 |
This document sets forth the terms and conditions of the agreement
between Buyer and Coastcom for the purchase of COASTCOM’s
products.
1. SCOPE: Except as set forth in any written agreement
between COASTCOM and Buyer, the terms and conditions set forth
herein apply to all of Buyer’s purchases from COASTCOM.
Inconsistent or additional terms or conditions set forth in any
offer by Buyer (whether in purchase order form or otherwise) will
not apply to such purchases. COASTCOM expressly does not accept
any such additional or inconsistent terms.
2. PRICES: Prices are in United
States Dollars and do not include Federal, State, or local taxes
of any kind of any country now or hereafter enacted, applicable
to the said goods, which tax or taxes will be added by COASTCOM
to the sales price where COASTCOM has the legal obligation to
collect or pay the same and in any event will be paid by Buyer
when due. Except as provided in any agreement between the parties
to the contrary, prices cover only products and do not include
any charges for special services, special packing or crating,
transportation, insurance, license fee, customs fees or duties,
or other similar charges.
3. PROPOSALS: COASTCOM proposals,
when accepted, and any subsequent orders placed as a result of
such proposals, are not subject to Buyer’s cancellation,
change, reduction in amount or suspension of deliveries except
with COASTCOM’s written consent and upon terms which indemnify
COASTCOM against loss. Information contained in COASTCOM proposals
is valid for a period of sixty (60) days from the date thereof
for commercial bids and ninety (90) days for government bids,
unless specified to the contrary in the proposal. Stenographic
and clerical errors are subject to correction.
4. PAYMENT: Payment terms are thirty (30) days net from
date of shipment once Buyer has attained open account status and
maintains it to the satisfaction of COASTCOM. Payment shall be
made for the products without regard to whether Buyer has made
or may make any inspection or use of the products. Any invoiced
amount which is not paid when due will bear interest at the rate
of one and one?half percent per month. If in the judgment of COASTCOM,
the financial condition of the Buyer at any time does not justify
continuance of production and/or testing, COASTCOM may require
full or partial payment in advance before shipment. If shipments
are delayed by the Buyer, pro-rata payments shall become due from
the date COASTCOM is prepared to make shipment. If manufacture
is delayed by the Buyer, payments shall be based upon the contract
price and the percentage of completion. Product held by COASTCOM
for the Buyer shall be at the risk and expense of Buyer.
5. DELIVERIES: COASTCOM shall make
all reasonable efforts to meet promised shipping dates. However,
shipping dates are subject to review and revision on the basis
of COASTCOM commitments at the time Buyer's orders are accepted.
All shipping dates are approximate, and are based upon timely
receipt of all necessary instructions and information from the
Customer. COASTCOM shall not be liable for any damage or penalty
for delays in delivery or non?delivery or other non?performance
due to causes beyond COASTCOM's reasonable control, including,
but not limited to, acts of God, acts of the Customer, acts of
civil or military authority, war, riots, priorities, weather,
fires, strikes, lockouts, delays in transportation and other causes
beyond COASTCOM's reasonable control affecting its ability to
obtain necessary labor, materials, or facilities. In the event
of any such delay, the date of delivery or performance shall automatically
be extended for the period equal to the time lost by reason of
the delay, and COASTCOM's failure to deliver during the period
of such extension shall not constitute a breach of default of
its obligations.
6. RESPONSIBILITY and TITLE: Buyer
assumes all responsibility for and risk of loss of, or damage
to, the product upon delivery at COASTCOM's shipping point, notwithstanding
the fact that COASTCOM may have selected the carrier. Title to
and right to retake possession of the product remains with COASTCOM
until payment of the purchase price in full.
7. CANCELLATION: Customer must provide
Coastcom with written notice of order cancellation. A 25% cancellation
fee may be imposed if notice is given within 30 days of scheduled
ship date. Otherwise, a 10% cancellation fee applies.
8. TESTING: Unless otherwise agreed
to in writing, all factory tests performed on products which are
the subject hereof will be COASTCOM's established tests. Except
as specified in the contract, all prices and these Terms and Conditions
do not include any provision for factory inspection, test or test
observation by the Buyer. If the Buyer desires such inspection,
test or test observation, the cost will be in addition to the
prices quoted. Where a portion of COASTCOM's compensation is to
be withheld pending final acceptance testing, COASTCOM shall notify
the Buyer of the date on which COASTCOM shall be ready to commence
such tests. It COASTCOM is delayed in the completion of such tests
for 10 or more days by reasons of any delay, failure or inability
to perform, refusal or other conduct or neglect on the part of
the Buyer, its agents or employees, then the Buyer shall forthwith
pay in full to COASTCOM the withheld portion of COASTCOM's compensation
and shall thereafter compensate COASTCOM for additional costs
incurred in the completion of final acceptance testing.
In the event the contract calls for installation and/or acceptance
testing of the products by COASTCOM, detailed testing procedures
shall be specified as part of the contract. The testing procedures
shall be established at the time the contract is executed or as
soon thereafter as practicable. Testing shall be deemed complete
when the product meets the requirements specified by testing procedures.
Upon such completion of testing, the product shall be deemed to
be accepted unless written notice is given by Buyer prior to COASTCOM's
installers' departure from the testing site, stating where the
product has failed to meet the requirements specified by testing
procedures. After acceptance, COASTCOM shall have no further responsibility
for said product except under the provisions stated herein.
9. PATENTS: COASTCOM agrees to indemnify
and hold the buyer harmless against all damages and costs which
may be adjudicated against the Buyer (as well as reasonable legal
expenses which may be incurred by the Buyer) in defending any
action for infringement or any United States Letters Patent arising
out of manufacture, sale or use of the COASTCOM product sold under
this contract, provided, however, that the buyer shall: (a) give
COASTCOM prompt notice, in writing, of all actions, claims or
threats of patent infringement claims or suits, either oral or
written, or of patent infringement suits instituted against it;
(b) permit COASTCOM to elect to take over and defend, or settle
the same, through counsel of COASTCOM's choice and under COASTCOM's
sole direction and expenses; (c) make available to COASTCOM, in
the event of such election claims or proceedings, known or available
to the Buyer, together with all records and documents in support
of or pertaining to the same, and (d) execute and deliver any
documents required by COASTCOM for the disposition of such action,
claims or proceedings, COASTCOM shall have the right to substitute
a non-infringing product of the product claimed to infringe the
patent rights of others, provided that such non-infringing product
will give equally good service. In case use of the product is
enjoined by judicial action, COASTCOM shall have the right to,
at its own expense, elect to: (a) procure for the Buyer the right
to continue using the product or, (b) replace the product with
a non-infringing substitute or; (c) modify the product so that
it becomes non-infringing or; (d) remove the product and refund
the Buyer the purchase price and transportation and installation
costs thereof (if previously paid by the Buyer).
Nothing stated herein shall be deemed to include within the indemnity
hereby given: (a) any infringement occasioned by modification
of the product without COASTCOM's written consent or; (b) any
infringement arising from use with the product of any adjuncts
or services added by the Buyer without COASTCOM's prior written
permission. Should this contract cover the manufacture and/or
sale of a product made to the Buyer's design specifications, the
Buyer warrants that such product of its manufacture, sale or use
shall not infringe upon the patent rights of any third party,
and Buyer agrees to indemnify and hold COASTCOM harmless against
any loss, including, but not limited to, all damages, claims for
damages and legal expenses, incurred by COASTCOM from any litigation
of any kind brought against COASTCOM by any third party, and arising
out of COASTCOM's manufacture and/or sale of such product.
10. RIGHTS IN DATA: COASTCOM retains
ownership of all proprietary data disclosed to Buyer by COASTCOM
in connection with this contract. Buyer?shall not disclose such
proprietary data to others except where: (a) data is already known
to the general public or: (b) Buyer had prior knowledge of such
proprietary data. For the purpose of the paragraph "Proprietary
Data" means all design, engineering and technical information
(whether patentable or not) and other information concerning COASTCOM
trade secrets: such other information includes, but is not limited
to, secrets of manufacture contained in its manufacturing methods
or processes, treatment and chemical composition, plant layout
and tooling to the extent that such other information not disclosed
by inspection or analysis of the product itself.
11. MODIFICATIONS AND SUBSTITUTIONS:
COASTCOM reserves the light to modify products of COASTCOM design
sold hereunder, and/or the drawings and specifications relating
thereto, or to substitute products of later design to fulfill
this contract, providing that the modifications or substitutions
will not materially affect the performance of the product, or
lessen in any way, the utility of the product to the Buyer.
12. TOOLS, DOCUMENTATION: Unless otherwise expressly provided
COASTCOM shall retain title to, and possession of, assembly drawings,
schematics, Bill of Materials, models. patterns, dies, moulds,
jigs, fixtures and tools made for, or obtained from the furnishing
of the product covered by this contract.
13. INSTALLATION: If the product
to be furnished by COASTCOM under this contract is to be installed
by COASTCOM, the Buyer shall have all facilities in readiness
for installation. Including, but not limited to, other equipment,
connections and facilities for installation at the time the product
is delivered. All movement of product from Buyer's warehouse or
other location to the installation site will be at buyer's added
expense unless otherwise specifically noted in the contract. In
the event the Buyer shall fail to have all in readiness for installation
at the time of receipt of the product at the place of installation,
the Buyer shall reimburse COASTCOM for any and all expenses caused
by such failure to have all in readiness.
14. LIMITATIONS OF LIABILITY: Except
for the provisions of paragraphs 8 and 10 hereof entitled "Warranty"
and 'Patents," Buyer expressly waives any and all other rights,
claims or causes of action that might otherwise arise out of the
purchase, licensing or use of the products software and services,
including without limitation, any loss or damage resulting from
or related to any interruption, failure or malfunction of any
production in the operation of any product, with respect?to any
product sold and delivered or services rendered or any failure
to meet delivery schedules. In no event shall COASTCOM be liable
for special, indirect, incidental consequential damages of any
nature.
In the event that the product purchased from COASTCOM will be
interfaced or used in conjunction with equipment purchased from
other manufacturers, Buyer shall notify COASTCOM and inquire if
the products already in use by Buyer or purchased from other manufacturers
will be compatible with equipment purchased from COASTCOM. Deficiencies
may exist in other manufacturer's equipment and failure to inquire
or notify COASTCOM of Buyer's intent to interface or use COASTCOM
products with other equipment shall not be grounds for rescission
or in any way extend the liability of COASTCOM beyond that expressed
herein.
15. SEVERABILITY: If any provisions of the entire contract
shall be determined to be invalid or unenforceable under the laws
of the jurisdiction applicable to the entire contract, such invalidity
of unenforceability shall not invalidate or render unenforceable,
the entire contract, but the entire contract shall be construed
as if not containing the particular invalid or unenforceable provision
or provisions and the rights of COASTCOM and the Buyer shall be
construed and enforced accordingly.
16. APPLICABLE LAW: The validity,
performance, construction and interpretation of these terms and
conditions shall be governed by the laws of the State of California,
United States of America, concerning the subject matter hereof
must take place in the State of California.
17. ATTORNEY'S FEES: In the event of litigation concerning
the subject matter hereof the prevailing party in such litigation
shall be entitled to recover from the losing party attorneys fees
In the amount authorized by the court.
18. CHANGES, ALTERATIONS, ADDITIONS:
Changes, alterations and additions to the plans, specifications,
or shipping schedule for this contract shall be invalid unless
approved in writing by COASTCOM. For any such changes approved
by COASTCOM in this manner, which will increase or decrease the
cost and expenses of work to COASTCOM, there shall be a corresponding
increase or decrease in the compensation herein provided. The
value of additional work shall be agreed upon prior to the performance
of said work.
19. LEGAL NOTICE: For the purpose
of any notice permitted or required to be given hereunder, such
notice or notices shall be deemed given when and where received.
Notice shall be by means of postage prepaid registered or certified
mail. Notices directed to COASTCOM shall be marked to the attention
of the Vice President of Sales and Marketing.
20. SHORTAGES: Claims for shortages,
damaged or wrong material must be made in writing within ten (10)
days after receipt of goods.
21. MISCELLANEOUS: (a) The provisions
of Executive Order No. 10925, as amended regarding equal employment
opportunity, and the rules and regulations issued pursuant thereof,
are incorporated herein by this reference. (b) Any United States
government procurement regulations, which are required to be included,
shall be specifically agreed upon in writing prior to incorporation
in the final agreement of sale.
22. TERMS AND CONDITIONS: The terms
and conditions specified herein shall be in addition to those
set out in any COASTCOM technical proposal. In the event of any
conflict in terms between the provisions hereof and such technical
proposal, the terms of this document shall prevail.
|
|
