The following are the Terms and Conditions under which MegaPhase, LLC ("MegaPhase") sells Products and Services and such Terms and Conditions constitute an integral part of every contract, agreement or purchase order, may be amended from time to time, without notice to the Customer, and such amended Terms and Conditions shall be posted on MegaPhase's website (www.megaphase.com/terms):
1.1 "Products" means the cable, cable assemblies, connectors, adapters or other products listed and described on MegaPhase's web site, and in its product catalog and Published Term Sheets furnished to Customer under these Terms and Conditions.
1.1.1 "High Performance Products or Service" means high performance test and measurement cables including MegaPhase VNA, V-Band, SiteLine, EMC Lab, RF Orange, RF Green, T-Vac, Eye Pattern and Broadband Test; and high performance cables for integrated systems including GrooveTube, Warrior, NextPhase and Phase3 cable assemblies.
1.1.2 "Standard Performance Products" means all other products manufactured or produced by MegaPhase.
1.2 "Services" means non-warranty maintenance, installation, training, educational, custom design or other services for Products provided to Customer, at MegaPhase's sole option, for additional charge under these Terms and Conditions or separate written agreements.
2. PRICES, PAYMENT AND TITLE.
2.1 Prices. Prices for Products and Services will be those quoted by MegaPhase and will be valid for 60 days from date of quotation unless otherwise stated therein. If MegaPhase increases prices, Customer's sole remedy will be to cancel the order. MegaPhase will refund any advanced payments received for the order.
2.2 Taxes. Prices do not include, and Customer is responsible for, all taxes (except taxes on MegaPhase's net U.S.A. income), tariffs and any similar charges imposed upon or in connection with Products or Services, or upon any document relating to the sale of Products.
2.3 Orders. MegaPhase may reject any order from Customer for any reason including need to allocate Products or Services or Customer's creditworthiness. Orders will be deemed accepted by MegaPhase upon Customer's receipt of an Order Confirmation (the "Order Confirmation"). Any modifications to the Customer's purchase order made by MegaPhase in the Order Confirmation will be the final agreement between MegaPhase and Customer. After this order is accepted, MegaPhase may revoke its acceptance without liability to customer if credit approval is denied within 60 days or a letter of credit required by MegaPhase is not received within 30 days after the estimated ship date specified by MegaPhase. MegaPhase will not accept and objects to any terms and conditions on Customer's purchase order or other writing which are different or in addition to those contained in the Order Confirmation. No modification or waiver of these Terms and Conditions will be effective unless in writing and signed by both parties.
2.4 Payment. Payment for Products and Services is due as specified on the Order Confirmation. MegaPhase may require payment to be made through an irrevocable letter of credit in favor of and acceptable to MegaPhase and established by Customer at its expense. To the extent permitted by Customer's local law, interest on all amounts unpaid after thirty (30) days, following the end of the month of sale, may be charged at the annual rate of 1-1/2 percent per month or highest rate permitted by law, whichever is lower. If any invoice is not paid when due, MegaPhase may suspend delivery or other performance with respect to any Products or Services to Customer without liability or penalty.
2.5 Title and Security Interest. Both legal and equitable title to each product sold hereunder shall remain in MegaPhase until customer has paid the full purchase price which is due. Customer acknowledges this security interest and non-passage of title. Notwithstanding, MegaPhase may invoice the Product or Service to Customer. MegaPhase reserves a purchase money security interest (or the equivalent thereof under Customer's local law) in each product, including all component parts added by modification or repair, and all proceeds from the sale thereof, until full payment is received. Customer agrees to sign upon request any documents necessary to perfect MegaPhase's security interest.
3. SHIPPING, DELIVERY AND INSTALLATION.
3.1 Shipment. Products will be shipped F.O.B. MegaPhase's Stroudsburg, Pennsylvania plant, or such other MegaPhase facility where manufacture of the product takes place. Method of shipment and carrier will be selected by MegaPhase unless Customer has specified in writing a method and carrier satisfactory to MegaPhase. Any charges for packing, storage and transportation (including insurance) to point of delivery are listed as separate charges on the account of Customer in the Order Confirmation. All risks of loss will pass to customer upon delivery to the carrier.
3.2 Ship Dates. Requested ship dates are subject to acceptance by MegaPhase. At MegaPhase's option, Products may be shipped in advance of a requested ship date and/or installments of partial lots. Ship dates specified by MegaPhase are only MegaPhase's best estimate. MegaPhase's responsibility will be to use commercially reasonable efforts to meet all specified ship dates. Customer expressly acknowledges that MegaPhase shall not be liable for failure to deliver or any delay in delivery due to wars, transportation delay, strikes or other disputes with workers, failure or delays on the part of the suppliers, acts of God, shortages of goods, government regulations, failure to obtain import or export licenses or any other cause beyond the commercially reasonable control of MegaPhase.
3.3 Installation. Customer is responsible for all labor required for unpacking and placing each Product at the installation site. At the time of delivery (and during the time MegaPhase is responsible for maintenance of the Products under warranty or separate agreement), the installation site must conform to all site specifications provided by MegaPhase. For Products installed at Customer's facility by MegaPhase, installation will be deemed complete upon demonstration by MegaPhase that the Products function in accordance with the Product warranty.
4. CANCELLATION AND RESCHEDULING CHARGES.
4.1 Cancellation. If Customer cancels the order less than 60 days before the ship date specified on the first page of this Order Confirmation, subject to any provisions of Customer's local law to the contrary, cancellation charges of 25% of the total order price will apply. Any conduct constituting a substantial breach or repudiation of these Terms and Conditions by Customer, including but not limited to failure to obtain a timely letter of credit as required, will be deemed to be a cancellation by Customer.
4.2 Rescheduling. Prior to shipment, MegaPhase will make reasonable efforts to accommodate a delay requested by customer. If Customer delays shipment of any Products when ready, MegaPhase may place such products in storage (which may be at the place of manufacture). In such event, MegaPhase will notify Customer of storage of the product and all risks of loss will pass to Customer at such time. In addition, (i) MegaPhase may, at its sole option, submit its invoice for the Products to Customer and Customer shall pay as set forth in Section 2.4, and (ii) Customer will reimburse MegaPhase for all storage expenses incurred by MegaPhase, including but not limited to preparation for and placement into storage, handling and insurance.
5. WARRANTIES AND REMEDIES.
5.1 Product Warranty. MEGAPHASE WARRANTS THAT EACH PRODUCT SOLD HEREUNDER WILL SUBSTANTIALLY CONFORM TO THE TECHNICAL SPECIFICATIONS IN MEGAPHASE'S PRODUCT CATALOG FOR TWELVE (12) MONTHS FROM THE DATE THE PRODUCT WAS PURCHASED FROM THE DISTRIBUTOR BUT, IN NO EVENT, GREATER THAN EIGHTEEN (18) MONTHS FROM THE DATE THE PRODUCT WAS SHIPPED TO THE CUSTOMER OR TWELVE (12) MONTHS FROM THE DATE INSTALLATION OF THE PRODUCT WAS COMPLETED BY MEGAPHASE (OR THE DATE THE PRODUCT IS OR COULD BE DELIVERED TO CUSTOMER AND CUSTOMER FAILS TO PROVIDE A SUITABLE SITE FOR, OR DELAYS INSTALLATION), WHICHEVER COMES FIRST. MEGAPHASE SHALL BE GIVEN FREE AND FULL ACCESS TO PRODUCTS TO PROVIDE WARRANTY SERVICES. CUSTOMER SHALL PROMPTLY INFORM MEGAPHASE OF ANY CHANGES IN THE LOCATION OF PRODUCTS DURING THE WARRANTY PERIOD.
5.2 Service Warranty. MEGAPHASE WARRANTS THAT SERVICES WILL BE PROVIDED IN A WORKMANLIKE MANNER. THIS WARRANTY WITH RESPECT TO SERVICES IS IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED. MEGAPHASE ALSO DOES NOT GIVE ANY WARRANTY WITH RESPECT TO ANY SERVICES PROVIDED AS A CUSTOMER ACCOMMODATION FREE OF CHARGE, INCLUDING, BUT NOT LIMITED TO STANDARD WARRANTY SERVICES.
5.3 Remedy. Customer's sole and exclusive remedy and MegaPhase's only obligation for breach of the warranty for the Products furnished hereunder shall be, at MegaPhase's option, the replacement or repair of nonconforming Products. In order for Customer to exercise this remedy, Customer must give MegaPhase immediate written notice of the nonconformity within the warranty period and MegaPhase must determine that the nonconformity did not arise due to any cause specified in Section 5.4 below. In addition, if the Product requiring warranty service is designated in the MegaPhase's product catalog as a product which can be repaired at MegaPhase repair center(s), Customer must (i) receive a return materials authorization ("RMA") prior to returning the defective Product and (ii) return the product postage prepaid F.O.B. destination. If this remedy of replacement or repair is adjudged to have failed of its essential purpose, MegaPhase's total liability will be to refund the purchase price paid to MegaPhase by Customer for the nonconforming Product, and MegaPhase shall not be responsible for any other damages, including any consequential damages.
5.4 Limitation of Remedy. The warranty remedy provided by MegaPhase for Products furnished hereunder does not include the following services, which may be provided, at MegaPhase's sole option, at MegaPhase's then-current time and material charges: (i) repair of damage caused by failure to provide an installation site which continuously conforms to the site specifications provided by MegaPhase; (ii) repair of damage cause by accident, misuse, abuse, neglect, improper handling, maintenance or operation of Products or other conditions beyond MegaPhase's commercial control; (iii) repair of damage caused by Customer's improper installation, relocation or rearrangement of Products or replacement of a part not furnished by MegaPhase; and (iv) electrical or other work or causes external to the Products. There may be additional charges for travel expense or overtime labor associated with on site warranty services.
5.5 Warranty Limitation. EXCEPT FOR THE WARRANTIES STATED IN THIS SECTION 5, MEGAPHASE DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THE PRODUCTS OR SERVICES, EXPRESS OR IMPLIED, ARISING BY OPERATION OF LAW, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. MegaPhase expressly does not warrant that the operation of the Products shall be uninterrupted or error-free. Customer accepts full responsibility for the selection of the Products to achieve intended results.
5.6 Other Services. Following expiration of applicable warranty period, MegaPhase will provide maintenance service for Products if such services have been ordered by Customer under these Terms and Conditions or Customer and MegaPhase have entered into a separate written maintenance agreement.
6. LIMITATION OF LIABILITY.
6.1 Disclaimer. In no event will MegaPhase be liable for SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES including but not limited to loss of profits or revenues, damage to or loss of the use of the Products or Services, damage to property, claims of third parties, including personal injury or death suffered as a result of use of Products or provision of Services, or failure of MegaPhase to warn, or to adequately warn, against the dangers of the products or to instruct, or to adequately instruct, about the safe and proper use of Products, whether or not MegaPhase has been advised of the potential for such damages.
6.2 Limitation. The total liability of MegaPhase to Customer from any cause whatsoever, whether arising under contract, warranty, tort (including negligence), strict liability, products liability or other theory of liability, will be limited to the lesser of Customer's actual damages or the purchase price paid to MegaPhase for the Products and/or Services that are the subject of Customer's claim. However, this limitation of liability does not apply to damages resulting from personal injury caused by MegaPhase's negligence or to the payment of costs and damages for patent or copyright infringement as set forth in Section 7 below.
6.3 Time for Claims. All claims against MegaPhase must be brought within six (6) months after the receipt of Products or Services arise and Customer expressly waives any statute of limitations which might apply by operation of law or otherwise.
7. PATENTS, TRADEMARKS AND COPYRIGHTS.
7.1 Indemnification. MegaPhase will indemnify Customer against all damages awarded in a final court judgment (including appeals) in connection with any claim that the Products sold hereunder infringe a valid Unites States patent, trademark or copyright, provided that Customer gives MegaPhase prompt notice of the claim and information, reasonable assistance and sole authority to defend or settle the claim. In defense or settlement of the claim MegaPhase may: (i) obtain for Customer the right to continue use of the Product; (ii) replace or modify the Product so that it becomes non-infringing; or (iii) require Customer to return the Product and refund the purchase price for the Product. THE FOREGOING STATES THE ENTIRE OBLIGATION OF MEGAPHASE WITH RESPECT TO ANY CLAIM OF INFRINGEMENT OF PATENTS, TRADEMARKS, TRADE NAMES OR COPYRIGHTS.
7.2 Limitation. Section 7.1 above shall not apply to any Product manufactured to the specifications of Customer, any claim of infringement based on Customer's combination of Products with third party products, or misuse, or modifications of Products. Customer shall indemnify MegaPhase against any claims or liability (including attorneys fees) for patent, trademark or copyright infringement brought against, or incurred by, MegaPhase on account of Products manufactured to Customer's specifications, Customer's combination of Products with third party products, or misuses, or modification of products.
8. CUSTOMER'S OBLIGATIONS.
8.1 Product Notices. Customer is hereby advised and acknowledges that it has received notice that Products sold hereunder can be hazardous to persons and property. MegaPhase will provide Customer at no additional charge, with operation, care and handling instructions and safety precautions for the Products. Customer warrants that it will instruct its employees, and other users of the Products, in the proper operation and safety precautions for the Products and will maintain all notices, warnings, or instructions placed on the Product during the life of the Products. Customer shall indemnify MegaPhase against any and all claims (including attorneys fees) for damage or injury caused by Customer's breach of the above warranty.
8.2 Government Authorizations. If the destination of any shipment made by MegaPhase hereunder is outside of the United States, MegaPhase will be responsible for the application, in its own name, for any required U.S.A. export license. Customer is responsible for simply obtaining and maintaining the required import license, exchange permit or any other governmental authorization required for the import of the Products, provision of Services by MegaPhase and the remittance of payments to MegaPhase. MegaPhase and Customer will assist each other when such assistance is reasonably possible and available. MegaPhase will not be liable if authorization of any government agency is delayed, revoked, restricted or not renewed, and Customer will not be relieved thereby of its obligations to pay MegaPhase for the Products or any other charges pursuant to Section 2.4.
8.3 Export Controls. Customer is hereby advised and acknowledges receipt of notice that Products sold hereunder may require a license for export from the United States, re-export and/or disclosure in the United States to foreign nationals pursuant to the Export Administration Act, the Export Administration Regulations, the Arms Export Control Act, or the International Traffic in Arms Regulations. It is the sole responsibility of the Customer to obtain all such licenses or authorizations. Customer warrants that it is aware of, and will comply with, all export control statutes and regulations. Customer further warrants that it is aware of and will comply with all embargoes and other special export restrictions as set forth in the Export Administration Regulations, the International Traffic in Arms Regulations, the Assistance to Foreign Atomic Energy Activities Regulations and the various regulatory provisions relating to exports issued by the Treasury Department Office of Foreign Assets Control. Customer further warrants that it is aware of, and will comply with, all international export control agreements in which the United States participates, including the Wassenaar Arrangement, the Missile Technology Control Regime, the Australia Group and the Nuclear Suppliers Group. Customer further warrants that it has not been, and is not currently, debarred, suspended or prohibited from export privileges by any agency or department of the United States.
9. GENERAL TERMS.
9.1 Choice of Law. All disputes arising in connection with these Terms and Conditions will be construed and governed under the laws of the Commonwealth of Pennsylvania without regard to its conflict of laws provisions and excluding the United Nations Convention for the International Sale of Goods. All disputes will be resolved in a court of competent jurisdiction in Monroe County, Pennsylvania, and Customer hereby irrevocably consents to the jurisdiction and exclusive venue of the state and federal courts in Monroe County, Pennsylvania and agrees to appear in any action upon written notice thereof sent in the manner provided for in Section 9.4.
9.2 Severability. The invalidity or unenforceability, in whole or in part, of any provision in these Terms and Conditions shall not affect in any way the remainder of the provisions herein.
9.3 Headings. All headings are inserted for convenience only and shall have no affect on the construction or interpretation of these Terms and Conditions.
9.4 Notices. Notices to be given by either party under these Terms and Conditions shall be in writing and shall be deemed made or given when personally delivered or mailed by certified mail, return receipt requested, express overnight delivery by a reliable overnight carrier which issues a receipt for delivery or telecopy to the address of the other party listed on the Order Confirmation.
9.5 No Assignment. No rights or obligations arising under these Terms and Conditions may be assigned or delegated by Customer unless expressly agreed to in writing by MegaPhase. Any assignment contrary to this provision will constitute a breach of these Terms and Conditions and shall be void and of no force or effect.
9.6 Entire Agreement. These Terms and Conditions, order confirmation, product catalog and any other materials referenced in, or expressly made part of, these Terms and Conditions, constitute the final, complete and entire agreement between MegaPhase and Customer and supersede all prior and contemporary agreements, oral or written, with respect to sale of Products and provision of Services.