Nirvara LLC Terms and Conditions of Sale
These Terms and Conditions of Sale (this “Agreement”), are entered into between Nirvara LLC, a Michigan Limited Liability Company, (“Nirvara”) and the entity purchasing products via or from Nirvara (“Buyer”, and together with Nirvara, the “Parties”, and each, a “Party”).
Sale of Goods. Nirvara shall sell or cause to be sold to Buyer and Buyer shall purchase via or from Nirvara the goods set forth in the applicable order (the “Goods”) in the quantities and at the Prices (as defined in Section 6) and upon the terms and conditions set forth in this Agreement. Buyer may issue a purchase order for administrative purposes only. Additional or different terms and conditions contained in any such purchase order shall be null and void. Orders are not valid until accepted by Nirvara, which may occur in writing or execution of the order. Certain original manufacturers and distributors have pass-through terms for the sale of Goods to end users. By purchasing the Goods from Nirvara, Buyer agrees to these Vendor pass-through terms; including, but not limited to, product warranties, shipping policies, and return policies; which are hereby incorporated by reference and available at:
(a) For NetApp products: https://www.netapp.com/pdf.html?item=/media/14109-channelendusertermsglobal.pdf
(b) For TechData distributed products: https://www.techdata.com/content/visitor/abouttd/conditions.aspx
Delivery.
(a) The Goods will be delivered according to the original manufacturer’s or its authorized distributor’s (the “Vendors”) terms of shipment. Nirvara shall not be liable for any delays, loss, or damage in transit.
(b) The Vendors will deliver the Goods to Buyer’s specified address (the “Delivery Point”) using their standard methods for packaging and shipping such Goods. Buyer shall take delivery of the Goods pursuant to the Vendor’s shipping policy. Shipping costs are estimated at time of order but shall be passed to Buyer upon execution of the order.
(c) Nirvara and the Vendors may, in their sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of the quantity purchased under this Agreement.
(d) If for any reason Buyer fails to accept delivery of any of the Goods on the date fixed pursuant to Nirvara’s notice that the Goods have been delivered at the Delivery Point, or if Vendor is unable to deliver the Goods at the Delivery Point on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Goods shall pass to Buyer; (ii) the Goods shall be deemed to have been delivered; and (iii) Nirvara, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
Non-Delivery. The quantity of any installment of Goods as recorded by Nirvara on dispatch from Nirvara’s place of business is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary. Nirvara shall not be liable for any non-delivery of Goods (even if caused by Nirvara’s negligence) unless Buyer gives written notice to Nirvara of the non-delivery within 5 business days of the date when the Goods would in the ordinary course of events have been received. Any liability of Nirvara for non-delivery of the Goods shall be limited to delivering the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered.
Title and Risk of Loss. Title and risk of loss pass to Buyer upon delivery of the Goods to the carrier. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Nirvara a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Michigan Uniform Commercial Code.
Inspection and Rejection of Nonconforming Goods.
(a) Vendors may allow returns subject to their return policies. Nirvara may, in its sole discretion, assist Buyer in effecting a return subject to the Vendor’s return policy.
(b) Buyer acknowledges and agrees that the remedies set forth in Section 5(a) are Buyer’s exclusive remedies for the delivery of the Goods. Except as provided under Section 5(a), all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Nirvara.
Price. Buyer shall purchase the Goods via or from Nirvara at the price[s] (the “Price[s]”) set forth by Nirvara in the applicable quote or order. If the Price[s] should be increased by Nirvara before delivery of the Goods to a carrier for shipment to Buyer, then this Agreement shall be construed as if the increased Price[s] were originally inserted herein, and Buyer shall be billed by Nirvara on the basis of such increased Price[s].] All Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs, and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Nirvara’s income, revenues, gross receipts, personnel, or real or personal property or other assets. Quotes for Goods are not binding on Nirvara.
Payment Terms.
(a) Buyer shall pay all invoiced amounts due to Nirvara within 30 days from the date of Nirvara’s invoice, or, at Nirvara’s sole discretion, at the time of order. Buyer shall make all payments hereunder by electronic payment or wire transfer/check and in US dollars. Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Nirvara for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees.
(b) Buyer and Nirvara may agree in a writing signed by both Parties to assign payments to a third-party distributor to facilitate certain purchases. Though payment may be assigned pursuant to this Section, all other terms contained in this Agreement still apply; and Buyer and Nirvara are remain obligated to perform under this Agreement.
No Setoff. Buyer shall not, and acknowledges that it will have no right, under this Agreement, any other agreement, document or law, to withhold, offset, recoup or debit any amounts owed (or to become due and owing ) to Nirvara or any of its affiliates, whether under this Agreement or otherwise, against any other amount owed (or to become due and owing) to it by Nirvara or its affiliates, whether relating to Nirvara’s or its affiliates’ breach or non-performance of this Agreement or any other agreement between Buyer or any of its affiliates, and Nirvara or any of its affiliates, or otherwise.
Warranties.
(a) Buyer understands that Nirvara is not the manufacturer of the Goods purchased by Buyer hereunder, and the only warranties offered are those of the Vendors, not Nirvara. In purchasing the Goods, Buyer is relying on the Vendor’s specifications only and is not relying on any statements, specifications, photographs, or other illustrations representing the Goods that may be provided by Nirvara.
(b) NIRVARA MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
(c) Products manufactured by a third party (“Third-Party Product”) are constituted, contained, contained in, incorporated into, attached to, or packaged together with, the Goods. Third-Party Products are not covered by the warranty in Section 9(b). For the avoidance of doubt, NIRVARA MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
(d) Buyer expressly waives any claim that it may have against Nirvara based on any product liability or infringement or alleged infringement of any patent, copyright, trade secret or other intellectual property rights (each, a “Claim”) with respect to any Goods and also waives any right to indemnification from Nirvara against any such Claim made against Buyer by a third party. Buyer acknowledges that no employee of Nirvara is authorized to make any representation or warranty on behalf of Nirvara that is not in this Agreement.
(e) THE REMEDIES SET FORTH IN SECTION 9(c) SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND NIRVARA’S ENTIRE LIABILITY FOR ANY BREACH OF THE VENDOR’S LIMITED WARRANTY.
Limitation of Liability.
(a) IN NO EVENT SHALL NIRVARA BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, OR IN CONNECTION WITH ANY BREACH OF THIS AGREEMENT, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT SELLER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND (D) THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL NIRVARA’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO NIRVARA FOR THE GOODS SOLD HEREUNDER.
Compliance with Law. Buyer is in compliance with and shall comply with all applicable laws, regulations, and ordinances. Buyer has and shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement.
Indemnification. Buyer shall indemnify, defend and hold harmless Nirvara and its officers, directors, employees, agents, affiliates, successors and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, fees and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers, incurred by Indemnified Party in a final non-appealable judgment, relating to any claim of a third party or Nirvara arising out of or occurring in connection with the products purchased from Nirvara or Buyer’s negligence, willful misconduct or breach of this Agreement. Buyer shall not enter into any settlement without Nirvara’s or Indemnified Party’s prior written consent.
Termination. In addition to any remedies that may be provided in this Agreement, Nirvara may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement and such failure continues for 30 days after Buyer’s receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of the terms of this Agreement, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors. To the extent consistent with Section 16, this Agreement shall terminate upon Buyer’s acceptance of the Goods.
Confidential Information. All non-public, confidential or proprietary information of Nirvara, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Nirvara to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized by Nirvara in writing. Upon Nirvara’s request, Buyer shall promptly return all documents and other materials received from Nirvara. Nirvara shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is: (a) in the public domain; (b) known to the Buyer at the time of disclosure; or (c) rightfully obtained by the Buyer on a non-confidential basis from a third party.
Entire Agreement. This Agreement, including and together with any related exhibits, schedules, attachments, and appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter.
Survival. Subject to the limitations and other provisions of this Agreement: (a) the representations and warranties of the Parties contained herein shall survive the expiration or earlier termination of this Agreement; and (b) Sections 12, 14, and 16 of this Agreement, as well as any other provision that, in order to give proper effect to its intent, should survive such expiration or termination, shall survive the expiration or earlier termination of this Agreement.
Notices. All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement must be in writing and addressed to the other Party at its address set forth in such address that the receiving Party may designate from time to time in accordance with this Section). Unless otherwise agreed herein, all notices must be delivered by email with verified receipt, personal delivery, nationally recognized overnight courier, or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a notice is effective only (a) on receipt by the receiving Party, and (b) if the Party giving the Notice has complied with the requirements of this Section.
Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal or unenforceable, the Parties shall negotiate in good faith to modify this Agreement to effect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
Amendments. No amendment to or modification of this Agreement is effective unless it is in writing, identified as an amendment to and signed by an authorized representative of each Party.
Waiver. No waiver by any party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
Cumulative Remedies. All rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties or otherwise. Notwithstanding the previous sentence, the Parties intend that Buyer’s rights under Section 3, Section 5, and Section 9 are Buyer’s exclusive remedies for the events specified therein.
Assignment. Notwithstanding anything to the contrary in this Agreement, Buyer shall not assign, transfer, delegate or subcontract any of its rights or obligations under this Agreement without the prior written consent of Nirvara. Any purported assignment, transfer, delegation, or subcontract in violation of this Section shall be null and void. No assignment, transfer, delegation, or subcontract shall relieve Buyer of any of its obligations hereunder. Nirvara may at any time assign, transfer, delegate, or subcontract any or all of its rights or obligations under this Agreement without Buyer’s prior written consent.
Successors and Assigns. This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns.
No Third-Party Beneficiaries. This Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns, and nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
Choice of Law. This Agreement, including all exhibits, schedules, attachments and appendices attached to this Agreement and thereto, and all matters arising out of or relating to this Agreement, are governed by, and construed in accordance with the laws of the State of Michigan, United States of America, without regard to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Michigan.
Choice of Forum. Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against the other Party in any way arising from or relating to this Agreement in any forum other than the state or federal courts of Kent County, Michigan. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation or proceeding. Each Party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT, INCLUDING EXHIBITS, SCHEDULES, ATTACHMENTS, AND APPENDICES ATTACHED TO THIS AGREEMENT, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY EXHIBITS, SCHEDULES, ATTACHMENTS OR APPENDICES ATTACHED TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
Force Majeure. Neither Party shall be liable or responsible to the other Party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of the Buyer to make payments to Nirvara), when and to the extent such failure or delay is caused by or results from acts beyond the reasonable control of the impacted Party (“Impacted Party”), including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, OTHER POTENTIAL DISASTER(S) OR CATASTROPHE(S), SUCH AS PANDEMICS/EPIDEMICS, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; and (i) other similar events beyond the reasonable control of the Impacted Party.
Quotes and Proposals not Binding. Any proposal or quote for Goods or services is an estimation only and neither the issuance of this quote or the submission of a proposal is binding on Nirvara. No binding agreement shall exist with respect to the provision of Goods or services unless and until a definitive agreement has been agreed and executed by both Buyer and Nirvara. Nirvara will not be liable under any circumstances for any expenses incurred by Buyer during the quote or proposal process.
Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, franchise, business opportunity, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. No relationship of exclusivity shall be construed from this Agreement.