Terms and Conditions
THESE TERMS AND CONDITIONS (“AGREEMENT”) APPLY TO YOUR ORDER AND PURCHASE OF HARDWARE, SOFTWARE, PROFESSIONAL SERVICES, AND SAFARI MICRO SKUABLE SERVICES (COLLECTIVELY, “PRODUCTS”) SOLD BY SAFARI MICRO. You accept the terms and conditions of this Agreement, unless you have a separate agreement signed by both your company and Safari Micro, in which case, that separate agreement will govern. Safari Micro may, from time to time and at its sole option, revise this Agreement without notice by posting the revised agreement on its web site. The Agreement posted on Safari Micro’s web site at the time Safari Micro accepts your order will govern that purchase. Safari Micro’s acceptance of any offer to purchase any Product by Client is expressly limited to and conditional upon Client’s agreement to these Terms and Conditions. Further, any deletion, addition or amendment of these Terms and Conditions (whether contained in Client’s purchase order, invoice, website or otherwise) shall have no effect and shall not constitute any part of or revision to the transaction contemplated between Safari Micro and Client unless expressly approved in writing.
The Safari Micro Quote (“Quote”) applicable to and specifying the Products that Client desires to purchase and these Terms and Conditions shall constitute the entire Agreement between the Parties and shall supersede all prior agreements, promises, proposals, understandings and quotations, whether written or oral, pertaining to the Products.
- Equipment Sales and Service. Safari Micro hereby sells and conveys to Client, and Client hereby purchases and accepts from Safari Micro, the Products as provided on the executed applicable Quote pursuant to these Terms and Conditions. Client shall pay to Safari Micro the Price (hereinafter defined) for the Products and for all obligations specified herein, as full and complete consideration and on the terms set forth in these Terms and Conditions. Payment terms are at Safari Micro’s sole discretion and are subject to Safari Micro’s approval. Safari Micro reserves the right, by giving written notice to Client at any time before delivery, to increase the Price to reflect any increase in the cost incurred by Safari Micro which is due to any factor beyond the sole control of Safari Micro, including, but not limited to, any change in delivery dates, quantities or specifications of the Products that are requested by Client, any delay caused by any instructions of Client or any failure of Client to give Safari Micro adequate information or instructions. Safari Micro shall retain a security interest in all Products until such Products are paid for in full pursuant to the terms of this Agreement. Availability of third party Products are subject to change without notice. Safari Micro reserves the right to cancel orders related to Product discontinuation or unavailability, and to correct this website at any time, including pricing errors not detected until after Safari Micro’s confirmation of a transaction.
- Price and Payment Terms. The price of the Products, including, but not limited to, any purchase price, service fee, equipment fee, or recurring fee (collectively, “Price”) shall be set forth on the applicable Quote. You agree to pay the total Price, plus tax and shipping (to the extent shipping is not prepaid by you, including shipping charges billed to Safari Micro as a result of using your carrier account number or a carrier selected by you). In addition to the Price, Client is solely responsible for the payment of any applicable value added tax, excise tax, sales tax, credit card handling fees or other assessment of a similar nature (collectively, “Assessments”) which are imposed or charged with respect to the Products. Unless Client provides Safari Micro with a duly executed sales tax exemption certification at the time of placement of the order pursuant to the applicable Quote, Safari Micro will add the Assessments, as permitted by the Agreement or as required by applicable law, to the Invoice. Invoices are due and payable within the time frame and in the currency specified on the invoice, measured from the date of invoice. If payment is not received by Safari Micro within fifteen (15) days of the payment deadline, Client shall pay to Safari Micro interest at a rate of one percent (1%) per month or the highest lawful rate permitted by law, whichever is greater. In addition to any other rights or remedies available to Safari Micro, Safari Micro shall have the right to suspend any of its obligations under the Agreement until such time that Client has paid all amounts past due in full. Notwithstanding the foregoing, Client shall be and remain liable for the full performance of all of its obligations hereunder and pursuant to the applicable Quote. Client will be responsible for Safari Micro’s costs of collection for any payment default, including, but not limited to, court costs, filing fees and attorneys’ fees. The provisions of these Price and Payment Terms shall survive the termination of the Agreement.
- Shipping and Delivery. Client is solely responsible for the payment of Safari Micro’s charges for packaging, delivery, shipping and transportation of the Products (collectively, “Shipping Costs”). Safari Micro will use commercially reasonable efforts to meet requested delivery times but does not guarantee delivery by a stated time and is not responsible for any damages due to delays or the failure to meet a stated delivery schedule. Safari Micro reserves the right to make deliveries in installments. Delay in delivery of one installment will not entitle you to cancel other installments. Product will be delivered to you FOB Destination (your designated facility), freight prepaid and added. Title and risk of loss shall pass to you when Product is delivered to your designated facility. Notwithstanding anything to the contrary in this paragraph, title to software Product remains with the applicable Licensors, and software delivery occurs when it is first made available by the licensor or Safari Micro for your use. Your use rights and obligations related to the software are contained in the license agreement between you and the licensor(s). If Client elects to use their own shipping method, Client bears all risk of loss once Products are transferred to their chosen carrier. Client agrees and understands that they have been advised to obtain insurance on the Product insuring against any loss while the Product is in transit to Client’s designated shipping location. Client agrees and understands that if the Product is lost or damaged in transit, Client shall nonetheless be responsible for paying the Price and all other costs it is responsible for under the Agreement. Client shall not be reimbursed by Safari Micro. Client shall inspect the Product within eight (8) calendar days of receipt. Unless Client gives written notice to Safari Micro within said period of time specifying any defect, Client agrees that Client is satisfied with and has accepted the Product in good condition and in working order. If Client fails to take delivery of the Product or any part of Product upon delivery and/or fails to provide any instructions, documents, licenses, consents or authorizations required to enable the Product to be delivered, Safari Micro shall be entitled, upon giving written notice to Client, to store or arrange for the storage of the Product. Upon such storage, risk of loss in the Product shall remain with Client and Client shall pay to Safari Micro all costs and expenses associated with such storage, including, but not limited to, Shipping Costs, storage fees and insurance charges arising from such storage. Notwithstanding Client’s failure to take delivery, Client shall still be obligated to perform under the Agreement, including performing all financial obligations hereunder.
- Software, Licensing, and Fees. For any Products that are software, software as a service or have pre-installed software or which operate in conjunction with related software applications (“Product Software”), Client understands and acknowledges that the Product Software may be necessary for certain Products to function properly. Upon the purchase and/or activation of any Software Product, Client shall be subject to the Product’s manufacturer’s end user agreements (“EUAs”) governing the use and access to the Product Software. Client expressly agrees by its acceptance of these Terms and Conditions to be bound by any applicable EUAs. The Parties hereby acknowledge and agree that neither Safari Micro nor the Client own the Product Software. Accordingly, Safari Micro shall not be responsible for the Product Software or the obligations of the Client or licensor under any agreement for the Product Software. Any one-time licensing setup fees and/or monthly recurring licensing and application fees for the Product Software shall be indicated on the applicable Quote and shall be considered a portion of the Price for purposes of the provisions of these Terms and Conditions and shall be the sole responsibility of the Client.
- Safari Micro Professional Services. Safari Micro and Client may agree from time to time for Safari Micro to provide certain implementation, configuration and other professional Services (the “Professional Services”). All Professional Services will be documented in a statement of work (“SOW”), which SOW shall include a detailed description of the Professional Services, the timeline or phases, assumptions, Client responsibilities and obligations, change management procedures, pricing, and such other terms as mutually agreed to by the parties. No SOW shall be binding on either party until executed by both parties. Upon execution, each SOW shall be automatically incorporated into these Terms and Conditions. In the case of a conflict between the terms set forth in these Terms and Conditions and those set forth in any SOW, the terms set forth in these Terms and Conditions shall control unless the SOW expressly states otherwise.
- Return and Cancellation Policy. No cancellations are allowed without Safari Micro’s prior written approval. You may request to cancel any order up to eight (8) calendar days prior to scheduled shipment upon written notice to Safari Micro, unless such product has been modified or otherwise reconfigured in accordance with your specifications (is a custom order or specially ordered item). Safari Micro will promptly notify you if your request is granted. If your request is not granted, the order will be processed and you will be required to honor it. If the request is granted, cancellation shall not relieve your duty to pay for Products shipped, services performed or expenses incurred by Safari Micro prior to cancellation. If an order is cancelled prior to shipment, your sole remedy and Safari Micro’s sole obligation will be a full refund of the purchase price paid for the Product, minus any cancellation fees required by the manufacturers, suppliers or Safari Micro.
Otherwise, except as permitted below, Client understands and acknowledges that there are NO RETURNS on any Products, Professional Services, Product Software, hardware, services or licenses. While certain manufacturers and distributors may allow returns if the Products are unopened and unused, this is always subject to the sole discretion of the applicable manufacturer and/or distributor. Apple, HP, Lenovo, Dell, Microsoft Surface Hardware, any Configure To Order or Build To Order Products, and Special Order products are not eligible for return or cancellation. Client understands and acknowledges that Safari Micro has no control over a manufacturer’s or a distributor’s return policies and agrees to abide by the same. In the event Client wishes eight (8) calendar days of receipt of the Product to request a return merchandise authorization (“RMA”). Promptly following receipt of the request for an RMA, Safari Micro will contact the applicable manufacturer or distributor to determine whether such manufacturer or distributor accepts returns of the Product. Cancellations or returns of orders following shipment must be made in accordance with the return policies of the manufacturer, publisher or supplier of the Product Further, Client understands and acknowledges that in no circumstance shall Safari Micro be liable to Client for a distributor’s or manufacturer’s refusal to accept a returned Product. Notwithstanding the foregoing, Products built to Client’s specifications, custom orders or specially ordered items cannot be returned or cancelled. Allowable returns may be subject to twenty percent (20%) or higher restocking fee and/or additional Shipping Costs, which shall be the sole responsibility of Client. Original Shipping Costs of any kind shall not be credited in any circumstance.
- The provisions of this Section shall survive the termination of the Agreement. As Safari Micro is not the manufacturer, no warranty (whether express, implied, or statutory) is made by Safari Micro regarding any Product, including Software Products. Client understands and acknowledges that Safari Micro is selling the Product and any Professional Services to Client “as is,” and Safari Micro makes no representations, warranties or conditions whatsoever regarding either the Professional Services or the Product or Client’s use or inability to use the Product. Safari Micro disclaims, to the maximum extent permitted by applicable law, any and all warranties relating to the Product and Professional Services, including, but not limited to, warranties of merchantability, merchantable quality, durability, the design, fitness for a particular purpose, non-infringement, quiet enjoyment or quiet possession or those arising by statute or in law, from a course of dealing or usage of trade. Safari Micro expressly disclaims any implied warranty against infringement under the Uniform Commercial Code and any other applicable law and is not responsible to indemnify Client or any other party in connection with any infringement claim. The entire risk arising out of the use or performance of the Product and Professional Services remains with Client. Safari Micro cannot and does not represent, warrant or covenant that: (a) the Product or Professional Services will meet Client’s business or other requirements; (b) the Product or Professional Services will operate or be provided without interruption; (c) the Product or Professional Services will be error-free, virus-free or that the results obtained from its use will be accurate, reliable or current; or (d) all errors in the Product or Professional Services can be corrected or found in order to be corrected. Safari Micro accepts no responsibility for, and does not warrant the accuracy, currency or reliability of any report or output data prepared by or with the assistance of the Product. Safari Micro shall not be liable in any event to Client for any loss, delay or damage of any kind or character resulting from defects in, inefficiency of or accidental breakage of the Product. No agent or employee of Safari Micro or any other party is authorized to make any affirmation, representation or warranty in addition to those made in this Agreement concerning the Product and/or Service and any unauthorized affirmation, representation or warranty shall not be enforceable unless set forth in writing and executed by a duly-authorized agent of Safari Micro. Safari Micro shall pass through to Client, to the extent available, any manufacturer’s/publisher’s/supplier’s written warranties associated with Products purchased from Safari Micro. Safari Micro shall provide the warranty certificate from the Product’s manufacturer regarding material defects in materials and workmanship when so requested in writing by Client.
- Limitation on Use. You agree and represent that you are buying Product and Professional Services for your own internal use and not for resale. If Product purchased under this Agreement is intended for export, it may be subject to export regulations. You accept full responsibility for and agree to comply fully with all export regulations, including obtaining export licenses. The export of Products may also alter or void the manufacturer’s or publisher’s warranty. PRODUCTS OFFERED BY SAFARI MICRO ARE NOT DESIGNED FOR USE IN LIFE SUPPORT, LIFE SUSTAINING, NUCLEAR SYSTEMS OR OTHER APPLICATIONS IN WHICH FAILURE OF SUCH PRODUCTS COULD REASONABLY BE EXPECTED TO RESULT IN PERSONAL INJURY, LOSS OF LIFE OR CATASTROPHIC PROPERTY DAMAGE. USE IN ANY SUCH APPLICATIONS IS AT YOUR SOLE RISK.
- Limitation of Liability. SAFARI MICRO WILL NOT BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF INCOME, PROFITS, DATA, OPERATIONAL EFFICIENCY, USE OR INFORMATION, ARISING UNDER THIS AGREEMENT REGARDLESS OF THE FORM OF ACTION OR THEORY OF RELIEF, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Any liability for damages arising under this Agreement, regardless of the form of action or theory of relief, is limited to the purchase price of the Product or Professional Services. No action arising out of the transactions under this Agreement may be brought by you more than one (1) year after damages, loss or expense occurred. Safari Micro is not liable for any claim made by a third party or made by you for a third party.
- Governing Law. The Agreement and any and all transactions contemplated thereby shall be governed by, construed and enforced in accordance with the laws of the State of Arizona. Any arbitration, enforcement of an arbitration or litigation in connection with this Agreement will be brought exclusively in Maricopa County, Arizona, and you consent to the jurisdiction of the federal and state courts located therein, submit to the jurisdiction thereof and waive the right to change in venue. You further consent to the exercise of personal jurisdiction by any such court with respect to any such proceeding. The United Nations Convention on Contracts for the International Sale of Goods will not apply to the order. Both parties are solely obligated to address and resolve all disputes associated with this Agreement or any order, including any damages or injuries to Your affiliates, and all claims related to this Agreement or any order will be brought by You in Maricopa County, Arizona as provided in this Agreement. The provisions of this Section shall survive the termination of the Agreement.
- Client may not assign the Agreement without the prior written consent of Safari Micro. Safari Micro has the right to assign or subcontract all or any portion of its rights or obligations under this Agreement without notice to or consent of Client. Subject to the restrictions contained in this provision, this Agreement will be binding on and inure to the benefit of the parties hereto and their successors and assigns.
- Notices provided under this Agreement must be in writing and will be deemed received upon the earlier of: 1) actual receipt; 2) three (3) days after mailing, if mailed postage prepaid by regular mail or airmail; or 3) one (1) day after such notice is sent by courier or electronic transmission to the email address through which business is regularly and customarily conducted.
- Any waiver, modification, consent, amendment or acquiescence with respect to any provision of this Agreement shall be set forth in writing and duly executed by both you and Safari Micro. The failure of Safari Micro to seek redress for a violation of or to insist upon the strict performance of any covenant or condition of the Agreement shall not prevent Safari Micro from subsequently exercising its rights or remedies hereunder with respect to such covenant or condition or affect any such right or remedy to a subsequent act, which would have originally constituted a violation. No waiver by Safari Micro of any breach of the Agreement will be deemed a waiver of any other subsequent breach. If any term or provision of the Agreement is found invalid, illegal, or unenforceable by a court of competent jurisdiction, it shall not affect the validity and enforcement of the remaining terms and provisions of the Agreement. If Safari Micro engages any attorney to enforce or defend any provision of the Agreement or as a consequence of any default under or breach of the Agreement by Client, with or without the filing of any legal action or proceeding, and including, without limitation, any fees and expenses incurred in any bankruptcy proceeding or in connection with any appeal of a lower court decision, Safari Micro shall be entitled to its reasonable attorneys’ fees and expenses and all costs incurred in connection therewith. The relationship between you and Safari Micro is that of independent contractors and not that of employer/employee, partnership, or joint venture. The provisions of this Section shall survive the termination of the Agreement.
- Force Majeure. Safari Micro shall not be liable for any loss, damage, delay or failure to deliver the Products or Professional Services due to causes or contingencies beyond its reasonable control, including but not limited to government action, supply issues, epidemics, fire, flood, acts of war, national disaster, delays in shipment, acts of terrorism, criminal activity. Safari Micro’s time for performance of any obligations will be extended for the time period of such delay, or Safari Micro may, at its options, cancel any order or remaining part thereof, without liability, upon notice to you.
- Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the purchase of Products and Professional Services from Safari Micro and supersedes all prior agreements and understandings, whether written or oral, between the Parties with respect to the matters contained in the Agreement. Any waiver, modification, consent or acquiescence with respect to any provision of the Agreement will be set forth in writing and duly executed by the Parties. SAFARI MICRO EXPRESSLY LIMITS ACEPTANCE OF TRANSACTIONS FOR PRODUCTS AND PROFESSIONAL SERVICES TO THE TERMS AND CONDITIONS HEREIN. Any additional or different terms or conditions contained in any purchase order or other documents provided by you are considered material alterations to this Agreement, are expressly rejected, and will not be binding upon Safari Micro.