TERMS OF SALE: The sale of Broadata Communications, Inc. (hereinafter “BCI”) products is subject to the terms and conditions stated herein. Any and all printed terms and conditions contained in any documents issued of Buyer, including, without limitation, any purchase order, acceptance forms or Buyer specifications. ANY ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS ON ANY DOCUMENT OF BUYER SHALL NOT APPLY NOR BE OF ANY FORCE OR EFFECT. No waiver or amendment to any terms or conditions shall be binding on BCI expressly unless made in writing, stating that it is a waiver or amendment, and signed by BCI.
SOFTWARE LICENSE If software or trademarked or copyrighted programming are listed as products being “sold,” Buyer acknowledges and agrees that it is receiving only a license to use such software or programming exclusively with BCI product listed on the order, and that such software or programming, and the concepts embodied therein, are and shall remain the proprietary property of BCI. Without the prior express written consent of BCI, Buyer shall not: (1) copy (other than one back-up copy), disclose, distribute, lease, sublicense or otherwise transfer such software; (2) use in a computer-based services business with such software; (3) modify, translate, prepare derivative works of, reverse engineer, decompile or disassemble all or any portion of such software, or (5) remove any BCI trademarks or copyright notices therefrom. Buyer agrees to indemnify, hold harmless and defend BCI from and against all claims or lawsuits, including attorneys’ fees, that arise or result from any use, transfer or distribution of such software not expressly authorized as provided herein.
ACCEPTANCE: Purchase orders for BCI products are not binding until accepted by BCI. Orders for custom products may not be canceled after acceptance. Any cancellation of an order for standard products after acceptance will be subject to a 25% cancellation charge.
SUBSTITUTIONS: BCI reserves the right to substitute or change materials, parts, and/or product specification for functional attributes at any time without notice.
DELIVERY: Delivery shall be F.O.B. Torrance, California. Title to goods shipped shall pass to Buyer upon shipment, and Buyer shall bear the risk of loss following BCI’s delivery of goods to the carrier. Expedited orders may be assessed additional fees, up to 40%.
PAYMENT: Buyer shall pay BCI for all charges listed on BCI’s invoice, including all shipping and handling charges. Credit terms are subject to the approval of BCI’s accounting department. Unless otherwise indicated in the BCI written quotation, all payments shall be made in full within 30 days of BCI invoice date. Buyer agrees to pay a late fee equal to the lower of (i) 1-1/2% per month (18% per year) on all amounts not paid when due, or (ii) the highest rate allowed by applicable law, and to pay all costs of collection, including costs of litigation and reasonable attorney fees. In addition, BCI reserves the right to obtain a security interest in the products sold to Buyer, and in proceeds thereof, and to suspend further shipments to Buyer until payment is made in full by Buyer. A $35 fee will be charged for all dishonored checks.
TAXES: Unless otherwise stated on the face thereof, stated prices do not include any customs duties, sales, use, value added, excise, federal, state, local or other taxes. All such duties or taxes shall be paid by Buyer, or, in lieu thereof, Buyer shall provide BCI with an appropriate tax exemption certificate.
RETURNS: Custom products may not be returned for credit. A 30% restocking fee will be charged on all standard products returned for credit, but no product may be returned for any reason without the prior approval of BCI. Standard products may only be returned for credit with BCI’s approval within 30 days of original delivery, and delivered or shipped prepaid to BCI’s facility in the original packaging or equivalent, together with a dated proof of purchase (including an invoice) and a returned material authorization (RMA) number. All costs incurred in returning product(s) to BCI, including insurance, duties, and/or other fees, and risk of loss during transit, shall be the responsibility of Buyer. The RMA number may be requested from 1-800-214-0222 and should be written on the outside of the shipping container. BCI retains the right to refuse delivery of such return and charge $60 to cover BCI’s collection and handling costs if goods are returned to BCI (i) without prior authorization from BCI; or (ii) beyond the period prescribed by BCI for such return; or (iii) without an RMA number written on the outside of the shipping container; or (iv) improperly packaged.
FORCE MAJEURE: Neither party shall be liable for any delay in performance directly or indirectly caused by or resulting from acts of nature, fire, flood, accident, riot, war, government intervention, embargoes, strikes, labor difficulties, late deliveries by suppliers or other difficulties which are beyond the control of such party. Quantities are subject to availability. In the event of production difficulties or product shortages, BCI may allocate sales and deliveries at its sole discretion.
LIMITED WARRANTY: BCI warrants, for a period of one year for LinkBridge products, and one year for all other products from date of shipment, BCI products shall be free from defects in material and workmanship. BCI will, at BCI’s election, repair or replace any said products that prove to be defective and are returned to BCI within the warranty period and within 30 days after such defect is ascertained. All warranties are limited to defects arising under normal use and do not include malfunctions or failure resulting from misuse, abuse, neglect, alterations, electrical power problems, usage not in accordance with product instructions, improper installation, or damage determined by BCI to have been caused by the Buyer, or repair made by a third party. Limited warranties granted on products are to the initial customer and are not transferable. BCI is a build-to-order manufacturer and typically does not have stock on both standard and custom product models. If standard products were found defective on arrival (DOA), BCI will, at its election, replace the DOA units when stock is available, or provide expedited repair services.
REPAIR POLICY: Products that are outside warranty may be returned to BCI to be repaired once Buyer requests and receives a returned material authorization (RMA) number from BCI in advance. All costs incurred in returning product(s) to BCI, including insurance, duties and/or other fees, and risk of loss during transit shall be the responsibility of Buyer. The RMA number may be requested from 1-800-214-0222 and should be written on the outside of the shipping container. BCI charges a minimum repair fee per unit for evaluating failure mode and conducting most repairs. Buyer will be notified of the amount of minimum repair fee at the time an RMA is being requested. If repair cost exceeds the initial repair fee, BCI will contact Buyer to obtain approval prior to repairing product. Under no circumstances including No Problem Found (NPF) cases, the initial repair fee will be waived. Buyer acknowledges that by returning product(s) to BCI for repair, they agree to the terms of BCI Repair Policy. BCI retains the right to refuse delivery of all returns and charge $60 to cover BCI’s collection and handling costs if goods are (i) returned to BCI without prior authorization from BCI, (ii) without an RMA number written on the outside of the shipping container or (iii) improperly packaged. BCI warrants repaired products for a period of one year from date of shipment.
LIMITATION OF LIABILITY: THE FOREGOING WARRANTY IS IN LIEU OF, AND BCI EXPRESSLY DISCLAIMS, ALL OTHER WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL BCI BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES RELATED TO OR ARISING OUT OF THIS AGREEMENT, INCLUDING LOST PROFITS OR INCURRED PENALTIES, EVEN IF BCI HAS KNOWLEDGE OF SUCH POTENTIAL LOSS OR DAMAGE. THE MAXIMUM LIABILITY OF BCI HEREUNDER SHALL EXCEED THE INVOICE VALUE OF THE DEFECTIVE PRODUCT.
NO WARRANTY OF INTELLECTUAL PROPERTY: BUYER UNDERSTANDS AND AGREES THAT BCI MAKES NO WARRANTY, AND BCI HEREBY DISCLAIMS ANY SUCH WARRANTIES OR INDEMNIFICATION, THAT ITS PRODUCTS ARE FREE OR CLAIMS OF PATENT, TRADEMARK, TRADE SECRET, OR COPYRIGHT INFRINGEMENT BY A THIRD PARTY.
COMPLIANCE WITH LAWS: Buyer agrees to comply with all applicable laws and regulations of appropriate governmental bodies in the performance of this agreement and use of the BCI products, including regulations related to the exportation of technical data, technology or products from the USA.
U.S. GOVERNMENT RIGHTS: Most BCI products were developed, at least in part, under U.S. Government grants. The U.S. Government holds certain limited rights in such products as set forth in DFARS 252.227-7013, DFARS 252.227-7015, and/or FAR 52-227-14, as applicable.
TERMINATION: In addition to any other remedies it may have, may terminate this agreement, or the remaining portion hereof, upon thirty (30) days written notice if the other party is in material breach of its obligations hereunder and fails to cure such breach with such notice period.
GOVERNING LAW All orders shall be governed by and construed under the laws of the State of California, and shall be subject to the exclusive jurisdiction of the courts in Los Angeles County, California. In any action brought to enforce this agreement, the prevailing party shall be entitled to also recover the cost of enforcement, including attorney fees related thereto. ASSIGNMENT: Buyer may not assign its rights or obligations hereunder without the express prior written consent of BCI.
ENTIRE AGREEMENT: These terms and conditions, including those on the face hereof, constitute the entire agreement with regard to this sale of products and expressly supersede and cancels any prior or contemporaneous understandings, whether written or oral, relating to said sale, including any terms and conditions on any printed provisions of Buyer’s documents or purchase orders. This agreement shall be binding upon the respective heir, successors and assigns of the parties hereto. If any provision of this agreement shall be held to be invalid or unenforceable, the remainder of this agreement shall remain in full force and effect.