The key take-away here is read the fine print. That is especially true with RFP responses, large-value contracts and support agreements. Question everything that looks suspicious or calls for you to give up your rights.
If you aren't happy with the stated terms, try to negotiate better ones or perhaps it would be in your best interest to pick another vendor. The vendors insert certain language to protect themselves, even from their own negligence. The customer must take the same attitude or be left high and dry when the vendor points to a "get out of jail free" clause.
IPVMU Certified | 11/08/14 05:04am
I'm not suggesting they or anyone else will just roll over and accept conflicting terms, but if attorneys get involved then contract law takes over.
The purchase of goods is governed by the Uniform Commercial Code (UCC), and though it varies from state to state it does follow certain consistent rules. I won't bore anyone with the details, but if you're interested take a look at this page: http://www.thecontractsguy.net/2012/03/01/battle-of-the-forms-explained-using-a-few-short-words/
When a contract is created by action (goods are shipped and accepted but there isn't agreement on the terms) then UCC 2-207(3) kicks in. Between "merchants" (which most on here would qualify as), when that happens the conflicting terms are "knocked out" and replaced by UCC standard terms, which generally would be more favorable than the kind of terms presented in the OP's question.
Obviously this is something you'd need to run by a local lawyer, but that's the jist of how it would work.
Tony, good idea though given Streakwave's T&C's, they will likely argue that such verbiage is null and void, unless they countersign them.
IPVMU Certified | 11/07/14 07:33pm
Not to put too fine a point on it, but if you are submitting a P.O. you can put any verbiage you want on it, and if it's not too much of a red-flag it will generally be ignored by the vendor's sales clerk. This effectively modifies (or at least gives you a solid explanation for a judge) their prior T&Cs. Of course this doesn't help if it's an online click-thru form...
I have had the same problem with other contracts from manufacturers. I also think I am one of the rare individuals that reads these T&C. Although sometimes I don’t, with for example Apple or Microsoft, it really would be a take it or leave it with some companies.
I recently was presented a contract with a company in a different industry, which said if we (the company) decide to terminate this relationship, you have 90 days to liquidate your inventory and we will refer your customers to another vendor. There are frequently these one sided statements.
I can tell you with many companies you can negotiate changes to the T&M. It all depends on how much they want your business and your willingness to go someplace else if they won’t be more reasonable.
Jim, thanks for explaining. If those are your rules, those are your rules.
Ask Streakwave, in writing, to strike the indemnification clause then and see what they say.
Btw, Anixter US terms and conditions including a number of indemnification clauses. So does Ingram Micro's.
To extend your burning device scenario, what if the flames were due to a product defect and as the middle-man, the distributor was made aware of the defect and failed to act. Even as a distributor, they would carry responsibility. And, of course, we're all reading in the press now about exploding air bags and the responsibility of the middle-man (car companies) to act and protect their customers.
I work for the University of California and one of the rules of the Regents is that we are never permitted to indemnify against 3rd party claims. Ever.
I'm sure that Jon is right that judges often strike down contract terms that are eggrecious. But you may be setting yourself toward an up hill battle to agree to something and count on a court to fix it unless it is something that is entirely settled like slavery.
Thanks for your thoughts.
Pro Focus LLC | 11/07/14 01:07am
Even if you click through and buy something from a company with unreasonable T&Cs doesn't mean it's legal and binding in court. I'm not saying it's the case here, but in general, a company cannot absolve themselves of all liability no matter how they word it. A judge or jury may not agree with the terms and rule how they see fit.
Thanks for sharing.
Paragraph 1 did not really concern me. The portion you excepted, the way I read it, means that the terms in conditions listed there (paragraphs 1 to 21) are all of them. It seems reasonable that they don't want people to say 'hey you told me on the phone that I'd get half off or I don't need to pay for 1 year'. This way, paragraph 1 makes it explicit that any term not listed in that document needs to be explicitly put in writing as they say later in the paragraph: "Customer expressly agrees Streakwave will not be bound by any terms and conditions set forth by Customer unless previously agreed to by Streakwave management in writing."
As for paragraph 11, here it is:
"Customer agrees to indemnify and hold Streakwave and its officers, directors, servants, employees, agents and advisors harmless from and against any and all claims, damages, costs, expenses (including, but not limited to, reasonable attorneys' fees and costs) or liabilities that may result, in whole or in part, from any third party using the Products provided under this agreement. Any defense provided hereunder shall be by counsel of Streakwave's choice."
This seems fairly reasonable and commonplace. They are a distributor, not the manufacturer. If something goes wrong with the product. A radio bursts in to flames and burns down the end user's building, Streakwave is making sure you cannot sue them. You could, of course, sue the manufacturer, unless they make you sign similiar terms and conditions :)