Conditions - Network Installation Tools - Network Test Equipment, Network Components

Conditions of Use

Terms and Conditions of Sale

All quotations and sales by Network Tools and Supplies, a unit of INFOS, Inc., it subsidiaries, or affiliates "Seller" are subject to the following terms and conditions.

1. ACCEPTANCE: ENTIRE AGREEMENT; MODIFICATION. This agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supercedes all proposals, oral or written, all negotiations, conversations and, or discussions between the parties relating to this Agreement and all past courses of dealing or industry customs. Seller shall not be bound by any additional provisions at variance herewith that may appear in customers purchase order, acknowledgment, or in any other communication from the customer to the seller unless such provision is expressly agreed to in writing, signed by an authorized officer of the seller. Sellers acceptance of payment for Products shall not constitute acceptance of any counter-proposal, purchase order or other communication from Customer to Seller not otherwise accepted in writing signed by an authorized officer of Seller. The terms and conditions set forth herein shall constitute the entire agreement between Customer and Seller and no change, modification, amendment, suspension, revision or termination of the terms and conditions set forth herein shall be binding upon Seller unless made in writing and signed by an authorized officer of Seller.

2. DELIVERY. Unless otherwise agreed to in writing, delivery shall be made in accordance with Sellers shipping policy in effect on the date of shipment. Title to, and all risk of loss or damage with respect to the Products shall pass to Customer upon delivery by Seller to Customers representative. Delivery is subject to the payment provisions set forth herein and to Sellers receipt from Customer of all necessary information and documentation from Customer, including all import certificates, licenses and other documents as may be required from Customer for export of the Products. Seller shall not be held liable for any shipment delays beyond the reasonable control of Seller which affect Seller or any of Sellers suppliers, including but not limited to delays caused by unavailability or shortages of Products from Sellers suppliers, natural disasters, acts of war, fire, flood, 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.

3 CHANGES. No changes to Customers order may be made without Sellers prior written authorization.

4 EXTRA CHARGES. Extra charges may be imposed by Seller, at its sole discretion, for changes to Customers order which are requested by Customer and approved by Seller pursuant to Paragraph 3 above.

5 PRICE AND PAYMENT. The Products are being invoiced at the prices specified on the front of invoice. Unless otherwise provided, Customer shall bear all applicable federal, state, municipal and other government taxes such as sales, use, and similar taxes, as well as import or customs duties, license fees and similar charges. Exemption certificates must be presented prior to shipment if they are to be honored. Unless otherwise specified, payment terms are credit cards only; C.O.D. is also acceptable for counter sales. Seller shall have no continuing obligation to deliver Products on credit, and Seller may withdraw any credit approval at any time without prior notice. Seller hereby retains, and Customer grants to Seller, a purchase money security interest in all Products sold by Seller to Customer, and in the proceeds of any resale of such Products, until the purchase price and any other charges due to Seller have been paid in full. Customer agrees to execute any financial statements Seller may request in order to protect Sellers security interest. Upon any breach by Customer of these terms and conditions, Seller shall have all rights and remedies of a secured party under Uniform Commercial Code, which rights and remedies shall be cumulative and not exclusive. Customer is responsible for all costs and expenses reasonably incurred by Seller in collecting any sums owed by Customer which may include, but not be limited to, reasonable attorneys and collection agency fees. If Seller rs costs collecting on any judgment arising out of customers breach, customer will be responsible for them, and this provision will survive the entry of such judgment. All unpaid invoices shall bear interest at a variable per annum rate equal to the lesser of 1. the highest rate allowed by law, and 2. U.S. Prime Rate plus 14.1%, where the U.S. Prime Rate is as published by the Wall Street Journal on the third Tuesday of March, June, September, and December of each year, provided that whenever any such adjustment date falls on a weekend or holiday, the prime rate published by the Wall Street Journal on the next business day shall apply. If more than one prime rate is reported, Seller may choose the highest rate. If the Wall Street Journal ceases publication or to publish the prime rate, Seller may use the prime rate published in any other newspaper of general circulation, or Seller may substitute a similar reference rate at its sole discretion. Customers failure to make timely payment may result in such action as revocation of credit, delay or cessation of future deliveries, repossession of unpaid delivered goods and termination of this agreement or any one or more of these.

6 RECLAMATION. If Seller discovers that Customer has received Products on credit while insolvent, Seller may reclaim the Products upon demand made within thirty (30) calendar days after Customers receipt of such Products. The said thirty (30) day restriction does not apply if Customer has made a misrepresentation of solvency in writing to Seller within three "3" months prior to delivery of the Products.

7 TRANSPORTATION. In the absence of specific shipping instructions, Seller will use its own discretion in choice of method of transportation and carrier. Seller assumes no responsibility for insuring shipment unless specified by Customer, in which event such insurance shall be based on Customers valuation and at Customers expense. All claims for damage and loss, whether apparent or concealed, shall be filed by Customer with the carrier. Seller assumes no responsibility for any such damage or loss.

8 CANCELLATION. Except as otherwise set forth in Paragraph 11 below, once Customer has placed the order set forth on the face hereof, an order may be canceled by Customer only with the written consent of Seller and upon payment by Customer of all expenses (including, without limitation, transportation and handling charges, overhead and administrative expenses) already incurred on the order by Seller prior to the effective date of cancellation. This remedy is not exclusive, but it is in addition to all other remedies available to Seller under the Uniform Commercial Code for Customers breach of this contract (including, but not limited to, recovery of incidental damages and cover costs). In addition thereto, Seller reserves the right to impose on Customer a minimum cancellation charge equal to twenty percent (20%) of the purchase price of the canceled order. At any point of the transaction the Seller reserves the right to cancel the order for any reason that may remain unspecified.

9 LIMITATION OF LIABILITY FOR DELAY IN DELIVERY. UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE FOR ANY DAMAGES WHATSOEVER RESULTING FROM A DELAY IN DELIVERY OF PRODUCTS DUE TO ANY CAUSE BEYOND SELLERS CONTROL, AS SET FORTH IN PARAGRAPH 2 ABOVE. IN THE EVENT OF A DELAY IN DELIVERY OF PRODUCTS DUE TO ANY OTHER REASON, SELLER SHALL NOT BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR EXEMPLARY DAMAGES.

10 INSPECTION AND WARRANTY; LIMITATION OF LIABILITY. Customer shall inspect all Products promptly upon receipt thereof. All Customer complaints regarding Products must be made promptly in writing by Customer to Seller and must specify, in reasonable detail, the deficiencies claimed. Subject to the limitations set forthin Paragraph 7 above, Seller warrants that Products will, when delivered, conform to generally accepted industry standards. SELLER WILL, AT ITS OPTION, REPLACE, OR ISSUE A CREDIT TOWARDS FUTURE PURCHASES OR REFUND TO CUSTOMER FOR ANY NONCONFORMING PRODUCTS, PROVIDED THAT: (A) PRODUCTS ARE NOT PHYSICALLY AND/OR INTERNALLY DAMAGED: AND (B) CUSTOMER FURNISHES TO SELLER WRITTEN NOTICE, IN REASONABLE DETAIL, OF THE NONCONFORMITY OF THE PRODUCTS WITHIN THE WARRANTY PERIOD SPECIFIED IN SELLERS WARRANTY POLICIES, AFTER THE DELIVERY THEREOF: AND (C) CUSTOMER RETURNS TO SELLER, AT CUSTOMERS EXPENSE AND RISK, WITHIN TEN (10) CALENDAR DAYS OF CUSTOMERS RECEIPT OF RETURN MERCHANDISE AUTHORIZATION FOLLOWING SELLERS RECEIPT OF SAID NOTICE, THE PRODUCTS CLAIMED BY CUSTOMER TO BE NONCONFORMING. A new warranty period shall not be established for any replaced Products, and such replaced Products shall remain under warranty only to the extent of, and for the remainder of, the period of the original warranty. This warranty does not extend to any Products which have been subjected to any of the following actions or circumstances caused by the Customer or by any persons or entities other than Seller: (a) improper or inadequate handling or storage; (b) accident, damage, abuse or misuse; (c) abnormal or unusual conditions or uses; or (d) conditions or uses not made known to Seller prior to the date hereof. In the event of Sellers liability hereunder, whether based on contract, tort (including, but not limited to, negligence and strict liability) or otherwise, Customers sole and exclusive remedy will be limited to, at Sellers option, the replacement by Seller of, or the issuance of a credit or refund to Customer for, that portion of the purchase price paid by Customer attributable to any nonconforming Products which are returned to Seller in accordance with this Paragraph. This warranty extends to Customer only and not to any other person or entity (including, but not limited to, any user(s) or consumer(s) of the Products other than Customer). EXCEPT FOR THE FOREGOING WARRANTY, THERE ARE NO REPRESENTATIONS, PROMISES OR WARRANTIES EITHER EXPRESS OR IMPLIED, MADE BY SELLER IN CONNECTION WITH THE SALE OF THE PRODUCTS HEREUNDER. UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT OR EXEMPLARY LOSSES OR DAMAGES PERTAINING IN ANY WAY TO THE SALE OR DELIVERY OF PRODUCTS HEREUNDER, NOR SHALL SELLER BE LIABLE OR RESPONSIBLE FOR ANY WARRANTY, EXPRESS OR IMPLIED, MADE TO CUSTOMER BY ANY OTHER PERSON OR ENTITY.

11 BANKRUPTCY OR INSOLVENCY. Subject to Paragraph 6 above, either party may cancel this order in the event of the institution of proceedings relating to insolvency, bankruptcy, reorganization, arrangement or liquidation by or against the other party, or if the other party shall make an assignment for the benefit of creditors.

12 WAIVER. Neither the failure of nor any delay on the part of Seller to exercise any right, remedy, power or privilege under this Agreement shall operate as a waiver thereof in any later instance. No waiver by Seller shall be effective unless it is in writing and is signed by an authorized officer of Seller.

13 PRODUCTS. Unless specifically otherwise agreed to in writing by Seller, Customer acknowledges that products sold by Seller are not intended for and will not be used in life support systems, human implantation, nuclear facilities or systems or any other application where product failure could lead to loss of life or catastrophic property damage. Customer will indemnify and hold Seller harmless from any loss, cost, or damage resulting from Customers breach of the provisions of this paragraph.

14 SOFTWARE AND/OR DRIVERS. Any software included in or relating to the products is supplied by the manufacturer. Seller makes no representation or warranty with respect thereto and shall have no liability in connection therewith. Customer agrees to comply with the manufacturers or other requirements with regard to proprietary and similar rights in and to such software (including any requirement to enter into a separate license agreement and prohibitions against duplicating or disclosing the same), even if the seal on any "shrink wrapped" software has been broken by Seller, and shall indemnify Seller against and hold it harmless from any and all liability, cost, or expense arising from a breach or purported breach of such requirement.

15 GOVERNING LAW; VENUE. This contract and the sale of goods contemplated hereby has been made in, and shall be construed and enforced in accordance with the laws of the State of New York, notwithstanding any New York or other conflict-of-laws rules to the contrary. Any legal action brought by either party hereto against the other party to enforce any rights or obligations arising out of this contract shall only be instituted in a federal or state court of competent jurisdiction for the County of Herkimer, State of New York. If either party hereto is named as a defendant in any action brought in connection herewith in any other court, such party shall have the right to have the venue of such action changed to a federal or state court of competent jurisdiction in the County of Herkimer, State of New York, or, if necessary, to have such action dismissed, requiring the party bringing such action in accordance with the venue requirement of this Paragraph. Customer and Seller each consent to jurisdiction over their person by, and agree to submit personally to the jurisdiction of the appropriate federal or state court of competent subject matter jurisdiction for the County of Herkimer, State of New York.

16 SEVERABILITY. If any provision of this contract is held to be invalid or unenforceable by a federal or state court of competent jurisdiction, the enforceability of all remaining provisions of this contract will not be impaired and will remain in full force and effect. Prices and availability subject to change without notice. INFOS, Inc. is not responsible for typographical errors. All trademarks and logos are the properties of their respective owners. INFOS, Inc. reserves the right to limit sale quantities of all products. By placing an order with INFOS, Inc., you indicate that you have read and accept INFOS, Inc. policies.