General Terms and Conditions:
1. Agreement. These General Terms and Conditions (“General Terms”) and the Order (defined below) together constitute the entire agreement between eCLIPSE Network Solutons, LLC. (the “Seller”) and the other party hereto (the “Buyer”) and supersede all other agreements and understandings, whether written or oral, between the parties with respect to the subject matter hereof. When used hereinafter, the term “Order” includes (a) either the Seller’s executed proposal or quote, or the Seller’s purchase order describing the equipment and materials (“Goods”) and/or services (“Services”) being sold by Seller to Buyer; and (b) these General Terms.
2. Alteration of Terms Not Permitted. Seller's acceptance of Buyer's order is expressly conditioned on Buyer's agreement to the terms and conditions of the Order that governs any resulting transaction. Seller does not agree to any conflicting terms and conditions proposed by Buyer. Buyer's acceptance of items described in the Order will manifest Buyer's consent hereto. If Buyer requests shipment based on an order placed by telephone, facsimile or electronic mail, Buyer does so with the understanding that the terms and conditions of this Order shall apply. No variation, addition, termination, or waiver of any term or condition hereof will be binding on Seller unless in writing and signed by Seller's duly authorized representative.
3. Delivery. Title to the Goods covered by this Order and risk of loss thereto shall pass from Seller to Buyer upon delivery to Buyer at Buyer’s facility.
4. Price Increase. Prices of Goods and Services are based on material and labor costs as of the date quoted by the Seller to the Buyer (the “Proposal Date”). Any variation in these costs after the Proposal Date will be on the account of Buyer after written notice of any such variation in prices has been given to the Buyer.
5. Taxes. Any federal tax, state or local sales use or similar tax shall be separately stated and itemized. Except as otherwise provided by law, all sales, excise and similar taxes, or duties which Seller may be required to pay or collect with respect to the Goods and Services or their supply to Buyer, will be for the account of the Buyer. Where Buyer claims exemption from duty or tax, Buyer will furnish appropriate exemption certificate to Seller.
6. Excusable Delay. Seller will not be responsible for delays in delivery or failure to deliver Goods or Services due to causes beyond Seller's control and without its fault or negligence due to acts of God, war, riot, civil insurrection or acts of common enemy (terrorism), fire, flood, strikes, or orders from governmental authorities.
7. Buyer's Specifications and Indemnification. Where Goods and Services are supplied according to Buyer's specifications or direction as to method of installation, Seller will not be liable for: (i) any error, omission, or inaccuracy in drawings or specifications provided and approved by Buyer and will be under no obligation to check or confirm the conformity, accuracy, or adequacy of patents, regulatory requirements, drawings, or similar specifications provided to Seller by Buyer; or (ii) where the Seller has followed the Buyer’s direction as to installation, any claim of
improper or incorrect installation. Where the Buyer makes such specification and/ or direction, the Buyer shall indemnify and hold Seller and its affiliates, officers, directors, shareholders, managers, agents, employees, suppliers, subcontractors, servants, customers, successors and assigns harmless from any liabilities, obligations, losses, damages, penalties, claims, actions, suits, arbitration's and costs (including, without limitation, attorneys' fees and costs, litigation support charges, and expert witness fees) and expenses suffered by Seller with respect to 7.i and 7ii. above and any claim that the Goods or Services infringe any patent, copyright, trademark, trade secret, design, or other intellectual property right or proprietary or similar rights.
8. Limited Warranty; Disclaimer of Implied Warranties. Seller warrants that all of the Goods and Services covered by this Order, unless otherwise specified, will be of new manufacture, will conform to the specifications, drawings, samples or other description furnished or specified by Buyer, and, based on the manufacturer’s warranty, if any, will be free from defects in material or workmanship. Such warranties, together with Seller’s service warranties and guarantees, if any, shall survive inspection, test, acceptance of, and payment for the Goods and Services and shall run to Buyer, its successors, and permitted assigns. Such warranties shall be qualified as follows: (a) Seller’s warranties, as they apply to Goods, shall be limited to those warranties, if any, that Seller shall receive from the manufacturer of such Goods; and (b) Seller is specifically not responsible for failures caused in whole or in part by (i) Buyer’s design, including without limitation the type of material specified, or (ii) Buyer’s misuse of such products. OTHER THAN AS SPECIFIED ABOVE, THE SELLER MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE GOODS AND SERVICES SOLD HEREUNDER, AND SELLER HEREBY DISCLAIMS ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, WHETHER ANY SUCH PURPOSE IS KNOWN OR UNKNOWN. THIRD PARTY WARRANTIES WILL BE PASSED ON TO BUYER AS APPLICABLE. Buyer will have the burden of proof to establish that the exclusive cause of any purported defective or nonconforming article or part thereof was a defect in design, material or workmanship that Seller is responsible for hereunder.
9. Payment. Invoices will be paid according to negotiated and agreed to schedule, as defined in the Order. Should no agreed to schedule for payment be listed on the order, payment terms shall be Net 60 Days from the date of the invoice. If Buyer fails to comply with any terms of payment, Seller may withhold further deliveries or at its option terminate this Order whereupon any unpaid money will become immediately due and payable, payment of which may, at the option of the Seller, be secured by the filing of a lien against the Buyer’s facility pursuant to the lien law of the jurisdiction in which such premises are located. If, by the terms of the Order, credit is extended to Buyer, Seller reserves the right to revoke such credit if Buyer fails to pay for any Goods and Services when due and Seller will then have the right to demand payment before any further shipments of Goods and Services. All past due payments will bear interest at a rate of one and one-half percent (1.5%) per month from the past due date until date of receipt of payment by Seller or at the highest rate of interest allowed by the laws of the State of New York, whichever is lower.
10. Notice of Claims. Any claim, including claims for shortage in quantity, for alleged defective Goods and Services, or for other non-conformity to this Order, must be made within ten
(10) days after Buyer learns of the facts upon which such claim is based. All claims not made in writing and received by Seller within the time period specified above will be deemed waived.
11. Termination. Seller reserves the right to terminate this Order or any part thereof, and to cancel all or any part of the undelivered portion of this Order if (a) Buyer does not make payment as required hereunder; (b) Buyer breaches any of the terms hereof, or (c) any proceeding is commenced by or against Seller in bankruptcy or insolvency or for appointment of a receiver or trustee or an assignment is made for the benefit of creditors. Seller shall have no obligation to Seller in respect to the cancelled portion on this Order and Buyer’s liability shall be limited to payment for the delivered and accepted portion of this Order, at the rate specified on the face hereof together with any costs, restocking charges, and the like, if any, incurred by the Seller to return Goods or pay for specially ordered Goods that will not be accepted by Seller’s supplier for return.
12. Exclusive Remedy. BUYER'S EXCLUSIVE REMEDY FOR DEFECTIVE OR NON CONFORMING GOODS AND SERVICES UNDER THIS ORDER, IN LIEU OF ALL OTHER REMEDIES, SHALL BE FOR A REFUND OF BUYER’S PAYMENT, EQUITABLY ADJUSTED, OR FOR REPAIR OR REPLACEMENT OF SUCH DEFECTIVE OR NON CONFORMING GOODS AND SERVICES AT SELLER'S ELECTION IN ITS SOLE DISCRETION.
13. Limitation of Liability. IN NO EVENT WILL SELLER HAVE ANY OBLIGATION OR LIABILITY (WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE; AND NOTWITHSTANDING ANY FAULT, NEGLIGENCE (WHETHER ACTIVE, PASSIVE OR IMPUTED), REPRESENTATION, STRICT LIABILITY OR PRODUCT LIABILITY OF SELLER) FOR COVER OR FOR ANY CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES OR LOSS OF REVENUE, PROFIT, SAVINGS OR BUSINESS ARISING FROM OR OTHERWISE RELATED TO THE GOODS AND SERVICES PROVIDED BY SELLER TO BUYER HEREUNDER, EVEN IF SELLER OR ITS AGENTS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SELLER'S AGGREGATE LIABILITY (WHETHER ARISING IN CONTRACT, WARRANTY, TORT OR OTHERWISE) WITH REGARD TO THE GOODS AND SERVICES OR A SALE BY SELLER TO BUYER WILL IN NO EVENT EXCEED THE PURCHASE PRICE PAID BY BUYER FOR THE PARTICULAR ITEM(S) OF GOODS AND SERVICES WITH RESPECT TO WHICH LOSSES OR DAMAGES ARE CLAIMED.
14. Cumulative Remedies; Nonwaiver. Seller's remedies herein provided will be cumulative and in addition to any other remedies by law or in equity. Seller's failure to insist upon or enforce strict performance of any of, or to exercise any rights or remedies under, Seller's agreement with Buyer will not be construed as a waiver or relinquishment to any extent of Seller's right to assert or rely upon any such provision, right or remedy in that or any other instance; rather, the same will remain in full force and effect.
15. Applicable Law. Sales of Goods and Services pursuant to this Order will be interpreted, construed, and enforced in all respects in accordance with the laws of the State of New York, U.S.A., without reference to its choice of law principles to the contrary. Buyer will not
commence or prosecute any action, suit, proceeding or claim relating to the Goods and Services other than in the state or federal courts located in Albany County, State of New York. Buyer hereby irrevocably consents to the jurisdiction and venue of such courts in connection with any action, suit, proceeding or claim arising under this Purchase Order or by Seller's sale of Goods and Services.
16. Miscellaneous. No course of prior dealings between Buyer and Seller and no usage of the trade will be relevant to supplement, interpret or explain these General Terms. Buyer shall comply with all applicable laws, regulations, rules, orders and other requirements, now or hereafter in effect, of any applicable governmental authority in its performance of Seller's agreement with Buyer and use of the Goods.
17. Assignment. This Order binds and inures to the benefit of Seller, its successors and assigns. Buyer may not assign any right or interest herein nor delegate the performance of any of its obligations hereunder without Seller's prior written consent.
18. Notices. Any notice will be sent by registered or certified mail with return receipt requested (airmail if sent internationally) to either party's address set forth on the face of the Purchase Order. Notice may also be given by such other means as may be agreed upon. Notice will be effective upon receipt.