SCOPE. All products and services are offered for sale and sold by Direct Communication Solutions. (“DCS”) subject to the terms stated herein. This offer expressly limits acceptance to these terms and any additional, different or inconsistent terms proposed by Customer, whether in writing or otherwise, are hereby objected to and rejected. DCS shall not be bound by them unless expressly agreed in a writing signed by DCS stating that such terms shall supersede those stated herein. Acceptance by Customer of these terms may be made either by written acceptance or by receipt by Customer of delivery of product or service from DCS. If there is a separate formal written agreement executed by the parties, these terms shall supplement and bind the parties where not in conflict with that written agreement. In any conflict, that separate formal written agreement controls. Where a prior agreement between the parties provides for application of subsequently agreed terms, these terms shall apply.
PRICES. All prices are subject to adjustment on account of specifications, quantities, shipment arrangements or other conditions, which are not part of the original price quotation. Customer acknowledges pricing is likely to increase from time to time.
PAYMENT. All payments must be in U.S. funds. Unless otherwise stated in the order acknowledgement, terms are cash on delivery. If satisfactory open account credit is established, then until withdrawn: (a) terms of sale for a delivery in the United States are net thirty (30) days from invoice date; and (b) payment for a delivery outside the United States shall be by payment in advance and/or by irrevocable letter of credit issued by a bank satisfactory to DCS, advised/confirmed by a US Bank, payable to DCS in US funds, payable at sight. DCS may elect to separately invoice any partial delivery. Customer shall pay each invoice without regard to other deliveries. Amounts owed by Customer for which there is no dispute shall be paid without setoff for any amount Customer may claim due from DCS and regardless of any controversy that may exist.
ACCOUNT CHANGE. If Customer fails to pay as required by these terms, or if DCS has reason to suspect Customer’s financial condition or other circumstances do not warrant shipment on terms originally stated in any contract (even if DCS’s reason or suspicion turns out to be incorrect), DCS may at any time limit or cancel credit and demand cash on delivery or payment in advance.
PAST DUE. Any past due balance is subject to a monthly service charge computed at a periodic rate of one-and-one-half percent (1.5%) per month (18% per year) but not to exceed the highest rate allowed by law, on the past due amount.
TAXES. Prices quoted or accepted are exclusive of federal, state, municipal or other government sales, excise, use, occupational or like taxes, tariffs, customs, and all export duties and other fees and export costs. These are Customer’s responsibility. Prices are subject to increase by the amount of any of these which DCS pays or is required to pay or collect on sale or delivery of a product. DCS will normally identify these as separate additional items on the invoice but DCS’s failure to do so does not shift responsibility away from Customer. Any tax exemption certificate or similar document or proceeding required to exempt the sale of products from any tax, tariff, duty, fee or the like, shall be obtained by Customer and provided to DCS before delivery, all at Customer’s expense.
CANCELLATION. Customer is not permitted to cancel, reschedule or modify an order unless the request is made in writing by Customer and approved in writing by an authorized DCS representative. DCS has sole discretion to accept or decline a request. DCS need not even consider a request concerning a firm order, non-standard product, product made to Customer specifications, or request made within thirty (30) days of scheduled shipment. DCS acceptance of a request may be subject to reasonable conditions, such as Customer paying: (a) for the goods; (b) cancellation, rescheduling or modification charges; (c) DCS overhead; (d) unearned discounts (billback); (e) reasonable profit; and (f) other amounts DCS requires. In a cancellation or modification, Customer has no rights in partially completed products.
RETURN. Customer has no right to return a product outside the limited warranty provided herein. DCS is not required to accept any return unless Customer requests in writing and DCS consents in writing to the return and provides a Return Material Authorization (RMA) number.
BILLBACK. If Customer fails during the scheduled delivery period to purchase the total quantity ordered, then in addition to DCS’s right to enforce the purchase agreement and any other rights, Customer shall pay DCS an amount equal to the difference between the higher unit price for the quantity actually purchased (at the higher of price in effect at time order was accepted or price in effect at time of determination of additional amount to be paid) and the lower unit price quoted for the quantity ordered.
SHIPMENT. Shipment to a continental U.S. destination will be FOB DCS’s facility. Shipment to a destination outside continental U.S. will be per Incoterms 2000 EXW DCS’s facility. DCS may elect to ship by the method DCS deems most economical or convenient or combination of these (in either case, to DCS). DCS may elect to ship in standard commercial packaging. When Customer requests or DCS elects to ship by other method or in special or export packaging, then DCS will separately invoice Customer for additional cost.
RISK OF LOSS. Regardless of manner of packaging or shipment, title to product and risk of loss or damage in transit or after passes to Customer on DCS’s delivery of product to a common carrier for shipment. Accordingly, Customer must obtain insurance against damage in shipment or after. Product held or stored by DCS for Customer shall be at the sole risk of Customer. Customer shall pay all expenses DCS incurs to hold or store product at Customer’s request.
DATES, Shipping dates are approximate. DCS is not obligated to ship or deliver by a particular date. DCS will schedule products for shipment according to DCS’s applicable shipment sequence. DCS will confirm in writing, and amend as appropriate, the shipment schedule. DCS reserves the right to make partial deliveries, deliver in installments, delay or allocate deliveries. The contract shall be severable as to each delivery. DCS is not liable for delay in shipment or delivery. Customer shall give DCS notice within thirty (30) days after delivery of any incomplete delivery.
LIMITED WARRANTY. DCS warrants that product, when delivered: (a) conforms to DCS’s material written specifications for the product; and (b) is free from material defects in material and workmanship. Incorrect: (i) storage; (ii) installation; (iii) use; (iv) maintenance, (v) service; or (vi) repair by Customer, or any form of alteration, misuse, abuse or accident affecting the product, may interfere with confirmation of original condition and therefore (whether or not there is actual interference) voids the warranty. DCS shall not be liable under this warranty if Customer knew of any failure of a product to conform to specifications prior to purchase.
MEANING OF SPECIFICATIONS. “Specifications” in Section 13 means: (a) DCS product specifications identified on the face of DCS’s order acknowledgement, subject to applicable parameters and testing conditions; or (b) if no specifications or only partial specifications are identified, then DCS product specifications stated in a data sheet or other similar document in effect at DCS’s choice of (i) time of DCS order acknowledgement; or (ii) time of product manufacture; or (iii) time of product delivery, in any such case, whether or not provided to or known to Customer. Customer acknowledges that DCS product specifications may change without notice. No modification to any specification made before or after a warranty period shall have the effect of extending the warranty period regardless of whether DCS notified Customer of the modification. Customer assumes all risk for operation of product outside parameters and testing conditions in the specifications.
WARRANTY CLAIM. Any claim under the warranty shall be made within the shorter of: (a) actual inspection of product following delivery; (b) a reasonable time to complete inspection of product following delivery; or (c) one year (12 months) from shipment date. To make a claim Customer must: (a) notify DCS in writing within the shorter of the times stated in the preceding sentence, specifying in detail the nature of the warranty claim; and (b) permit DCS to inspect and test the product claimed to be defective. A claim made after the warranty period is not covered by any warranty.
REMEDY. DCS’s liability under the warranty is limited to DCS’s choice of replacing, repairing, or issuing credit for product that was the subject of a timely and proper warranty claim and which DCS determines did not conform to the warranty. DCS (a) will credit Customer for reasonable shipping expense for product returned to DCS for warranty service in compliance with these terms; but (b) will not bear shipping expense and will return to sender any product returned without obtaining prior authorization and RMA number or otherwise not covered by the warranty.
DISCLAIMER. THE ABOVE WARRANTY IS EXCLUSIVE AND CONSTITUTES DCS’S SOLE LIABILITY AND CUSTOMER’S SOLE REMEDY REGARDING ANY CLAIMED NONCONFORMANCE OF PRODUCT AND IS IN LIEU OF ANY OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR OTHER WARRANTY OF QUALITY, FUNCTION, PERFORMANCE, OR OTHERWISE, WHETHER EXPRESS OR IMPLIED. DCS DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. THERE IS NO WARRANTY THAT EXTENDS BEYOND THE DESCRIPTION OF THE FACE HEREOF. No personnel or representative of DCS is authorized to make any warranty about a product. Oral or written statements by any DCS personnel or representative, including via email, do not constitute a warranty, do not bind or obligate DCS, shall not be relied on by Customer, and are not part of these terms. The entire agreement of the parties is embodied in this writing. Customer acknowledges it has not relied on any warranty or representation by any person or entity except for the warranties or representations specifically stated herein.
LIMITATION ON LIABILITY. DCS’S LIABILITY UNDER, FOR BREACH OF, OR ARISING OUT OF THIS AND ANY OTHER AGREEMENT, SHALL BE LIMITED IN AMOUNT TO THE NET PURCHASE PRICE OF THE PRODUCT SOLD TO CUSTOMER BY DCS. DCS SHALL NOT BE LIABLE FOR COSTS TO COVER OR OBTAIN SUBSTITUTE GOODS. DCS SHALL NOT BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, ECONOMIC, DIRECT, INDIRECT OR OTHER DAMAGE (INCLUDING WITHOUT LIMITATION LOST PROFIT) WHETHER OR NOT DCS HAS BEEN ADVISED OF THE POSSIBILITY OF THAT DAMAGE OR LOSS, HOWEVER CAUSED, WHETHER FOR BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE. THIS EXCLUSION ALSO INCLUDES ANY LIABILITY WHICH MAY ARISE OUT OF A THIRD PARTY CLAIM AGAINST CUSTOMER. THE ESSENTIAL PURPOSE OF THIS PROVISION IS TO LIMIT DCS’S POTENTIAL LIABILITY. CUSTOMER ACKNOWLEDGES CUSTOMER HAS RECEIVED VALUABLE CONSIDERATION FOR THIS LIMITATION ON LIABILITY IN THE FORM OF ABILITY OF DCS TO OPERATE AT LOWER COST, GENERATING PRODUCT INNOVATION, PRODUCT AVAILABILITY, LOWER PRODUCT PRICING, WILLINGNESS TO CONTRACT OR A COMBINATION OF THESE, WHETHER GENERALLY OR SPECIFICALLY.
INTELLECTUAL PROPERTY. No representation is made that a product or its manufacture, distribution, sale or use is free from infringement or misappropriation of any patent, trademark, trade name, copyright, trade secret or other claimed rights of any person or entity. Customer releases DCS from and in respect of any and all claims by or through Customer, for any such alleged or actual infringement or misappropriation.
SOFTWARE LICENSE AGREEMENT. The software supplied herewith Direct Communication Solutions (DCS) (the “Company”) for its CalAmp LMU, TTU, and ATU configurations intended and supplied to you, the Company’s customer, for use solely and exclusively on DCS sold products. The software is owned by the Company and/or its supplier, and is protected under applicable copyright laws. All rights are reserved. Any use in violation of the foregoing restrictions may subject the user to criminal sanctions under applicable laws, as well as to civil liability for the breach of the terms and conditions of this license. THIS SOFTWARE IS PROVIDED IN AN “AS IS” CONDITION. NO WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE APPLY TO THIS SOFTWARE. THE COMPANY SHALL NOT, IN ANY CIRCUMSTANCES, BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, FOR ANY REASON WHATSOEVER.
SALE CONVEYS NO LICENSE. A product sale does not purport to convey any license, express or implied, concerning any intellectual property rights of DCS regarding any invention of DCS or others, whether or not patented, embodied in a product, process, sales literature or manufacturing operation. DCS reserves all rights to all intellectual property used or embodied in a product. No manufacture to Customer’s specifications entails ownership by or conveyance to Customer of any property right in any invention.
CONFIDENTIAL INFORMATION. Information provided by Customer to DCS is deemed to be non-confidential, and DCS is not obligated to treat as confidential any information that Customer provides to DCS, unless there is a separate, express agreement providing for confidentiality.
SECURITY INTEREST. DCS reserves a purchase money security interest in product sold and proceeds therefrom, in the amount of the purchase price. In a default by Customer of any obligation to DCS, DCS shall have the right, in addition to all other rights and remedies, to repossess products sold to Customer. Customer agrees to make the product available to DCS for repossession. The security interest will be satisfied by payment in full. A copy of the invoice and/or these terms may be filed with appropriate authorities at any time as a financing statement, to further perfect DCS’s security interest. On DCS’s request Customer will execute financing statements and other instruments and take other steps DCS requests to perfect and/or provide notice of the security interest.
BANKRUPTCY. If Customer becomes bankrupt or insolvent or compounds debts with creditors or commences winding up or suffers appointment of a receiver, DCS may, by notice to Customer in writing, cancel this agreement without judicial action, intervention or declaration of default of Customer, and without prejudice to any right or remedy which shall have accrued or shall accrue thereafter to DCS.
DELAY IN DELIVERY AND FORCE MAJEURE. DCS shall not be liable to Customer for any delay in shipment, failure to meet quoted delivery date(s) or delay in performance. DCS shall have the right to indefinitely postpone delivery due to unforeseen circumstances or a cause beyond DCS’s control. Examples include act of God, terror, war, riot, embargo, act of civil or military authority, fire, flood, hurricane, accident, strike, transportation delay, shortage or disruption in material or supply, excessive demand for product over available supply, interruption for any reason in manufacture of product by DCS’s supplier, or other cause not within DCS’s control, whether of the class described above or not. Where only part of DCS’s capacity to perform is excused, DCS may elect to allocate deliveries among customers in a manner DCS subjectively considers commercially reasonable.
NO WAIVER. Failure by DCS to enforce at any time any provision of these terms, or to exercise any election or option, shall not be a waiver and shall not be construed as a waiver of the provision or option, nor be construed to affect validity of these terms or any part, or DCS’s right to enforce each and every such provision.
ATTORNEYS’ FEES. Reasonable attorneys’ fees and costs shall be awarded to the prevailing party in litigation involving breach, compliance, enforcement or interpretation of these terms.
GOVERNING LAW. The parties acknowledge and agree that any offer and acceptance by the parties shall be a contract made in the State of California. All questions pertaining to validity, construction, execution and performance of these terms shall be interpreted, construed and governed in English according to the internal laws of California, without giving effect to principles of (a) comity of nations or (b) conflicts of law. The parties agree the United Nations Convention on Contracts for the International Sale of Goods is hereby excluded in its entirety from these terms.
JURISDICTION AND VENUE. The parties acknowledge their mutual intent that disputes shall be resolved in Courts applying common law and conducting proceedings in English. The parties acknowledge that the Courts of the State of California are conducted in English and apply common law; that these terms are entered into in and require performance and compliance in California. Accordingly, Customer agrees the California state courts located in San Diego County, California , U.S.A and United States District Court for the Southern District of California shall have exclusive jurisdiction and venue over any dispute arising out of these terms. Any action shall be commenced only in such courts and, to the extent not otherwise subject to jurisdiction of such courts, Customer agrees to the jurisdiction of those courts and waives and agrees to reconfirm waiver of any objection to jurisdiction and to subject itself to the jurisdiction of those courts.
LIMITATIONS OF ACTIONS. No action for breach of the contract for sale of products shall be commenced more than one (1) year after the accrual of the cause of action.
ASSIGNMENT. Customer shall not assign or purport to assign these terms or any interest herein, or any right hereunder, without DCS’s prior written consent. Any such assignment without DCS’s prior written consent shall be null and void, and of no effect.
HEADINGS. Headings and section numbers in these terms are for convenient reference only and do not define or limit the provisions and shall not be used to interpret or construe the provisions of these terms.
SEVERABILITY. If any of these terms is held void or unenforceable, it shall be deemed to be severed, and every other provision shall be enforced as if the void or unenforceable term was never part of these terms.
NO INDEMNIFICATION. Unless otherwise expressly stated in a writing signed by both parties, DCS does not indemnify, nor agree to defend or hold Customer harmless, against any liability, loss, damage or expense (including attorney’s fees) relating to any claim whatsoever, including without limitation, a claim for personal injury, death or property damage.
IMPORT AND EXPORT. Customer shall, at its own expense, pay for all import and export licenses and permits, customs charges and duty fees, and take all other actions required to lawfully accomplish the export and import of products purchased by Customer. Customer understands DCS is subject to regulation by agencies of the U.S. government, including the U.S. Department of Commerce, which restrict or prohibit export or diversion of certain technical products to certain countries. Customer warrants it will comply in all respects with the export and re-export restrictions set forth in the export license for every product shipped to Customer.
CUSTOMER’S UNDERSTANDING. Customer represents and warrants and acknowledges: (a) Customer read and understood these terms, and (b) in all the circumstances, including pricing, availability of product, allocation of risks and freedom to manage risks, availability of insurance and freedom to obtain and structure insurance, and other circumstances, on balance these terms are fair and reasonable to Customer.