general terms and conditions of sale

1. SCOPE

The Terms and Conditions of Sale contained herein shall apply to all quotations, sales and services made by Joe East Enterprises Inc. or any of its wholly-owned subsidiaries, each referred to as “Seller” herein, as identified on the relevant quote, order acknowledgement form, invoice or other ordering document (“Order Form”) executed by Seller and purchaser (“Customer” hereunder) for the sale, supply or installation of products or provision of services, including without limitation, hardware, Software, firmware or services (“Services” herein, which may be more fully described in a Statement of Work executed by the parties and incorporated by reference herein in such Statement of Work (all of the foregoing, collectively, "Products"). These Terms and Conditions of Sale may in some instances conflict with the terms and conditions affixed to the purchase orders or other procurement documents issued by Customer (each referred to hereafter as a “PO”) or oral and written exchanges between the parties. In all such cases, the Terms and Conditions of Sale herein shall govern and prevail. None of the Customer's conditions of purchase shall apply and Seller expressly rejects them, and Seller’s performance is expressly conditioned upon Customer’s acceptance of these Terms and Conditions of Sale.

A corporate officer of Seller must agree in writing to any Customer changes in the Terms and Conditions of Sale contained herein. Seller reserves the right to make amendments or additions to these Terms and Conditions. Where Seller provides Software to Customer, regardless of whether as Products or in combination with Products, Customer acknowledges that use of that the Software is governed by Seller or, if applicable, third-party software license terms and conditions applicable to that Software, as may be set forth on the Order Form. All the conditions herein included shall also apply to the supply of Software so long as they are not inconsistent with the applicable software license terms and conditions. Prior to using Software, where indicated on the Order Form, Customer shall require all personnel, customer users, etc., to register with third-party Software providers and accept the terms of the third-party Software providers’ license agreement governing the use of the applicable license.

2. PRICE AND PACKAGING

The Order Form will set forth the commercial terms for the sale or provision of Products, including price and, if applicable, delivery terms. To the extent of any inconsistencies between these Terms and Conditions or any other order documents, the following order of precedence shall apply: First: Order Form, Second: Terms and Conditions; Third: quotation, Fourth: price list. Prices are subject to change at any time prior to the parties’ execution of the Order Form. Unless otherwise stated in the Order Form, all prices are FOB, Seller’s warehouse, exclusive of taxes and other charges such as but not limited to import duties, brokerage fees, handling and other charges.

In the event that Customer is prohibited by applicable law from making payments hereunder free of taxes, VAT, if applicable, other deductions or withholdings or whether such taxes are charged by Seller, Customer will pay such additional amounts to Seller as may be necessary in order that the actual amount received after deduction or withholding (and after payment of any taxes, additional taxes or other charges payable as a consequence of the payment of such additional amount) will equal the amount that Seller would have received if such tax, VAT, deduction or withholding was not required. Customer will pay all applicable levies and duties, or taxes imposed by any governmental authority pertaining to the sale or provision of Products, except for any such levies, duties or taxes imposed related to Seller’s franchise or corporate income.

3. PAYMENT TERMS

Customer will pay all invoice amounts within 10 days of the invoice date. Customer’s failure to pay any amount when due will permit Seller, without further notice and without prejudice to any other rights it may have, to cancel any discount which may have been granted to Customer on the said invoice, as well as to charge interest equal to the maximum allowed by an applicable law, for the full duration of the payment delay, or at Seller’s discretion, terminate the Order Form. Seller reserves the right at any time to require full or partial payment in advance of delivery.

All payments will be made in United States dollars. No part of any amount payable to Seller hereunder may be reduced by set-off or subject to any counterclaim, charge back, offset, adjustment, withholding or other right that Customer may assert it has against Seller, any other party or otherwise. In the event Seller is required to bring legal action to collect delinquent accounts, Customer agrees to pay reasonable attorneys’ fees and cost of suit and collection.

4. DELIVERIES

If Customer submits a PO, Seller reserves the right to reject any PO in full or in part or to apply a maximum order amount. Seller will have no legal obligation to provide any Product hereunder without the parties executing a corresponding Order Form, Seller will deliver hardware subject to Seller’s standard lead time and if applicable, stock availability. Lead-time may change due to changes in the purchasing landscape.
Unless otherwise agreed in writing by Seller, Seller will deliver Products, FOB Seller’s warehouse. Carriage of products shall be at Customer's own risk. Subject to Seller's right of stoppage in transit, delivery of the Products to the carrier shall constitute delivery to Customer and title and risk of loss shall thereupon pass to Customer upon delivery to carrier (the carrier shall not be deemed an agent of Seller). If the Products perish while in the custody of the carrier, Seller shall be deemed to have performed its obligations in full. If Customer refuses or neglects to take delivery of the Products, Seller reserves the right to charge Customer for the reasonable cost of storing the Products until delivery can be made, and failing delivery, for the cost of return carriage. If the Products are not delivered to Customer for any reason outside of Seller’s control, Seller in its sole discretion, reserves the right to cancel the Order Form and refund any amounts Customer has paid for the Products. If Seller delivers a Product to Customer in error, Customer will immediately inform Seller and Customer will, at Seller’s request, immediately return to Seller the Product, as Seller’s expense.
Any delivery dates quoted for delivery by Seller are estimates only. Customer agrees to accept the delivery date for the products as determined by Seller, in Seller’s Order From.
Seller reserves the right to allocate production and deliveries among its various customers at Seller’s sole discretion and under any circumstances.
In the event of any uncured default by Customer, after any applicable periods of notice and cure, Seller may decline to make further shipments or may elect to continue to make shipments notwithstanding such default.
Once the parties have executed an Order Form, Customer may not cancel the order of Products except (a) upon Seller’s default that Seller fails to correct within 30 days from Seller’s receipt of Customer’s written notice to such effect or (b) upon Seller’s written agreement, which shall only be considered on a case by case basis and shall be subject to appropriate indemnification by Customer for costs and lost profit incurred by Seller.
Seller’s failure to delivery Products by the due date shall not give Customer any right to compensation nor impose any responsibility or liability on Seller: (a) Any claim regarding non-conformity of Products with specifications will be accepted by Seller only if each of the following four conditions have been met:
1. The Customer’s claim must be submitted in writing to Seller within one week after delivery. After such one-week period has expired, Customer shall be deemed to have accepted all Products. Each notice of an allegedly non-conforming Product must be accompanied by the precise reason for rejection and the corresponding test report and proof of purchase;
2. Customer must request and complete Seller’s Return Merchandise Authorization;
3. Customer must return all Products Seller’s cost; and
4. Products must not have been modified or damaged or manipulated for any reason whatsoever.

5. PRODUCTS SPECIFICATIONS

Specifications for Products shall be those created by manufacturer.

6. FORCE MAJEURE

Neither party shall be responsible or liable for any delay or failure in performance arising as a result of any occurrence or contingency beyond its reasonable control, including but not limited to, capacity constraints, accident, act of God, acts of the public enemy, earthquake, fire, flood, labor disputes, strikes, riots, civil commotion, war (declared or not), unanticipated manufacturing problems, novelty of products, requirements or acts of any government or agency thereof, judicial action, inability to secure materials on a timely basis (except if such inability results from negligence of Seller) and failure or delays in transportation. The delayed party shall send written notice of the delay and the reason therefore to the other party as soon as possible after the party delayed knew of the cause of delay in question.

7. WARRANTY

Subject to the terms hereof, Seller warrants that its products shall conform to the applicable specifications referred to in Section 5 for a period of 30 days from delivery. Seller warrants that it will perform all Services in a good and workmanlike manner, consistent with industry standard. This warranty shall not apply: (a) if Products have been damaged; or (b) if Products have been subject to abnormal conditions or in a manner not intended by the manufacturer; or (c) if Products are used in a non-standard environment (a non-standard environment is an environment not documented in the applicable specification ); or (d) where Products used with or in combination with other products, software or services not approved by Seller or manufacturer; or (e) if the non-conformance results from modification by a party other than Seller or manufacturer. To the extent Customer believes that a Product fails to conform to applicable warranty set forth in this Section 7, Customer must promptly so notify Seller in writing, and Seller, at its sole discretion and option, and as its sole remedy, may repair or replace the non-conforming Product, or re-perform the nonconforming Service, or failing the foregoing, refund to Customer any amount paid for the nonconforming Product or Service. For Products manufactured by third-parties, Seller will assign to Customer, where not otherwise prohibited, all manufacturer warranties, and use commercially reasonable efforts to facilitate Customer warranty claims. In turn, Seller may assign the responsibilities under this section to its manufacturer.

The foregoing states Seller’s entire liability, and Customer’s sole remedy for breach of warranty under this Agreement. Where any warranty fails of its essential purpose, Seller’s sole liability shall be to refund to Customer any amount paid for any non-conforming Product. THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, CONDITIONS OR TERMS EXPRESS OR IMPLIED BY STATUTE OR COMMON LAW (INCLUDING WITHOUT LIMITATION WARRANTIES AS TO MERCHANTABLE QUALITY OR SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE OR USAGE).

8. LIMITATION OF LIABILITIES

SELLER SHALL HAVE NO LIABILITY UNDER THESE GENERAL TERMS AND CONDITIONS OF SALE, AND CUSTOMER WAIVES AND RELEASES SELLER FROM, ANY LIABILITY FOR LOSS ARISING FROM ANY CLAIM MADE BY CUSTOMER OR BROUGHT AGAINST CUSTOMER BY THIRD-PARTY, INCLUDING WITHOUT LIMITATION, ANY CLAIM FOR INJURY TO PERSONS (INCLUDING DEATH) OR DAMAGE TO TANGIBLE PERSONAL PROPERTY, OR FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR DAMAGES FOR LOSS OF PROFITS OR LOSS OF USE, BASED ON ANY BREACH OR DEFAULT BY SELLER OR MANUFACTURER/SELLER VENDOR, INCLUDING ANY BREACH OR DEFAULT ARISING FROM INFRINGEMENT OR ALLEGED INFRINGEMENT OF ANY PATENT, TRADEMARK, COPYRIGHT, MASK WORK RIGHT, OR OTHER INTELLECTUAL PROPERTY RIGHT. CUSTOMER’S SOLE REMEDY AND SELLER’S SOLE AND TOTAL LIABILITY FOR ANY CAUSE OF ACTION, WHETHER IN CONTRACT (INCLUDING BREACH OF WARRANTY) OR TORT (INCLUDING NEGLIGENCE OR MISREPRESENTATION) OR UNDER STATUTE OR OTHERWISE SHALL BE LIMITED TO AND SHALL NOT EXCEED THE PRICE ALLOCABLE TO THE PRODUCTS (INCLUDING HARDWARE, FIRMWARE, SOFTWARE AND/OR SERVICES) THAT GIVES RISE TO THE CLAIMS.

9. INDEMNIFICATION

CUSTOMER SHALL INDEMNIFY AND HOLD HARMLESS SELLER, ITS AFFILIATES, AND ITS AND THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUCCESSORS AND ASSIGNS (EACH AN “INDEMNIFIED PARTY”) AGAINST ANY AND ALL LOSS, DAMAGES, COSTS AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES) ARISING FROM JUDGMENTS, SETTLEMENTS, PENALTIES LEVIED AGAINST OR INCURRED BY SELLER IN CONNECTION WITH CLAIMS BY ANY PARTY THAT ARE ATTRIBUTABLE TO (a) NEGLIGENCE OR WILLFUL MISCONDUCT (INCLUDING DEATH OR PERSONAL INJURY) OR (b) A MATERIAL BREACH OF PROVISION OF THESE TERMS AND CONDITIONS OF SALE BY CUSTOMER UNDER THIS AGREEMENT, REGARDLESS OF THE CAUSE OR CAUSES OR NEGLIGENCE OF ANY PARTY OR PARTIES, INCLUDING THE CONCURRENT OR CONTRIBUTORY NEGLIGENCE OF AN INDEMNIFIED PARTY.

THE INDEMNIFICATION PROVISIONS IN THIS ARTICLE SHALL BE ENFORCEABLE REGARDLESS OF WHETHER THE LIABILITY IS BASED ON PAST, PRESENT OR FUTURE ACTS, CLAIMS OR LEGAL REQUIREMENTS, AND REGARDLESS OF WHETHER ANY PERSON (INCLUDING THE PERSON FROM WHOM INDEMNIFICATION IS SOUGHT) ALLEGES OR PROVES THE SOLE, CONCURRENT, CONTRIBUTORY OR COMPARATIVE NEGLIGENCE OF THE PERSON SEEKING INDEMNIFICATION, OR THE SOLE OR CONCURRENT STRICT LIABILITY IMPOSED ON THE PERSON SEEKING INDEMNIFICATION.

10. CONFIDENTIAL INFORMATION

In order to effectuate the purposes of these Terms and Conditions of Sale, it may be necessary and desirable that the parties disclose to one another Confidential Information. The term “Confidential Information” means any information that is disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether verbally, electronically, visually or in a written or other tangible form, and shall include any information that is identified as, or which should be reasonably understood to be, confidential or proprietary including, but not limited to, Products, Software, the document, trade secrets, patented or copyrighted information, computer programs, user interfaces, software specifications, passwords, know-how, formulas, data, inventions, algorithms, techniques, processes, product information, product pricing, market and sales information, marketing plans, strategies, business models, future business plans, forecasts, capitalization and financing information, training materials and customer lists. The Receiving Party shall keep the Disclosing Party’s Confidential Information in strict confidence and shall not disclose it to any third-party. Confidential Information shall not include information of either party that (a) is in or enters the public domain other than as a result of the wrongful actions of the Receiving Party, (b) was made available by the Disclosing Party to a third-party on a clearly and unequivocal non-confidential basis, (c) becomes available to the Receiving Party on a non-confidential basis from a person or entity, other than the Disclosing Party, who or which, to the Receiving Party’s knowledge, is not otherwise bound by a confidentiality agreement with the Disclosing Party, or is not otherwise prohibited from transmitting the information to the Receiving Party, or (iv) was independently developed by the Receiving Party without benefit of or reference to the recipients Confidential Information.

If the Receiving Party receives a subpoena or other legal order of compelled disclosure regarding any of the Confidential Information of the Disclosing Party, the Receiving Party will promptly notify the Disclosing Party so that the Disclosing Party may seek to quash or otherwise obtain a protective order to avoid compelled disclosure of such Confidential Information. If disclosure is legally compelled, the Receiving Party shall furnish only that portion of the Confidential Information that is legally required and shall continue to treat such Confidential Information in accordance with its obligations under this Agreement.

11. OWNERSHIP OF DATA

As between Seller and Customer, Customer retains all right, title and interest in user data associated with Customer’s use of the Products (“User Data”), and all other proprietary information owned, prepared or developed by Customer in connection with this Agreement. Seller makes no claims of authorship or ownership of this information, and shall only collect, use, and disclose personal data as set forth in the Seller Privacy Policy. However, any intellectual property that is conceived, discovered, created, or developed from Seller’s Confidential Information will be owned exclusively by Seller.

For purposes of support, accountability, quality control, and for purposes of creating benchmarking, Customer hereby consents to and grants to Seller an irrevocable, non-exclusive license to permit Seller to collect general User Data user data for or concerning Product applications (including Software) for which Seller provides Services hereunder, but not limited to:

Name
Address
Phone Number
Email Address

Seller’s collection, use, and disclosure of personal data is described and governed by its Privacy Policy, available at https://www.joeeastinc.com/privacy-policy (as may be updated from time to time, the “Privacy Policy”).

12. JURISDICTION - APPLICABLE LAW

This Agreement shall be governed by, and construed in accordance with, the laws of the State of Texas without regard to its principles of conflict of laws. The parties’ consent to personal jurisdiction in all state and federal courts located in Dallas County, Texas for the purposes of such court actions or determinations. In the event of litigation, the prevailing party shall be entitled to recover from the other party its costs, expenses, and reasonable attorneys’ fees.

13. GENERAL

Notices. Except as otherwise specified in this Agreement, all notices, reports, consents, and approvals required or permitted to be given hereunder shall be in writing, signed by the party sending such notice, and sent postage or shipping charges prepaid, or by a receipted secure overnight or one-day delivery service properly addressed or transmitted to the other party, or to such other address as may from time to time be designated by either party to the other in writing. Notice shall be deemed given upon receipt by the party to which it was mailed or transmitted as provided in this Section 13.1. Unless otherwise designated by Seller in writing, all notices should be addressed to: Joe East Enterprises Inc., 3414 Midcourt Rd #108, Carrollton, TX 75006, Attn: Chief Executive Officer.
Severability. In the event any one or more of the provisions contained herein shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof and these General Terms and Conditions shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein.
Waiver. A waiver of a breach or default by a party under these General Terms and Conditions of Sale shall not be a waiver of any subsequent or other default. Failure of Seller to enforce compliance with any term or condition hereof shall not constitute a waiver of such term or condition.
No Licenses. No license under any intellectual property right of Seller is granted herein except for those specifically set forth herein. Title to Software including without limitation copyright, is owned by Seller or Seller licensors and no title is transferred to Customer, and Customer shall not copy, modify, translate, disassemble or decompile the Software. Customer shall use the Software in connection with the Products and not otherwise. The Software may only be transferred when the Product to which it relates is transferred. The rights granted in this Section 13.4 may be terminated in the event of a breach by Customer of any of the terms of these General Terms and Conditions.
No Agency. Nothing contained in this Agreement and no action by either party will be deemed to constitute any party or any of such party’s employees or agents to be an employee or agent of the other party or will be deemed to create any partnership, joint venture, association, syndicate among or between any of the parties, or will be deemed to confer on any party any express or implied right, power or authority to enter into any agreement or commitment, express or implied, or to incur any obligation or liability on behalf of the other party.
Survival. The provisions of this Agreement setting forth the parties’ rights and obligations with respect to warranties, intellectual property, indemnity, confidentiality, governing law, and notice, in addition to any amounts due and owing from one party to the other shall survive termination or expiration of this Agreement.
Authority. Each person executing an Order Form that incorporates by reference these Terms and Conditions of Sale, as well as any Exhibits, Addendum or Statement of Work (collectively the “Agreement”), represents and warrants that he or she is duly authorized and has legal capacity to execute and deliver the Agreement Order Form and corresponding Terms and Conditions. Each party represents and warrants to the other that execution and delivery of an Agreement, and the performance of such party’s obligations hereunder, have been duly authorized and that the Agreement is and will be a valid and legal agreement binding on such party and enforceable in accordance with its terms.
Entire Agreement. This Agreement, including the Order Form, any Exhibits, Addendum or Statement of Work that states that it is incorporated by reference herein, constitutes the final, complete, and exclusive statement of the terms of the Agreement between the parties, and supersedes all prior agreements, either written or oral, between the parties, and is intended as a final expression of their Agreement. The Agreement shall not be modified or amended except in writing signed by the parties hereto and specifically referring to this Agreement. This Agreement shall take precedence over any other documents, which may conflict with said Agreement.