Terms and Conditions of
PLEASE READ THESE TERMS AND CONDITIONS OF
Important Information About This Legal Contract
These terms and conditions are subject to change without prior notice at any time, in Derives sole discretion. By visiting, browsing, shopping, accessing or otherwise using the Site after a change has been posted to the Site, the Customer accepts that change. Customers should check this Sale Agreement and the Privacy Pledge frequently.
Acceptance of Contract Terms
This Sale Agreement, and all of its terms and conditions, constitute a legal contract between you and Derive Technologies, LLC ("Derive"). (References to "you" or "your" shall relate to a customer of Derive or other party that visits, browses, shops, accesses or otherwise uses the Site (the "Customer"); references to "Derive" shall relate to Derive Technologies, LLC and its affiliates.) By shopping on this site ("Site"), you acknowledge that you have read, understood, and agree to be bound by this Agreement and comply with all applicable laws and regulations, including U.S. export and re-export control laws and regulations. If you do not agree to this Agreement, as it may be changed by Derive from time to time, do not use this Site. The material provided on this Site is protected by law, including, but not limited to,
Any claim relating to, and the use of, this Site and the materials contained herein is governed by the laws of the state of
Derives Conditions of Sale
01.Entire Agreement. Any agreement for the purchase of goods and/or
services from Derive shall be governed by and is made subject to these Terms
and the Return Policies stated below (collectively, the "Agreement").
This Agreement constitutes the entire agreement between the parties relating to
the products and services provided by Derive to Customer. This Agreement may
not be amended or modified except by a written instrument executed by the party
against whom enforcement is sought, provided that Derive may, at its sole
option, revise the Agreement from time to time without notice to Customer by
posting the revised Agreement terms on its web site. Prices and availability
are subject to change without notice.
02. Accuracy of Data. Derive obtains certain data directly from the manufacturer, distributor, or other third party data provisioning sources for certain products. While Derive makes every effort to ensure the accuracy of this data, this web site could include typographical errors and/or technical inaccuracies. Derive reserves the right to make improvements and/or changes to such data and/or this web site at any time. Derive makes no warranty of any kind with respect to the data on this web site or the accuracy of advice given by Derive employees, whether or not such advice is made in writing.
03. Customer's Responsibility for Certain Shipping Charges. If Customer requests shipping charges be paid either on a collect basis or on Customer's account with the shipping company, and Customer refuses the shipment or refuses to pay the applicable shipping charges, Derive may bill Customer, and Customer agrees to pay Derive, for all resulting charges incurred by Derive either directly or through its supplier.
04. Goods Purchased for Export. If goods herein being purchased are being purchased for purposes of export, Customer must obtain from the U.S. government certain export documentation before shipping to a foreign country. In addition, manufacturers' warranties for exported goods may vary or even be null and void.
05. Taxes. Customer will pay all Federal, state, local, excise and other taxes imposed upon the products and services offered hereunder, excluding the taxes based on Derives income, assets or net worth. Customer may provide Derive a tax exemption certificate (subject to review and acceptance by our tax department). Any tax imposed by federal, state or other governmental authority on or with respect to the sale, purchase, delivery or use of equipment and services shall be paid by Customer.
06. Customer's Specifications. If any services, products or equipment provided under this Agreement are pursuant to or at the direction of Customer or contain software provided to Derive by Customer, Customer agrees to indemnify and hold Derive harmless from and against all liability, loss, damage and expense, including reasonable counsel fees, resulting from any claim by a third party of infringement, or any litigation based thereon, and such obligation shall survive payment therefore by the Customer. Derive will rely on the specific instruction, information and/or other software provided by Customer. Derive will not be responsible for delays or default in the failure of Customer to provide accurate instructions or information.
07. Licensing. Customer understands that for any and all software it authorizes Derive to install on Customer machines on behalf of Customer, that Customer accepts responsibility for acquiring valid licenses for installed software products - whether installed as individual software products, part of a software image or any other method. Customer understands that installation of software products by Derive does not constitute a right to use the software; a valid software license must be acquired for each product that is installed.
08. Limited Warranty. EQUIPMENT, PRODUCTS OR SERVICES PURCHASED BY CUSTOMER FROM DERIVE THAT WERE MANUFACTURED, PRODUCED OR PROVIDED BY THIRD PARTIES ("THIRD PARTY PRODUCTS") ARE PROVIDED ON AN "AS IS" BASIS, AND DERIVE MAKES NO WARRANTY WITH RESPECT TO SUCH THIRD PARTY PRODUCTS. If Customer discovers within the applicable warranty period a failure of the Third Party Products to substantially conform to the specifications or a defect in material or workmanship, Customer must promptly notify the manufacturer in writing. Customer will look solely to the third party that manufactured, produced or provided the Third Party Products for recovery on any claim of liability, whether express or implied, and will hold Derive harmless therefrom. Derives sole responsibility with respect to Third Party Products shall be to pass through to Customer any manufacturer warranties of the Third Party Products. AS TO PRODUCTS PRODUCED AND SERVICES PROVIDED SOLELY BY DERIVE ("DERIVE PRODUCT OR SERVICE"), DERIVE MAKES NO WARRANTY, EXPRESS OR IMPLIED, EXCEPT AS TO THOSE WARRANTIES SPECIFICALLY SET FORTH IN EITHER THE SPECIFICATIONS OF THE DERIVE RODUCT OR THE APPLICABLE STATEMENT OF WORK. If Derive is unable to correct the failure to conform to any such warranty after a reasonable number of attempts, Derive will provide at its option either: (a) replacement equipment, product or service, or (b) a refund of the purchase price. These remedies are Customer's exclusive remedies for breach of warranty on Derive Products or Services.
Any action for breach of warranty must be commenced within two months following expiration of the applicable warranty. Derive does not guarantee product compatibility. Defective and DOA (dead on arrival) product must be reported to Customer Service within 21 calendar days of the invoice date. All order discrepancies (shortages, mislabeled product, damaged product or overages) must be reported to Customer Service within five business days after receipt of the shipment. All non-defective returns must be reported to Customer Service within five business days after receipt of the shipment. Not all products are eligible for return, and not all products that are eligible for return are to be returned to Derive. Carefully review all return policies (below) before making your purchase. Shipping charges are not refundable.
09. Negation of Warranty. Derive does not warrant (a) product, components or parts not produced by Derive, (b) defects caused by failure to provide suitable installation or application environment for the equipment, (c) damage caused by use of the equipment for purposes other than those for which they were intended, (d) damage caused by disaster such as fire, flood, wind and lightning, (e) damage during shipment, (f) damage caused by unauthorized modification or improper installation of the equipment, or (g) any other abuse or misuse by Customer. No agent or employee of Derive or any other party is authorized to make any warranty in addition to those made in this Agreement.
10. Disclaimer of Warranty. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AND DERIVE HEREBY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
11. Limitation of Liability. Except for loss, damage and expense caused by gross negligence or intentional misconduct, neither party shall be liable to the other party for any indirect, special or consequential damages (including loss of profits) arising out of this Agreement, regardless of the form of action or theory of relief. Any liability arising under this Agreement is limited to the total fees and authorized costs received by Derive for services rendered pursuant to this Agreement. Further, no action, whether for indemnification or otherwise, regardless of form, arising out of the transactions under this Agreement, may be brought by either party more than one (1) year after the damage, loss or expense occurred, except that an action for non-payment may be brought within one (1) year after the date of last payment. Except as otherwise provided herein, Derive is not liable for any claim made by a third party or made by Customer for a third party.
12. Termination. Derive or Customer may terminate any order made pursuant to this Agreement with or without cause upon five (5) business days prior written notice to the other party. Termination shall not relieve Customer's duty to pay for equipment actually shipped, services actually performed or expenses incurred by Derive pursuant to this Agreement.
13. Confidential and Trade Secret Information. Neither party to this Agreement will use or disclose to any third party any confidential or proprietary information of the other party, including but not limited to, trade secrets, software applications, technology, know-how, business practices, and pricing information and any and all other documents marked confidential or proprietary, without prior written consent of the discloser thereof.
14. Intellectual Property Rights. Derive shall own all right, title and interest in any preexisting intellectual property used in carrying out the services hereunder or developed or created solely by Derive, even if such intellectual property is developed solely to implement the services hereunder. No license to such Derive intellectual property is granted hereunder. For the avoidance of doubt, Derive shall own all right, title and interest in the diagnostic materials and maintenance tools used or furnished by Derive.
15. Nature of Relationship. Derive is acting as an independent contractor to Customer. No personnel employed or engaged by Derive to perform the services for Customer will be considered Customer's employees, agents, partners, joint venture partners, or franchisor. Each party to this Agreement agrees to comply with all applicable laws, rules, and ordinances.
16. Insurance. Derive shall carry adequate insurance coverage to provide Workers compensation insurance as required by applicable state law; employer's liability insurance with limits of at least $300,000 per occurrence; comprehensive automobile liability insurance with limits of at least $1,000,000; and comprehensive general liability insurance with limits of at least $1,000,000.
17. Governing Law and Venue. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO ANY CHOICE-OF-LAW RULES. THOSE WHO CHOOSE TO ACCESS THIS SITE FROM OTHER LOCATIONS DO SO ON THEIR OWN INITIATIVE AND ARE RESPONSIBLE FOR COMPLIANCE WITH LOCAL LAWS, IF AND TO THE EXTENT LOCAL LAWS ARE APPLICABLE. ANY ACTION OR PROCEEDING SEEKING TO ENFORCE ANY PROVISIONS OF, OR BASED ON ANY SUIT ARISING OUT OF THIS AGREEMENT MAY BE BROUGHT AGAINST ANY OF THE PARTIES IN A COURT OF COMPETENT JURISIDICTION. NOTWITHSTANDING THE FOREGOING, CUSTOMER HEREBY AGREES THAT DERIVE MAY BRING ANY ACTION, PROCEEDING OR SUIT RESULTING FROM CUSTOMER'S NON-PAYMENT IN THE COURTS LOCATED IN NEW YORK COUNTY, NEW YORK, AND CUSTOMER HEREBY CONSENTS TO SUCH COURTS' JURISIDICTION.
18. Other. The terms, conditions and prices contained in any quote from Derive are subject to change until such time as Customer accepts the quote, furnishes payment or an obligation to pay that is satisfactory to Derive's Credit Department, and thereby converts or directs the conversion of the quote to an order. Derive shall have no obligation to honor any quotes until they are so accepted and converted. Travel expenses, sales tax and freight and delivery are not included in this Agreement and, where applicable to services and products purchased by Customer hereunder, will be the responsibility of the Customer. This Agreement is subject to credit approval by Derive. The Customer will provide appropriate credit references upon request and authorize to obtain credit history from such references. If Customer claims exemption from sales tax, an exemption certificate will be provided to Derive prior to conversion of any order to which such exemption applies.
and DOA (dead on arrival) product must be reported to your sales team within 15
calendar days of the invoice date. All order discrepancies (shortages,
mislabeled product, damaged product or overages) must be reported to Customer
Service within five business days after receipt of the shipment. All
non-defective returns must be reported to Customer Service within five business
days after receipt of the shipment.
Returns will be NOT be accepted without prior authorization and a return merchandise authorization ("RMA") number. RMA numbers issued by Derive are good for 15 business days only, and product must be received by Derive within that time. RMA numbers cannot be extended or re-issued. Clearly mark each address label of each package being returned with the RMA number. PLEASE DO NOT WRITE ON THE MANUFACTURER'S BOX.
Please have the following information on hand when calling for returns authorization: customer name, invoice number, serial number (all of which are on your invoice) and the nature of the problem.
Where a specific return period is applicable (see below), no returns will be accepted beyond that period. Return authorizations will not be granted after the stated return period has expired. All returns must be 100% complete, contain all original boxes and packing material, have original UPC codes on the manufacturer's boxes, and contain all blank warranty cards, accessories and documentation provided by the manufacturer. Incomplete returns may be returned to sender or subject to a restocking fee of 15%, depending on the condition of the return.
Please note below any and all additional return conditions applicable to your return. We reserve the right to add special returns conditions for specific manufacturers as manufacturer policies change, as manufacturers go out of business or if product was specially ordered.
Under no circumstances can the following products be returned:
Special order items
Items for which manufacturers will not accept returns
Items not purchased through Derive
Open units, units which require re-boxing, or units in an unsuitable resale condition
Closeout, remanufactured and refurbished products
ADDITIONAL RETURNS CONDITIONS APPLICABLE TO ALL SOFTWARE:
Opened software is not returnable.
Unopened software may be returned to Derive for refund or exchange within 30 calendar days of invoice date with no restocking fee.
Software licenses cannot be returned for exchange, refund or credit unless authorized by the manufacturer.
ADDITIONAL RETURNS CONDITIONS APPLICABLE TO ALL HARDWARE PRODUCTS THAT ARE NOT SPECIFICALLY ADDRESSED BELOW:
Unopened product that is in its original factory-sealed container may be returned to Derive within five business days from invoice date for a refund or exchange.
Opened product that is in its original packaging and in new and re-saleable condition may be returned to Derive within five business days of invoice date, although such returns will be charged a 20% restocking fee.
Any used, missing or damaged products, components or accompanying items will result in rejection of the return or an additional restocking fee, at Derive's sole option.
Product that is DOA (dead on arrival) or defective may be returned to Derive for refund or exchange within 21 calendar days of invoice date with no restocking fee.
MANUFACTURER-SPECIFIC HARDWARE RETURNS CONDITIONS:
Additional returns conditions applicable to all IBM products:
IBM products are not returnable to Derive unless they are defective upon arrival. If a product arrives DOA (dead on arrival), or if any product or part is defective, the customer should contact Derive Technologies or the manufacturer directly for service or exchange. Derive can be reached at (212) 363-1111 option 2; IBM can be contacted at (800) 772-2227.
Additional returns conditions applicable to all Xerox products:
Due to manufacturer policies, opened Xerox products are not returnable. Product that is in its original factory-sealed container may be returned within five business days from invoice date for a refund or exchange.
If a product arrives DOA (dead on arrival), or if any product or part is defective, you can contact Derive or Xerox directly at 1-800-835-6100 for service or exchange.
returns conditions applicable to all Toshiba products:
Due to manufacturer policies, these products are not returnable to Derive. Product that arrives DOA (dead on arrival) may be returned to Derive for EXCHANGE ONLY within 21 calendar days of invoice date with no restocking fee.
If any non-DOA product or part is or becomes defective, the customer should contact the manufacturer directly for service or exchange. Due to manufacturer policies, Derive cannot accept these returns for service or exchange.
Additional returns conditions applicable to Belkin "A" parts:
Due to manufacturer policies, Belkin "A" parts are not returnable or refundable because they are custom build-to-order parts.
Contact your account representative to process an RMA.
Attn: RMA #[Your RMA#]
Returns E-Mail: email@example.com
Disagreement with These Terms and Conditions
If you disagree with any of the terms and conditions of this User Agreement, please do not visit, browse, shop, access or otherwise use this Site.