ANY LIABILITY FOR ANY DAMAGES ARISING FROM THE USE OF THE PRODUCTS IN ANY HIGH RISK ACTIVITY, INCLUDING BUT NOT LIMITED TO THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, MEDICAL SYSTEMS, LIFE SUPPORT, OR WEAPONS SYSTEMS. 19. Headings. The section headings used herein are for convenience of reference only and do not form a part of these terms and conditions, and no construction or inference shall be derived there from. If any provision of this Agreement is void or unenforceable, the remainder of this Agreement will remain in full force and will not be terminated. Neither party will be liable for any delay resulting from circumstances or causes beyond the party's reasonable control. 20. Language. The parties confirm that it is their wish that this Agreement, as well as other documents relating to this Agreement, including all notices, have been and will be drawn up in the English language only.

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