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PREMIER WIRELESS SOLUTIONS TERMS AND CONDITIONS OF SALE


 

THE SALE OF PRODUCTS AND SERVICES ("PRODUCTS") BY PREMIER WIRELESS SOLUTIONS AND ITS DIVISIONS AND SUBSIDIARIES ("PWS") ARE SUBJECT TO THESE TERMS AND CONDITIONS ("AGREEMENT") REGARDLESS OF OTHER OR ADDITIONAL TERMS OR CONDITIONS THAT CONFLICT OR CONTRADICT THIS AGREEMENT IN ANY PURCHASE ORDER, DOCUMENT, OR OTHER COMMUNICATION ("ORDER"). PREPRINTED TERMS AND CONDITIONS ON ANY CUSTOMER ("CUSTOMER") DOCUMENT (FOR EXAMPLE: PURCHASE ORDERS OR CONFIRMATIONS) AND/OR PWS' FAILURE TO OBJECT TO CONFLICTING OR ADDITIONAL TERMS WILL NOT CHANGE OR ADD TO THE TERMS OF THIS AGREEMENT. 

1. ORDERS. All Orders are subject to acceptance by PWS. PWS reserves the right to allocate the sale of Products among its customers. Orders for special, custom, value-added and Products specifically identified by PWS as non-standard are non-cancelable and non-returnable ("NCNR"). The Customer may not cancel or reschedule Orders for standard Products without PWS’ consent, which shall not be unreasonably withheld.

2. PRICES. PWS’ quoted prices apply for 15 days or as otherwise stated in its quote. PWS may increase prices if PWS’ costs increase or other circumstances beyond PWS’ reasonable control. Prices are subject to change at any time. Prices are for Products only and do not include taxes, impositions and any other charges, fees, shipping charges and duties imposed by any government authority. Customer is responsible for any additional fees and taxes. 

3. TERMS OF PAYMENT. Payment of the total invoice amount, without offset or deduction, is due upon receipt from the invoice date, unless other terms have been previously arranged. On any past due invoice, PWS may charge interest from the payment due date to the date of payment (at 1.5% per month), plus reasonable attorney fees and collection costs. PWS may change the terms of Customer's credit at any time. PWS may apply payments to any of Customer's accounts. 

4. DELIVERY AND TITLE. Delivery shall be made in accordance with PWS’ shipping policy in effect on the date of shipment. Product title and risk of loss will transfer to Customer upon PWS tendering the Product for delivery to the carrier (F.O.B. Origin). If Customer requests special shipping or handling, including expedited shipment, third-party billing, or freight collect, Customer shall be responsible filing claims with the carrier and all freight and handling costs. Customer shall pay for any special routing, packing, handling or insurance requested by Customer and agreed to by PWS. Orders shipped under special routing instructions must be separately agreed upon and may be subject to additional charges. PWS will not be subject to requirements of non-compliance programs of Customer, including charges for product delays, missing/inaccurate shipping documents, labeling or product markings.

Customer shall promptly notify PWS, no later than 15 days from invoice date, of any claimed shortages or rejection as to any delivery, with the exception of deliveries that reveal external shipping damage, which, in some instances, must be refused immediately upon delivery by the carrier. Such notice shall be in writing and shall be reasonably detailed stating the grounds for any such rejection. Failure to provide any such notice within such time shall be deemed an acceptance in full of any such delivery. PWS shall not be liable for any shipment delays that affect PWS or any of PWS’ suppliers, including but not limited to delays caused by unavailability or shortages of Products from PWS’ suppliers, natural disasters, acts of war or terrorism, acts or omissions of Customer, fire, strike, riot, or governmental interference, unavailability or shortage of materials, labor, fuel or power through normal commercial channels at customary and reasonable rates, failure or destruction of plant or equipment arising from any cause whatsoever, or transportation failures.

 

PWS’ delivery dates are estimates only and PWS is not liable for delays in delivery. PWS reserves the right to make partial shipments and Customer will accept delivery and pay for the Products delivered. A delayed delivery of any part of an Order does not entitle Customer to cancel other deliveries. 

5. PRODUCT RETURNS. Customer cannot return Products without a return material authorization ("RMA") number. RMAs will be issued only for damage, shortage, or other discrepancy to Products created solely by PWS or the original manufacturer, and only if Customer notifies PWS in writing of any damage, shortage, or other discrepancy to Products within 10 days after delivery. RMAs will not be granted for damage, shortage, or other discrepancy created by Customer, the carrier or freight provider, or any other third party. Returned Products must be in original manufacturer's shipping cartons or equivalent. Customer must return all Products, freight prepaid, as specified in the RMA and pay any restocking charges (minimum 20%). At PWS’ discretion, PWS will return all Products not eligible for return to Customer, freight collect, or hold Product for Customer's account at Customer's expense. 

6. PWS’ LIMITED WARRANTY. PWS will transfer to Customer any Product warranties and indemnities authorized by the manufacturer, including any transferable warranties and indemnities for intellectual property infringement. PWS warrants the Products will conform to the manufacturer's specifications. Value-added work performed by PWS on Products will conform to Customer's specifications. PWS MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED.  PWS MAKES NO WARRANTY OF MERCHANTABILITY, FITNESS FOR PURPOSE OR NON-INFRINGEMENT. If Products do not meet manufacturer's specifications or if value-added work by PWS does not meet Customer's specifications the Products will be, at PWS’ choice: (1) repaired, (2) replaced at no cost to Customer; or (3) refund Customer's purchase price. Customer must return Products to PWS, along with acceptable proof of purchase, within the warranty period specified by the manufacturer freight charges prepaid. 

7. LIMITATION OF LIABILITY.  PWS IS NOT LIABLE FOR AND CUSTOMER IS NOT ENTITLED TO ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES; FOR EXAMPLE, LOSS OF PROFITS OR REVENUE, LOSS OF DATA, LOSS OF USE, REWORK, MANUFACTURING EXPENSE, INJURY TO REPUTATION, OR LOSS OF CUSTOMERS. CUSTOMER'S RECOVERY FROM PWS FOR ANY DIRECT DAMAGES WILL NOT EXCEED THE PRICE OF THE PRODUCT AT ISSUE.  CUSTOMER WILL INDEMNIFY, DEFEND AND HOLD PWS HARMLESS FROM ANY CLAIMS BASED ON; (i) PWS’ COMPLIANCE WITH CUSTOMER'S DESIGNS, SPECIFICATIONS, OR INSTRUCTIONS, (ii) MODIFICATION OF ANY PRODUCTS BY ANYONE OTHER THAN PWS, OR (iii) USE IN COMBINATION WITH OTHER PRODUCTS.

8. FORCES BEYOND PWS’ CONTROL. PWS is not liable for failure to fulfill its obligations for any accepted Order or for delays in delivery due to causes beyond its reasonable control, (for example: acts of God, acts or omissions of the Customer, man-made or natural disasters, epidemic medical crises, materials shortages, strikes, acts of terrorism, delays in transportation, or inability to obtain labor or materials through its regular sources). 

9. USE OF PRODUCTS. Products are not authorized for use in critical safety or other applications where a failure may reasonably be expected to result in personal injury, loss of life, or catastrophic property damage. If Customer uses or sells the Products for use in any such applications, Customer acknowledges that such use or sale is at Customer's sole risk. Customer will indemnify, defend and hold PWS and the Product manufacturer harmless from and against any and all liabilities and costs arising out of or in connection with such use or sale. 

10. EXPORT/IMPORT. Certain Products sold by PWS and other related technology and documentation are subject to export control laws, regulations and orders of the United States and the export or import control laws and regulations of other countries. Customer will not directly or indirectly export or divert any Products and other related technology and documentation to any third party or country where such export or transmission is restricted or prohibited. Customer agrees it is responsible to obtain any license to export, re-export, or import as may be required. 

11. PRODUCT INFORMATION. Product information, including information related to a Product's specifications, export/import control classifications, uses or conformance with legal or other requirements, is obtained by PWS from its suppliers or other sources. Such information is provided by PWS on an "AS IS" basis. PWS makes no representation as to the accuracy or completeness of the Product information, and DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND LIABILITIES UNDER ANY THEORY WITH RESPECT TO THE PRODUCT INFORMATION, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.  PWS recommends Customer validate any Product Information before using or acting on such information. All Product information is subject to change without notice. PWS is not responsible for typographical or other errors or omissions in Product information. 

12. ELECTRONIC ORDERS. In the event that any part of the purchase and sale of Products utilizes electronic data interchange, internal or third party portal, or any other electronic means ("Electronic Purchase Order"), this Agreement, or any other validly executed agreement between PWS and Customer, will continue to apply to the purchase and sale of Products between Customer and PWS. 

13. GENERAL. 

a. The laws of the State of California will exclusively govern any dispute between PWS and Customer without reference to California’s conflict of laws principles. The United Nations Convention for the International Sale of Goods shall not apply.

b. Customer may not assign this Agreement without the prior written consent of PWS. PWS or its affiliates may perform the obligations under this Agreement. This Agreement is binding on successors and assigns.

c. This Agreement can only be modified in writing signed by authorized representatives of both PWS and Customer.

d. PWS and Customer are independent contractors and agree that this Agreement does not establish a joint venture or partnership.

e. Statements or advice (technical or otherwise) if given without charge, are an accommodation to Customer and PWS has no responsibility or liability for the content or use of such statements or advice.

f. PWS’ failure to object to any document, communication, or act of Customer will not be deemed a waiver of any of these terms and conditions. 

g. The unenforceability of any of these terms or conditions will not affect the remainder of the terms or conditions. 

h. Products, including software or other intellectual property, are subject to any applicable rights of third parties, such as patents, copyrights and/or user licenses.

i. Customer and PWS will comply with applicable laws and regulations. 

 

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