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<br /> City of New Brighton
<br /> UPS Replacement
<br /> S-QUO2893
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<br /> These Terms and Conditions of sale('T&C')are applicable to the Sales Quote submitted by 2NSystems('2NSystems")to and accepted by Customer(sometimes referred to separately as a
<br /> "party'or collectively as-banjos"),
<br /> 1 DEFINITIONS.As used in this document,the following terms shall have the following meanings:
<br /> t. 'Acceptance"shall mean Customer's signed acceptance of a Sales Quote and these T&C.and the agreement of Customer to be bound thereby.and to purchase
<br /> from and pay 2NSystems for all Products and Services at the cost.Including.If applicable,any tax and delivery costs,stated in the Sales Quote.In lieu of signinga
<br /> Sales Quote,Customer will be deemed to have accepted a Sales Quote and these T&C if Customer provides 2NSystems a purchase order based on such Sales
<br /> Quote and Customer agrees that the terms of the Sales Quote and these T&C shall take precedence over such purchase order as described in Section 2 herein.
<br /> 2. 'Customer shall mean the buyer which has agreed to purchase from and pay 2NSystems for all Products(including,if applicable,taxes and delivery costs)and/or
<br /> Services referenced in the Sales Quote.
<br /> 3. 'Data Center shall mean a repository that houses computing facilities that may include,without limtation,powering,cooling.protecting,monitoring and/or managing
<br /> the physical infrastructure
<br /> 4. Data Center Design'shall mean the plans and specifications for a Data Center that may include,without limitation,determining the location,engineering,architecture.
<br /> material and Products selection.
<br /> 5. "Products'shall mean any products related or integral to or used in a Data Center including,without limitation,containment and cooling systems.Data Center
<br /> infrastructure management tools,generators,power supply,distribution and monitoring systems,server racks,swilchgear and backup and recovery systems,and any
<br /> other equipment and supplies offered for sale from time-to-time by 2NSystems,and referenced in a Sales Quote.
<br /> 6. 'Sates Quote'shall mean the written proposal submitted by 2NSystems to Customer setting forth the Products and Services,including quantities and prices,
<br /> 2NSystems shall sell to Customer,and,if applicable,the taxes and delivery costs.
<br /> 7. 'Services'shall mean repair and other services offered for sale from lime-to-time by 2NSystems and referenced in a Sales Quote.
<br /> 8. 'Third Party Products"shall mean any product purchased by Customer from a source other than through 2NSystems.
<br /> 2. DATA CENTER DESIGN.Customer acknowledges and agrees that 2NSystems is riot an engineering firm.Customer is responsible for and shall approve all engineering and other
<br /> aspects of the Data Center Design,even if 2NSystems has any input whatsoever,or participated in anyway,in such design.2NSystems shall not be responsible for ensuring any
<br /> such Data Center Design is acceptable to Customer or meets Customer's Data Center needs.Customer takes lull responsibility for ensuring that any Data Center Design fulfills
<br /> Customer's needs and expectations.is proper for the purpose for which the Data Center is designed,complies with all laws.ordinances,codes.regulations and other legal
<br /> requirements,and will adequately and appropriately house and power any Products purchased by Customer under the Sales Quote
<br /> 3 SCOPE OF T&C.Customer's Acceptance of the Sales Quote is expressly limited to the Sales Quote and these T&C.These T&C are in addition to,and riot a replacement of,
<br /> the Sales Quote.Subsequent to Acceptance of a Sales Quote by Customer,2NSystems will provide to Customer the Products and/or Services specified in the Sales Quote,
<br /> subject to these T&C.Any contrary provision,term or condition,other than those staled in the Sales Quote and these T&C,including,but not limited to,in any purchase order,
<br /> acknowledgement or other document submitted by Customer to 2NSystems,or any course of dealing or course of performance between the parties or by either,or any trade
<br /> practices,and at of the aforesaid.except for the accepted Sales Quote and these T&C,are hereby rejected by 2NSystems,and of no face and effect.Unless expressly stated in
<br /> a Sales Quote prior to Acceptance,2NSystems shall have no obligation to provide maintenance,support.training or related ancillary services for or related to the Products,Third
<br /> Party Products,and Services provided to Customer,
<br /> 4. PRICE AND PAYMENT TERMS.All prices are stated in USD.The Products and Services,including quantity and price,shall be set forth in the Sales Quote.Unless otherwise
<br /> expressly stated in the Sales Quote,all prices exclude shipping and taxes Payment terms are net thirty(30)calendar days from the date of the invoice.Returned checks will be
<br /> subject to a 525.00 charge.Payments not made within thirty(30)days will be assessed interest at one and%r percent(1 5%)per month on the late balance until paid in full.
<br /> Accounts past due more than thirty(30)days may result in future Sales Quotes for Products and Services being placed on credit hold until all balances due have been paid in full
<br /> 2NSystems reserves the right to charge a 3.25%credit card processing fee for those customers paying Invoices using a credit card.
<br /> 5 DELIVERY AND RISK OF LOSS,TITLE,RETURNS.The Sales Quote shall describe delivery terms.The risk of loss to Products shall pass to Customer at such time as Products
<br /> leave 2NSystems's facility or the facility of any manufacturer or distributor who ships directly to Customer.Title to Products shall pass to Customer only upon payment In full by
<br /> Customer.Except as referenced in Section 6 herein,Products may not be returned to 2NSystems without 2NSystems's prior consent.2NSystems,at its discretion,may charge a
<br /> restocking tee for Products it allows to be returned.
<br /> 6 CUSTOMER REMEDIES.CUSTOMER'S EXCLUSIVE REMEDY FOR A DEFECTIVE PRODUCT.IF PROPERLY RETURNED TO 2NSYSTEMS.OR FOR A FAILURE BY
<br /> 2NSYSTEMS TO PROVIDE ANY SERVICE,SHALL BE THAT 2NSYSTEMS SHALL.AT ITS OPTION,EITHER REPAIR OR REPLACE THE DEFECTIVE PRODUCT.RE-
<br /> PERFORM THE SERVICE.OR REFUND THE PURCHASE PRICE PAID FOR SUCH PRODUCT OR SERVICE.
<br /> 7. DISCLAIMER OF WARRANTIES.2NSYSTEMS MAKES NO WARRANTIES.EXPRESS OR IMPLIED,%MTH RESPECT TO ANY PRODUCTOR SERVICE PURCHASED BY
<br /> CUSTOMER INCLUDING,WITHOUT LIMITATION.WARRANTIES OF NONINFRINGMENT,MERCHANTABLITYOR FITNESS FOR A PARTICULAR PURPOSE.2NSYSTEMS
<br /> EXPRESSLY DISCLAIMS ANY UABILITY FOR THE PERFORMANCE OR QUAUTYOF ANY PRODUCT OR SERVICE PURCHASED BY CUSTOMER UNDER A SALES
<br /> QUOTE.THE DECISION TO ACQUIRE ANY THIRD PARTYPRODUCT IS CUSTOMER'S,EVEN IF 2NSYSTEMS ASSISTS CUSTOMER IN IDENTIFYING,EVALUATING OR
<br /> SELECTING,ORRECOMMENOS TO CUSTOMER THAT IT PURCHASE,A THIRD PARTY PRODUCT 2NSYSTEMS IS NOT RESPONSIBLE FOR,ANDEXPRESSLY
<br /> DISCLAIMS LIABILITY FOR,THE PERFORMANCE OR QUALITY OF ANY THIRD PARTY PRODUCT OR THE ABILITY OF ANYTHIRD PARTY PRODUCT TO INTEGRATE
<br /> PROPERLY OR EFFECTIVELY OATH ANY PRODUCT PROVIDED BY 2NSYSTEMS OR OTHERS.
<br /> 8. LIMITATION OF LIABILITY.IN NO EVENT SHALL 2NSYSTEMS BE LIABLE TO CUSTOMER FOR INCIDENTAL,SPECIAL,INOIRECT,CONSEQUENTIAL,OR PUNITIVE
<br /> DAMAGES.INCLUDING,WITHOUT LIMITATION.DAMAGES BASED UPON LOSS OF USE.LOST PROFIT OR REVENUE,LOST GOODWILL,WORK STOPPAGE,BUSINESS
<br /> INTERUPTION,IMPAIRMENT OF OTHER PRODUCTS,LOSS BY REASON OF SHUTDOWN OR NON-OPERATION.INCREASED EXPENSES OF OPERATION,COST OF
<br /> PURCHASE OFREPLACEMENT PRODUCTS OR SERVICES,OR CLAIMS OF CUSTOMER OR CUSTOMERS OF CUSTOMER FOR SERVICE INTERRUPTION,EVEN IF
<br /> ADVISED IN ADVANCE OF THE POSSIBILITY FOR SUCH DAMAGES AND 2NSYSTEMS'S TOTAL LIABILITY FOR DAMAGESUNDER A SALES QUOTE SHALL BE LIMITED
<br /> TO THE PRODUCT AND SERVICE COSTS STATED ON THE SALES QUOTE.CUSTOMERSHALL HAVE NO RIGHT TO MAKE ANY CLAIM AGAINST 2NSYSTEMS IN
<br /> CONNECTION WITH THE PERFORMANCE OF ANY THIRD PARTYPRODUCT,IT BEING ACKNOWLEDGED BY CUSTOMER THAT CUSTOMER'S SOLE REMEDY FOR
<br /> SUCH WALL BE AGAINST THEMANUFACTURER OF SUCH THIRD PARTY PRODUCT.
<br /> 9. FORCE MAJEURE.2NSystems shad not be liable for any failure to perform or delay in performance of its obligations underthe Sales Quote or these T&C to the extent that any
<br /> such failure arises from acts of God,war,cent insurrection or disrupfion,riots,government act or regulation,strikes,lockouts.labor disruption.cyber or hostile network attacks.
<br /> inability to obtain raw orfinished materials,inability to secure transport or arty cause beyond 2NSystems's commercially reasonable control.
<br /> 10. MISCELLANEOUS
<br /> 1. Notices.Any notice sent pursuant to the Sales Quote or these T&C shall be in writing and sent by certified mail,proper postage prepaid,retum receipt requested,or
<br /> by properly paid overnight mail,to the addresses on the Sales Quote,or to such address as either party may in the fuluredesignete in writing.Notices sent by certified
<br /> mail shall be effective two(2)business days after being placed in the United States mail,and if sentby recognized overnight tamer,upon delivery,
<br /> 2. Severability.If and to the extent any provision of a Sales Quote or these T&C is held Invalid or unenforceable at law,such provisionwill be deemed stricken from the
<br /> Sales Quote or these T&C and the remainder of the Sales Quote or these T&C will continue in effect and bevalid and enforceable to the fullest extent permitted by
<br /> law
<br /> 3. Attorneys'Fees.2NSystems shall be entitled to recover from Customer 2NSystems's reasonable costs incurred,including costs oliligation and attorneys'fees,for any
<br /> suit,action or proceeding arising out of or related to Customer's purchase of Products or Services,thecollection of any sums past due from Customer to 2NSystems,
<br /> the Sales Quote or these T&C
<br /> 4. Non-Waiver.Failure by 2NSystems to demand compliance or performance of any term or condition of any Sales Quote or these T&Cshall not constitute a waiver of
<br /> 2NSystems's rights hereunder these T&C or a Sales Quote.
<br /> 5. Binding Effect The Sales Quote and these T&C shall be binding upon and inure to the benefit of the parties,and their respectivesuccessdrs and lawful assigns.
<br /> 6. Governing Law and Venue.The Sales Quote and these T&C shall be governed by the laws of the State of Illinois,without referenceto conflicts of law principles.Any
<br /> law suit.action or proceeding arising out of or relating to the Sales Quote or these T&C shall be brought in afederal or state court located in DuPage County,Illinois,
<br /> and each party hereto irrevocably submits to the exclusive jurisdiction and venue of anysuch court in any such suit,action or proceeding,
<br /> 7. No Assignment Customer may not assign its nghts,interests or obligations under the Sales Quote or these T&C without the expresswntten consent of 2NSystems.
<br /> 8. Merger and Entire Agreement.The Sales Quote and these T&C sets forth the entire agreement and understanding between the partiesas to the subject matter
<br /> hereof,and merges and supersedes all prior agreements or understandings of the parties,as it pertains to this Sales Quole,whether written or oral,
<br /> 9. Amendments.The Sales Quote or these T&C may not be amended.supplemented,changed,or modified.except by in writing signedby the parties.
<br /> 10. Signatures.Facsimile signatures shall be deemed and accepted as originals.In the event of execution in one or more counterparts,eachshall be deemed an original,
<br /> and all of them together will constitute one and the same instrument.
<br /> Thank you for your business!
<br /> 2NSystems,LLC 5 2448 Water Street,Victoria.MN 55386 www.[n systems.Corn
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