Please
carefully read the below listed terms and conditions before
utilizing web site - http://www.gstinc.com
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Web
Site Utilization
By using this site, you signify your
consent to these terms of use. If you do not agree to these
terms of use, please do not use this site. GST reserves the
right, at our discretion, to change, modify, add, or remove
portions of these terms at any time. Please check these terms
periodically for changes. Your continued use of this site
following the posting of changes to these terms will mean
you accept those changes.
By accepting delivery of any product delivered from GST, Inc.
("SELLER"), you ("BUYER") agree to be
bound by the terms and conditions listed below. BUYER and
SELLER agree that the following terms and conditions are the
exclusive terms governing the sales transaction between BUYER
and SELLER. Any attempt to alter, supplement, modify or amend
these terms and conditions by the BUYER will be considered
a material alteration of this agreement and, therefore, are
null and void. In addition, these terms and conditions are
subject to change at any time, without prior written notice.
Therefore, please check these terms and conditions carefully
each time you place an order with or accept delivery of any
goods from SELLER.
This site is owned and operated by GST, Inc. No material from
this site or any Web site owned, operated, licensed or controlled
by GST may be copied, reproduced, republished, uploaded, posted,
transmitted, or distributed in any way, except that you may
download one copy of the materials on any single computer,
provided you keep intact all copyright and other proprietary
notices. You may not modify the material in any way, without
the prior written consent of GST. Except as expressly stated
in this legal notice, no rights or licenses to the material,
or any portion thereof, shall be granted or implied. All content
included on this site, such as text, graphics, logos, button
icons, images, audio and video clips and software, is the
property of GST or content suppliers and is protected by U.S.
and international copyright laws. All software used on this
site is the property of GST or its software suppliers and
protected by U.S. and international copyright laws. The content
and software on this site may be used as a buying resource.
Any other use, including the reproduction, modification, distribution,
transmission, republication, display or performance, of the
content on this site is strictly prohibited. All company and
product names contained in this Web site may be trademarks
or registered trademarks of their respective owners. The use
or misuse of these trademarks except as expressly authorized
is prohibited.
If you have questions concerning the legal notices stated
above, you may contact GST, Inc. at its corporate headquarters
identified elsewhere (see Contact Us) on this Website.
Under no circumstances, including, but not limited to, negligence,
shall GST be liable for any special or consequential damages
that result from the use of or the inability to use the materials
in this site, even if GST or an authorized representative
of GST has been advised of the possibility of such damages.
Applicable law may not allow the limitation or exclusion of
liability or incidental or consequential damages, so the above
limitation or exclusion may not apply to you. In no event
shall GST's total liability to you for damages, losses and
causes of action (whether in contract, negligence, or otherwise)
exceed the amount paid by you, if anything, for accessing
this site.
Please note that all prices listed are list prices and are
subject to change without notice.
These terms shall be governed by and construed in accordance
with the laws of the State of California, without giving effect
to any principles of conflicts of law. You agree that any
action at law or in equity arising out of or relating to these
terms shall be filed only in the state or federal courts located
in Orange County, California, and you hereby consent and submit
to the personal jurisdiction of such courts for the purposes
of litigating any such action. If any provision of these terms
shall be unlawful, void, or for any reason unenforceable,
then that provision shall be deemed severable from these terms
and shall not affect the validity and enforceability of any
remaining provisions. This is the entire agreement between
us relating to the subject matter herein and shall not be
modified except in writing, signed by both parties.
Sales Transactions.
1. SALES PRICE, TERMS AND PAYMENT: The sales
price of the Equipment is set forth on the front hereof. All
sales are final. No refunds or returns are allowed. Unless
otherwise provided on the front hereof, payment in full of
the sales price is due upon execution
or on-line acceptance of this Agreement, and in advance of
Equipment delivery.
2. RESTOCKING
FEE: If an RMA is issued by GST, an open box fee
equal to 20% of the purchase price will be charged on any
opened item returned.
3. TAXES: The sales
price does not include any amount for present or future sales,
excise or other similar tax which may be applicable to the
sale of the Equipment or the use thereof by BUYER. BUYER agrees
to pay all such taxes including interest and penalties therein.
If SELLER is required to pay them to the taxing authority,
BUYER will promptly reimburse SELLER for the amount paid.
In the event BUYER is purchasing for resale, a duly executed
exemption certificate for resale shall be delivered to SELLER
prior to delivery of the Equipment.
4. FREIGHT COSTS, DELIVERY,
AND SHIPPING POLICIES: The Equipment purchased pursuant
to this Agreement shall be delivered to BUYER’S address
as it appears on the reverse side of this Agreement. BUYER
agrees to pay for all shipping, transportation, rigging, delivery
and drayage costs, as well as any and all other costs associated
with the shipping and/or delivery of the Equipment purchased
pursuant to this Agreement. SELLER shall not be liable for
any failure or delay in furnishing the Equipment materials
or labor resulting from fire, explosion, flood, storm, Acts
of God, government acts, orders or regulations, hostilities,
civil disturbance, strike, labor difficulties, machinery breakdown,
transportation contingencies, difficulty in obtaining parts,
supplies, or shipping facilities or delays of carriers. BUYER
orders are processed within one business day and are shipped
FedEx Ground unless otherwise specified at the time of order.
Within. All orders are subject to shipping and handling fees.
All orders will be insured by SELLER for the BUYER purchase
price. BUYER is responsible shipping, handling, and insurance
costs.
5. CLAIMS, DUTY TO EXAMINE:
The BUYER is responsible to notify the carrier shipping the
Equipment of any loss and for filing a claim for recovery
of any loss occurring during transit. BUYER agrees to examine
promptly all Equipment upon receipt and to notify SELLER of
Equipment which is not in good working order, non-confirming
deliveries or claims within seven calendar days after receipt.
6. INSTALLATION: BUYER
shall make available, and agrees to pay for all costs associated
with providing a suitable place of installation and the necessary
electrical power, outlets and air conditioning required for
operating the Equipment as defined in the Equipment manufacturer’s
installation manual.
7. RISK OF LOSS; SECURITY INTEREST:
With regard to Risk of Loss in the Event of a Breach
of this Agreement, BUYER, at his or her own expense, shall
independently seek adequate insurance coverage for the goods
sold under this contract. The risk of loss shall pass to Buyer
on the signing or on-line acceptance of this contract. BUYER
shall not look to SELLER for any deficiency in insurance coverage,
notwithstanding the fact that the BUYER may have the right
of rejection, or that SELLER may be in breach of this Agreement.
With regard to the Risk of Loss in absence of a breach of
this Agreement, the Risk of Loss shall pass to BUYER as soon
as the goods are ready for delivery, and without regard to
any notice that they are ready for delivery. It is agreed
that SELLER shall reserve a security interest in the Equipment
sold under this Agreement until the time in which full payment
has been made to SELLER.
8. MAINTENANCE; WARRANTIES;
DISCLAIMERS: SELLER represents and warrants that,
at the time the Equipment is delivered, the SELLER will be
the lawful owner of the Equipment, free and clear of any liens
and encumbrances (other than those which may arise from this
Agreement) and will have full right of power and authority
to sell the same to BUYER.
BUYER must examine promptly all of
the Equipment upon receipt and notify SELLER within seven
calendar days after receipt if the equipment is not in good
working order or is non-conforming. SELLER, at the SELLER’S
option, SHALL either repair or replace the Equipment at SELLER’S
expense. Should the cost to replace or repair the Equipment
exceed the sales price of the Equipment, SELLER reserves the
right to refund the sales price to the BUYER, in which case
SELLER shall have no additional liability to BUYER. BUYER’S
failure to notify seller as set forth above, shall constitute
acceptance of the Equipment in “As Is” condition
and waiver of this provision. Nothing in this Agreement or
this provision 7 shall be construed to require SELLER to provide
remedies with regard to Equipment that was damaged in any
way through the negligence or intentional actions of any third
party
THE EXPRESS WARRANTIES HEREIN CONTAINED
ARE IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESSED OR
IMPLIED, AS TO ANY WARRANTIES, INCLUDING WITHOUT LIMITATION
ANY WARRANTY RELATING TO THE DESIGN, QUALITY OR CONDITION
OF THE EQUIPMENT, ITS MERCHANTABILITY, FITNESS OR CAPACITY
FOR ANY PARTICULAR PURPOSE NONINFRINGEMENT, ANY WARRANTIES
ARISING FROM COURSE OF DEALING OR USAGE OF TRADEOR ANY OTHER
MATTER.
9. OPTION TO TERMINATE:
SELLER reserves the right to terminate this Agreement if A)
BUYER does not or is unable to accept delivery of the Equipment
or B) BUYER becomes insolvent or is the subject of proceedings
under law relating to bankruptcy or C) BUYER fails to perform
any term or provision of this Agreement. The right to terminate
will be exercised by written notice to BUYER, thereafter SELLER
shall have the right to take immediate possession of the EQUIPMENT
and to retain all money paid hereunder to the date of such
notice as liquidated damages. In this regard, the parties
to this agreement agree that this liquidated damages provision
is reasonable in light of (1) the anticipated or actual harm
caused by the breach, (2) the difficulties of proof of loss,
and (3) the inconvenience or non-feasibility of otherwise
obtaining an adequate remedy. The parties agree that such
liquidated damages provision is not a penalty as defined by
California Commercial Code §2718 and provisions relating
thereto.
10. ADDITIONAL FEATURES:
If the Equipment contains any features not specified in the
Agreement, BUYER will allow SELLER, at the option and expense
of SELLER, the right to remove such features. The removal
will be performed by the manufacturer or the party acceptable
to BUYER, upon the request of SELLER, at a time convenient
to BUYER, provided that BUYER shall not unreasonably delay
the removal of such features.
11. SUBSTITUTION AND EQUIPMENT
CHANGES: If in the best interest of SELLER and BUYER,
upon written notice by SELLER, SELLER may provide Equipment
with different serial numbers than those shown above. The
model and specifications on the front hereof may be changed
by written consent and agreement between BUYER and SELLER.
12. LIMITATION OF LIABILITY:
SELLER SHALL NOT BE LIABLE, TO ANY EXTENT WHATSOEVER, TO ANY
PERSON FOR ANY CLAIM, LOSS, DAMAGE OR ANY EXPENSE OF ANY KIND,
INCLUDING SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, ARISING
OUT OF OR IN CONNECTION WITH THE SELECTION, USE OR PERFORMANCE
OF THE EQUIPMENT, AND SHALL NOT BE LIABLE FOR ANY SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION
WITH SELLER’S FAILURE TO PERFORM ITS OBLIGATIONS HEREUNDER.
13. NOTICES: Any notice
provided to SELLER for herein shall be in writing and sent
by registered or certified mail, postage prepaid, addressed
to the party for which it is intended at the address set forth
on the front page of this Agreement, or to such other address
as other party shall from time to time specify in writing,
said notice to be deemed effective upon receipt or three days
from the date of deposit in the US mails, whichever occurs
first.
14. GENERAL:
A. This constitutes
the entire Agreement between SELLER and BUYER with respect
to the purchase and sale of the Equipment and no amendment,
modification, waiver or representation, or statement not contained
herein shall be binding upon SELLER or BUYER as a warranty
or otherwise, unless in writing and executed by the part to
be bound thereby.
B. The parties agree that jurisdiction for the purpose of
all issues of law, fact, or equity arising out of this Agreement
or any additions, amendments, or supplements thereto, shall
be in the state or federal courts located in the State of
California only and venue for the purpose of such proceedings
shall be in the County of Orange.
C. This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective assigns.
D. This Agreement shall be governed by and construed in accordance
with the laws of the State of California including all matters
of construction, validity performance and enforcement.
E. This Agreement is subject to acceptance by SELLER at its
offices in Lake Forest, California and shall only become effective
on this date thereof.
F. This Agreement shall not be assigned by BUYER without the
prior written consent of SELLER.
G. The foregoing terms and conditions shall prevail notwithstanding
any addition of different terms contained in any order submitted
by BUYER.
15. SEVERABILITY: If, for any reason
whatsoever, any one or more of the provisions of this Agreement
shall be held or deemed to be inoperative, unenforceable,
or invalid as applied to any particular case or in all cases,
such circumstances shall not have the effect of rendering
such provisions inoperative, unenforceable, or invalid in
any other case or of rendering any of the other provisions
of this Agreement inoperative, unenforceable, or invalid.
16. ATTORNEY FEES: In any action at law or
in equity to enforce or construe any provisions or rights
under this Agreement, he unsuccessful party or parties to
such litigation, as determined by the courts pursuant to the
final judgment or decree, shall pay the successful party or
parties all costs, expenses, and attorneys’ fees incurred
by such successful party or parties (including without limitation
such costs, expenses, and fees on any appeals), and if such
successful party, or parties shall recover judgment in any
such action or proceeding, such costs, expenses, and attorney’s
fees shall be included in as part of such judgment.
17. INTERPRETATION AND PAROL
EVIDENCE: This writing is intended by the parties
as a final expression of their agreement concerning the matters
contained herein, and is also intended as a complete and exclusive
statement of the terms of their agreement. No course of prior
dealings between the parties and no usage of the trade shall
be relevant to supplement or explain any term used in this
contract. Acceptance or acquiescence in a course of performance
rendered under this contract shall not be relevant to determine
the meaning of this contract even though the accepting or
acquiescing party has knowledge of the nature of the performance
and opportunity for objection. Whenever a term defined by
the Uniform Commercial Code is used in this contract, the
definition contained in the Code shall control.
18. AUTHORITY OF SELLER’S
AGENTS: No agent, employee, or representative of
SELLER has any authority to bind SELLER to any affirmation,
representation, or warranty concerning the goods sold under
this contract, and unless an affirmation, representation,
or warranty made by an agent, employee, or representative
is specifically included within this written contract, it
has not constituted a part of the basis of this bargain and
shall not in any way be enforceable.
19. BINDING ARBITRATION:
ANY CONTROVERSY OR CLAIM ARISING OUT OF THIS CONTRACT, OR
BREACH THEREOF, OR REGARDING THE CONSTRUCTION OR APPLICATION
OF THIS CONTRACT, EXCEPT CONTROVERSIES INVOLVING MORE THAN
A $100,000 PURCHASE PRICE, SHALL BE SETTLED BY ARBITRATION
IN ACCORDANCE WITH THE COMMERCIAL ARBITRATION RULES OF THE
AMERICAN ARBITRATION ASSOCIATION, AND JUDGMENT UPON THE AWARD
RENDERED BY THE ARBITRATORS MAY BE ENTERED IN ANY COURT HAVING
JURISDICTION.
If a dispute arises under this contract,
either party may demand arbitration by filing a written demand
with the other party within 90 days after occurrence of the
dispute. The parties may agree on one arbitrator. If they
cannot agree on one arbitrator, there shall be three: one
named in writing by each of the parties within five days after
demand for arbitration is given, and a third chosen by the
two appointed. Should either party refuse or neglect to join
in the appointment of the arbitrator(s) or to furnish the
arbitrator(s) within any papers or information demanded, the
arbitrator(s) may proceed ex-parte. A hearing on the matter
to be arbitrated shall take place before the arbitrator(s)
in the City of Lake Forest, County of Orange, State of California,
at the time and place selected by the arbitrators. The arbitrator(s)
shall select the time and place promptly and shall give each
party written notice of the time and place at least 15 days
before the date selected. At the hearing, any relevant evidence
may be presented by either party, and the formal rules of
evidence applicable to judicial proceedings shall not govern.
Evidence may be admitted or excluded in the sole discretion
of the arbitrators. The arbitrators shall hear and determine
the matter and shall execute acknowledge the award in writing
and cause a copy of the writing to be delivered to each of
the parties. If there is only one arbitrator, his or her decision
shall be binding and conclusive on the parties, and if there
are three arbitrators, the decision of any two shall be binding
and conclusive. The submission of a dispute to the arbitrator(s)
and the rendering of a decision by the arbitrator(s) shall
be a condition precedent to any right of legal action on the
dispute. A judgment confirming the award may be given by any
Superior Court having jurisdiction. If three arbitrators are
selected, but no two of the three are able to reach an agreement
regarding the determination of the dispute, then the matter
shall be decided by three new arbitrators who shall be appointed
and shall proceed until a decision is agreed on by two or
the three arbitrators selected. The costs of the arbitration
shall be borne by the losing party or shall be borne in such
proportions as the arbitrator(s) determine(s).
Trademark Disclosures
TRADEMARKS: GST, InternalDR,
EntryDR, SafeDR, AutoDR, GrowthDR, ScalableDR, Commander,
BridgeLink, SanMatrix, StorMount and Server-Transparent Media
Duplication (STMD) are trademarks of GST, Inc. in the United
States and other countries. All other trade or service marks
mentioned in this web site and other related GST sites should
be considered the property of their respective owners.
IBM COPYRIGHT and TRADEMARK
INFORMATION: All copyright, trademarks and servicemarks
listed within the following url, http://www.ibm.com/legal/copytrade.shtml,
should be considered the property of IBM.
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