1.1 Unless as otherwise set forth below herein or as agreed in a writing signed by a person holding the title of Vice President or higher, or as noted in this sub-paragraph, the following Terms and Conditions apply to ALL contracts, or agreements, written or oral, to which KRUSECOM is a party and are incorporated in each or all by reference.
1.2 These Terms and Conditions do not apply to the following KRUSECOM contracts, agreements or transactions:
• Purchase Orders using the KRUSECOM Purchase Order form;
• Sales transactions incorporating KRUSECOM Product Sales Terms and Conditions, http://www.KruseCom.com;
• Sale transactions pursuant to an executed KRUSECOM Product Sales Agreement
• Agreement Relating to Disposal of Assets;
• KRUSECOM Product Sales Agreement;
• KRUSECOM Guaranty Agreement;
• Agreement for Data Erasure and/or Disposition of IT Assets;
• Agreement Relating to Disposition of Non Qualified Assets
• Any other written contract or agreement between KRUSECOM and a third party which contract or agreement is signed by KRUSECOM, and the person executing the same on behalf of KRUSECOM at the time of signature holds the title of Vice President or higher, and which contract or agreement by its terms is fully integrated.
2.0 PAYMENTS AND FEES
2.1 Any sum due to KRUSECOM is due immediately upon rendition of an invoice, inclusive of all fees and costs associated with: purchase, sale, loading, packing, shipping, insurance shipping, the RITEA processes, disposal and any other sum, fee or cost relating to KRUSECOM’s performance of work and/or services on behalf of a Customer as the same may from time to time arise. Any sum not timely paid shall bear interest at eighteen percent (18%) per annum. Only KRUSECOM shall have the right of set-off with respect to sums between the parties with respect to any sums due to any person by KRUSECOM. At its sole choice and election, KRUSECOM ether retains title to any product or equipment sold by KRUSECOM until full payment is received or KRUSECOM retains a security interest in any product or equipment sold until full payment is received. Further, KRUSECOM shall have the right to take all steps or actions necessary to perfect its security interests including filing UCC financing statements. Further, KRUSECOM may withhold any Lot Audit Report(s), Disposal Certificates, Warranty(s) of Destruction or any other Certificates or evidence of contractual compliance until all sums due KRUSECOM are paid in full.
2.2 In addition to other charges incurred or charged, KRUSECOM shall charge an Audit Fee (“Audit Fee”), on a per serial number and or per disk array basis for each piece of equipment undergoing the RITEA process.
2.3 Charges relating to Disposal of Equipment are subject to change from time to time.
2.4 Any sums due to a third party by KRUSECOM shall be paid in U.S. funds within thirty (30) days of when due.
2.5 All payments to KRUSECOM should be made payable to and sent to:
1300 No. Florida Mango Rd. #12
West Palm Beach, FL 33409
3.1 Unless otherwise agreed, KRUSECOM will be responsible for packing all Equipment and Peripherals, at the customer’s expense, and having the same ready for loading and transportation.
3.1.1 KRUSECOM will make load-out arrangements if contacted at least 48 hours in advance.
3.1.2 Delivery will be made between the hours of 7:30am and 5:00pm Monday through Friday, (excluding holidays eastern time) and other agreed time.
3.1.3 Any transportation damage will be noted and the appropriate action regarding the transportation company involved will be addressed. KRUSECOM is hereby irrevocably appointed the attorneys or agents of the Party shipping the goods to make claims, resolve, settle and/or compromise and claims or issues relating to the transportation and to receive payment relating to said claims.
3.1.4 Unless otherwise agreed in writing, all equipment will be considered received by KRUSECOM upon off loading at the KRUSECOM facility, and the risk of loss for all goods being shipped shall remain with the party shipping the goods until KRUSECOM has purchased the same.
4.1.1 Any party doing business with KRUSECOM agrees that any Proprietary Information obtained is of a highly confidential and proprietary nature. The party receiving the Proprietary Information (the “Receiving Party”) will not use such Information except as reasonably necessary to perform its obligations under this Agreement.
4.1.2 For purposes of this Agreement, “Proprietary Information” including (a) all inventions, designs, processes, materials, trade secrets, technical information and know how and ideas of a proprietary and confidential nature of such party; (b) non-public financial information; (c) such party’s research and development, pricing, new product and marketing plans, unless and until publicly announced; (d) the terms of this Agreement; and (e) any other information designated as confidential by such party orally or in writing; provided that no oral communications shall be deemed confidential unless confirmed in writing to be so within thirty (30) days of the time such information is orally communicated, and provided further that Proprietary Information shall not include any information that: (i) becomes known to the general public without fault or breach on the part of the Receiving Party; (ii) the disclosing party customarily provides to third parties without restriction on disclosure; (iii) the Receiving Party obtains from a third party without breach of any nondisclosure obligation; or (iv) is required to be disclosed to a tribunal or other legal authority, provided that in the case of such required disclosures, the Receiving Party will provide advance notice of such disclosure to the Disclosing Party.
5.0 GENERAL PROVISIONS
5 .1 Governing Law . All Agreements shall be governed and construed in accordance with the statutory and decisional law of the State of Florida. venue and jurisdiction for any action or dispute involving KRUSECOM shall conclusively lie in Palm Beach County, Florida.
5.2 Assignment. Any Agreement may be assigned by KRUSECOM without the written consent of its customer, to a wholly owned parent or subsidiary of KRUSECOM. Customer(s) of KRUSECOM may not assign any rights or obligations without prior written consent of KRUSECOM, which consent may be withheld.
5.3 Governing Terms. By entering a contract or business transaction with KRUSECOM, you agree that these General Terms and Conditions shall apply and continue to govern your relationship with KRUSECOM. You also agree that e-mails, individually or in a string may constitute an agreement or contract between you and KRUSECOM. Facsimile signatures or e-mails may serve as originals for all purposes. All persons acting for you with KRUSECOM warrant(s) the authority to bind you. Furthermore, any party other than KRUSECOM to a contract which is an entity (i.e. Corporation, Limited Partnership, Limited Liability Company, Partnership) the person(s) acting on behalf of the entity with KRUSECOM agree(s) to personally guarantee any sum due to KRUSECOM.
5.4 Lien. KRUSECOM retains a perfected lien and/or security interest in or imposed upon all goods as from time to time sold or delivered for any or all sums due to KRUSECOM.
5.5 Nonwaiver. The failure of KRUSECOM to insist upon, in any instance, strict performance by the other party of any of the terms of any contract shall not be construed as a waiver of such right to enforce such terms on any future occasion.
5.6 Headings. Section headings are for convenience only and are not to affect the construction of or be taken into consideration in interpreting any contract.
5.7 Amendments . Any written and properly executed agreement between KRUSECOM and a third party constitutes the full understanding of the terms and conditions of their agreement relating to the subject matter thereof, and therefore supersedes all prior agreements (whether written or oral) between the Parties relating to the subject matter thereof. All agreements, whenever possible shall be read and interpreted in concert, and not in conflict, and, always in the light most favorable to KRUSECOM. No Party shall be considered the drafter of any agreement to which KRUSECOM is a Party.
5.8 Attorney’s Fees and Expenses. In the event that any action, suit or other proceeding in law or in equity is brought or relates to KRUSECOM, the prevailing party shall be entitled to recover its reasonable attorney’s fees and costs at pre-trial, trial and appellate levels from the non-prevailing party. Further, neither party shall be required to post bond in the event of equitable action.
5.9 Exclusivity. You agree that KRUSECOM shall be your sole and exclusive provider of the work and/or services performed by KRUSECOM.
5.10 Limitation of Liability. Except for claims relating to or derived from Certificates of Erasure or Disposal Certificates, in which event there shall be no limitation of liability, in no event shall either Party be liable to the other for lost profits or other special, incidental, consequential, punitive or indirect damages arising out of this Agreement, however caused and under any theory of liability. These limitations will apply even if such a Party has been advised of the possibility of such damage.
5.11 Warranties. Except as specifically stated herein or as otherwise specifically agreed in writing, KRUSECOM makes no other warranties, express or implied, regarding its work to be performed hereunder. Nor, in all events shall KRUSECOM, be liable to its Customer or any third party beyond the total of all sums paid to KRUSECOM in relation to products sold by KRUSECOM to KRUSECOM’s Customers and/or the total sum paid by KRUSECOM’s Customer [or by a third party on behalf of KRUSECOM’s Customer] to KRUSECOM in connection with goods or services. Further, except as expressly agreed herein, KRUSECOM shall have no liability for incidental, consequential, punitive or any other damage or claims suffered or imposed upon (including all attorneys’ fees and costs) which in any way relate to the relationship between any Customer or third party with KRUSECOM. See also http://www.KruseCom.com Waiver of Warranties and Customer Indemnity Relating to Data Erasure Which is Non DOD Compliant or Which Uses Less Than a Three Times Overwrite which terms incorporated herein by reference.
5.12 Authority. In the event Goods and/or Equipment to KRUSECOM and the same contain(s) data or information, which in KRUSECOM’s sole but reasonable discretion, KRUSECOM believes relate(s) to a third party, KRUSECOM is hereby authorized to contact the person(s) that KRUSECOM believes is the owner of said data or information to obtain instructions of how KRUSECOM is to handle or dispose of such data or information.
5.13 Invalidity. The invalidity of any one or more than one of these terms and conditions shall not affect the validity of any other term and condition.