Menara Networks, Inc. Terms and Conditions of Sale
1. DELIVERY: All deliveries will be made F.O.B. Menara’s plant in Dallas, Texas, USA. Buyer shall be responsible for all shipping and handling costs. Delivery within 10 business days of the estimated date of delivery shall constitute timely delivery.
2. TITLE AND RISK OF LOSS: Title and risk of loss or damage to the product shall pass to Buyer at the time Seller delivers possession of the product to a carrier at Seller's plant or warehouse or other facility without regard to notification of shipment or selection of carrier.
3. RESCHEDULING OR TERMINATION OF ORDERS: Seller reserves the right to require payment for the goods in advance, or satisfactory security of the financial responsibility of Buyer is or becomes unsatisfactory to Seller. If Buyer fails to make payment in accordance with the terms of this agreement, or any collateral agreement, or fails to comply with any provision hereof, Seller may, at its option, cancel any unshipped portion of this order, with Buyer remaining liable for all unpaid accounts. Goods cannot be returned and orders cannot be canceled without Seller’s prior written consent. If Buyer cancels an order, it will be responsible for all Sellers’ costs.
4. PAYMENT TERMS: Unless otherwise stated in Seller’s quotation, payment terms are Net 30 days from the invoice date (on approved credit). No discounts are authorized. Seller may, at any time without notice, change or suspend credit terms, stop shipment, or cancel unfilled purchase orders, when, in Seller’s sole discretion the financial condition of Buyer or its account so warrant, or when delivery is delayed through any fault of Buyer, or when Buyer is delinquent on any payment for invoiced products. Invoices not paid shall be subject to a service charge of 1½% per month on the past due amount. Buyer will reimburse Seller any expenses Seller incurs in collecting any outstanding amount due.
5. TAXES, DUTIES, LEVIES AND SIMILAR CHARGES: Any taxes, duties, levies or similar charges that Seller shall be required to pay to or collect for any government upon or with respect to services rendered or the sale, use or delivery of products (except corporate net income tax imposed upon Seller) shall be the responsibility of Buyer.
6. WARRANTY: Seller warrants the product as a production item ("Item"), but not related services or prototypes of any such Items, to be in conformance with the written specification furnished by or agreed to by Seller. If any failure to conform to such specification ("Defect") is suspected in any such Items, Buyer, after obtaining a Returned Material Authorization number from Seller, shall ship suspected defective Items to Seller, following Seller's instructions regarding the return. No product will be accepted for repair, replacement, credit or refund without the written authorization of and in accordance with Seller’s instructions. Seller shall analyze the failures, making use, when appropriate, of technical information provided by Buyer relating to the circumstances surrounding the failures. Seller will verify whether any Defect appears in the Items. If Seller determines that the returned products are not defective, Buyer shall pay Seller all costs of handling, inspection, repairs and transportation at Seller’s then prevailing rates. Seller shall, at Seller's option, either repair or replace the defective product with the same or equivalent product without charge at Seller’s manufacturing or repair facility or credit or refund the purchase price provided: (i) Buyer notifies Seller in writing of the claimed Defect within thirty (30) days after Buyer knows or reasonably should know of the claimed Defect, (ii) Seller's examination of the Items discloses that the claimed Defect actually exists and (iii) unless a different warranty period is specified otherwise on the face of this Quotation, the defect appears within twelve (12) months from the date of shipment of the product. In the event of a replacement, Seller shall ship the replacing Items FCA point of origin, freight prepaid to Buyer's destination. Any replaced Item shall become Seller's property. The method of disposition of any replaced Items will be as mutually agreed by both parties in writing. In no event shall Seller be responsible for uninstalling or reinstallation of any Item or for the expenses thereof. Repairs and replacements covered by the above warranty are warranted to be free from defects as set forth above except that the defect must appear (i) within ninety (90) days from the date of repair or replacement or (ii) prior to the expiration of the warranty period, whichever is later. Inspection and acceptance of Items by Buyer and/or payment therefor shall not relieve Seller of responsibilities hereunder.
6.A. The above warranty does not apply to, and Seller makes no warranties with respect to products that are software programs, experimental products, prototypes or units from risk lots (all of which are provided “AS IS”) or to Items which have been subjected to misuse, neglect, accident or abuse or operating or environmental conditions that deviate from the parameters established in applicable specifications; or have been improperly installed, stored, maintained, repaired or altered by anyone other than Seller; or have had their serial numbers or date of manufacture removed or altered. This warranty does not extend to any system into which a product is incorporated. This warranty applies only to Buyer and may not be assigned or extended by Buyer to any of its customers or other users of the Items.
6.B. EXCEPT AS STATED IN THIS SECTION, SELLER, ITS SUBSIDIARIES AND AFFILIATES, SUBCONTRACTORS AND SUPPLIERS MAKE NO WARRANTIES, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIM ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. BUYER'S SOLE AND EXCLUSIVE REMEDY SHALL BE SELLER'S OBLIGATION TO REPAIR OR REPLACE OR CREDIT OR REFUND AS SET FORTH ABOVE.
7. INTELLECTUAL PROPERTY: Seller will defend or settle any reasonable third party claim against Buyer that Goods and Services as delivered by Seller infringe a third party’s copyright, trade secret right or U.S. patent provided Buyer promptly notifies Seller in writing, and cooperates with and provides control of the defense or settlement to Seller, to the extent legally permissible.
8. EXPORT CONTROL: Buyer shall obtain all licenses, permits and approvals required by any government and shall comply with all applicable laws, rules, policies and procedures of the applicable government and other competent authorities. Buyer will indemnify and hold Seller harmless for any violation or alleged violation by Buyer of such laws, rules, policies or procedures. Buyer shall not transmit, export or re-export, directly or indirectly, separately or as part of any system, the goods or any technical data (including processes and services) received from Seller, without first obtaining any license required by the applicable government, including without limitation, the United States of America. Buyer also certifies that none of the goods or technical data supplied by Seller hereunder will be sold or otherwise transferred to, or made available for use by or for, any entity that is engaged in the design, development, production or use of nuclear, biological or chemical weapons, or missile technology.
9. LIMITATIONS OF LIABILITY: IN NO EVENT SHALL SELLER BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLEGENCE) OR OTHERWISE, EVEN IF SELLER IS OR SHOULD BE AWARE OF THE POSSIBILITY THEREOF.
10. ASSIGNMENT: Buyer shall not assign this Quotation or any rights or obligations hereunder without the prior written consent of the Seller. Any attempted assignment without the Seller's consent shall be void and ineffective.
11. EXCUSE OF PERFORMANCE: Except with respect to Buyer's obligation to make timely payments when due, neither party shall be held responsible for any delay or failure in performance to the extent such delay or failure is caused by fire, flood, explosion, war, strike, embargo, government requirement, civil or military authority, act of God, nature or the public enemy, inability to secure material or transportation facilities, inadequate yield of products despite Seller's reasonable efforts, act or omission of carriers or any other causes beyond its reasonable control. Seller may, in the event of any such circumstance, allocate in a fair and reasonable manner, taking into account Seller’s contractual commitments, its available production output among itself and its other customers, including at Seller's option those not under contract.
12. CHOICE OF LAW: This agreement shall be deemed a contract made in accordance with the laws of the State of Texas, USA and governed by the laws thereof.
13. ENTIRE AGREEMENT: Except for any existing written agreement signed by both parties respecting the subject matter hereof, these terms and conditions supersede all prior oral or written understandings between the parties and shall constitute the entire agreement between the parties with respect to the subject matter hereof.
Menara Networks, Inc.
an IPG Photonics company
3400 Carlisle St., #210
Dallas, TX 75204