Terms and Conditions of Sale
NETUNWIRED 's standard terms and conditions of sale
1. All Customer Purchase Orders are subject to these terms and conditions and all
additional terms and conditions presented on or accompanying an NETUNWIRED
Quotation or NETUNWIRED Order Acknowledgment. NETUNWIRED specifically rejects and
Customer disclaims all printed provisions in Customer's printed Purchase Orders including
associated forms and/or documents. These terms and conditions, together with the
NETUNWIRED Order Acknowledgment shall constitute the entire agreement between
NETUNWIRED and Customer with respect to any Customer Purchase Order and the
Materials and/or Services provided hereunder. These terms and conditions supersede any
prior or contemporaneous agreements or representations written or oral. Any amendment
of these terms and conditions must be in writing and signed by NETUNWIRED to be
binding on NETUNWIRED.
2. ACCEPTANCE OF PURCHASE ORDERS
As used herein, "Acceptance of Customer's Purchase Order" shall mean NETUNWIRED's
agreement, as evidenced by the issuance of an Order Acknowledgment, to supply the
Material and/or Services identified in Customer's Purchase Order under the terms and
conditions herein. All Customer Purchase Orders are subject to written acceptance by
NETUNWIRED, at its sole discretion, even if received elsewhere by a salesperson, selling
agent or representative. No Customer Purchase Order will be binding upon NETUNWIRED
until NETUNWIRED issues its written Order Acknowledgment.
3. PURCHASE ORDER CHANGES
Customer may not change its Purchase Order without NETUNWIRED's written consent. Any
revision in drawings, designs , specifications, shipment completion dates or Purchase
Order termination requested by Customer may result in additional cost to Customer. Any
additional cost to Customer will be at NETUNWIRED's standard rates in effect at the time of
Customer's request. NETUNWIRED's performance of Customer's request shall commence
only upon the issuance of a new Purchase Order or written amendment to an existing
Purchase Order authorizing the applicable charge.
Customer's oral requests for Services shall be binding on Customer and deemed by
NETUNWIRED as valid Customer Purchase Orders, governed by these terms and
conditions. Customer further agrees, as a result of any request made hereunder to pay any
and all charges associated with such Service request. Customer requested changes in
performance of Services shall be reviewed upon NETUNWIRED's receipt of Customer's
request to determine if additional charges are applicable.
4. PRICE OF MATERIAL AND/OR SERVICES
The price for Material and Services are based on NETUNWIRED's published list prices in
effect at time of NETUNWIRED's receipt of Customer's Purchase Order unless otherwise
set forth in the Order Acknowledgment , or a valid issued Quotation, Statement of Work or
proposal. A Quotation, Statement of Work or proposal is valid for a period of thirty [30] days
from date of issue . Errors or omissions in price are subject to correction by NETUNWIRED.
All published list prices are subject to change by NETUNWIRED without notice.
NETUNWIRED retains all rights to change the Material and/or Services or may discontinue
any Material and/or Services at NETUNWIRED's sole discretion.
5. PRICES; ADJUSTMENTS
The price of Services may subsequently be adjusted to reasonably reflect the adverse cost
impact to NETUNWIRED of :
i. Customer changes or delays which are outside of the scope of Services;
ii. legal/regulatory changes which occur after the issuance of the Quotation and/or
Statement of Work for the particular Services in question; and
iii. the failure of Customer to perform its obligations under Sections 6, 7, and 8.
NETUNWIRED will provide a written notice and reason for an adjustment to the price within
a reasonable period of time after NETUNWIRED becomes aware of an event under which
NETUNWIRED intends to request an adjustment . The parties will then determine, in a
commercially reasonable manner, the price adjustment that is appropriate. Pending such
agreement, NETUNWIRED will continue to perform the Services specified in the Purchase
Order for ten (10) business days or such other greater time that may be agreed to in writing
by NETUNWIRED, unless (a) Customer has fails to pay amounts due to NETUNWIRED
when due; (b) or an event specifically identified in the Quotation and/or Statement of Work
permitting suspension or termination of the Services occurs; or (c) Customer is otherwise
in breach .
In the event an adjustment to the price has not been made within the aforementioned ten
(10) business days, NETUNWIRED shall have the right to terminate this Purchase Order, in
whole or in part and in addition to any other remedy available to NETUNWIRED, Customer
shall make immediate payment to NETUNWIRED on account of all Materials delivered
and/or Services rendered. . Note that with Discover Card or American Express that a 3%
service fee may apply.
6. SCHEDULE FOR PERFORMANCE OF SERVICES
NETUNWIRED will perform the Services in accordance with the schedule stated in the
Quotation and/or Statement of Work . Both parties agree to adhere to the schedule,
however, each party will give due consideration to any reasonable proposal by the other
party regarding changes in the schedule which, if agreed upon, will be recorded in a written
modification to the applicable Purchase Order. Dates for performance of Services are
estimated by NETUNWIRED in good faith but not guaranteed by NETUNWIRED. Except as
otherwise set forth in the Quotation and/or Statement of Work, NETUNWIRED will have
unrestricted access to Customer's site and any other locations at which Services are to be
performed at all times (including overtime hours, Saturdays, Sundays and holidays) for the
purpose of performing the Services.
7. SITE PREPARATION AND CONDITION FOR SERVICES
Customer will be responsible for preparation of the site, at which NETUNWIRED will
perform the Services, to the specifications and in accordance with the time schedule stated
in the Quotation and/or Statement of Work. Customer warrants to NETUNWIRED that each
such site is in compliance with all applicable health and safety regulations and is free from
all friable asbestos and hazardous contamination or pollutants, as further provided in
Section 8 below.
8. HAZARDOUS MATERIALS
Prior to the date specified in the Quotation and/or Statement of Work for the performance of
Service, Customer will take any and all steps needed to assure that each site is free from
all friable asbestos and hazardous contamination or pollutants. If contamination is found to
be present at a site, NETUNWIRED will have no further obligations under any Quotation and
/or Statement of Work (other than with respect to any software licenses or confidentiality
obligations), until such contamination is removed.
9. PACKAGING, SHIPMENT AND SERVICE DATES
All Products shall be suitably packed for shipment. NETUNWIRED may charge for packing
and/or packaging including special documentation to comply with Customer requirements.
Shipment Date for Material or date for performance of Service is estimated by
NETUNWIRED but is not guaranteed by NETUNWIRED . Shipment within the continental
United States are made FOB NETUNWIRED shipping location
Customer, regardless of the circumstances, will not hold NETUNWIRED liable for any
liabilities, penalties, or charges of any nature due to the late performance of any Service
date. NETUNWIRED assumes no liability for any direct or liquidated damages during
shipment or delivery of Material. Material may be tendered in partial shipments at
NETUNWIRED's discretion.
In the event of shipment delay requested by Customer or a delay caused by lack of shipping
instructions, NETUNWIRED will store all Material covered thereby at Customer's risk and
expense. NETUNWIRED will invoice the Customer at the full price for the Material including
an additional storage fee.
10. TITLE, RISK OF LOSS AND INSURANCE
Title, risk of loss, damage and insurance responsibilities for the Products pass from
NETUNWIRED to Customer upon acceptance of Product by the shipping agent or carrier.
Title to all Software shall remain with NETUNWIRED or its licensors, but risk of loss,
damage and insurance responsibilities shall pass to Customer at NETUNWIRED's
shipping location.
For all Materials shipped , NETUNWIRED shall retain a security interest in the Materials
until payment, in full, has been received by NETUNWIRED for such Materials delivered and
Services performed. Customer shall execute any instrument reasonably required for
NETUNWIRED's protection of such security interest.
11. Acceptance or rejection of MATERIAL/SERVICES
After the Delivery of the Material, or the performance of Services, Customer will inspect the
Material/Services for conformity to the Purchase Order, Statement of Work or Quotation (as
the case may be) within a period of thirty [30] calendar days (hereinafter "Acceptance
Period"). Acceptance of Material/Services by Customer shall automatically occur after the
passage of the Acceptance Period stated herein unless NETUNWIRED is advised
otherwise in writing within the stated Acceptance Period or upon Customer's commercial
use of the Material/Services.
If any Material or Service does not substantially conform to the applicable Purchase Order,
Statement of Work or quotation (as the case may be) Customer shall notify NETUNWIRED
in writing of the nonconformance , and for Material, obtain an authorization for return, and
return such Material to NETUNWIRED for correction or completion as required. With respect
to Services, NETUNWIRED shall , at no additional charge (if determined by NETUNWIRED
to be NETUNWIRED's fault), take prompt action to correct such unsatisfactory Services.
12. PAYMENT TERMS
Customer's payment obligations are stated on NETUNWIRED's invoices. Invoices for
Services will be rendered in accordance with an established milestone schedule or upon
completion of any Services. Late charges of one and one-half percent [11/2%] or the
maximum permitted by law, whichever is less, per month on outstanding balances may be
charged. All amounts due shall be payable in United States dollars unless otherwise
specifically agreed upon in NETUNWIRED's Order Acknowledgement.
If, in NETUNWIRED's judgment, Customer's financial condition does not justify continuation
of the existing payment terms , NETUNWIRED may:
1. require full or partial payment of Customer's account;
2. require payment in advance of Material shipment;
3. require payment in advance for performance of any Services;
4. change Customer's credit terms; or
5. any combination of the above.
13. Product AND SERVICES WARRANTY
NETUNWIRED warrants from the date of shipment to Customer that Product bearing the
NETUNWIRED name will substantially conform to NETUNWIRED specifications in effect as
of the date of shipment and will be free from substantial defects in material and
workmanship under normal use, given proper installation and maintenance, for the period
of time stated in NETUNWIRED's customer quote.
Customer must promptly notify NETUNWIRED of any claimed defect in the Product and/or
Services. NETUNWIRED or its agent may inspect the Product or workmanship on
Customer's premises. Product returned to NETUNWIRED under warranty must be shipped
prepaid by Customer.
14. Product AND SERVICES WARRANTY LIMITATIONS
NETUNWIRED's entire liability and Customer's exclusive remedy whether in contract, tort or
otherwise, for any claim related to or arising out of breach of the warranty covering Product
or Services shall be correction of defects by repair, replacement, re-performance of service
or credit, at NETUNWIRED's discretion. Refurbished Product may be used to repair or
replace the Product. Customer shall have no claim to Product which was replaced or the
components therein which were replaced. NETUNWIRED has no liability with respect to
claims relating to or arising from the use of equipment not bearing the NETUNWIRED
name.
LIMITED WARRANTY: NetUnwired provides that this product will perform to specification.
NetUnwired, does not guaranty performance of radio connections in the event that there
radio interference and/or obstructions or anomalies within the radio link path.
6. EXTENDED WARRANTIES: Extended warranties are available for some products. Please
inquire.
NETUNWIRED does not warrant that the operation of the Product will be uninterrupted or
error-free. Similarly, NETUNWIRED does not warrant that the functions of the Product will
meet Customer's requirements or that the Product will operate in combination with other
products selected by Customer for its use.
NETUNWIRED assumes no liability with respect to (a) defects caused by modification,
repair, installation, operation or maintenance except as described in NETUNWIRED's
documentation; or, (b) negligent or other improper use of the Product.
All equipment and software not bearing the NETUNWIRED name, is supplied "AS IS" and
Customer will look solely to the warranties and remedies, if any, provided by the equipment
manufacturer or vendor thereof. In addition, NETUNWIRED assumes no liability for
equipment or services furnished by Customer nor does this warranty cover any copy of or
update to any user manual for the Product.
No agent, distributor, or representative is authorized to make any warranties on behalf of
NETUNWIRED or to assume for NETUNWIRED any other liability in connection with any
Product or Services.
WITH RESPECT TO ALL PURCHASES OF PRODUCT AND/OR SERVICES FROM
NETUNWIRED BY CUSTOMER, THE ABOVE WARRANTY REPLACES ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, AND ALL OTHER OBLIGATIONS OF NETUNWIRED,
INCLUDING ANY WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. ALL OTHER WARRANTIES ARE DISCLAIMED AND EXCLUDED
BY NETUNWIRED.
15. RETURNS
Material may not be returned to NETUNWIRED without prior authorization. Customer must
contact NETUNWIRED to obtain an authorization number and return the Material to the
location designated by NETUNWIRED with all transportation charges paid by Customer.
NETUNWIRED may charge Customer certain fees for Material returned to NETUNWIRED.
Any Material returned to NETUNWIRED without proper authorization will be returned to
Customer at Customer expense.
16. DISCLAIMER OF LIABILITY
NETUNWIRED WILL NOT BE LIABLE FOR INJURIES OR DAMAGES TO PERSONS OR
PROPERTY RESULTING FROM ANY CAUSE WHATSOEVER , WITH THE EXCEPTION OF
BODILY INJURIES, DEATH OR TANGIBLE PROPERTY DAMAGE CAUSED BY THE
WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF NETUNWIRED. THIS LIMITATION
APPLIES TO ALL MATERIAL AND SERVICES PERFORMED DURING AND AFTER THE
WARRANTY PERIOD.
IN NO EVENT SHALL NETUNWIRED BE LIABLE FOR ANY DAMAGES RESULTING FROM
LOSS OF DATA, LOSS OF USE OR LOSS OF REVENUE OR PROFIT AND NETUNWIRED
FURTHER DISCLAIMS ANY AND ALL LIABILITY FOR INDIRECT, INCIDENTAL , SPECIAL,
CONSEQUENTIAL, OR OTHER SIMILAR DAMAGES.
IF ANY REMEDY HEREUNDER FAILS OF ITS ESSENTIAL PURPOSE, OR IN ANY OTHER
EVENT, NETUNWIRED'S AGGREGATE LIABILITY HEREUNDER SHALL NOT EXCEED THE
DEPRECIATED VALUE OF THE AFFECTED MATERIAL OR THE ACTUAL AMOUNT PAID TO
NETUNWIRED FOR SERVICES.
17. ASSIGNMENT
NETUNWIRED may assign its rights and obligations by giving Customer written notice
thereof but without being obligated to obtain Customer's consent prior thereto. In the event if
an assignment, NETUNWIRED shall be discharged of any liability pursuant to those
Purchase Orders which have been assigned or delegated.
Customer may not assign its rights nor delegate its obligations under any or all of its
Purchase Orders unless NETUNWIRED's written consent is obtained prior thereto and any
such assignment or delegation without such consent shall be void.
18. COMPLIANCE WITH APPLICABLE LAWS
The Customer will comply with all applicable laws affecting the purchase and use of
Material. Customer agrees to maintain all registrations with governmental agencies,
commercial registries, chambers of commerce, or other offices which may be required
under law in order to properly conduct commercial business.
Prior to the date specified in the Quotation and/or Statement of Work for the performance of
Service, Customer will (a) obtain and pay for all governmental or third party consents,
permits, approvals , licenses and public and private easements necessary for
NETUNWIRED's unrestricted access to any site or location needed for performance of the
Services and delivery of the Material, and (b) will notify NETUNWIRED in advance of any
requirements including all local laws, regulations, ordinances and the like to which
NETUNWIRED is or will be required to comply in the rendering of Services and in the
supplying of Materials hereunder.
When required, Customer will comply with United States laws applicable to the use, sale or
license of Material , including but not limited to the Foreign Corrupt Practices Act and the
Export Administration Act.
19. CONFIDENTIAL INFORMATION
Customer will not disclose to any person or entity any information or data fixed in a tangible
medium and marked as the confidential or proprietary information (hereinafter referred to as
"Confidential Information") of NETUNWIRED, or if provided orally, confirmed in writing to be
confidential or proprietary within twenty [20] calendar days after its disclosure.
Notwithstanding the provisions herein, if Customer receives Confidential Information it shall
treat such Confidential Information as confidential, prohibit recopying and use such
Confidential Information only in connection with fulfilling its obligations under Customer's
Purchase Order . Customer will return all Confidential Information to NETUNWIRED upon
completion of such obligations for its use, or upon the request of NETUNWIRED.
Customer recognizes and agrees that the unauthorized use or disclosure of the
Confidential Information would cause irreparable injury to NETUNWIRED for which it would
have no adequate remedy at law, and that any actual or contemplated breach of this clause
will entitle NETUNWIRED to obtain immediate injunctive relief prohibiting such breach, in
addition to any other rights and remedies available to it. The obligations herein contained
will expressly survive the final payment of any/or all Customer Purchase Orders.
20. SEVERABILITY
If any provision of these terms and conditions is held by a court, government agency or other
legal authority of competent jurisdiction to be invalid, illegal or unenforceable, such invalidity
, illegality or unenforceability shall not invalidate, void or render unenforceable any other
portion of these terms and conditions but rather these terms and conditions shall be
construed as if it did not contain the particular invalid, illegal or unenforceable provision or
provisions, and the rights and obligations of the parties shall be construed and enforced
accordingly.
21. FORCE MAJEURE
NETUNWIRED is not liable for failure or delay in fulfilling its obligations due to any causes
beyond its control. In the event of any such delay, the date for shipment or performance of
Services will be extended correspondingly. NETUNWIRED retains the right to determine the
allocation of its inventory of Material among itself, its present and future customers and
Customer . In the event NETUNWIRED partially fills Customer's Purchase Order, Customer
shall, nonetheless , continue to make payments on NETUNWIRED's invoices during the
period in which the delay is in effect for those Materials and/or Services delivered. If an event
of force majeure prevents or delays NETUNWIRED's performance for more than six [6]
months, NETUNWIRED shall have the right to terminate the applicable Purchase Order,
with immediate effect.
22. PROPRIETARY RIGHTS INDEMNIFICATION
If any Product bearing the NETUNWIRED name, in NETUNWIRED's opinion, is likely to or
becomes the subject of a claim of infringement of any valid United States copyright or
patent, NETUNWIRED shall, at its option and expense, either: (1) modify it to make it non-
infringing; (2) settle such claim by procuring for Customer the right to continue using the
Product; or (3) defend Customer against such claim.
If NETUNWIRED elects to defend Customer against such claim, NETUNWIRED will pay
Customer for any damages actually incurred which are awarded by a court of final
jurisdiction, provided Customer gives NETUNWIRED prompt written notice of all facts and
circumstances necessary or desirable for a proper defense of same, and Customer
cooperates fully with NETUNWIRED in the defense of such claim . NETUNWIRED shall not
be responsible for any settlement made without NETUNWIRED's written consent .
If, in NETUNWIRED's opinion, none of the foregoing alternatives are reasonably available to
NETUNWIRED, then NETUNWIRED may discontinue the sale of the Product. If
NETUNWIRED elects to discontinue the sale of the Product, Customer may (1) continue
using the same at its sole risk until an injunction or other court order terminating the
continued use thereof has been issued; it being understood that NETUNWIRED may
participate at its expense in the defense of any such action if such claim names
NETUNWIRED as a defendant; or (2) return the Product to NETUNWIRED, including any
associated media, any printed material, and any "online" or electronic documentation to
NETUNWIRED and receive a prorated refund of the Product purchase cost based on an
established prorated period of five [5] years from date of original Product shipment by
NETUNWIRED. NETUNWIRED shall have no liability for any claim of patent or copyright
infringement based upon:
23. TAXES
In addition to the Price for Material or Services paid by Customer, Customer will pay
NETUNWIRED the amount of all taxes, excises, or other governmental charges that
NETUNWIRED may be required to pay with respect to the production, sale, license, or
transportation of any Material delivered hereunder, including the performance of any
Services, except taxes on or measured by NETUNWIRED's net income. If Customer claims
exemption from any taxes, Customer will provide NETUNWIRED with documentation
required by the taxing authority to support the exemption
24. CANCELLATION FOR DEFAULT
NETUNWIRED may, upon written notice to Customer, cancel any and/or all Customer
Purchase Orders effective immediately if:
NETUNWIRED 's standard terms and conditions of sale
1. All Customer Purchase Orders are subject to these terms and conditions and all
additional terms and conditions presented on or accompanying an NETUNWIRED
Quotation or NETUNWIRED Order Acknowledgment. NETUNWIRED specifically rejects and
Customer disclaims all printed provisions in Customer's printed Purchase Orders including
associated forms and/or documents. These terms and conditions, together with the
NETUNWIRED Order Acknowledgment shall constitute the entire agreement between
NETUNWIRED and Customer with respect to any Customer Purchase Order and the
Materials and/or Services provided hereunder. These terms and conditions supersede any
prior or contemporaneous agreements or representations written or oral. Any amendment
of these terms and conditions must be in writing and signed by NETUNWIRED to be
binding on NETUNWIRED.
2. ACCEPTANCE OF PURCHASE ORDERS
As used herein, "Acceptance of Customer's Purchase Order" shall mean NETUNWIRED's
agreement, as evidenced by the issuance of an Order Acknowledgment, to supply the
Material and/or Services identified in Customer's Purchase Order under the terms and
conditions herein. All Customer Purchase Orders are subject to written acceptance by
NETUNWIRED, at its sole discretion, even if received elsewhere by a salesperson, selling
agent or representative. No Customer Purchase Order will be binding upon NETUNWIRED
until NETUNWIRED issues its written Order Acknowledgment.
3. PURCHASE ORDER CHANGES
Customer may not change its Purchase Order without NETUNWIRED's written consent. Any
revision in drawings, designs , specifications, shipment completion dates or Purchase
Order termination requested by Customer may result in additional cost to Customer. Any
additional cost to Customer will be at NETUNWIRED's standard rates in effect at the time of
Customer's request. NETUNWIRED's performance of Customer's request shall commence
only upon the issuance of a new Purchase Order or written amendment to an existing
Purchase Order authorizing the applicable charge.
Customer's oral requests for Services shall be binding on Customer and deemed by
NETUNWIRED as valid Customer Purchase Orders, governed by these terms and
conditions. Customer further agrees, as a result of any request made hereunder to pay any
and all charges associated with such Service request. Customer requested changes in
performance of Services shall be reviewed upon NETUNWIRED's receipt of Customer's
request to determine if additional charges are applicable.
4. PRICE OF MATERIAL AND/OR SERVICES
The price for Material and Services are based on NETUNWIRED's published list prices in
effect at time of NETUNWIRED's receipt of Customer's Purchase Order unless otherwise
set forth in the Order Acknowledgment , or a valid issued Quotation, Statement of Work or
proposal. A Quotation, Statement of Work or proposal is valid for a period of thirty [30] days
from date of issue . Errors or omissions in price are subject to correction by NETUNWIRED.
All published list prices are subject to change by NETUNWIRED without notice.
NETUNWIRED retains all rights to change the Material and/or Services or may discontinue
any Material and/or Services at NETUNWIRED's sole discretion.
5. PRICES; ADJUSTMENTS
The price of Services may subsequently be adjusted to reasonably reflect the adverse cost
impact to NETUNWIRED of :
i. Customer changes or delays which are outside of the scope of Services;
ii. legal/regulatory changes which occur after the issuance of the Quotation and/or
Statement of Work for the particular Services in question; and
iii. the failure of Customer to perform its obligations under Sections 6, 7, and 8.
NETUNWIRED will provide a written notice and reason for an adjustment to the price within
a reasonable period of time after NETUNWIRED becomes aware of an event under which
NETUNWIRED intends to request an adjustment . The parties will then determine, in a
commercially reasonable manner, the price adjustment that is appropriate. Pending such
agreement, NETUNWIRED will continue to perform the Services specified in the Purchase
Order for ten (10) business days or such other greater time that may be agreed to in writing
by NETUNWIRED, unless (a) Customer has fails to pay amounts due to NETUNWIRED
when due; (b) or an event specifically identified in the Quotation and/or Statement of Work
permitting suspension or termination of the Services occurs; or (c) Customer is otherwise
in breach .
In the event an adjustment to the price has not been made within the aforementioned ten
(10) business days, NETUNWIRED shall have the right to terminate this Purchase Order, in
whole or in part and in addition to any other remedy available to NETUNWIRED, Customer
shall make immediate payment to NETUNWIRED on account of all Materials delivered
and/or Services rendered. . Note that with Discover Card or American Express that a 3%
service fee may apply.
6. SCHEDULE FOR PERFORMANCE OF SERVICES
NETUNWIRED will perform the Services in accordance with the schedule stated in the
Quotation and/or Statement of Work . Both parties agree to adhere to the schedule,
however, each party will give due consideration to any reasonable proposal by the other
party regarding changes in the schedule which, if agreed upon, will be recorded in a written
modification to the applicable Purchase Order. Dates for performance of Services are
estimated by NETUNWIRED in good faith but not guaranteed by NETUNWIRED. Except as
otherwise set forth in the Quotation and/or Statement of Work, NETUNWIRED will have
unrestricted access to Customer's site and any other locations at which Services are to be
performed at all times (including overtime hours, Saturdays, Sundays and holidays) for the
purpose of performing the Services.
7. SITE PREPARATION AND CONDITION FOR SERVICES
Customer will be responsible for preparation of the site, at which NETUNWIRED will
perform the Services, to the specifications and in accordance with the time schedule stated
in the Quotation and/or Statement of Work. Customer warrants to NETUNWIRED that each
such site is in compliance with all applicable health and safety regulations and is free from
all friable asbestos and hazardous contamination or pollutants, as further provided in
Section 8 below.
8. HAZARDOUS MATERIALS
Prior to the date specified in the Quotation and/or Statement of Work for the performance of
Service, Customer will take any and all steps needed to assure that each site is free from
all friable asbestos and hazardous contamination or pollutants. If contamination is found to
be present at a site, NETUNWIRED will have no further obligations under any Quotation and
/or Statement of Work (other than with respect to any software licenses or confidentiality
obligations), until such contamination is removed.
9. PACKAGING, SHIPMENT AND SERVICE DATES
All Products shall be suitably packed for shipment. NETUNWIRED may charge for packing
and/or packaging including special documentation to comply with Customer requirements.
Shipment Date for Material or date for performance of Service is estimated by
NETUNWIRED but is not guaranteed by NETUNWIRED . Shipment within the continental
United States are made FOB NETUNWIRED shipping location
Customer, regardless of the circumstances, will not hold NETUNWIRED liable for any
liabilities, penalties, or charges of any nature due to the late performance of any Service
date. NETUNWIRED assumes no liability for any direct or liquidated damages during
shipment or delivery of Material. Material may be tendered in partial shipments at
NETUNWIRED's discretion.
In the event of shipment delay requested by Customer or a delay caused by lack of shipping
instructions, NETUNWIRED will store all Material covered thereby at Customer's risk and
expense. NETUNWIRED will invoice the Customer at the full price for the Material including
an additional storage fee.
10. TITLE, RISK OF LOSS AND INSURANCE
Title, risk of loss, damage and insurance responsibilities for the Products pass from
NETUNWIRED to Customer upon acceptance of Product by the shipping agent or carrier.
Title to all Software shall remain with NETUNWIRED or its licensors, but risk of loss,
damage and insurance responsibilities shall pass to Customer at NETUNWIRED's
shipping location.
For all Materials shipped , NETUNWIRED shall retain a security interest in the Materials
until payment, in full, has been received by NETUNWIRED for such Materials delivered and
Services performed. Customer shall execute any instrument reasonably required for
NETUNWIRED's protection of such security interest.
11. Acceptance or rejection of MATERIAL/SERVICES
After the Delivery of the Material, or the performance of Services, Customer will inspect the
Material/Services for conformity to the Purchase Order, Statement of Work or Quotation (as
the case may be) within a period of thirty [30] calendar days (hereinafter "Acceptance
Period"). Acceptance of Material/Services by Customer shall automatically occur after the
passage of the Acceptance Period stated herein unless NETUNWIRED is advised
otherwise in writing within the stated Acceptance Period or upon Customer's commercial
use of the Material/Services.
If any Material or Service does not substantially conform to the applicable Purchase Order,
Statement of Work or quotation (as the case may be) Customer shall notify NETUNWIRED
in writing of the nonconformance , and for Material, obtain an authorization for return, and
return such Material to NETUNWIRED for correction or completion as required. With respect
to Services, NETUNWIRED shall , at no additional charge (if determined by NETUNWIRED
to be NETUNWIRED's fault), take prompt action to correct such unsatisfactory Services.
12. PAYMENT TERMS
Customer's payment obligations are stated on NETUNWIRED's invoices. Invoices for
Services will be rendered in accordance with an established milestone schedule or upon
completion of any Services. Late charges of one and one-half percent [11/2%] or the
maximum permitted by law, whichever is less, per month on outstanding balances may be
charged. All amounts due shall be payable in United States dollars unless otherwise
specifically agreed upon in NETUNWIRED's Order Acknowledgement.
If, in NETUNWIRED's judgment, Customer's financial condition does not justify continuation
of the existing payment terms , NETUNWIRED may:
1. require full or partial payment of Customer's account;
2. require payment in advance of Material shipment;
3. require payment in advance for performance of any Services;
4. change Customer's credit terms; or
5. any combination of the above.
13. Product AND SERVICES WARRANTY
NETUNWIRED warrants from the date of shipment to Customer that Product bearing the
NETUNWIRED name will substantially conform to NETUNWIRED specifications in effect as
of the date of shipment and will be free from substantial defects in material and
workmanship under normal use, given proper installation and maintenance, for the period
of time stated in NETUNWIRED's customer quote.
Customer must promptly notify NETUNWIRED of any claimed defect in the Product and/or
Services. NETUNWIRED or its agent may inspect the Product or workmanship on
Customer's premises. Product returned to NETUNWIRED under warranty must be shipped
prepaid by Customer.
14. Product AND SERVICES WARRANTY LIMITATIONS
NETUNWIRED's entire liability and Customer's exclusive remedy whether in contract, tort or
otherwise, for any claim related to or arising out of breach of the warranty covering Product
or Services shall be correction of defects by repair, replacement, re-performance of service
or credit, at NETUNWIRED's discretion. Refurbished Product may be used to repair or
replace the Product. Customer shall have no claim to Product which was replaced or the
components therein which were replaced. NETUNWIRED has no liability with respect to
claims relating to or arising from the use of equipment not bearing the NETUNWIRED
name.
LIMITED WARRANTY: NetUnwired provides that this product will perform to specification.
NetUnwired, does not guaranty performance of radio connections in the event that there
radio interference and/or obstructions or anomalies within the radio link path.
6. EXTENDED WARRANTIES: Extended warranties are available for some products. Please
inquire.
NETUNWIRED does not warrant that the operation of the Product will be uninterrupted or
error-free. Similarly, NETUNWIRED does not warrant that the functions of the Product will
meet Customer's requirements or that the Product will operate in combination with other
products selected by Customer for its use.
NETUNWIRED assumes no liability with respect to (a) defects caused by modification,
repair, installation, operation or maintenance except as described in NETUNWIRED's
documentation; or, (b) negligent or other improper use of the Product.
All equipment and software not bearing the NETUNWIRED name, is supplied "AS IS" and
Customer will look solely to the warranties and remedies, if any, provided by the equipment
manufacturer or vendor thereof. In addition, NETUNWIRED assumes no liability for
equipment or services furnished by Customer nor does this warranty cover any copy of or
update to any user manual for the Product.
No agent, distributor, or representative is authorized to make any warranties on behalf of
NETUNWIRED or to assume for NETUNWIRED any other liability in connection with any
Product or Services.
WITH RESPECT TO ALL PURCHASES OF PRODUCT AND/OR SERVICES FROM
NETUNWIRED BY CUSTOMER, THE ABOVE WARRANTY REPLACES ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, AND ALL OTHER OBLIGATIONS OF NETUNWIRED,
INCLUDING ANY WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. ALL OTHER WARRANTIES ARE DISCLAIMED AND EXCLUDED
BY NETUNWIRED.
15. RETURNS
Material may not be returned to NETUNWIRED without prior authorization. Customer must
contact NETUNWIRED to obtain an authorization number and return the Material to the
location designated by NETUNWIRED with all transportation charges paid by Customer.
NETUNWIRED may charge Customer certain fees for Material returned to NETUNWIRED.
Any Material returned to NETUNWIRED without proper authorization will be returned to
Customer at Customer expense.
16. DISCLAIMER OF LIABILITY
NETUNWIRED WILL NOT BE LIABLE FOR INJURIES OR DAMAGES TO PERSONS OR
PROPERTY RESULTING FROM ANY CAUSE WHATSOEVER , WITH THE EXCEPTION OF
BODILY INJURIES, DEATH OR TANGIBLE PROPERTY DAMAGE CAUSED BY THE
WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF NETUNWIRED. THIS LIMITATION
APPLIES TO ALL MATERIAL AND SERVICES PERFORMED DURING AND AFTER THE
WARRANTY PERIOD.
IN NO EVENT SHALL NETUNWIRED BE LIABLE FOR ANY DAMAGES RESULTING FROM
LOSS OF DATA, LOSS OF USE OR LOSS OF REVENUE OR PROFIT AND NETUNWIRED
FURTHER DISCLAIMS ANY AND ALL LIABILITY FOR INDIRECT, INCIDENTAL , SPECIAL,
CONSEQUENTIAL, OR OTHER SIMILAR DAMAGES.
IF ANY REMEDY HEREUNDER FAILS OF ITS ESSENTIAL PURPOSE, OR IN ANY OTHER
EVENT, NETUNWIRED'S AGGREGATE LIABILITY HEREUNDER SHALL NOT EXCEED THE
DEPRECIATED VALUE OF THE AFFECTED MATERIAL OR THE ACTUAL AMOUNT PAID TO
NETUNWIRED FOR SERVICES.
17. ASSIGNMENT
NETUNWIRED may assign its rights and obligations by giving Customer written notice
thereof but without being obligated to obtain Customer's consent prior thereto. In the event if
an assignment, NETUNWIRED shall be discharged of any liability pursuant to those
Purchase Orders which have been assigned or delegated.
Customer may not assign its rights nor delegate its obligations under any or all of its
Purchase Orders unless NETUNWIRED's written consent is obtained prior thereto and any
such assignment or delegation without such consent shall be void.
18. COMPLIANCE WITH APPLICABLE LAWS
The Customer will comply with all applicable laws affecting the purchase and use of
Material. Customer agrees to maintain all registrations with governmental agencies,
commercial registries, chambers of commerce, or other offices which may be required
under law in order to properly conduct commercial business.
Prior to the date specified in the Quotation and/or Statement of Work for the performance of
Service, Customer will (a) obtain and pay for all governmental or third party consents,
permits, approvals , licenses and public and private easements necessary for
NETUNWIRED's unrestricted access to any site or location needed for performance of the
Services and delivery of the Material, and (b) will notify NETUNWIRED in advance of any
requirements including all local laws, regulations, ordinances and the like to which
NETUNWIRED is or will be required to comply in the rendering of Services and in the
supplying of Materials hereunder.
When required, Customer will comply with United States laws applicable to the use, sale or
license of Material , including but not limited to the Foreign Corrupt Practices Act and the
Export Administration Act.
19. CONFIDENTIAL INFORMATION
Customer will not disclose to any person or entity any information or data fixed in a tangible
medium and marked as the confidential or proprietary information (hereinafter referred to as
"Confidential Information") of NETUNWIRED, or if provided orally, confirmed in writing to be
confidential or proprietary within twenty [20] calendar days after its disclosure.
Notwithstanding the provisions herein, if Customer receives Confidential Information it shall
treat such Confidential Information as confidential, prohibit recopying and use such
Confidential Information only in connection with fulfilling its obligations under Customer's
Purchase Order . Customer will return all Confidential Information to NETUNWIRED upon
completion of such obligations for its use, or upon the request of NETUNWIRED.
Customer recognizes and agrees that the unauthorized use or disclosure of the
Confidential Information would cause irreparable injury to NETUNWIRED for which it would
have no adequate remedy at law, and that any actual or contemplated breach of this clause
will entitle NETUNWIRED to obtain immediate injunctive relief prohibiting such breach, in
addition to any other rights and remedies available to it. The obligations herein contained
will expressly survive the final payment of any/or all Customer Purchase Orders.
20. SEVERABILITY
If any provision of these terms and conditions is held by a court, government agency or other
legal authority of competent jurisdiction to be invalid, illegal or unenforceable, such invalidity
, illegality or unenforceability shall not invalidate, void or render unenforceable any other
portion of these terms and conditions but rather these terms and conditions shall be
construed as if it did not contain the particular invalid, illegal or unenforceable provision or
provisions, and the rights and obligations of the parties shall be construed and enforced
accordingly.
21. FORCE MAJEURE
NETUNWIRED is not liable for failure or delay in fulfilling its obligations due to any causes
beyond its control. In the event of any such delay, the date for shipment or performance of
Services will be extended correspondingly. NETUNWIRED retains the right to determine the
allocation of its inventory of Material among itself, its present and future customers and
Customer . In the event NETUNWIRED partially fills Customer's Purchase Order, Customer
shall, nonetheless , continue to make payments on NETUNWIRED's invoices during the
period in which the delay is in effect for those Materials and/or Services delivered. If an event
of force majeure prevents or delays NETUNWIRED's performance for more than six [6]
months, NETUNWIRED shall have the right to terminate the applicable Purchase Order,
with immediate effect.
22. PROPRIETARY RIGHTS INDEMNIFICATION
If any Product bearing the NETUNWIRED name, in NETUNWIRED's opinion, is likely to or
becomes the subject of a claim of infringement of any valid United States copyright or
patent, NETUNWIRED shall, at its option and expense, either: (1) modify it to make it non-
infringing; (2) settle such claim by procuring for Customer the right to continue using the
Product; or (3) defend Customer against such claim.
If NETUNWIRED elects to defend Customer against such claim, NETUNWIRED will pay
Customer for any damages actually incurred which are awarded by a court of final
jurisdiction, provided Customer gives NETUNWIRED prompt written notice of all facts and
circumstances necessary or desirable for a proper defense of same, and Customer
cooperates fully with NETUNWIRED in the defense of such claim . NETUNWIRED shall not
be responsible for any settlement made without NETUNWIRED's written consent .
If, in NETUNWIRED's opinion, none of the foregoing alternatives are reasonably available to
NETUNWIRED, then NETUNWIRED may discontinue the sale of the Product. If
NETUNWIRED elects to discontinue the sale of the Product, Customer may (1) continue
using the same at its sole risk until an injunction or other court order terminating the
continued use thereof has been issued; it being understood that NETUNWIRED may
participate at its expense in the defense of any such action if such claim names
NETUNWIRED as a defendant; or (2) return the Product to NETUNWIRED, including any
associated media, any printed material, and any "online" or electronic documentation to
NETUNWIRED and receive a prorated refund of the Product purchase cost based on an
established prorated period of five [5] years from date of original Product shipment by
NETUNWIRED. NETUNWIRED shall have no liability for any claim of patent or copyright
infringement based upon:
- 1. use of the Product in a manner other than for which it was intended;
2. any infringement, or alleged infringement, of any patent or copyright issued by any
country other than the United States or any other country where NETUNWIRED has
obtained patent or copyright protection;
3. modifications or changes made to the Product which are not authorized by
NETUNWIRED;
4. operation of the Product in combination with other products selected by Customer
for its use; or
5. NETUNWIRED's compliance with Customer's designated designs, material
usage or specification furnished by Customer , in which case Customer shall
defend, indemnify and hold NETUNWIRED harmless against any claim of
infringement of any copyright or patent.
The foregoing states the full liability of NETUNWIRED arising out of infringement.
23. TAXES
In addition to the Price for Material or Services paid by Customer, Customer will pay
NETUNWIRED the amount of all taxes, excises, or other governmental charges that
NETUNWIRED may be required to pay with respect to the production, sale, license, or
transportation of any Material delivered hereunder, including the performance of any
Services, except taxes on or measured by NETUNWIRED's net income. If Customer claims
exemption from any taxes, Customer will provide NETUNWIRED with documentation
required by the taxing authority to support the exemption
24. CANCELLATION FOR DEFAULT
NETUNWIRED may, upon written notice to Customer, cancel any and/or all Customer
Purchase Orders effective immediately if:
- 1. Customer makes an assignment for the benefit of creditors, is unable to pay its
debts as they become due; files a voluntary petition in bankruptcy; is adjudicated to
be a bankrupt or an insolvent debtor; files a petition seeking for itself any
reorganization; or consents to or acquiesces in the appointment of a trustee,
receiver or liquidator;
2. any proceeding seeking involuntary reorganization, or similar relief is filed against
Customer which is not dismissed within one (1) month after filing, or if any trustee,
receiver or liquidator of Customer or any substantial part of its business assets, or
properties is appointed without NETUNWIRED's consent or acquiescence and such
appointment is not vacated within one [1] month after such appointment;
3. Customer ceases doing business as a going concern or it or its shareholders
take any action looking to its dissolution or liquidation; or
4. fails to perform any material obligations and such failure is not remedied within
fifteen [15] calendar days after notice has been given Customer.
5. Customer fails to pay for any Purchase Order in accordance with the invoice
payment terms;
6. Any change occurs in the direct or indirect ownership of Customer if, in
NETUNWIRED's opinion, such change may be detrimental to NETUNWIRED's
interest hereunder; or
Any cancellation pursuant to this clause will be in addition to and will not be
exclusive of or prejudicial to any other rights or remedies at law or in equity available
to NETUNWIRED.
Terms and Conditions
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