The term “Buyer” as used herein means the purchaser of goods and/or services from Tempest Telecom Solutions, LLC. pursuant to the terms and conditions herein contained. The term “Seller” as used herein means Tempest Telecom Solutions, LLC.
Credit accounts are welcomed. In order to apply for and establish a credit account, Buyer is required to submit the following:
A completed credit application.
Current financial statement.
A sales tax exemption certificate, if applicable.
To avoid delay of processing Buyer’s initial order, the following forms of payment are recommended to expedite execution thereof:
Wire transfer of funds.
Certified or cashier’s check with purchase order.
Credit Card (MC, Visa, Amex)
Letter of credit.
PRICES, DISCOUNTS AND QUOTATIONS
All prices are subject to change without notice. Prices provided from applicable Quotation media are based upon payment made by Cash or Check. All invoice prices are those in effect on date of shipment, unless otherwise agreed to in writing by Buyer and Seller. All pricing information in published or printed material is current at the time of publication and is provided for general information and estimation purposes only. Published prices are neither quotations nor offers to sell. Prices do not include applicable federal, state or local taxes. All taxes applicable to products ordered shall be paid by Buyer, or in lieu thereof, Buyer shall provide Seller with a tax exemption certificate acceptable to the taxing authorities. This obligation shall survive payment of Seller’s invoice. All agreements between Buyer and Seller shall be governed by the laws of the state of California. Buyer and Seller agree to submit to the jurisdiction of the courts in the state of California.
Payment is due on all invoices 30 days from date of invoice. Payments rendered by Credit Card will be subject to an additional processing fee of three percent (3%). A late payment charge will be assessed on all account balances which remain unpaid and outstanding beyond the date payment is due. The late payment charge shall be 1.5% of the outstanding balance per month for each month, or partial month, unpaid balance remains outstanding. If Buyer fails to pay any invoice when due, the whole sum owing shall immediately become due and payable by Buyer, and Seller may immediately suspend further deliveries to Buyer until all amounts owed by Buyer to Seller have been paid in full.
ACCEPTANCE OF ORDERS
All orders are subject to acceptance solely by Seller and such acceptance is expressly made conditional upon the assent by Buyer to the terms and conditions herein contained as the sole terms and conditions governing this transaction, except that modifications or additions to the terms and conditions herein may be agreed to by Buyer and Seller in the form of a purchase agreement or in other written form. Terms or conditions contained in Buyer’s purchase order or other correspondence from buyer which differ from or add to those herein contained shall not become part of the agreement between Buyer and Seller and shall not be binding upon Seller.
CANCELLATION OF ORDERS
No order can be cancelled by Buyer without the written consent of Seller. Buyer agrees to indemnify and save harmless Seller from any and all losses sustained buy Seller as a result of buyer’s cancellation of or change in an accepted purchase order. If Seller withholds its consent to the cancellation of an order, Seller will deliver the ordered items to buyer, and payment in full will be due from Buyer for such items.
Unless otherwise agreed in writing, all shipments from Seller’s warehouse locations to points within the continental United States will be shipped via surface freight. Freight charges for such shipments may be prepaid by Seller and added to the charges listed on the invoice, and Buyer agrees to reimburse Seller for such freight charges as they appear on the invoice. Seller will select point of origin, method, and routing unless otherwise agreed in writing. All shipments are F.O.B. point of origin. Title to goods and risk of loss or damage is transferred to Buyer upon delivery of the ordered items by Seller to a common carrier.
Shipping dates provided by Seller, verbal or written, are approximate and are based on current inventory and estimations of time periods required to obtain ordered goods from the manufacturer. In no event shall Seller assume liability, consequential or otherwise, as a result of Seller’s failure to deliver goods in accordance with indicated delivery schedules. Acceptance of any item shipped by Seller pursuant to Buyer’s purchase order shall constitute a waiver of all claims based on delay in deliveries. Buyer shall be responsible for inspecting its shipment upon delivery. Buyer is responsible for signing all acceptance documents with the carrier as short or visible damage. Any shortages or evidence of damage to merchandise must be reported in writing to Seller within 15 days of the receipt of goods. Failing such notice, the goods shall be deemed accepted with knowledge of, and Buyer shall be deemed to have waived all claims based on, all shortages or defects ascertainable at the time of delivery. Seller shall have no liability for damages to the goods caused by the carrier. No shipping arrangements specified in Buyer’s purchase order can be changed without at least 15 days notice to the Seller prior to the scheduled shipping date. Any changes in shipping arrangements at any time within 15 days prior to the shipping date shall result in the imposition of special handling charges. Unless otherwise specified in the purchase order, all shipments will be made as soon as Seller deems reasonably practicable after receipt and acceptance of Buyer’s purchase order. Seller reserves the right to make delivery in installments and the delivery of part of an order shall not obligate Seller to make further deliveries. Seller shall not be obligated to make any deliveries hereunder until Buyer’s purchase order has been received and accepted, and Buyer has complied with all applicable credit qualification requirements or has prepaid. Seller shall not be liable for damages, lost profits or adjustments to the price due to delays or incapacities caused by circumstances beyond its control, including but not limited to, acts of God; fire; flood; wars; sabotage; labor disputes; government actions; shortages suffered by Seller’s suppliers or manufacturers; inability to obtain material, power, equipment or transportation; acts or defaults by common carriers; or delays caused by Buyer of any kind. In the event of any such delay, the date of delivery shall be extended for a period equal to the time lost by reason of the delay.
No return of merchandise will be accepted from Buyer without prior approval by Seller. Such approval must be in the form of a written Return Authorization, which must accompany the returned items. A Return Authorization must be requested by Buyer from Seller within sixty (60) days from the original ship date. Buyer agrees to indemnify and hold harmless Seller from any and all losses sustained by Seller as a result of Buyer’s return of items delivered to Buyer and Seller pursuant to the terms herein. Items returned pursuant to the foregoing procedure are subject to a restock fee. Secondary Market sales to include, but not limited to items categorized as: “new surplus”, “refurbished”, “un-used” or “used” as well as Customized and built to order goods are considered “non-returnable”. Returned items must be in the original shipping cartons, undamaged, unused, and unaltered. Equipment received in a condition other than described entitles the Seller the right to refuse return of the items or impose additional charges. All shipments of returned items must be shipped prepaid by Buyer to Seller’s warehouse location specified in the Return Authorization and Seller will not accept any COD, freight collect or similar shipments of returned items unless mutually agreed to by Buyer and Seller. Upon receipt of the returned items, Seller will inspect such items for compliance with the foregoing conditions for proper return. A credit for properly returned items will be entered against the original invoice for the ordered items. All returns issued are valid for thirty- (30) days after which time the Return Authorization will be cancelled. Returns received without proper authorization are subject to additional fees or may not be accepted at all. Seller accepts no responsibility for material returned without authorization.
SELLER MAKES NO WARRANTIES, EXPRESSED OR IMPLIED, AND EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THESE GOODS ARE SOLD “AS/IS”. IN NO EVENT WILL SELLER BE RESPONSIBLE FOR INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES. Seller makes no warranty whatsoever with respect to any items not manufactured by it or with respect to the ability of any items to accurately process date data, including, but not limited to, calculating, comparing and sequencing from, into and between the Twentieth Century, the year 2000 and the Twenty-First Century. However, Seller will assign or otherwise make available to Buyer any warranty which has been assigned by a manufacturer of any item and which Seller has the right to so assign or otherwise make available to Buyer.
Secondary- Market Warranty Statement:
Seller warrants to Buyer that goods purchased as Secondary-Market items to include but not limited to those items referred to as “used”, “un-used” “refurbished” and “new surplus” (hereinafter referred to as the “Goods”) will be free from substantial defects in materials and workmanship under normal use, given proper installation and maintenance for a period of one year (1) from the date of purchase.
Seller assumes no liability with respect to defects caused by modification, repair, installation, operation, negligence, or other improper use of the Goods.
Seller’s entire liability and Buyer’s exclusive remedy, whether in contract, tort or otherwise, for any claim related to or arising out of the Buyer’s purchase or use of Goods, shall be correction of defects by repair, replacement of “like” unit at comparable value, or credit, at Seller’s discretion.
In the event “Goods” are repaired as an exclusive remedy, Seller cannot warrant that the operation of the “Goods” will be uninterrupted or error-free. Similarly, Seller does not warrant that the function of the “Goods” will meet Buyer’s requirements or that the “Goods” will operate in combination with other products selected by Buyer for its use.
Disclaimer of Liability-(Inclusive of Secondary-Market Warranties)
Seller will not be liable for injuries or damage to persons or property resulting from any cause whatsoever, with the exception of injuries or damages caused by the gross negligence of Seller. This limitation applies to all Goods during and after the warranty period.
In no event shall Seller be liable for any damages from loss of use or loss of profits and Seller further disclaims any and all liability for indirect, incidental, special, consequential, or other similar damages.
In the event any remedy fails of its essential purpose, or in any other event, Seller’s aggregate liability shall not exceed the amount actually paid to Seller by Buyer for the affected Goods.
Seller may immediately terminate Buyer’s ability, if any, to purchase merchandise on credit or otherwise at any time in Seller’s sole discretion. Seller reserves the right to discontinue product lines and to make changes in products at any time. No supplement, modification or amendment of these terms and conditions will be binding upon Seller us unless made in writing and signed by a duly authorized representative, these terms and conditions being, together with Seller’s invoice, a final, complete and exclusive statement of the contract of sale. Buyer’s rights under this contract may not be assigned or sold by Buyer without Seller’s prior written consent. Captions used herein are for convenience only and are not intended to be used in the construction or interpretation hereof. The invalidity or un-enforceability of any provision hereof shall not invalidate any of the remaining provisions.