DH Wireless Solutions (“DHWS”) agrees to provide the equipment (the “Equipment”) and services (the “Services”) set forth in the attached quotation.
- Expiration of Quotation. Any quotation by DHWS will be held open for acceptance for a period set forth therein; however, DHWS reserves the right to correct clerical and typographical errors within 15 days after acceptance of an order based on a quotation.
- Acceptance. Any quotation, purchase order or scope of work, together with these Standard Terms and Conditions and all documents referenced in such quotation, purchase order or scope of work (the “Agreement”) are the entire agreement with respect to the Services and Equipment and no modification of the Agreement shall be effective unless in writing and signed by DHWS. Any terms stated by Buyer in any other communication, prior or subsequent hereto, shall NOT be binding on DHWS if different from or in addition to any of the provisions hereof or the quotation, unless expressly agreed to in writing. Commencement of performance of the Services by DHWS or acceptance by Buyer of the Equipment, orally or in writing, shall constitute acceptance of these terms and conditions, notwithstanding any prior dealings or usage of trade.
Equipment. All shipped orders of Equipment will include an invoice for payment. 100% of payment is due at time of order unless otherwise agreed in writing. All payments not made by the due date shall bear interest at a rate of 1½% per month. If Buyer fails to fulfill the terms of payment, or DHWS has any doubt at any time as to Buyer’s financial responsibility, DHWS may either decline to make further deliveries except upon receipt of cash or other satisfactory security, or may terminate the Agreement. Buyer shall reimburse DHWS for any costs of collection incurred in collecting any past due sums, including attorneys’ fees. To secure Buyer’s obligation to pay DHWS the purchase price of the Equipment, Buyer grants to DHWS a security interest in the Equipment and any proceeds thereof, with full rights as a secured party under the Uniform Commercial Code, and Buyer authorizes DHWS to file any financing statements evidencing such security interest on behalf of Buyer.
Services. Invoices for Services shall be submitted on a timely basis in the manner, frequency and form as required by the Agreement. Buyer shall pay invoices in accordance with the payment terms specified in the Agreement. Additional support services may be purchased through a DHWS Service Agreement. In the absence of a DHWS Service Agreement, support services performed following the sale of Equipment shall be invoiced at a per incident cost.
- Shipment and Risk of Loss. Buyer shall take delivery of the Equipment F.O.B. DHWS’s FACILITIES, unless otherwise agreed in writing. Method and route of shipment are at DHWS’s discretion unless Buyer supplies instructions otherwise. All expense and risk of loss or any damage incurred in the transportation of the Equipment, including any risk of loss in loading or unloading, shall be borne solely by Buyer, unless otherwise specified. All claims for loss, damage, or delay against the carrier must be made by Buyer. Buyer shall accept partial delivery of any order, and any defect therein or failure to make any subsequent partial delivery shall be severable and not constitute a breach of the entire agreement.
- Delays and Damages. DHWS shall attempt to make deliveries of Equipment in accordance with the Agreement, but if for any cause DHWS fails to make such deliveries or to make them within the time stated, or cancels any order, DHWS shall not be liable for any loss or damage resulting from any such failure or delay in delivery, or from any such cancellation or for loss of use or loss of profits, or for any other consequential, incidental or special damages on account of delay in delivery.
- Rejection of Non-Conforming Equipment. Any rejection of Equipment as non-conforming must be made by Buyer within ten (10) days after delivery by delivering written notice to DHWS confirming the rejection. Such notice shall identify each alleged non-conformity of the Equipment and describe that portion of the shipment being rejected. If Buyer shall fail to give such notice or if Buyer uses the Equipment in any manner inconsistent with the rights of DHWS, the Equipment shall be deemed to conform to the terms of the order in all respects and Buyer shall be bound to accept and pay for the Equipment.
- Cancellation or Modification. Any Agreement for Equipment or Services accepted by DHWS may be canceled or modified by Buyer only upon the written approval of DHWS. Buyer shall reimburse DHWS for all expenses incurred by DHWS in connection with such Agreement, including without limitation for time and materials, together with a cancellation fee of 25% of the total remaining cost of the Equipment under such Agreement. Agreements which are at least 75% complete are payable in full if terminated. Payment of any fees resulting from the cancellation or modification of any Agreement shall be made in accordance with paragraph 3 above.
- Return of Merchandise. Equipment that is in “new in box condition” may be returned to DHWS within 14 days of receipt with prior notification and an RMA number. All returned Equipment is subject to a 15% restocking fee. Shipping and handling will not be credited. All device management software solutions/support/extended warranties, special order items, custom built solutions, and the PDN product and services are NCNR (Non-Cancelable, Non-Refundable).
- Confidentiality of Proprietary Information. All information that was or will be developed, created or discovered by or on behalf of DHWS, or which became or will become known to DHWS, or was or is conveyed to DHWS that has commercial value in DHWS’s business, whether or not patentable or copyrightable, including, without limitation, information about software programs and subroutines, source and object code, algorithms, trade secrets, specifications, drawings, designs, technology, know-how, processes, data, ideas, techniques, inventions, works of authorship, formulae, business and product development plans, customer lists and terms of compensation and performance levels of DHWS’s employees and consultants (“Proprietary Information”), shall be the sole and exclusive property of DHWS. At all times during the term of the Agreement and thereafter, Buyer shall keep in confidence and trust and shall not use or disclose any such Proprietary Information or anything relating to it without the prior written consent of DHWS. Upon request, Buyer will return to DHWS all documents and things in its possession or control pertaining to the Proprietary Information.
- Ownership of Work Product. All work product prepared by DHWS in connection with its performance of the Services shall remain the property of DHWS, shall be used by Buyer only for its own internal purposes and may not be copied, distributed or otherwise delivered to anyone outside of Buyer’s organization.
- Independent Contractor. DHWS is and at all times shall be acting and performing as an independent contractor and nothing in the Agreement is intended to create an employer/employee relationship or a joint venture relationship with Buyer. DHWS shall be solely responsible for the performance, general direction, supervision and efficient administration of the Services. DHWS shall be responsible for any and all wages, taxes or benefits that are due and owing its employees and Buyer shall not withhold any sums for income tax, unemployment insurance, social security or any other withholding pursuant to any law or requirement of any governmental body on behalf of DHWS. Any applicable state or local sales or use taxes due on the Services are the duty of DHWS to collect and shall be separately stated on all invoices as such, however, DHWS shall not collect or include any sales or use taxes on Services for which Buyer furnishes a properly completed Exemption Certificate.
- Warranty Exclusions and Disclaimers. All Equipment is sold “as is” without any warranty by DHWS, and the only warranty is given by the manufacturer of the Equipment. DHWS MAKES NO WARRANTIES, EXPRESSED OR IMPLIED, AND SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
- Limitations of Damages. DHWS shall not be responsible for any damages, whether or not foreseeable, which are sustained by Buyer and arise from either the condition or performance of any Equipment or DHWS’s performance or nonperformance of the Services regardless of the form of action, whether in contract, tort (including negligence), strict liability, products liability, or otherwise. DHWS shall not be liable for any incidental, indirect, consequential, special, exemplary or punitive damages (including loss of profits, goodwill, data, use or revenues or increased cost of operations), whether or not DHWS has been advised of the possibility of such damages. IN ANY EVENT, DHWS’S MAXIMUM LIABILITY FOR ANY DAMAGES WHATSOEVER ARISING OUT OF THE AGREEMENT IS LIMITED TO THE AMOUNTS PAID TO DHWS UNDER THE AGREEMENT.
- Buyer agrees to defend, indemnify and hold harmless DHWS and its agents from and against any losses, liabilities, damages, costs, expenses, suits, actions, claims and all other obligations and proceedings whatsoever, including without limitation, all judgments rendered against and all fines and penalties imposed upon DHWS, and any attorneys’ fees and other costs of litigation (collectively, “Liabilities”) arising out of injuries to persons, including disease or death, or damage to property caused by Buyer, its employees, agents, other contractors, or in any way attributable to the acts or omissions of Buyer under the Agreement, including without limitation any asserted defects in any Equipment produced for Buyer by DHWS caused by any alteration thereof with or without DHWS’s consent made by Buyer, the improper handling, maintenance, storage or installation by Buyer, any action taken by Buyer which voids any certification or actual or claimed liabilities from infringement of patents or trademarks arising from compliance with any oral or written specifications or instructions provided by Buyer or its agents, except that Buyer’s obligation to indemnify DHWS shall not apply to any Liabilities arising from DHWS’s sole negligence, or that portion of any Liabilities that arise out of DHWS’s contributing negligent acts or negligent omissions.
- Non-Solicitation. Buyer agrees that, for a period of twelve (12) months from the date of the Agreement it will not (a) solicit, recruit or hire, or assist others in soliciting, recruiting or hiring, any of the current employees of DHWS with whom Buyer has been directly in contact or directly introduced or otherwise had contact with as a result of the Agreement or (b) solicit, interfere with or attempt to impair the relationship between DHWS and any of its customers, clients or accounts without the prior written consent of DHWS. Nothing in the foregoing sentence shall prohibit Buyer from soliciting any persons by means of a general advertising.
- Non-Performance. Neither party shall be liable to the other for failure to perform its obligation in whole or in part when performance is prevented by flood, drought, fire or any other casualty, war, terrorism, riot, insurrection, acts of God, restrictions or interference by any government or governmental agency, strike, labor action, or any similar cause beyond the control of the party failing to perform, for the period during which such cause of failure exists.
- Limitation Period for Bringing Action. No action may be commenced to enforce this contract or for any breach hereof, or for any defect or deficiency of the Equipment to be delivered or Services to be provided hereunder, whether on warranty, contract, negligence, or strict or products liability, unless such action is brought within 12 months after accrual of such cause of action.
- Choice of Law and Forum. This Agreement shall be governed by the laws of the State of Michigan, notwithstanding any state’s choice of law or rules to the contrary. Buyer consents and agrees that any action brought to enforce this Agreement, or for any breach hereof, or for any defect or deficiency of the Equipment or Services to be delivered hereunder, whether on warranty, contract, negligence, or strict or products liability, shall be brought solely in a state or federal court sitting in the State of Michigan, and Buyer consents and submits to the jurisdiction of such court.
- Any quotation for the rental of Equipment shall be governed by the DHWS rental terms and conditions accompanying such quotation. To the extent any of the terms and conditions set forth in the rental terms and conditions conflict with the terms and conditions set forth herein, the terms and conditions set forth in the rental terms and conditions shall control.