TERMS AND CONDITIONS OF SALE
ALL SALES ARE EXPRESSLY LIMITED TO AND MADE CONDITIONAL UPON THE ACCEPTANCE BY BUYER OF THE EXACT TERMS AND CONDITIONS CONTAINED HEREIN. THE TERMS AND CONDITIONS CONTAINED ON ANY PURCHASE ORDER OR REQUEST FOR QUOTATION RECEIVED BY SELLER FROM BUYER ARE EXPRESSLY SUPERSEDED HEREBY AND SHALL NOT BE CONSTRUED AS PART OF THE AGREEMENT BETWEEN SELLER AND BUYER. OBJECTION BY BUYER TO ANY OF THE TERMS CONTAINED HEREIN SHALL BE DEEMED TO HAVE BEEN WAIVED IF WRITTEN NOTICE OF THE OBJECTION IS NOT RECEIVED WITHIN TEN (10) DAYS AFTER THE DATE OF RECEIPT OF THESE TERMS AND CONDITIONS OR BEFORE ALL OR ANY PART OF THE GOODS ORDERED ARE ACCEPTED BY BUYER, WHICHEVER OCCURS FIRST. THIS DOCUMENT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN SELLER AND BUYER WITH RESPECT TO THE SUBJECT MATTER HEREOF.
Seller and Buyer acknowledge that all of the terms and conditions contained herein reflect an acceptable allocation of the rights and obligations of the parties to the sale contemplated herein.
1. Delivery. Delivery of the goods purchased hereunder by Seller to the carrier at the point of origin shall constitute delivery of the goods to Buyer and thereafter the shipment of the goods shall be at Buyer’s risk. All claims and allowances for damage to the goods incurred in transit must be filed against and presented to the carrier by Buyer. Delivery and shipment dates as shown on quotations, acknowledgments or invoices are estimates only. Seller shall not be liable for delays in delivery of the goods or inability to deliver the goods caused by or due to inability to obtain transportation, equipment or materials, insurrections, fire, floods, storms, embargoes, action of any military or civil authorities, strikes, labor difficulties, lock-outs, delays in deliveries by Seller’s vendors, acts of God or other similar or different circumstances beyond the control of Seller. In addition, Seller reserves the right to allocate its production capacity as it deems necessary and Seller shall not be liable for delays in delivery caused or occasioned by such allocation. In the event of any such delay, this Agreement will not be terminated and the date of performance will be extended for a reasonable period of time equal to the period of delay. In the event of delay or failure of performance not excused in accordance with the preceding sentence, Seller’s liability shall not exceed five percent (5%) of the price hereunder for any undelivered goods, and, in any case, Seller’s liability shall not include any consequential, incidental, special or contingent damages.
2. Prices. All prices shown on quotations or on acknowledgments of orders are Seller’s prices in effect on the date the quotation is made or the order is acknowledged. Price quotes remain in effect thirty (30) days only, and are thereafter subject to change without notice.
3. Payment. Payment of each invoice, whether or not such invoice covers the entire order, shall be made in accordance with the terms of the invoice. Unless alternative payment terms are indicated on the face of Seller’s Order Acknowledgement or Invoice, all amounts due from Buyer to Seller for goods sold by Seller to Buyer are due and payable in full thirty (30) days after the invoice date. If Buyer fails to perform the terms of payment of any invoice or if the financial responsibility of Buyer shall become impaired or unsatisfactory to Seller, or if necessitated by any act, or requirement of any governmental authority, Seller in its sole discretion reserves the right to change the terms of payment, require payment in advance or security or a guaranty satisfactory to Seller and/or defer or discontinue further shipments without prejudice to any other lawful remedy available to Seller, until past due payments are made and/or satisfactory assurances of Buyer’s credit standing are received by Seller or where such acts or requirements of such governmental authorities shall have been complied with. Seller also reserves the right in the case of any of the foregoing events to cancel all of Buyer’s orders, in which event Buyer shall compensate Seller for any commitments, obligations, expenditures, expenses and costs that Seller may have incurred in connection with the orders (e.g., conversion charges and restocking charges). Unless otherwise specified, Seller shall have the right to make partial shipments. Each partial shipment shall be deemed a separate sale and payment shall become due therefor, in accordance with the terms of payment. A delinquency charge of one and one-half percent (1.5%) per month will be charged on past due accounts unless prohibited by law. Buyer shall pay all fees and expenses (including attorneys’ fees) incurred by Seller in the enforcement of Seller’s rights hereunder. Buyer hereby represents that it is solvent and Buyer’s signing of any delivery receipt (however denominated) furnished by Buyer to the delivering carrier shall constitute a further representation of solvency at the time of signing such receipt.
4. Limited Warranty. (a) Seller will at its sole option, either repair or replace (with a new or factory reconditioned product, as Seller may determine) any product manufactured or sold (or in the case of software, licensed) by Seller which is defective in materials or workmanship or fails to meet the applicable specifications that are in effect on the date of shipment or such other specifications as may have been expressly agreed upon in writing: (i) for a period of three (3) years from the date of original purchase for all stock hardware products (other than those specifically referenced herein below having a shorter warranty period); (ii) for a period of one (1) year from the date of original purchase, with respect to all MegaPort™, IPTV products, test equipment and fiber optics receivers, transmitters, couplers and integrated receiver/distribution amplifiers; (iii) for a period of one (1) year from the date of original purchase (or such shorter period of time as may be set forth in the license agreement specific to the particular software being licensed from Seller) with respect to all software products licensed from Seller (other than Core Product Software) that is (a) developed for a specific function or application, (b) complimentary to and does not function without the Core Product Software, and (c) listed with a specific model number and stock number in Seller’s Price List (“Non-Core Software”); (iv) for a period of ninety (90) days from the date of original purchase, with respect to non-serialized products and accessories, such as parts, sub-assemblies, splitters and all other products sold by Seller (other than Core Product Software and Refurbished/Closeout Products) not otherwise referred to in clauses (i) through (iii) above. The warranty period for computer programs in machine-readable form included in a hardware product, which are essential for the functionality thereof as specifically stated in the published product specifications (“Core Product Software”) will be coincident with the warranty period of the applicable hardware product within which such Core Product Software is installed. Software patches, bug fixes, updates or workarounds do not extend the original warranty period of any Core Product Software or Non-Core Software.
(b) Notwithstanding anything herein to the contrary, (i) Seller’s sole obligation for software that when properly installed and used does not substantially conform to the published specifications in effect when the software is first shipped by Seller, is to use commercially reasonable efforts to correct any reproducible material non-conformity (as determined by Seller in its sole discretion) by providing the customer with: (a) telephone or e-mail access to report non-conformance so that Seller can verify reproducibility, (b) a software patch or bug fix, if available or a workaround to bypass the issue if available, and (c) where applicable, replacement or damaged or defective external media, such as CD-ROM disk, on which the software was originally delivered; (ii) Seller does not warrant that the use of any software will be uninterrupted, error-free, free of security vulnerabilities or that the software will meet the customer’s particular requirements; and the customer’s sole and exclusive remedy for breach of this warranty is, at Seller’s option, to receive (a) suitably modified software, or part thereof, or (b) comparable replacement software or part thereof; (iii) Seller retains all right, title and interest in and to and ownership of all software (including all Core Product Software and Non-Core Software) including any and all enhancements, modifications and updates to the same; and (iv) in some cases, the warranty on certain proprietary sub-assembly modules manufactured by third-party vendors and contained in Seller’s products, third party software installed in certain of Seller’s products, and on certain private–label products manufactured by third-parties for resale by Seller, will be of shorter duration or otherwise more limited than the standard Seller limited warranty. In such cases, Seller’s warranty with respect to such third-party proprietary sub-assembly modules, third-party software and private-label products will be limited to the duration and other terms of such third-party vendor’s warranty, if any. In addition, certain products, that are not manufactured by Seller, but are resold by Seller, may carry the original OEM warranty for such products, if any. The limited warranty set forth above does not apply to any product sold by Seller, which at the time of sale constituted a Refurbished/Closeout Product, the limited warranty for which is provided in the following paragraph.
(c) Seller will at its sole option, either repair or replace (with a new or factory-reconditioned product, as Seller may determine) any product sold by Seller which at the time of sale constituted a refurbished or closeout item (“Refurbished/Closeout Product”), which is defective in materials or workmanship or fails to meet the applicable specifications that are in effect on the date of shipment of that product or fails to meet such other specifications as may have been expressly agreed upon in writing between the parties, for a period of ninety (90) days from the date of original purchase. Notwithstanding the foregoing, in some cases the warranty on certain proprietary sub-assembly modules manufactured by third-party vendors and contained in Seller products, third party software installed in certain of Seller’s products, and on certain private–label products manufactured by third-parties for resale by Seller will be of shorter duration or otherwise more limited than Seller limited warranty for Refurbished/Closeout Products. In such cases, Seller’s warranty for Refurbished/Closeout Products constituting such third party proprietary sub-assembly modules, third party software, and private-label products will be limited to the duration and other terms of such third-party vendor’s warranty, if any. In addition, notwithstanding the foregoing, (i) certain Refurbished/Closeout Products that are not manufactured (but are resold) by Seller, may carry the original OEM warranty for such products, if any, which may be longer or shorter than Seller’s limited warranty for Refurbished/Closeout Products. All sales of Refurbished/Closeout Products are final.
(d) To obtain service under this warranty, the defective product, together with a copy of the sales receipt, serial number if applicable, or other satisfactory proof of purchase and a brief description of the defect, must be shipped freight prepaid to Seller at the following address: One Jake Brown Road, Old Bridge, New Jersey 08857.
(e) This warranty does not cover failure of performance or damage resulting from (i) use or installation other than in strict accordance with manufacturer’s written instructions, (ii) disassembly or repair by someone other than the manufacturer or a manufacturer-authorized repair center, (iii) misuse, misapplication or abuse, (iv) alteration, (v) exposure to unusual physical or electrical stress, abuse or accident or forces or exposure beyond normal use within specified operational or environmental parameters set forth in applicable product specifications, (vi) lack of reasonable care, or (vii) wind, ice, snow, rain, lightning, or any other weather conditions or acts of God.
OTHER THAN THE WARRANTIES SET FORTH ABOVE, SELLER MAKES NO OTHER WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE CONDITION, DESCRIPTION, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, OR AS TO ANY OTHER MATTER, AND SUCH WARRANTIES SET FORTH ABOVE SUPERSEDE ANY ORAL OR WRITTEN WARRANTIES OR REPRESENTATIONS MADE OR IMPLIED BY SELLER OR BY ANY OF SELLER’S EMPLOYEES OR REPRESENTATIVES, OR IN ANY OF SELLER’S BROCHURES MANUALS, CATALOGS, LITERATURE OR OTHER MATERIALS. IN ALL CASES, BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S SOLE OBLIGATION FOR ANY BREACH OF THE WARRANTIES CONTAINED HEREIN SHALL BE LIMITED TO THE REPAIR OR REPLACEMENT OF THE DEFECTIVE PRODUCT F.O.B. SHIPPING POINT, AS SELLER IN ITS SOLE DISCRETION SHALL DETERMINE. SELLER SHALL IN NO EVENT AND UNDER NO CIRCUMSTANCES BE LIABLE OR RESPONSIBLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE, DIRECT OR SPECIAL DAMAGES BASED UPON BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT TORT LIABILITY OR OTHERWISE OR ANY OTHER LEGAL THEORY, ARISING DIRECTLY OR INDIRECTLY FROM THE SALE, USE, INSTALLATION OR FAILURE OF ANY PRODUCT ACQUIRED BY BUYER FROM SELLER.
5. Statute of Limitations. Any actions for breach of this contract must be commenced by Buyer within thirteen (13) months after the cause of action has accrued.
6. Claims/Replacement of Defective Goods. All claims for shortages, defects and non-conforming goods must be made by Buyer in writing within five (5) days of receipt of merchandise, which writing shall state with particularity all material facts concerning the claim then known to Buyer. Upon any such claim, Buyer shall hold the goods complained of intact and duly protected for a period of up to sixty (60) days. Upon the request of Seller, Buyer shall ship such allegedly nonconforming or defective goods, freight prepaid, to Seller for examination by Seller’s inspection department and verification of the defect. Seller, at its option, will either repair, replace or issue a credit for products determined to be defective. Seller’s liability and responsibility for defective products is specifically limited to the defective item or to credit towards the original billing. All such replacements by Seller shall be made free of charge f.o.b. the delivery point called for in the original order. Products for which replacement has been made under the provisions of this clause shall become the property of Seller. Under no circumstances are products to be returned to Seller without Seller’s prior written authorization. Seller reserves the right to scrap any unauthorized returns on a no-credit basis.
7. Taxes. Prices listed do not include taxes of any kind. The gross amount of any sales, property, excise, use, value-added, or other similar taxes applicable to the price, sale or delivery of any goods or services furnished hereunder or to their use by Seller or Buyer will, at Seller’s option, either be added to the price as shown on the face hereof or be paid directly by Buyer unless, prior to shipment, Buyer provides Seller with a tax exemption certificate acceptable to the applicable taxing authorities.
8. Title to Production Tooling. Any equipment (including jigs, dies, tools, molds or fixtures) referred to in any quotation or order which Seller constructs or acquires for use in production of goods ordered hereunder, shall be and remain Seller’s property and in Seller’s sole possession and control. Any charges made by Seller therefor shall be only for the use of such equipment and shall confer on Buyer no rights of any kind with respect to such equipment.
9. Changes. Seller assumes no responsibility for any changes in specifications unless such changes are confirmed in writing by Buyer and accepted in writing by Seller. Any price variation resulting from such changes shall become effective immediately upon the acceptance of such changes by Seller.
10. Partial Payments. Payments by Buyer to Seller of a lesser amount than is then due and owing by Buyer pursuant to all outstanding invoices shall be deemed a payment on account of the earliest-dated invoice. No endorsement or statement on or accompanying any check, money order or other form of remittance by Buyer shall be deemed an accord and satisfaction without Seller’s express written consent thereto, which consent shall not be inferred from Seller’s endorsement and negotiation of such check, money order or other form of remittance. Any acceptance by Seller or any agent of Seller of any such check, money order or other form of remittance from Buyer as partial payment shall be without prejudice to Seller’s right to recover the balance of all outstanding invoice amounts or to pursue any other remedy provided by law or equity.
11. Collection. If affirmative action is required on the part of Seller to collect any amount owing to Seller by Buyer under this contract, Buyer shall pay to Seller all costs of collection, including but not limited to attorneys’ fees and court costs incurred by Seller.
12. Waiver. No waiver by Seller of any breach of any provision hereof shall constitute a waiver of a subsequent breach of the same provision or of any other breach hereunder. Seller’s failure to object to provisions contained in any communication from Buyer shall not be deemed an acceptance of such provisions or as a waiver of the provisions hereof.
13. Security. Seller reserves and Buyer grants to Seller a purchase money security interest in each of the products listed on Seller’s order acknowledgment and/or invoice in the amount of the purchase price. A copy of such order acknowledgement, invoice or this document may be filed on Seller’s behalf with appropriate state and local authorities as a financing statement or as an attachment thereto to perfect Seller’s security interest and Seller is hereby expressly authorized to file financing statements describing, as collateral, the products purchased by Buyer from Seller described in applicable existing and future order acknowledgements and/or invoices(and all proceeds thereof).
14. Intellectual Property. (a) Buyer shall not acquire any right to Seller’s patents, copyrights, trademarks, trade names, trade secrets, good will or other forms of commercial, proprietary, or intellectual property (collectively, “Intellectual Property”), and Buyer shall not copy, modify, reverse engineer, decompile, enhance, or make derivative works of Seller’s Intellectual Property. Any unauthorized modifications, derivative works, and enhancements shall belong to Seller as the owner of the underlying Intellectual Property, and all rights (including moral rights) in such unauthorized modifications, derivative works, and enhancements are assigned by Buyer to Seller. (b) Seller shall not be liable to Buyer or any other person for infringement of any third-party Intellectual Property rights, foreign or domestic, arising out of Buyer’s use or resale of the products sold hereunder. If such products are manufactured by Seller in accordance with Buyer’s instructions or specifications, Buyer warrants that such instructions or specifications will not cause the product to infringe any Intellectual Property rights and Buyer will indemnify, defend and hold Seller harmless from all liability or expense of any nature whatsoever based upon or arising out of any claim of infringement of any such Intellectual Property right. Buyer will also indemnify, defend and hold Seller harmless from all liability or expense of any nature whatsoever based upon or arising out of any claim of infringement of any such Intellectual Property right challenging Buyer’s use of the products when alternative, non-infringing uses of the products are feasible.
15. Cost of Insurance and Transportation. If the contract provides that Seller shall pay insurance and transportation costs, they shall be at the applicable rates in effect at the date of the contract. If for any reason the cost of insurance or transportation increases prior to the shipment date, such increases shall be for the account of and charged to Buyer.
16. Buyer’s Terms. Seller objects to and is not bound by any terms or conditions on Buyer’s order which attempt to impose upon Seller any terms or conditions at variance with Seller’s terms and conditions set forth herein.
17. Miscellaneous. This contract shall be governed by and construed and enforced in accordance with the internal laws of the State of New Jersey. Buyer and Seller hereby agree to the sole and exclusive jurisdiction and venue of the courts of the State of New Jersey and/or the United States District Court for New Jersey for the resolution of all disputes hereunder, and Buyer agrees to service of process upon Buyer by United States registered or certified mail to Buyer’s address set forth on the face of this document. Buyer acknowledges that any breach of an obligation which relates to Seller’s Intellectual Property, or which is otherwise not subject to remedy by monetary damages, will cause Seller irreparable harm and that Seller accordingly will be entitled to injunctive and other equitable relief in addition to all other remedies provided by this contract or available at law. This contract constitutes the entire agreement between the parties and supersedes all prior or contemporaneous oral or written agreements including, without limitation, Buyer’s quotation requests, purchase orders and confirmations, whether the same were issued before, concurrently with or after this contract. Any acceptance contained herein is expressly made conditioned on Buyer’s assent to the additional or different terms contained herein. This contract shall not be modified, except in a writing signed by Seller and Buyer.