Terms and Conditions of Online Sale
Set forth below are the only terms and conditions applicable to all online orders accepted by Millimeter Wave Systems, LLC (“MWS”) and its duly authorized agents with respect to all of its goods.
Acceptance by MWS of the Buyer’s order is expressly conditional upon the Buyer’s assent to these terms and conditions and the Buyer’s acceptance of goods delivered to its order shall be deemed to be unqualified assent thereto.
1. PRICES: See Terms of Service.
2. TERMS OF PAYMENT: Credit card authorization must be received prior to shipping online orders.
3. FOB POINT: All sales are made FOB point of shipment. MWS’s liability ceases upon making delivery of the goods purchased hereunder (the “Goods”) to the carrier at the shipping point in good condition, the carrier acting as the Buyer’s agent. All claims for damages must be filed by the Buyer with the carrier.
4. TAXES: The prices applicable to this order do not include any federal, state, or local excise, sales, or similar taxes which may now or hereafter apply to the Goods. The amounts of any such taxes will appear as separate additional items on MWS’s invoices and shall be paid by the Buyer unless a properly executed exemption certificate is received by MWS prior to shipment.
5. BUYER ACCEPTANCE: The Buyer shall inspect the Goods within 15 days of receipt (the “Inspection Period”). The Buyer shall be deemed to have accepted the Goods unless it notifies MWS in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably requested by MWS. “Nonconforming Goods” means the following: (i) the Goods are damaged; (ii) the Goods do not materially conform to the applicable specifications; or (iii) the quantity of Goods differs from the quantity ordered. If Buyer timely notifies MWS of any Nonconforming Goods, MWS shall, in its sole discretion, replace such Nonconforming Goods with conforming Goods, or credit or refund the Price for such Nonconforming Goods. If requested by MWS, the Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to MWS’s facility. If MWS exercises its option to replace Nonconforming Goods, MWS shall, after receiving the Buyer’s shipment of Nonconforming Goods, ship to Buyer, at the Buyer’s expense and risk of loss, the replaced Goods to the Buyer. The Buyer acknowledges and agrees that the remedies set forth in this Section are Buyer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under this Section and Section 6, all sales of Goods to Buyer are made on a one-way basis and the Buyer has no right to return Goods purchased under this Agreement to MWS.
6. WARRANTY: MWS warrants that the Goods will be free from defects in material and workmanship for a period of one year after delivery to the Buyer. MWS's obligation under this warranty shall be limited to (at its option) repairing, replacing, or granting a credit at the prices invoiced at the time of shipment for any of said Goods which shall within one year after delivery be returned to MWS, transportation charges prepaid and which are, after examination, determined by MWS to be thus defective. This warranty shall not apply to Goods which shall have been subjected to physical or electrical abuse or misuse or have not been used in accordance with MWS’s specifications. EXCEPT FOR THE FOREGOING WARRANTY, MWS MAKES NO WARRANTIES WHATSOEVER, AND HEREBY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE GOODS, INCLUDING (a) ANY WARRANTY OF MERCHANTABILITY; (b) ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (c) ANY WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; IN EACH CASE WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. The warranty provided in this Section does not apply to Nonconforming Goods (as defined above).
7. CANCELLATION: Online orders are non-cancellable.
8. BINDING AGREEMENT: By placing an order, you agree to our Terms and Conditions of Online Sales.
9. TERMS OF SALE – EXPORT: The Buyer acknowledges and agrees that the ultimate destination of the Goods is in the United States. The Buyer shall not authorize or permit its employees, distributors, customers, brokers, freight forwarders, and/or agents to export or re-export any of the Goods to any foreign person or place without complying with applicable import and export laws and regulations of the Buyer’s country and of the United States, including the International Traffic in Arms Regulations (ITAR) and the Export Administration Regulations (EAR). The Buyer shall obtain and properly utilize U.S. Government export authorization prior to exporting or re-exporting the Goods, either in their original form or after being incorporated into other end-items.
10. LIMITATION OF LIABILITY: IN NO EVENT SHALL MWS BE LIABLE TO THE BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL MWS'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO MWS FOR THE GOODS SOLD HEREUNDER.
11. GOVERNING LAW AND EXCLUSIVE FORUM: This Agreement shall be solely and exclusively governed by and construed and enforced in accordance with the laws of the Commonwealth of Massachusetts without giving effect to any law that would result in the application of a different body of law. All disputes under or in connection with this Agreement shall be brought and resolved only in a court of competent jurisdiction located in Hampden County or Hampshire County, Massachusetts, and each party hereby irrevocably consents to the jurisdiction of such courts and waives any objections thereto.
12. FORCE MAJEURE: Neither party shall be liable or responsible to the other party, nor be deemed to have breached this Agreement, for any failure or delay in performing any term of this Agreement (except for any obligations to make payments to the other party hereunder), when and to the extent such failure or delay is caused by or results from the following events ("Force Majeure Events"): (i) flood, fire, earthquake or explosion; (ii) war, invasion, terrorist threats or acts, riot or other civil unrest; (iii) government order or law; (iv) national or regional emergency; (v) power outage; and (vi) other similar events beyond the control of the party impacted by the Force Majeure Event (the "Impacted Party"). The Impacted Party shall give notice within three days of the Force Majeure Event to the other party, stating the period of time the Force Majeure event is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. If the Impacted Party's failure or delay remains uncured for a period of 60 days following written notice given by it under this Section, the other party may immediately terminate this Agreement.
13. BUYER MODIFICATIONS. The Buyer hereby grants to MWS a perpetual, irrevocable and royalty-free license to use, copy, modify, improve, assign and distribute all modifications, corrections, repairs, enhancements, and other derivative works and improvements of the Goods made or suggested by the Buyer.