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General Terms and Conditions of Sale and Delivery
RIEDEL Communications Inc.
These General Terms and Conditions of Sale and Delivery (these “Terms”) of goods and services are applicable to all U.S. customers (“Customers” and each, individually, a “Customer”) of RIEDEL Communications, Inc., a California corporation (“Company”).
1. Terms and Conditions of Sale:
1.1. Company shall sell and deliver to Customer and Customer shall purchase and accept from Company the products (herein, the “Products”) and services (the “Services”) described on or in any confirmed order, agreement or quotation, or any combination thereof (the “Order”), pursuant to the terms and conditions of the Order and those specified below, which taken together shall constitute the entire agreement between Company and Customer regarding the Products (herein, this “Agreement”).
1.2. No other terms or conditions shall be of any effect unless otherwise specifically agreed to by Company in a separate written agreement duly signed by an officer of Company. Customer will be deemed to have assented to all Terms if any part of the Products or Services is accepted by Customer. If Customer finds any Term not acceptable, Customer must so notify Company at once and must reject the Products delivered under this Agreement. Any additional or different terms or conditions contained in Customer’s order or response hereto shall be deemed objected to by Company and shall be of no effect. No general terms and conditions of a Customer shall at any time form a part of the content of any contract or agreement between Customer and Company, even if they are not further expressly rejected by Company.
1.3. Unless otherwise agreed in writing, all quotations for Products or Services are non‐binding. Subsequent modifications in quantity or quality, if such are requested by Customer, generally will cause a modification of the quoted price. Drawings and samples enclosed with any quotation remain the property of Company. All drawings and samples shall be treated confidentially by Customer and must be returned to Company after usage.
1.4. No Order is binding upon Company until the earlier of acceptance of the Order in writing or the delivery of the Products to Customer. Notwithstanding any prior acceptance of an Order by Company, Company shall have no obligation if Customer is in breach of any of its obligations hereunder, or any other agreement between Customer and Company, at the time Company’s performance was due.
1.5. All verbal agreements concerning the terms of any Order, including agreements made by telephone, shall have no force and effect unless and until acknowledged by Company in writing.
1.6. Customer shall bear all costs associated with the cancellation or modification of the Order.
2.1. All price quotations are FCA place of destination (per Incoterms 2020) and do not include costs for postage or other freight charges, insurance or taxes, if any.
2.2. Products prices as well as pricing for Services will be governed by Company’s current prices in effect from time to time or by special price quotes made to customer in writing. A price list is available on request. Unless otherwise specified, Company’s quotes are valid for a period of thirty (30) days.
2.3. Prices quoted in a currency other than Unites States Dollars are based on the official exchange rate on the date of the quote. Prices will be invoiced on the basis of the currency exchange rate in effect on the date of confirmation of any Order. In the event that the exchange rate varies after the date of confirmation and before delivery more than two percent (2%) to the disadvantage of Company, Company may adjust the invoice accordingly.
2.4. Company may without notice to Customer increase the price of the Products by the amount of any new or increased tax or duty (excluding franchise, net income and excess profits taxes) which Company may be required to pay on the manufacture, sale, transportation, delivery, export, import or use of the Products or the materials required for their manufacture or which affects the cost of such materials.
2.5 Subject to Section 2.3, if Company agrees as a gesture of good faith to accept the retun of partial quantities of unused and originally packaged Products ordered by Customer in excess, Company shall be entitled to a restocking fee of fifteen percent (15%) of Company’s current list price.
2.6 Unless already included in the Services as quoted, Customer agrees to reimburse Company for all reasonbale travel and out-of-pocket expenses incurred by Company in connection with the performance of the Services.
3. Terms of Payment:
3.1. Billed charges shall be due prior to shipment of the Products or performance of the Services, unless otherwise specifically agreed on in writing.
3.2. Company may without notice change or withdraw extensions of credit at any time. If Company ceases to extend credit terms before shipment, Customer’s sole remedy shall be cancellation of its order. If Customer does not receive notice before shipment, its sole remedy shall be rejection of the Products immediately upon delivery.
3.3. If Customer fails to make payment on or before the date required, Customer shall pay interest to Company at the rate of one and one‐half percent (1 ½%) per month or such lesser amount permitted by law. The specification or charging of interest shall not be deemed an agreement to extend credit. Company shall be entitled to suspend the delivery of any Products or performance of any Services if Customer fails to pay any amounts when due hereunder and such failure continues for seven (7) days following written notice thereof.
3.4. If Customer fails to observe these Terms or the terms of any other agreements between Company and Customer, or if Customer becomes insolvent, all balances then due and owing to Company shall become due immediately, notwithstanding any agreed upon payment periods. Any Orders that have been confirmed by Company but not yet filled shall in such cases become cancelable at the sole discretion of Company.
3.5. Customer does not enjoy a right of set‐off under any circumstances. Company reserves the right to apply any of Customer’s open credits and overpayments to the oldest invoices unless otherwise instructed.
3.6. Customer agrees to indemnify and hold Company harmless against any and all administrative or governmental action, judgments, claims, lawsuits, proceedings, costs, expenses, and liabilities, penalties and interest based on any withholding or other tax liabilities in any state or jurisdiction in which Customer conducts business.
3.7. This Agreement is made subject to any restrictions concerning the export of products or technical information from the United States or other countries that may be imposed on the parties from time to time. Customer agrees that it will not export, directly or indirectly, any technical information acquired from Company under this Agreement or any Products using such technical information to a location or in a manner that at the time of export requires an export license or other governmental approval, without first obtaining the written consent to do so from the appropriate agency or other governmental entity in accordance with applicable law.
4. Delivery Terms:
4.1. Except as otherwise specified in this Agreement, the Products shall be sold and delivered FCA Santa Clarita, California (per Incoterms 2020). FCA means hereunder that Company delivers and the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay passes when Company hands the Products over to the freight forwarder, carrier or any other person or institution designated to carry out the shipment at Santa Clarita, California. The handover shall be deemed to have taken place when Customer or its carrier is in default of acceptance.
4.2. Any agreed Delivery Period commences on the day on which any Order and accompanying documents, such as drawings, have been clarified by Company, but in any event no earlier than the written acceptance of any Order by Company. Sales which extend over a period of time and where quantities have not been fixed in advance shall be subject to separate agreements concerning the quantity and delivery period regarding each separate sales transaction and/or request for delivery made by a Customer. Delivery Periods determine the date of dispatch ex works. All delivery dates are approximate.
4.3. If Customer is in default of acceptance, fails to cooperate or if the delivery or handover to customer is delayed by Company for other reasons caused by Customer, Company shall be entitled to demand compensation for the resulting damage, including additional expenses, including, without limitation, storage costs and insurance.
4.4. Customer, shall, subject to Company’s available facilities at the shipping point, determine the type of transportation and shall notify Company thereof at the time Customer places each Order. In the event Customer has not requested any specific type of transport, Company shall, within its reasonable discretion, determine best method type of transportation. Company will make deliveries of the Products in the quantities ordered as near as reasonably possible to Customer’s requested delivery dates.
4.5. Company shall use its reasonable efforts to deliver the Products to Customer by the agreed upon date. However, except in cases of Company’s willful misconduct or gross negligence, Company shall not be liable to Customer for delays in delivery or damage to Products while in transit, irrespective of whether Company or Customer determined the mode of transportation.
4.6. In cases of deliveries of Products manufactured to Customer’s specification (“Special Orders”), Company reserves the right to deliver fifteen percent (15%) more or less of the quantity ordered.
4.7. Unless otherwise agreed to in writing, all tools, models, plans, blueprints or other devices and/or documents used and/or developed by Company (the “Tools”) in order to fulfill any Order or Special Order are the property of Company, even if the cost of development and/or manufacturing of such tools, models, plans, blueprints or other devices and/or documents was wholly or partially borne by Customer.
4.8. With respect to the Services, Customer shall (i) cooperate with Company in all matters relating to the Services and provide such access to Customer's premises, and such office accommodation and other facilities as may reasonably be requested by Company, for the purposes of performing the Services; (ii) respond promptly to any Company request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Company to perform Services in accordance with the requirements of this Agreement; (iii) provide such customer materials or information as Company may reasonably request to carry out the Services in a timely manner and ensure that such customer materials or information are complete and accurate in all material respects; and (iv) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start. Customer shall take all necessary steps to ensure a safe and healthy environment when Company employees are present on Customer’s site. Customer’s site shall comply with all OSHA act guidelines as well all applicable federal and local laws regarding health and safety. Customer shall take all necessary precautions as outlined by the CDC to provide a safe environment to prevent the spread of Covid-19 and other pathogens. Should any customer employees or contractors have suspected or confirmed cases of Covid-19 or other pathogens, the Customer shall immediately notify the Company and its employees of the possible exposure.
4.9. Both during the performance of the Services and for a period of two years after the completion of the Services, Customer shall be prohibited from poaching employees of Company or attempting to do so, from inciting third parties to poach them or from assisting them in poaching activities. Each individual poaching attempt against each individual employee is considered an independent breach. If Customer breaches its non-poaching covenant under this Section 4.9 (the "Customer Breach"), Customer shall pay to Company an amount equal to three (3) gross monthly salaries of the poached employee for each poaching attempt (the "Liquidated Damages"). The parties intend that the Liquidated Damages constitute compensation, and not a penalty. The parties acknowledge and agree that the Company's harm caused by a Customer Breach would be impossible or very difficult to accurately estimate, and that the Liquidated Damages are a reasonable estimate of the anticipated or actual harm that might arise from a Customer Breach. The Customer's payment of the Liquidated Damages is the Customer's sole liability and entire obligation and the Company's exclusive remedy for any Customer Breach.
5. Security Interest:
5.1. As security for the timely payment and performance of all Customer’s indebtedness to Company, Customer hereby grants to Lender a first priority security interest in the Products following delivery thereof to Customer (“Collateral”). Such Interest shall remain in force until payment in full of the entire purchase price for the Products and any other amounts due to Company by Customer.
5.2. If so requested by Company, Customer shall deliver to Company, in form and substance satisfactory to Company, and duly executed as required by Company, financing statements and other security interest perfection documentation in form and substance satisfactory to Company, duly filed under the Uniform Commercial Code (“UCC”) in all jurisdictions as may be necessary, or in Company’s opinion, desirable, to perfect Company’s security interest and lien in the Collateral, in order to establish, perfect, preserve and protect Company’s security interest as a legal, valid and enforceable security interest and lien, and all property or documents of title, in cases in which possession is required for the perfection of Company’s security interest.
6. Warranty and Limitations:
6.1. Company warrants solely to the original purchaser of the Products that for the Warranty Period (as defined below), the Products will be free from material defects in materials and workmanship under normal use, and will conform to Company’s published specifications of the Products. The foregoing warranty is subject to the proper storage, transportation and use of the Products. All warranty claims must be made by Customer to Company in writing within eight (8) days of the commencement of use of the Products and prior to the end of the Warranty Period. Company’s sole obligation under the foregoing warranty is, at Company’s option, to repair, replace or correct any such covered defect or non‐conformity. Upon repair or replacement of defective or non‐conforming Products, Company shall have no further obligation to Customer with respect to such defect or non‐ conformity. Unless expressly warranted in Company’s Order confirmation, Company makes no warranty that the Products comply with applicable law, regulations or specifications in any jurisdiction in which the Products may be sold or marketed in any jurisdiction. Any governmental or other approvals necessary in connection with the resale, marketing, distribution or use of the Products shall be the sole responsibility of Customer.
6.2. With respect to Special Orders, Company makes no warranty that the Products manufactured under a Special Order do not infringe the intellectual property or other proprietary rights of any third party and Customer is solely responsible for assuring that Special Order Products do not so infringe.
6.3. The “Warranty Period” begins on the date the Products are delivered as provided for in Section 6 and continues for twenty‐four (24) months for Products of the RIEDEL brand, and six (6) months for all other Products. Notwithstanding the foregoing, in the event of the sale of used Products the Warranty Period shall be (i) two (2) years from the date of delivery for Products that are one (1) to two (2) years old; (ii) one (1) year warranty from the date of delivery for Products that are two (2) to four (4) years old and (iii) no warranty shall be provided for Products older than five (5) years. In the event of Products or parts thereof that are subject to wear and tear, the Warranty Period shall only be one (1) year from the date of delivery. Excluded from the foregoing warranty set forth in Section 6.1 are problems due to accidents, negligence, misuse, misapplication, storage damage or modification to, the Products.
6.4 Company warrants to Customer that it shall perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement.
6.5. Company does not authorize any person or party to assume or create for it any other obligation or liability in connection with the Products except as set forth herein.
6.6. THE WARRANTY SET FORTH IN SECTION 6.1 and 6.4 IS MADE IN LIEU OF ALL OTHER WARRANTIES (WHETHER EXPRESS OR IMPLIED), RIGHTS OR CONDITIONS, AND CUSTOMER ACKNOWLEDGES THAT EXCEPT FOR SUCH LIMITED WARRANTY, THE PRODUCTS AND SERVICES ARE PROVIDED “AS IS.” COMPANY SPECIFICALLY DISCLAIMS, WITHOUT LIMITATION, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NON‐INFRINGEMENT, AND THOSE WARRANTIES ARISING FROM A COURSE OF PERFORMANCE, A COURSE OF DEALING OR TRADE USAGE.
7. Limitation of Liability:
7.1. Every effort will be taken to ensure the proper operation of each system during installation and commissioning. Company shall not be liable for wireless service problems caused by conditions beyond Company’s control, including atmospheric or geographic conditions, the failure or interference of other service providers or wireless Product, a public safety emergency, or coverage or capacity limitations. IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, REVENUE, GOODWILL OR USE, INCURRED BY CUSTOMER OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT, TORT, STRICT LIABILITY, OR IMPOSED BY STATUTE, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY’S LIABILITY FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL IN NO EVENT EXCEED THE PURCHASE PRICE OF THE PRODUCTS. IT IS AGREED AND ACKNOWLEDGED THAT THE PROVISIONS OF THIS AGREEMENT ALLOCATE THE RISKS BETWEEN COMPANY AND CUSTOMER, THAT COMPANY’S PRICING REFLECTS THIS ALLOCATION OF RISK, AND BUT FOR THIS ALLOCATION AND LIMITATION OF LIABILITY, COMPANY WOULD NOT HAVE ENTERED INTO THIS AGREEMENT.
7.2. IN JURISDICTIONS THAT LIMIT THE SCOPE OF OR PRECLUDE LIMITATIONS OR EXCLUSION OF REMEDIES OR DAMAGES, OR OF LIABILITY, SUCH AS LIABILITY FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OR DO NOT ALLOW IMPLIED WARRANTIES TO BE EXCLUDED. THE LIMITATION OR EXCLUSION OF WARRANTIES, REMEDIES, DAMAGES OR LIABILITY SET FORTH ABOVE ARE INTENDED TO APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CUSTOMER MAY ALSO HAVE OTHER RIGHTS THAT VARY BY PROVINCE, STATE, COUNTRY OR OTHER JURISDICTION.
8. Use of Software:
8.1. “Software” shall be defined as machine‐readable code or firmware, which is owned by or licensed to Customer, and resides in a Product and is licensed to Customer on a non‐exclusive, worldwide, fully paid basis for use in the Product. Customer shall not be authorized to reproduce, copy, modify, repair, decompile, reverse engineer, disassemble, reverse translate, or in any manner decode the Software.
9. Force Majeure:
9.1. Company shall not be liable to Customer or any other person for any failure or delay in the performance of any obligation under this Agreement caused directly by events beyond its reasonable control, without Company’s fault or negligence and that by its nature could not have been foreseen by Company or, if it could have been foreseen, was unavoidable, including, but not limited to, (i) a public health emergency or communicable disease outbreak, pandemic or epidemic, resulting in, among others, shelter-in-place orders, quarantines, Government shutdowns, Government or administrative action or changes in laws or regulations, substantial interruption to air travel, substantial interruptions in supply chains, and other economic effects caused by the response to an epidemic, a pandemic and/or public health emergency or communicable disease outbreak, (ii) fire, storm, flood, earthquake, other natural catastrophes, (iii) explosion, (iv) accident, (v) acts of the public enemy, wars, riots and public disorder, (vi) sabotage, strikes, lockouts, labor disputes, labor shortages, work slowdown, stoppages or delays, (vii) shortages or failures or delays of energy, materials, supplies or equipment, (viii) transportation embargoes or delays, (ix) acts of God, (x) breakdown in machinery or equipment, (xi) water ingress, (xii) power blackouts, (xiii) disconnection or destruction of data-carrying conductions, (xiv) except as otherwise set forth in this Agreement, acts or regulations or priorities of the federal, state or local governments and (xv) any other events beyond Company’s reasonable control.
9.2. When the event operating to excuse performance by either party shall cease, this Agreement shall continue in full force until all deliveries have been completed. Notwithstanding the foregoing, Company shall be entitled to terminate the Agreement in the event (i) the performance of the Agreement is rendered permanently impossible (ii) the continuation of the performance of the Agreement would impose a substantial and significant financial burden upon Company which applies in the event that Company’s cost of performance increases by at least ten percent (10%) or (iii) the performance of the Agreement is in violation of applicable unfair trade or antitrust laws or otherwise would constitute a legal violation.
10. Miscellaneous Terms:
10.1. Any controversy or claim arising out of or relating to this Agreement, or the negotiation or breach thereof, shall be exclusively settled by arbitration in accordance with the International Arbitration Rules of the American Arbitration Association (“AAA”). The award shall be final and binding. Judgment upon the award rendered by the arbitrator or the arbitrators may be entered in any court having jurisdiction thereof. The place of arbitration shall be Los Angeles County, California. The language of arbitration shall be English. The arbitration shall be conducted (i) if the amount in dispute is less than $250,000, before a single arbitrator mutually agreeable, or if no agreement can be reached, then selected by the AAA, or (ii) of the amount in dispute is $250,000 or more, before three (3) arbitrators. The arbitrator(s) shall make detailed findings of fact and law in writing in support of his, her or their decision, and shall award reimbursement of attorney’s fees and other costs of arbitration to the prevailing party, in such manner as the arbitrator shall deem appropriate. In addition, the losing party shall reimburse the prevailing party for reasonable attorneys’ fees and disbursements, the costs of the arbitration (including but not limited to the fees and expenses of the arbitrator and expert witnesses) and the costs incurred by the prevailing party in successfully seeking any preliminary equitable relief or judicially enforcing any arbitration award.
10.2. This Agreement shall be governed by and construed in accordance with the law of the State of California, without giving effect to principles of conflict of laws.
10.3. If any provision contained in this Agreement is held to be invalid, illegal or unenforceable, such invalid, illegal or unenforceable provision shall be severed from the remainder of this Agreement, and the remainder of this Agreement shall be enforced. In addition, the invalid, illegal or unenforceable provision shall be deemed to be automatically modified, and, as so modified, to be included in this Agreement, such modification being made to the minimum extent necessary to render the provision valid, legal and enforceable. Notwithstanding the foregoing, however, if the severed or modified provision concerns all or a portion of the essential consideration to be delivered under this Agreement by one party to the other, the remaining provisions of this Agreement shall also be modified to the extent necessary to equitably adjust the parties’ respective rights and obligations hereunder.
10.4. In the event of a violation or threatened violation of Company’s proprietary rights, Company shall have the right, in addition to such other remedies as may be available pursuant to law or this Agreement, to temporary or permanent injunctive relief enjoining such act or threatened act. The parties acknowledge and agree that legal remedies for such violations or threatened violations are inadequate and that Company would suffer irreparable harm.
10.5. The parties hereto are independent contractors and nothing in this Agreement will be construed as creating a joint venture, employment or agency relationship between the parties.
10.6. This Agreement, including any Schedules attached hereto, contains the entire agreement of the parties with respect to the subject matter of this Agreement, and supersedes all prior agreements between them, whether oral or written, of any nature whatsoever with respect to the subject matter hereof. This Agreement is binding upon the parties hereto, their successors and permitted assigns.
RIEDEL SUPPORT INFORMATION
Riedel Communications Inc.
25702A Rye Canyon Blvd
Santa Clarita, CA 91355
Main Phone: 818 559 6900
Support Phone: 818 559 6930
Fax: 818 558 5927