Terms and conditions
1. Priority of Terms and Conditions.
Unless otherwise agreed to in writing by Seller, the following terms and conditions are part of Seller’s quotation and shall govern any resulting order. No term or condition stated in any Customer solicitation, purchase order or contract shall become part of an order or shall otherwise be binding on Seller unless agreed to in writing by an authorized representative of Seller. Seller’s failure to object to any term or condition contained in any Customer communication shall not be construed as consent to such terms or conditions nor be deemed a waiver of any term or condition set forth herein. Use of Customer’s purchase order number or any portion of said purchase order shall be for reference purposes only and shall not constitute agreement by Seller to any term in addition to or inconsistent with these Conditions of Sale or the Supplementary Terms and Conditions referenced in Paragraph 17 herein.
2. Commercial Contract.
All sales are made in strict accordance with these commercial conditions and prices and shall not be subject to the procurement regulations of any federal, state, local or foreign government unless agreed to in writing by Seller.
3. Quotations, Prices and Taxes.
Quotations are valid for a period of 30 days. Quotations are available for other specific time periods upon request. Unless specified otherwise, prices do not include retailers’ occupation, sales, use, privilege or excise tax, gross income or any other tax, duty, tariff, export packing or other assessment which may arise from the sale of equipment or services quoted hereunder, and such amounts may be added to the price in the event Seller becomes liable to pay or bear the burden thereof. A request for exemption for any such tax, duty or assessment must be accompanied by a properly executed exemption certificate prior to shipment.
4. Shipment and Risk of Loss.
Equipment shall be packed, packaged and crated in accordance with Seller’s standard commercial practices. All shipments are made Ex Works, Seller’s Factory, unless otherwise agreed to in writing by Seller. Title and risk of loss shall pass to Customer upon delivery of the equipment at the Ex Works site. International shipments are contingent upon receipt of required government export licenses. Customer shall provide any assistance necessary to obtain such licenses. Seller may make partial shipments and submit invoices for such partial shipments in accordance with the payment terms set forth below.
5. Terms of Payment.
Payment shall be made by an irrevocable letter of credit or cash in advance, unless otherwise specified. Payment for orders accepted on other terms shall be due in strict accordance with the terms quoted. Past due payments are subject to a service charge of 1.5% per month (18% annual) on the unpaid balance or the maximum legal rate permitted by applicable law, whichever is lower. Seller reserves the right, in its sole discretion, to reject Customer purchase orders or to withhold shipment of Customer orders if Customer’s account is in arrears. Customer is responsible to Seller for all reasonable attorney fees, court costs, and/or collection agency fees should Customer default in payment. Customer acknowledges that Seller retains full security interest in all equipment until Customer renders payment in full, and agrees to execute any documents necessary to perfect Seller’s security interest, upon request.
6. Shipping Reel and Skid Deposit.
Customer’s use of certain reels and skids requires a deposit. The deposit will be refunded if Customer delivers the reels or skids duty paid in good condition, reasonable wear and tear excepted, to Seller’s Ex Works factory within one year of the original shipment date.
Seller shall make reasonable efforts to meet delivery and performance dates, but shall not be liable for delays due to causes beyond its control, including but not limited to, acts of God, acts of the public enemy, acts of any Government or governmental entity, acts of the Customer, its employees, agents, or subcontractors, fires, floods, strikes, freight embargoes, unusually severe weather conditions, inadequate transportation facilities, or any cause whatsoever beyond the control and without the fault or negligence of Seller, its suppliers or subcontractors, whether similar to or dissimilar from the causes herein enumerated. In the event of any such delay, Seller shall be given a reasonable extension of time within which to complete performance.
8. Final Acceptant.
Customer’s express acceptance of the equipment, or Customer’s possession, use or beneficial use of the equipment for more than 30 days after delivery shall constitute final acceptance and, except as provided in Seller’s warranty below, shall waive all Customer claims of nonconformity of the equipment.
Seller warrants that its equipment is transferred rightfully and with good title, that it is free from any lawful security interest or other lien or encumbrance unknown to Customer; and that for a period of one year from the date of installation or fifteen months from the date of original shipment, whichever period expires first, such equipment will be free from defects in material and workmanship which arise under proper and normal use and service. Some individual products include extended warranties as stated in brochure(s) and extended warranties may be purchased as requested and quoted. Customer’s exclusive remedy is limited to Seller’s Correction at its plant of such defects by repair or replacement at no cost to the Customer. The cost of any transportation in connection with the return of the equipment for the purpose of repair or replacement shall be borne by Customer. The provisions of this warranty shall be applicable with respect to any equipment which
Seller repairs or replaces pursuant to it. SELLER MAKES NO WARRANTY, EXPRESS OR IMPLIED, OTHER THAN AS IS EXPRESSLY PROVIDED ABOVE, THERE BEING NO OTHER WARRANTIES. EXPRESSLY EXCLUDED ARE THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PURPOSE. THE FOREGOING SHALL CONSTITUTE ALL OF SELLER’S LIABILITY (EXCEPT AS TO PATENT INFRINGEMENT) WITH RESPECT TO THE EQUIPMENT. IN NO EVENT SHALL SELLER BE LIABLE FOR SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES, INSTALLATION COSTS, LOST
REVENUE OR PROFITS, OR ANY OTHER COSTS OF ANY NATURE AS A RESULT OF THE USE OF EQUIPMENT MANUFACTURED BY THE SELLER, WHETHER USED IN ACCORDANCE WITH INSTRUCTIONS OR NOT. UNDER NO CIRCUMSTANCES SHALL SELLER’S LIABILITY TO CUSTOMER EXCEED THE ACTUAL SALES PRICE OF THE EQUIPMENT PROVIDED HEREUNDER. No representative is authorized to assume for Seller any other liability in connection with the equipment.
10. Limitation of Liability.
Seller shall not be liable to Customer for any indirect, exemplary, incidental, special or consequential damages for breach of contract, breach of warranty, or for any action based on the tortious acts or omissions of Seller. Customer acknowledges that such lack of liability, without limiting the generality of the foregoing, includes lack of liability for any loss of actual or anticipated revenue or profits, loss of actual or anticipated value of the business to Customer, and damage to the business reputation or goodwill of Customer.
11. Patent Infringement Assurance.
Seller shall, at its own expense, settle or defend any claim, suit or action which may be brought against Customer for infringement of patents arising out of Customer’s use of Seller’s equipment, and Seller shall pay any final judgment for damages and costs which may be awarded against Customer, upon the condition that Customer shall have given Seller prompt notice of any such claim, suit or action, together with affording Seller complete control of the conduct of such settlement or defense, and shall have provided Seller, at Seller’s request and expense, with all available information regarding such claim, suit or action. Seller may, at its own expense, elect to either procure for Customer the right to continue using the allegedly infringing equipment, or replace it with non‐infringing equipment, or modify it so that it becomes non‐infringing equipment, or remove it and repay the purchase price applicable thereto, as well as transportation costs. This paragraph shall not apply to infringement arising out of features of construction incorporated in the equipment at the request of Customer or from the use of the equipment for purposes and uses other than as advertised, sold or intended by Seller. In no
event shall Seller’s total liability to Customer under the provisions of this article exceed the aggregate sum paid to Seller by Customer for the allegedly infringing equipment. The foregoing states the entire warranty by Seller for patent infringement by the equipment or any part of it.
12. Certificate of Compliance.
All equipment is manufactured and inspected by Seller in accordance with Seller’s current product specifications and quality control procedures.
13. Inspection and Equipment Testing.
Unless otherwise agreed in writing, the Goods are subject to Seller’s standard inspection and/or testing at place of manufacture. Purchaser may inspect the Goods and/or witness testing at the place of manufacture or at such other place as Seller, in its sole discretion, shall designate, and Purchaser’s consequent approval or rejection of the Goods must be made prior to shipment. Purchaser’s failure to inspect will constitute acceptance. Where Purchaser has inspected the Goods prior to shipment, Purchaser shall have no right whatsoever to inspect, reject or revoke its acceptance of the Goods after shipment. Purchaser is responsible for any charges associated with witnessed testing beyond the normal level of activity for routine test activities, as defined on the Contract, Purchase Order, or Order.
Seller reserves the right to assign, delegate or subcontract an order, in whole or in part, without the prior consent of Customer.
15. Governing Law.
An order is valid only when accepted in writing by Seller at the office designated on the front of Seller’s quotation form. The contract arising there from shall be construed and enforced in accordance with the governing laws of the location of the Seller’s office accepting the order.
16. Specification Changes.
Seller’s product specifications are subject to change without notice to Customer, provided such changes do not materially affect performance. Title to all materials and information, including but not limited to specifications, drawings, engineering data, and technical designs, provided to Customer by Seller at no cost shall remain vested in Seller, including the right to have such data and all copies returned to Seller upon request. All such information shall be kept confidential by Customer, except to any extent such information was previously known to Customer from sources other than Seller.
17. Supplementary Terms and Conditions.
Orders for field services, including but not limited to, antenna installation, system testing, tower erection, shelter placement, antenna/waveguide installation and on‐site testing shall be governed by the supplementary terms and conditions incorporated by reference in Seller’s quotation. In the event of any conflict between the supplementary terms and these Conditions of Sale, the supplementary terms and conditions shall control the performance of all field services.
The Purchaser may cancel an order only upon written notice sixty (60) days prior to shipment, and upon payment to Seller of all reasonable cancellation and/or termination liability charges. Orders which are canceled prior to shipment, if standard products, are subject to a minimum 20% restocking charge for those items already in production or in finished goods inventory awaiting shipment to Purchaser. Orders which are canceled prior to shipment, if those items are “special” or “custom” items designed or modified to the Purchaser’s specifications, are essentially non‐cancelable for that portion in production or in finished goods inventory awaiting shipment to the Purchaser, and are subject to full recovery costs and profit or an agreed payment in accordance with a termination liability payment schedule. Orders that are canceled after shipment to Purchaser, whether standard or special, remain the property of the Purchaser and subject to payment in full.
19. Shipment Delays/Billing in Place.
Upon completion of Customer’s order, any delay in shipment attributable to Customer, including but not limited to, Customer’s request to defer the delivery date, shall cause the following to occur: Thirty (30) days after the original shipment date, a storage charge of 1.5% of the invoice price per month will be billed to Customer and title to the shipment will automatically pass to Customer. Further, Seller will invoice Customer for completed goods and Customer will pay in accordance with the terms of the original sale, as the goods will be deemed to have shipped in place. The warranty will also commence at this time. Seller will insure against risk of loss until physical shipment of the goods to a common carrier.
20. Change Orders.
Customer change orders must be in writing and no change shall be made pursuant to this clause unless agreed to in writing and signed by duly authorized representatives of Seller and Customer. If any such change causes an increase or decrease in the cost or the time required for the performance of any part of the work, an equitable adjustment shall be made in the contract price and schedule. Seller shall have no obligation to commence any extra or changed work without written agreement as to adjustments to contract price and delivery schedules affected thereby.
In the event Customer becomes bankrupt or insolvent or has a receiver or liquidator of its assets appointed, Seller may immediately terminate its performance and stop all further deliveries, including stoppage in transit, and Customer shall pay a reasonable termination charge based on the actual costs incurred by Seller.
All terms and conditions herein are subject to change by Seller without notice.