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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. Prices are subject to change at any time. PWS’ quoted prices apply only for 15 days from the date of the quote or as otherwise stated in the applicable quote. Prior to shipment of Product, PWS may increase prices if PWS’ costs increase or due to other circumstances beyond PWS’ reasonable control.  Prices are for Products only and do not include sale, use and excise taxes, impositions and any other similar taxes, charges, fees, shipping charges and duties imposed by any government authority. Customer is responsible for all such additional fees, charges, duties and taxes, provided that Customer shall not be responsible for any taxes imposed on, or with respect to, PWS’s income, revenues, gross receipts, or assets. 

3. TERMS OF PAYMENT. Payment of the total invoice amount, without offset or deduction, is prepaid, 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 the greater of 1.5% per month of the highest rate permissible by law) , calculated daily and compounded monthly, 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.  Customer shall not, and acknowledges and agrees that it will have no right, under this Agreement, any other document, or law, to withhold, offset, or debit any amounts owed (or to become due and owing) to PWS, whether arising out of PWS’s breach or non-performance of this Agreement or any other agreement between Customer and PWS.

4. DELIVERY AND TITLE. Delivery shall be made in subject to availability of Products and 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. Point of Origin).  PWS shall not be liable for any delays, loss or damage in transit.  As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title, and interest of Buyer in, to, and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under Division 9 of the California Uniform Commercial Code.

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 inspect the Products within ten (10) days of receipt (the “Inspection Period”).  Customer will be deemed to have accepted the Products received unless it notifies PWS during the Inspection Period.  Such notice shall be in writing and shall be reasonably detailed stating the grounds for any such rejection, including such written evidence or other documentation reasonably requested by PWS. Failure to provide any such notice or requested evidence or documentation within such time shall be deemed an acceptance in full of any such delivery.  “Nonconforming Products” means only the following: (a) product shipped is different from that identified in the Order; or (b) the product’s label or packaging incorrectly identifies its contents. If Customer notifies PWS of any Nonconforming Products, PWS will, in its sole discretion, (i) replace such Nonconforming Product with conforming Products; or (ii) credit or refund the price for such Nonconforming Products at the pro-rata rate.  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.  Customer acknowledges and agrees that the remedies set forth in this Section 4 are Customer’s sole and exclusive remedies for the delivery of any Nonconforming Product.

 

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 constitutes a separate sale and does not entitle Customer to cancel other deliveries.  Customer shall pay for all Product shipped whether such shipment is in whole or partial fulfillment of the quantity purchased.

 

5. PRODUCT RETURNS.   Except as provided in Section 4, above, and this Section 5, all sales of Product are made on a one-way basis.  Customer has no right to return Products without a return material authorization ("RMA") number. RMA numbers 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 the Inspection Period. RMA numbers 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. EXCEPT FOR THE LIMITED WARRANTY SET FORTH ABOVE IN THIS SECTION 6, PWS MAKES NO OTHER REPRESENTAION OR WARRANTY, EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFOMANCE, USAGE, TRADE OR OTHERWISE, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY, (B) WARRANTY OF FITNESS FOR PURPOSE, (C) WARRANTY OF TITLE, OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY.  PWS shall not be liable for any breach of warranty under this Section 6 unless: (i) Customer gives written notice of the defect, reasonably described, to PWS within thirty (30) days of the time when Customer discovers or ought to have discovered the defect, (ii) PWS is given a reasonable opportunity after receiving Customer’s notice to examine the Products, and (iii) PWS reasonably verifies Customer’s claim of defect.  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.  THE REMEDIES SET FORTH IN THIS SECTOIN 6 SHALL BE THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND PWS’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH HEREIN.

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 TOTAL AMOUNT PAID BY CUSTOMER FOR 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.  Both Customer and PWS irrevocably and unconditionally agrees that any action arising out of or relating to this Agreement shall be brought in the federal or state courts located in Santa Clara County, California, and Customer and PWS irrevocably and unconditionally submits to the exclusive jurisdiction of such courts.

b. Customer may not assign this Agreement without the prior written consent of PWS.  Any purported assignment of this Agreement in violation of this Section 13.b. shall be null and void. PWS or its affiliates may perform the obligations under this Agreement. This Agreement is binding on all permitted 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 the terms and conditions of this Agreement. 

g. If any term or provision of this Agreement is held invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.  Upon a finding that any term or provision is invalid, illegal or unenforceable, theses Terms and Conditions shall be modified to the minimum extent necessary to remedy such invalidity, illegality or unenforceability, and giving effect to the original intent of the Parties as closely as possible, such that the transactions contemplated hereby are consummated as originally intended to the greatest extent possible. 

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 all applicable laws and regulations. 

 

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