1. Definitions

For purposes of these Terms and Conditions:

1.1 “Reseller” refers to Fierce Software Corporation (“Fierce Software”), the entity purchasing commercially available off-the-shelf (COTS) goods, including but not limited to software or hardware for the purpose of resale.

1.2 “Supplier” refers to the entity or distributor providing software or hardware to the Reseller.

1.3 “Goods” refers to the products (software, hardware, training, and/or professional services) provided by the Supplier.

1.4 “End Customer” refers to the final purchaser and/or recipient of the Goods from the Reseller.

1.5 “Order” or “Purchase Order” refers to the official order document issued by the Reseller to the Supplier specifying the Goods to be delivered, pricing, delivery terms, and other applicable terms and conditions.

2. Order Acceptance

By executing or fulfilling a Purchase Order issued by Fierce Software, the Supplier acknowledges and agrees to be bound by these Standard Terms and Conditions of Purchase.

3. Acceptance of Terms

By accepting a Purchase Order from Fierce Software, the Supplier accepts and agrees to be bound by these Terms and any additional terms that may be present in Fierce Software order documents.

4. Changes to Terms

4.1 Fierce Software reserves the right to modify these Terms, which shall apply only to future Purchase Orders issued after such changes are posted.

4.2 These Terms apply to each Purchase Order from the time of issuance.

4.3 Should changes to terms be required, Fierce Software will provide them in writing and request acceptance by the Supplier.

5. Pricing and Payment

5.1. Prices must:

  • Match those agreed upon in prior negotiations and/or Supplier quote(s); and
  • Include all applicable taxes, duties, and shipping costs unless otherwise stated.

5.2. Payment terms are identified in the Purchase Order (e.g., Net 30, 45, or 60).

5.3. For maintenance, support, or services scheduled to commence at a future date:

  • Any request for early invoicing must receive prior written approval from Fierce Software.
  • Fierce Software reserves sole discretion to approve or deny such requests.

6. Tax Language

6.1. Before applying any sales or use tax, the Supplier is responsible for verifying that Fierce Software holds a valid resale certificate for the applicable jurisdiction.

6.2. Taxes shall not be applied where a valid resale certificate is on file and applicable.

6.3. Any applicable taxes or confirmation of exemption must be clearly stated in the Supplier’s quote to Fierce Software prior to purchase.

7. Delivery and Risk of Loss

7.1. The Supplier is solely responsible for delivery in accordance with the terms specified in the Purchase Order.

7.2. Risk of loss shall transfer to Reseller only upon final delivery and acceptance at the designated delivery location.

7.3. For physical hardware:

  • Shipping fees must be reasonable and in line with prevailing industry standards;
  • The Supplier must use commercially reasonable and/or industry-standard methods to minimize shipping costs without compromising timelines or product integrity;
  • Excessive or non-standard charges are subject to Fierce Software’s review and approval prior to invoicing; and
  • Estimated shipping fees must be established and clearly stated in the Supplier’s quote to Fierce Software prior to purchase.

8. Product Compliance

The Supplier represents and warrants that all Goods:

  • (a) Conform to the agreed-upon specifications in writing and comply with applicable industry standards;
  • (b) Are new, free from defects in materials and workmanship, and suitable for resale in the ordinary course of business; and
  • (c) Comply with all applicable federal, state, and local laws, regulations, and requirements.

9. Returns and Defective Goods

9.1 Reseller may reject and return defective or non-conforming Goods.

9.2 The Supplier must replace or refund any such Goods within three (3) business days, or as otherwise agreed in writing, not to be unreasonably delayed.

10. Indemnification

The Supplier shall indemnify, defend, and hold harmless the Reseller, its officers, directors, employees, and agents from and against any and all claims, demands, damages, liabilities, losses, costs, and expenses (including reasonable attorneys’ fees) arising out of, or relating to, the Goods or the Supplier’s performance under this Purchase Order.

  • (a) Any defect in the Goods; provided by the Supplier;
  • (b) Actual or alleged infringement of intellectual property rights; and
  • (c) Any legal or regulatory violation by the Supplier in connection with the Goods or its performance under this Purchase Order.

11. Termination for Cause

The Reseller may terminate this Order or any associated Order, in whole or in part, immediately upon written notice to the Supplier if:

  • (a) the Supplier materially breaches any term of this Agreement and fails to cure such breach within thirty (30) days after receiving written notice thereof;
  • (b) the Supplier fails to deliver the Goods or perform services in a manner that materially impacts the Reseller’s obligations to its customers;
  • (c) the Supplier, through act or omission, creates legal, regulatory, or data security exposure for the Reseller or its customers; or
  • (d) the Supplier becomes insolvent, files for bankruptcy, or undergoes a change in ownership or control that materially and adversely affects the Supplier’s ability to perform under this Agreement.

11.2. Upon termination for cause, the Reseller reserves the right to:

  • (i) receive a full or prorated refund for any prepaid amounts associated with undelivered Goods or unrendered services;
  • (ii) continue to support existing customers under valid and active licenses, as applicable; and
  • (iii) request reasonable cooperation and transitional assistance from the Supplier to minimize disruption to the Reseller or its customers.

12. Confidentiality

The Supplier shall treat as strictly confidential all non-public information disclosed by the Reseller, including but not limited to

12.1. The Supplier shall maintain the confidentiality of all non-public information disclosed by the Reseller, including but not limited to:

  • Pricing, standard business and payment terms,
  • Order details, and
  • Any other information marked or reasonably understood to be confidential.

12.2. Confidential information may not be disclosed to any third parties without the Fierce Software’s prior written consent, except as required by law.

12.3. The Supplier shall use at least the same degree of care to protect the Reseller’s (Fierce Software’s) confidential information as it does for its own confidential information, but in no event less than a reasonable standard of care.

13. Limitation of Liability

13.1. To the maximum extent permitted by law, the Reseller shall not be liable to the Supplier for any:

  • Indirect, incidental, consequential, special, punitive, or exemplary damages of any kind including without limitation;
  • Loss of profits, revenue, data, or business opportunities arising out of or related to the use of the Software or this Agreement, even if advised of the possibility of such damages.

13.2. The Supplier shall be fully responsible for any direct damages resulting from:

  • Failure to deliver the Goods;
  • Failure to meet agreed-upon terms; or
  • Any breach of this Agreement.

13.3. Nothing in this section shall limit liability or exclude either party’s liability for:

  • (a) Gross negligence or willful misconduct;
  • (b) Breach of confidentiality obligations; or
  • (c) Liability that cannot be limited or excluded under applicable law.

14. Governing Law and Jurisdiction of Virginia

This Agreement and any disputes arising out of or relating to this Order shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia, without regard to its conflict of law principles. Any legal action or proceeding arising under this Agreement shall be brought exclusively in the state or federal courts of Virginia, and both parties hereby consent to such jurisdiction and venue of courts.

15. Severability

If any provision of these Standard Terms and Conditions of Purchase is held invalid, illegal, or unenforceable by a court of competent jurisdiction, the remaining provisions shall remain in full force and effect and shall be construed to best effectuate and achieve the original intent of the parties.

16. Force Majeure

16.1. Neither party shall be liable for any delay or failure to perform its obligations under this Agreement due to causes beyond its reasonable control, including but not limited to:

  • Acts of God;
  • War, terrorism, or natural disasters;
  • Labor disputes;
  • Governmental orders; or
  • Pandemics.

16.2. The affected party must:

  • Promptly notify the other party in writing of the force majeure event, and
  • Take commercially reasonable and/or industry-standard steps to resume performance as soon as practicable.

16.3. If the force majeure event continues for more than thirty (30) days, either party may terminate the affected Order with written notice.