THIS PURCHASE AND SALE AGREEMENT is made and entered by and between High Performance Systems, Inc., having its principal place of business at Honolulu, Hawaii, (“Seller”) and the undersigned the Buyer (“Buyer”) having its principal place of business as shown on the Invoice.
The Seller agrees to sell and the Buyer agrees to purchase on the covenants, terms and conditions set forth herein. The parties hereto agree as follows:
1. Definitions. For the purposes of this Agreement, the following definitions shall apply:
a) “Goods” shall mean the products described in the Seller’s most current comprehensive catalog, to include “Computer Hardware” and “Computer Software (as hereinafter defined).”
b) “Computer Hardware” or “Hardware” shall mean the computer hardware components and devices listed on this Invoice or such other Invoice involving the purchase and sale of the Goods being bought by the Buyer (“Invoice”).
c) “The Buyer’s Computer System” shall mean the combination of the Computer Hardware and Software and the peripherals and other computer components devices which are sold, directly or indirectly, by the Buyer, as identified by model and serial numbers as listed on this Invoice.
d) “Licensed Software” or “Software” shall mean the software identified on this Invoice, in object code form, all updates and revisions thereto supplied by Licenser during the term hereof and all permitted copies of the foregoing.
e) “Licensed CPU” shall mean a single central processing unit identified by microprocessor number on the Invoice attached hereto and made a part hereof.
f) “Use” shall mean the reading into and out of memory of the Licensed Software and the execution of such Software, in whole or in part, by the Licensed CPU.
g) “Configurations” shall mean the integration of component parts.
2. Purchase and Sale of Goods.
The Seller shall sell to the Buyer and the Buyer shall buy from the Seller the Goods described in the Invoice.
3. Purchase Prices, Taxes and Payment Terms.
a) The purchase price for the Goods shall be as set forth in the Invoice. The purchase price, together with all applicable shipping charges, other special charges and taxes, including any and all penalties, but less any credits or deposits, shall be payable in full to the Seller upon receipt of this Invoice by the Buyer. The Buyer shall pay a late payment charge of one and one-half percent (1.5%) per month, or the maximum rate permitted by applicable law, whichever is less, on any unpaid amount for each calendar month or fraction thereof that any payments are in arrears to the Seller.
b) The Buyer shall pay all taxes based on or in any way measured by this Agreement, the Goods or any services related thereto, including but not limited to the State of Hawaii General Excise Tax and any personal property taxes but excluding taxes based on the Seller’s net income. If the Buyer elects to challenge the applicability of such taxes, the Buyer shall pay such taxes to the Seller and the Buyer may thereafter challenge such taxes and seek refund thereof.
c) The Seller reserves the right at any time to suspend credit or to change credit terms provided herein, when in the Seller’s sole opinion the Buyer’s financial condition so warrants. In such case, in addition to any other remedies herein or by law provided, cash payment or satisfactory security from the Buyer may be required by the Seller before shipment, or order with the Seller and payment may be accelerated by the Seller. Failure to pay invoices as set forth above makes all subsequent invoices immediately due and payable, irrespective of terms, and the Seller may withhold all subsequent deliveries until the full account is settled. The Seller’s acceptance of less than full payment shall not be a waiver of any of its rights. No cash discount will be allowed on payments made by trade acceptances, notes, securities, postdated checks, etc., and such method of payment must be first approved in writing by the Seller.
4. Shipment, Packaging and Delivery.
a) The mode of shipment of the Goods shall be selected by the Seller in accordance with the Seller’s standard freight policy in effect at the time of shipment and the cost of such shipment shall be added to the purchase price set forth in the Invoice.
b) The Computer Hardware and Software shall be packaged in accordance with the Seller’s then current packaging specifications for such Goods or the mode of shipment the Seller selects, and the cost of such packaging shall be included in the purchase price of the Invoice.
c) In the event the Buyer requests shipment not in accordance with the Seller’s Standard Freight Policy, the Buyer will bear the cost of all freight and handling.
d) The Goods shall be delivered F.O.B. the Seller’s shipping point (manufacturing area or staging area), and the Buyer assumes all risk of loss therefor thereafter.
e) The Seller may charge, and the Buyer shall pay, a special handling fee for any shipment of Goods less than $300.00 in value.
f) C.O.D. fees may also apply.
a) The Buyer shall examine all Goods promptly upon receipt thereof. No later than thirty (30) days after receipt, the Buyer shall notify the Seller of all claimed shortages or damaged Goods, or if rejection is intended, shall specify all grounds therefor. Failure to give such written notice shall be deemed an acceptance of the Goods as of the date of shipment.
b) Within thirty (30) days after the purchase or within ten (10) days of receipt thereof by the Buyer, the Buyer may return to the Seller for an exact replacement of any Goods found to be defective; provided that the Buyer shall obtain the Seller’s approval prior to returning the Goods. The Seller reserves the right to require the Buyer to return the defective Goods directly to the Manufacturer or Publisher for replacement according to the Manufacturer’s or Publisher’s defective Goods policy.
c) The Buyer’s failure to present a written claim respecting any shipment hereunder, within ten (10) days after receipt thereof shall constitute a waiver of all claims with respect thereto.
a) Goods warranties, if any, are provided by the Manufacturer/Publisher of the Goods. The Seller makes no additional warranties whatsoever.
b) If the Goods are configured by the Seller, the Seller will functionally test such configuration to insure that the configuration of components was performed correctly and the Buyer’s computer system meets the functionality and compatibility specifications expected from such configuration, but will not be liable for incompatibilities or dysfunction caused by the design, manufacture or condition of components not directly related to the services performed by the Seller.
c) Configuration services will have a warranty of thirty (30) days from date of shipment. This warranty is made solely to the Buyer. The Seller provides no warranty of Goods used in configurations. The Buyer must contact the Manufacturer/Publisher directly for Goods warranty information.
d) If the Goods fail to meet the warranties of Paragraph 6(c) above and the Buyer gives the Seller written notice thereof during the warranty period, the Seller may correct the failure by repair, replacement, or adjustment; or at the Seller’s option and sole discretion, the Seller may take back the Goods and return the purchase price to the Buyer, whereupon the Seller shall have no further obligation to the Buyer.
e) IN NO EVENT SHALL THE SELLER BE LIABLE FOR ANY CONSEQUENTIAL DAMAGES OR DAMAGES OF ANY KIND OR NATURE ALLEGED TO HAVE RESULTED FROM ANY BREACH OF WARRANTY (IMPLIED OR EXPRESS).
f) The Buyer shall be solely responsible for the selection, use, efficiency and suitability of the Goods.
g) The Seller shall not be liable to the Buyer for the warranty provisions of this Paragraph 5 if:
1) Modifications are made to the Goods by other than the Seller;
2) Attachments, features or devices are employed on the Goods which are not supplied by the Seller or are approved in writing by the Seller;
3) Other than the current version of the operating system software available from the Seller is used on the Computer Hardware; or
4) The Goods are subject to misuse or abuse.
h) EXCEPT AND TO THE EXTENT EXPRESSLY PROVIDED IN THIS PARAGRAPH 5 AND IN LIEU OF ALL OTHER WARRANTIES, THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE.
7. Negation of Propriety Rights Indemnity.
a) The computer hardware and software is provided and sold on an “as is” basis and the Seller shall have no liability to the Buyer for the infringement of any patents, copyrights, trade secrets, or other proprietary rights by the computer hardware or software or any portion thereof.
b) Notwithstanding any other terms or conditions to the contrary, the Seller’s liability, if any, under this section, shall not exceed the purchase price of the infringing hardware or software, less reasonable depreciation computed on a three-year straight line basis.
8. Manufacturer/Publisher Restrictions.
a) All Goods delivered to the Buyer may have additional restrictions on its use as required by the Manufacturer/Publisher. The Buyer is solely responsible for adherence to any and all such restrictions or requirements.
b) The Goods may require prior written permission of the Manufacturer/Publisher in order to export outside of the United States. If permission is granted, the exportation of the Goods and documentation shall be subject to the Export Administration Regulations of the United States Department of Commerce and all other laws and regulations pertaining to the export of such Goods.
a) This agreement may be terminated or canceled by the Seller if:
1) The Buyer fails to pay the Seller the purchase price, or the required deposit, if any;
2) The Buyer is in default on any other provision of this Agreement and such default has not been cured within twenty (20) days of written notice thereof given by the Seller; or,
3) The Buyer becomes insolvent or seeks protection, voluntarily or involuntarily, under any bankruptcy laws.
b) In the event of any termination/cancellation of this Agreement, the Seller may:
1) Declare all amounts owed to the Seller to be immediate due and payable;
2) Enter the Buyer’s premises and repossess the Goods and all other items supplied by the Seller; and,
3) Cease performance of all the Seller’s obligations under this Agreement without any liability to the Buyer.
c) The foregoing rights and remedies of the Seller shall be cumulative and in addition to all other rights and remedies available to the Seller in law and in equity.
10. Limitation of Liability.
a) In no event shall the Seller be liable to the Buyer or any other party for any indirect, special or consequential damages or lost profits, even if the Seller has been advised of the possibility thereof, arising out of or related to this Agreement or the performance or breach thereof. The Seller’s liability to the Buyer hereunder, if any, shall in no event exceed the purchase price of the Goods or the total of the amounts paid to the Seller hereunder by the Buyer, whichever is less.
b) In no event shall the Seller be liable to the Buyer or any other party or entity for any damages resulting from or related to any failure or delay of the Seller in the delivery or installation of the computer hardware or software or in the performance or other services under this agreement.
a) This Agreement shall be deemed effective upon execution thereof by the Buyer and acceptance thereof by an authorized representative of the Seller.
b) Any cause of action arising out of or related to this Agreement must be brought no later than one (1) year after the cause of action has accrued.
c) This Agreement is the exclusive agreement between the parties relating to the subject matter hereof and superseded all prior understandings, writings, proposals, representations or communications, oral or written, by either party. This Agreement may only be amended by a writing executed by the authorized representatives of both parties.
d) This Agreement shall be interpreted in accordance with the substantive laws of the State of Hawaii and the Seller and the Buyer hereby consent to the jurisdiction of the Hawaii courts.
e) Arbitration. All disputes, questions, controversies or claims arising out of or in connection with this Agreement or relating thereto shall be settled by confidential binding arbitration in Honolulu, Hawaii, by a single arbitrator to be selected by the parties, or, if they cannot agree within fifteen (15) business days after a written demand for arbitration by either party, then to be appointed by the American Arbitration Association, in accordance with the Commercial Arbitration Rules of the American Arbitration Association and Hawaii law, and judgment upon the award rendered by that arbitrator may be entered in any court having jurisdiction. The award of the arbitrator shall be deemed final and binding for all purposes. The arbitration procedure and the award may be enforced in accordance with Hawaii law including Chapter 657, Hawaii Revised Statutes. The Hawaii Rules of Civil Procedure shall apply to the discovery in any such arbitration, if desired by either party. The arbitrator shall be an individual knowledgeable in the legal and business aspects of the subject matter of this Agreement. In no event shall the demand for arbitration be made after the date when commencement of legal or equitable proceedings based on the claim or dispute would be barred by applicable statue of limitations. The Seller and the Buyer shall each pay one-half (1/2) of all proper costs and expenses of such arbitration, other than attorneys’ and witnesses’ fees incurred by the respective parties.
f) Assignment. The Buyer shall not assign any order or any interest therein without the express prior written consent of the Seller. Any such actual or attempted assignment without the Seller’s written consent shall entitle the Seller to cancel such order upon written notice to the Buyer.
g) Severability. The invalidity, illegality or unenforceability of any provision of this Agreement shall not affect the enforceability of any other provision of this Agreement.
h) Headings. The headings used herein are inserted only for convenience and reference purposes and shall in no way define, limit or describe the scope of any provision of this Agreement.
i) Facsimile Signatures. The parties hereto mutually agree that facsimile signatures on this Agreement and any other document, if any, related to the transaction contemplated herein shall be binding and effective for all purposes and will be treated the same as signatures on the original document. The parties agree to promptly forward signed copies of the originals to the other party. However, the signed facsimile documents will remain binding even if the originals are not sent to or received by the other party.