Terms and Conditions

By accessing this web site of L9 SYSTEMS or its subsidiaries (collectively “L9 SYSTEMS” or “Seller”) or otherwise indicating acceptance as set forth below, you are agreeing to the following terms and conditions (as modified from time to time), and each time that you access L9 SYSTEMS you reassert your agreement. If you do not agree with these terms and conditions, then you may not access or use level9systems.com or any other L9 SYSTEMS web site. Certain L9 SYSTEMS Vendors require L9 SYSTEMS to pass-through terms for the Product to end users. By purchasing the Product from L9 SYSTEMS, Buyer agrees to these Vendor pass-through terms.

1. Terms and Conditions of Sale

All sales of products and finished goods offered and supplied by Seller to its customer (“Buyer”) for resale shall be pursuant to the following standard terms and conditions. Products may include, but are not limited to hardware products, software (including all open source licensed or distributed by L9, or incorporated into any software), and services (collectively “Products”). Any conflicting terms in your purchase order or elsewhere are without effect unless signed by the applicable party(ies). All Buyer purchases from L9 are deemed to be purchases pursuant to a written agreement.

a. ACCEPTANCE: Buyer’s acceptance of these Terms and Conditions shall be indicated by any of the following, whichever first occurs: (a) Buyer’s written acknowledgement hereof, (b) Buyer’s submission of an order to L9, regardless of whether the Product(s) ordered is ever delivered or if the purchase order is completely or partially fulfilled, rejected, modified or cancelled; (c) Buyer’s receipt of any part of the items specified for delivery in any purchase order submitted to L9 (c) Buyer’s application for credit submitted to L9, (d) accessing any L9 e-commerce web site, or (e) any other act or expression of acceptance by Buyer. Buyer’s acceptance is expressly limited to the Terms and Conditions in their entirety without addition, modification or exception and any term, condition, or proposal hereafter submitted by Buyer (whether oral or in writing), which is inconsistent with or in addition to the Terms and Conditions set forth hereon is objected to and is hereby rejected by Seller. Seller’s silence or failure to respond to any such subsequent term, condition or proposal shall not be deemed to be Seller’s acceptance or approval thereof.

b. ORDERS: L9 reserves the right to schedule and reschedule any order, with notice to Buyer, at L9’s reasonable discretion, and to decline any order for any reason, or no reason, in L9’s sole discretion.

c. DELIVERY: Delivery shall be made in accordance with Seller’s shipping policy in effect on the date of shipment. Product title and risk of loss will transfer to Buyer upon L9 tendering the Product for delivery to the carrier (F.O.B. Origin). If Buyer requests special shipping or handling, including expedited shipment, third-party billing, or freight collect, Buyer shall be responsible filing claims with the carrier and all freight and handling costs. Buyer shall pay for any special routing, packing, handling or insurance requested by Buyer and agreed to by L9. Orders shipped under special routing instructions must be separately agreed upon and may be subject to additional charges. L9 will not be subject to requirements of non-compliance programs of Buyer, including charges for product delays, missing/inaccurate shipping documents, labeling or product markings.

Buyer shall promptly notify Seller, no later than 30 days from invoice date, of any claimed shortages or rejection as to any delivery, with the exception of deliveries that reveal external shipping damage, which, in some instances, must be refused immediately upon delivery by the carrier. Such notice shall be in writing and shall be reasonably detailed stating the grounds for any such rejection. Failure to provide any such notice within such time shall be deemed an acceptance in full of any such delivery. Seller shall not be liable for any shipment delays that affect Seller or any of Seller’s suppliers, including but not limited to delays caused by unavailability or shortages of Products from Seller’s suppliers, natural disasters, acts of war or terrorism, acts or omissions of Buyer, fire, strike, riot, or governmental interference, unavailability or shortage of materials, labor, fuel or power through normal commercial channels at customary and reasonable rates, failure or destruction of plant or equipment arising from any cause whatsoever, or transportation failures.

d. PRICES: Prices payable by Buyer for the Products are specified on the invoice. Seller does not offer price protection. Buyer shall bear all applicable federal, provincial, municipal and other government taxes (such as sales, use and similar taxes), as well as import or customs duties, license fees and similar charges, however designated, levied on this sale or the Products (or the delivery thereof) or measured by the purchase price hereunder. Seller’s prices do not include such taxes, fees and charges. Exemption certificates must be presented prior to shipment if they are to be honored. To the extent any sale is made without the prior receipt of a valid exemption certificate, Seller expressly reserves the right to include on the invoice for such sale, or to separately invoice Buyer for all applicable taxes, fees and charges and Buyer agrees that these amounts shall be immediately due and payable.

e. PAYMENT TERMS: Buyer shall provide all financial information reasonably requested by L9 from time to time for the purpose of establishing or continuing Buyer’s credit limit. Buyer agrees that L9 shall have the right to decline or extend credit to Buyer and to require that the applicable purchase price be paid prior to shipment. L9 shall have the right from time to time, without notice, to change or revoke Buyer’s credit limit on the basis of changes in L9’s credit policies or Buyer’s financial condition and/or payment record.

Buyer shall not deduct any amounts from any L9 invoice without L9’s express written approval, which approval shall be contingent upon Buyer providing all supporting documentation for such deduction as required by L9. Any authorized deductions for returned Products must include Buyer’s customer tracking number and L9’s Return Merchandise Authorization (“RMA”) number. Deductions received by L9 without advance notice will be denied. No Program fees may be deducted from invoices.

If Buyer fails to make timely payment of any amount invoiced by L9, L9 shall have the right, in addition to any and all other rights and remedies available to L9 at law or in equity, to immediately revoke any or all credit extended, to delay or cancel future deliveries and/or to reduce or cancel any or all quantity discounts extended to Buyer. Buyer shall pay all costs of collection including reasonable attorneys’ fees. A service charge of the lesser or one and one-half percent (1 ½%) per month or the maximum amount allowed by law will be charged on all past due balances commencing on the date payment is due.

f. PRODUCT RETURNS: Return of Products purchased from L9 shall be governed by Seller’s product return policies in effect on the date of return. Seller reserves the right to modify or eliminate such policies at any time. Although Seller’s policies may permit Buyer to return Products claimed to be defective under certain circumstances, Seller makes no representations or warranties of any kind with respect to the Products.

g. POST AUDIT CLAIMS: L9 requires complete supporting documentation in advance for post audit deductions by Buyer. In the event that required documentation is missing, it must be provided allowing thirty (30) days from receipt date for investigation and response. Post audit claims must be submitted within six (6) months of the date of occurrence. Any claims outside this six (6) month period will be declined.

h. RESALE ONLY/EXPORT: All Products delivered to Buyer hereunder are for resale only and shall not be used for the internal business purposes of Buyer, or any parent company, subsidiary, or affiliate of Buyer. All Products delivered to Buyer hereunder, if sold in the United States, are intended for use in the United States only. Shipment of the Products outside the United States may require a valid export license and the approval of the manufacturers of such Products.

i. WARRANTIES; INDEMNITY: Buyer acknowledges that L9 is not the manufacturer of the Products that will be sold to it, and that L9 therefore will have no responsibility for, among other things, product warranties. Product warranties, if any, are provided by the manufacturer or publisher of the Products. L9’s sole obligation (and Buyer’s sole remedy) in the event of breach of any warranty shall be to assist the Buyer in its efforts to have the manufacturer repair or replace defective Product(s)

j. Vendor Restrictions: Some Product purchases and sales are limited to a specified territory, usage restrictions, or other Vendor specific authorizations. Buyer agrees to comply with any sales or usage restrictions imposed by the Vendor . Buyer shall comply with any applicable third party rights pertaining to the Products, including software or other intellectual property, such as patents, copyrights, and user licenses.

k. Software: For any software purchases, Buyer shall not modify, reverse engineer, or disassemble any of the software in any way, except as expressly permitted by the terms of the license agreement for such software. All purchases or use of software are subject to any end user license agreement which accompany the Product, and Buyer acknowledges that these license agreements are provided by the Vendor and not L9. Software bundled with hardware must be used solely with the intended Product and shall not be transferred for other use.

l. Records and Audit: Buyer agrees to maintain accurate records related the to these Terms and Conditions and to keep records relating to purchases and sales made pursuant to these Terms and Conditions for four (4) years from the date of the purchase. If requested by L9 or an applicable Vendor, Buyer agrees to produce relevant records to L9 for inspection and audit purposes only.

m. CONFIDENTIALITY: The receiving party shall protect the confidentiality and secrecy of the disclosing party’s Confidential Information and shall prevent any improper disclosure or use thereof by its employees, agents, contractors or consultants, in the same manner and with the same degree of care (but in no event less than a reasonable degree of care) as it uses in protecting its own information of a confidential nature for a period of three (3) years from the date of such disclosure. Each party must inform its employees having access to the other’s Confidential Information of restrictions required to comply with this Section 2(k). Each party agrees to provide notice to the other immediately after learning of or having reason to suspect a breach of any of the restrictions of this Section 2(k). Notwithstanding the foregoing, each party may disclose the other party’s Confidential Information if and to the extent that such disclosure is required by applicable law, provided that the receiving party uses reasonable efforts to limit the disclosure and provides the disclosing party a reasonable opportunity to review the disclosure before it is made and to interpose its own objection to the disclosure.

Each party retains for itself all proprietary rights it possesses in and to all of its own Confidential Information. Accordingly, Confidential Information which the disclosing party may furnish to the receiving party shall be in the receiving party’s possession pursuant only to a restrictive, nontransferable, nonexclusive license under which the receiving party may use such Confidential Information under the terms of this Agreement, solely for the purposes of satisfying its obligations hereunder. Each party understands that the party receiving Confidential Information may now or in the future be developing proprietary information internally, or receiving proprietary information from third parties in confidence that may be similar to disclosed Confidential Information. Nothing in this Agreement shall be construed as a representation or inference that the receiving party will not develop products, for itself or others, that compete with the products, processes, systems or methods contemplated by disclosed Confidential Information.

Each party acknowledges that any material violation of the rights and obligations provided in this Section 2(k) may result in immediate and irreparable injury to the other party, and hereby agrees that the aggrieved party shall be entitled to immediate temporary, preliminary, and permanent injunctive relief against any such continued violations upon adequate proof, as required by applicable law. Notwithstanding Section 2(m), each party hereby submits itself to the personal jurisdiction of the courts of competent subject matter jurisdiction for purposes of entry of such injunctive relief.

2. Limitation on Use
Buyer hereby acknowledges that Products are not intended for use in life support systems, critical care applications, human implantation, commercial aviation, nuclear facilities or systems or any other applications where product failure could lead to injury to persons or loss of life or catastrophic property damage. L9 hereby disclaims any liability or responsibility for risk of loss, expenses, cost, liability, litigation and/or potential adverse verdict or judgment in relation to any such use of the products.

3. Limited License
The information and databases provided to you via certain L9 e-commerce web sites is licensed to you by L9 for your use only in the ordinary course of your business for your review, selection and purchase of products from L9. This license is non-exclusive, non-transferable, and may be terminated by L9 with or without cause at any time.

4. Limitation of Liability
Except as specifically stated herein, neither L9 nor any of its directors, employees or other representatives will be liable for damages arising out of or in connection with your use of any L9 web site. This is a comprehensive limitation of liability that applies to all damages of any kind, including (without limitation) compensatory, direct, indirect or consequential damages, loss of data, income or profit, loss of or damage to property and claims of third parties. Except as specifically stated herein, neither L9 nor any of its directors, employees or other representatives will be liable for damages arising out of or in connection with your use of any L9 web site. This is a comprehensive limitation of liability that applies to all damages of any kind, including (without limitation) compensatory, direct, indirect or consequential damages, loss of data, income or profit, loss of or damage to property and claims of third parties.


5. Indemnity
You agree to defend, indemnify and hold L9 and its affiliates, and their respective directors, officers, employees and agents, harmless from and against any and all liabilities, costs and expenses, including reasonable attorneys’ fees, arising from or in any way relating to your use of any L9 web site or any Product acquired from L9.

6. Modification
These Terms and Conditions, along with (a) the terms and conditions on any L9 invoice, (b) the terms and conditions of the L9 credit application, and (c) the terms and conditions of any other agreement signed by authorized representatives of both Buyer and Seller, sets forth the entire agreement and understanding of the parties relating to the subject matter herein. In the event of a conflict between these various terms and conditions, they will take effect in the following order of precedence: (1) any signed agreement between the parties; (2) the terms and conditions on any L9 Invoice, (3) these Terms and Conditions, and (4) the terms and conditions in Buyer’s credit application to L9. Any terms and conditions on Buyer’s purchase order or any other document not signed by L9 shall have no force and effect.

Notwithstanding the foregoing, if Buyer and Seller have executed an agreement that specifically supersedes and replaces or modifies any or all of the Terms and Conditions, the terms of such Agreement shall control. No additional or different terms of conditions, whether material or immaterial, shall become a part of these Terms and Conditions unless expressly accepted in writing by an authorized officer of Seller. Any waiver by Seller of one or more of these Terms and Conditions or any defaults hereunder shall not constitute a waiver of the remaining Terms and Conditions or any future defaults hereunder. It is the intention of the parties that these Terms and Conditions shall be enforceable to the fullest possible extent, regardless of any partial invalidity or unenforceability, and that no failure or delay by either party in exercising or enforcing any right hereunder shall operate as a waiver thereof or preclude any other exercise or enforcement of rights hereunder. The rights and obligations of Buyer under the Terms and Conditions may not be assigned by Buyer without the prior written consent of Seller (which shall not be unreasonably withheld).

L9 may modify the information and functionality of any L9 web site at any time. L9 reserves the right, in its sole discretion, to modify, alter or otherwise update these Terms and Conditions at any time, and you agree to be bound by such modifications, alterations or updates. Any modifications, alterations or updates to these Terms and Conditions will be available to you on L9’s website, and you agree to regularly check L9’s website for new versions of these Terms and Conditions.

7. Governing Law/Venue
This Agreement shall be governed by and construed under the laws of the State of South Carolina, without regard to its principles regarding conflicts of law. The parties disclaim the United Nations Convention on Contracts for the International Sale of Goods in its entirety. The parties will attempt in good faith to promptly resolve any controversy, dispute or claim arising out of or relating to this Agreement through negotiations between the parties before resorting to other remedies available to them. If attempts to resolve the dispute amicably have failed or if negotiation to resolve the dispute is impossible (notably in case of urgent procedure to obtain a protective order), any action or proceeding between the parties relating to this Agreement shall take place in Greenville County, South Carolina and the parties hereby waive any objection to personal jurisdiction or venue in any forum located in that county. If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of the Agreement, which shall remain valid and enforceable according to its terms. Buyer agrees to pay court costs and reasonable legal fees incurred in the collection of any unpaid balances whether or not suit is filed. In the event of any litigation arising out of this Agreement or its enforcement by either party, the prevailing party shall be entitled to recover as part of any judgement, reasonable attorneys’ fees and court costs.

8. Compliance
Buyer agrees to comply with all applicable laws, statutes, and regulations with respect to the Buyer’s performance and obligations under these terms and conditions, including the sale or resale of Products. Buyer further acknowledges and agrees that the Products are subject to the export control laws and regulations of the United States, including, but not limited to, the Export Administration Regulations, and sanctions regimes of the U.S. Department of Treasury and Office of Foreign Asset Controls. Buyer shall not, without prior U.S. government authorization, export, reexport, or transfer any Products, either directly or indirectly, to any country subject to a U.S. trade embargo, or to any resident or national of any such country, or to any person or entity listed on the “Entity List” or “Denied Persons List” maintained by the U.S. Department of Commerce or the list of “Specifically Designated Nationals and Blocked Persons” maintained by the U.S. Department of Treasury. In addition, Buyer may not export, re-export, or transfer Products to an end-user engaged in activities related to weapons of mass destruction. Such activities include, but are not necessarily limited to, activities related to the design, development, production, or use of: (1) nuclear materials, nuclear facilities, or nuclear weapons; (2) missiles or support of missiles projects; (3) chemical or biological weapons; and 4) life support systems, human implantation, or any other application where Product failure could lead to loss of life or property damage. In accordance with the US Foreign Corrupt Practices Act (the “FCPA”), Buyer agrees it has not made, and will not make, any direct or indirect payment, or offer or authorization to pay, any money, gift, or anything of value to any government official, including the immediate family of any such official, for the purpose of influencing an act or decision of the government or such individual in order to assist, directly or indirectly, Buyer or L9 in obtaining or retaining business, or otherwise securing an improper advantage. At all times during the term of this Agreement, Buyer (including its affiliates), and its personnel shall comply with the requirements of L9, which may be modified from time-to-time.