PLEASE READ CAREFULLY: THE TERMS AND CONDITIONS SPECIFIED HEREIN (the “Terms”) ARE APPLICABLE TO PRODUCTS AND SERVICES (the “Products”) PURCHASED BY CUSTOMER (the “Customer”) FROM VIRTUAL SPROUT LLC (“Virtual Sprout”), UNLESS EXPRESSLY WAIVED OR SUPERCEDED BY A VALID WRITTEN AGREEMENT SIGNED BY VIRTUAL SPROUT AND ITS CUSTOMER.

 

THE PRODUCTS MAY, IN ADDITION TO THE TERMS SET FORTH HEREIN, BE SUBJECT TO OTHER TERMS AND AGREEMENTS WHICH THE PARTIES IDENTIFY AS INCORPORATED EITHER BY ATTACHMENT OR REFERENCE (“Supporting Materials”). SUPPORTING MATERIALS MAY INCLUDE (AS EXAMPLES) A MASTER SERVICES AGREEMENT AND SERVICE-SPECIFIC ADDENDA OR AGREEMENTS, SERVICE LEVEL AGREEMENTS, STATEMENTS OF WORK, AND ORDERS.

 

BY USING, DOWNLOADING, INSTALLING, COPYING, OR ACCESSING THE PRODUCTS, OR BY SELECTING AN “I ACCEPT” OPTION LOCATED ON OR ADJACENT TO ANY SCREEN WHERE THESE TERMS MAY BE DISPLAYED, THE CUSTOMER IS AGREEING TO THE TERMS SPECIFIED HEREIN. ANY PERSON WHO SELECTS AN “I ACCEPT” OPTION REPRESENTS AND WARRANTS THAT HE OR SHE HAS FULL AUTHORITY TO BIND THE CUSTOMER TO THESE TERMS.

 

ADDITIONAL TERMS AND CONDITIONS FROM THE MANUFACTURER OF CERTAIN PRODUCTS MAY APPLY.

 

1.             ORDERS

 

Notwithstanding anything herein or otherwise to the contrary, Virtual Sprout reserves the right to reject, cancel or invalidate any order if, in its sole and absolute discretion, it cannot fulfill the order for any reason whatsoever. Once fulfillment of an order has begun, the Customer may not cancel, terminate or defer the order, except with written approval from Virtual Sprout. The Customer is responsible for ensuring accuracy and completeness of each order prior to its submittal to Virtual Sprout.

2.             PAYMENT

 

  1. Prices will be as quoted in writing by Virtual Sprout or, in the absence of a written quote, as set out on Virtual Sprout’s website, customer-specific portal, or Virtual Sprout published list price at the time an order is submitted to Virtual Sprout. Prices for Products are quoted and payable in U.S. dollars. Until Customer is approved for payment terms, which approval may be withheld or revoked by Virtual Sprout in its sole and absolute discretion, payment for each purchase shall be made (i) in advance, (ii) COD, or (iii) by letter of credit satisfactory to Virtual Sprout (in its sole and absolute discretion). In the event Customer is approved, payment terms for each invoice shall be net thirty (30). Customer is responsible for paying each invoice when due in full, without setoff or deduction. Invoices not fully paid when due are subject to a service charge of one and one‑half percent (1.5%) per month, or the maximum amount permitted by law, whichever is less. Customer is responsible for all costs of collection, including without limitation court costs and reasonable attorneys’ fees incurred.
  2. Virtual Sprout may apply all or a portion of any payment received from Customer against any amount owing by Customer to Virtual Sprout under the Terms or any other agreement or obligation, regardless of any statement or invoice referring to such payment; provided, that application of such payment by Virtual Sprout to amounts due hereunder or under any other agreement or obligation of Customer shall not discharge Customer’s liability for any additional outstanding amounts owed by Customer to Virtual Sprout. Acceptance by Virtual Sprout of any such payments shall not constitute a waiver of Virtual Sprout’s right to pursue the collection of any remaining balance owed to Virtual Sprout under the Terms or any other agreement or obligation.
  3. The prices charged to Customer for any Product shall be the highest prevailing Virtual Sprout rate for such Product, subject to Virtual Sprout’s sole and absolute discretion and may be increased or decreased by Virtual Sprout in its sole and absolute judgment (including, but not limited to, in the event of any increase in the cost to Virtual Sprout of supplies, raw materials, labor, services, or any other increase whatsoever resulting from any governmental action or any other cause beyond Virtual Sprout’s control); provided, that such price increase(s) shall not apply to any Products that have been already delivered to Purchaser.
  4. Prices are exclusive of any customs duties, sales or use taxes, value added taxes, excise taxes, other federal, state, or local taxes, fees, withholding duties, other amounts due for sale, licensing or delivery of the Products, or other similar amounts (collectively, “Taxes”). Any and all Taxes shall be paid by Customer to Virtual Sprout, and must be remitted to Virtual Sprout along with the payment for the applicable Product order. To the extent Customer claims any exemption from Taxes, Customer must provide Virtual Sprout with an appropriate tax exemption certificate.
  5. Prices are exclusive of any charges associated with installation, shipping, or handling of the Products, unless otherwise quoted.

3.             DELIVERY

 

All Products are shipped F.O.B. Virtual Sprout or its designated shipping facility, at which point risk of loss is assumed by Customer. The Customer is responsible for (i) obtaining any desired insurance and paying all corresponding premiums and charges, and (ii) selecting a for-hire carrier for pick-up, loading, securing, transport and delivery of the Products and paying all corresponding freight and related charges. Customer may, at its sole option, select a carrier from a list supplied by Virtual Sprout, but selecting the carrier in this fashion will not affect the designated F.O.B., risk of loss assumption, or Customer’s remaining obligations under this section.

 

4.             TITLE, LICENSE, AND SECURITY INTEREST

 

Title to Products passes to Customer at the designated F.O.B. location; provided, however, that title to any software included with the Products remains with the applicable licensor(s). Software is protected by copyright law and/or international treaty provisions, and rights relating to a particular software program are listed in the license agreement document provided by the owner(s) of the software included with the Products. Where permitted by law, Virtual Sprout retains a security interest in Products sold until full payment is received.

5.             WARRANTIES AND LIMITATIONS

 

  1. Virtual Sprout will transfer to Customer any transferable warranties that Virtual Sprout receives from the manufacturer of the Products and will reasonably assist Customer in submitting and processing any warranty claims with said manufacturer.
  2. Virtual Sprout warranties, to the extent given, are expressly stated in the Supporting Materials.
  3. TO THE EXTENT NOT PROHIBITED BY LAW, THESE WARRANTIES ARE EXCLUSIVE, AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS WHATSOEVER, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, OR FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED BY VIRTUAL SPROUT.
  4. TO THE EXTENT NOT PROHIBITED BY LAW, IT IS UNDERSTOOD AND AGREED THAT IN NO EVENT SHALL VIRTUAL SPROUT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY, PROPERTY DAMAGE, DAMAGE TO OR LOSS OF EQUIPMENT, LOST PROFITS OR REVENUE, COSTS OF RENTING REPLACEMENTS AND ADDITIONAL EXPENSES, RESULTING FROM VIRTUAL SPROUT’S PERFORMANCE OR FAILURE TO PERFORM UNDER THIS SALE, OR FROM THE FURNISHING, PERFORMANCE OR USE OF ANY GOODS OR SERVICE SOLD PURSUANT HERETO, WHETHER DUE TO A BREACH OF CONTRACT, BREACH OF WARRANTY, THE NEGLIGENCE OF VIRTUAL SPROUT, OR OTHERWISE.
  5. VIRTUAL SPROUT’S AGGREGATE LIABILITY FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THE PRODUCTS OR ANY SUPPORTING MATERIALS, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL BE LIMITED TO THE TOTAL AMOUNTS ACTUALLY PAID TO VIRTUAL SPROUT FOR THE PRODUCTS GIVING RISE TO THE LIABILITY IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY LESS ANY REFUNDS OR CREIDTS RECEIVED BY CUSTOMER FROM VIRTUAL SPROUT.

6.             EQUIPMENT CHANGES

 

For any Product ordered, Virtual Sprout may, at its option and without any notice to Customer, substitute the most current version of the Product or substitute a version of the Product that is most compatible with Customer’s existing infrastructure and systems. Substitute Products shall perform and feature specifications at a level equal to or exceeding that of the replaced Products.

7.             GLOBAL TRADE COMPLIANCE

 

Products provided under these Terms are for Customer’s internal use and not for further commercialization. If Customer exports, imports or otherwise transfers products and/or deliverables provided under these terms, Customer will be responsible for complying with applicable laws and regulations and for obtaining any required export or import authorizations. Virtual Sprout may suspend its performance hereunder or under any Supporting Materials to the extent required by laws applicable to either party.

8.             FORCE MAJEURE

 

Neither party will be liable for performance delays or non-performance, due to causes beyond its reasonable control, except for payment obligations.

9.             GOVERNING LAW, JURISDICTION, AND COSTS

 

This agreement is governed by the laws of the State of Ohio, without regard to its conflict or choice of law provisions. Customer acknowledges and agrees that Ohio is an appropriate place for venue of any litigation and that Ohio courts have jurisdiction over this agreement and Customer. In the event the Customer and Virtual Sprout are unable to resolve any dispute, and any collection action, suit or other judicial proceeding is commenced, the prevailing party in any such collection action, suit or judicial proceeding shall be entitled to recover its costs and reasonable attorneys’ fees incurred.