STREAKWAVE WIRELESS, INC. TERMS AND CONDITIONS OF SALE
Streakwave Wireless, Inc., ("Streakwave") makes all sales of products and services ("Products") to Customer ("Customer") subject to the following Terms and Conditions, ("Terms and Conditions"):
1. ACCEPTANCE / PRICING
Streakwave's acceptance of all orders, however made, is expressly conditioned upon Customers consent, either expressed or implied, to these Terms and Conditions. Streakwave's sales of Products to Customer are made on an all sales final basis and are purchased at Customer's own risk. Streakwave will not accept and expressly objects to and rejects, any other terms and conditions (whether written or oral) originating from Customer that purport to modify, add to, or otherwise vary the terms and conditions stated here in. Customer's will have deemed to accept these Terms and Conditions by any of the following: a) placing an order for Products via approved method which includes telephone, online, written acknowledgment or other act or expression of acceptance, b) Customers offer to purchase Products from Streakwave, c) Customers acceptance of shipment from Streakwave and d) Customers payment for any Products. Customer expressly agrees Streakwave will not be bound by any terms and conditions set forth by Customer unless previously agreed to by Streakwave management in writing. Streakwave may require Customer to notate on the face of each submitted purchase order that the terms of this agreement control; provided however, if Customer fails to include any such notation, Streakwave and Customer agree that the Terms and Conditions of this agreement shall still control.
Pricing for all Products are displayed online and applicable discounts are shown after logging into Customer's account or set by agreed upon pricing arrangements and do not include applicable; duties, taxes, freight, shipping costs and other charges or fees. Such fees may be for special packaging, requested labeling, permits, certificates, customs documents and other special requests. Streakwave may charge a handling fee for orders where additional packaging or services are required. The minimum charge for additional handling fee(s) is $5.00 US Dollars. Quotations generated online or by Streakwave sale(s) personnel are valid for 30 days unless otherwise specified in writing. Quotations may include shipping estimates and actual shipping charges may vary. In such cases actual shipping charges may be billed. Streakwave is not responsible for discrepancies / typographical errors: made by Streakwave, online, or those listed on product specification sheets created by the manufacturers represented. Pricing is subject to change at any time without notice.
2. INVENTORY / BACK ORDERS / SPECIAL ORDERS / ADVANCE ORDERS
Streakwave does its best to maintain stock levels on most items offered. If an item is out of stock or on backorder Streakwave will notify Customer and do its best to provide of an estimated ship date based on the delivery schedule provided by the manufacturer. Streakwave will do its best to inform of manufacture delays that it is made aware of, but will not be held liable for late delivery, missed shipments, installation delays or dates or other related deadlines out of its control. Streakwave will fulfill orders and backorders as soon as possible. Customers desiring to purchase Products not normally stocked, or Products not listed on the website may be special ordered. Special orders are non-cancelable and non-refundable and may require pre-payment in full. Streakwave accepts (and in some cases requires) prepaid advance orders to guarantee future stock for specific items.
3. SHIPMENT / TITLE / RISK OF LOSS / TAXES / SHORTAGES
Unless otherwise agreed in writing, delivery will be made in accordance with Streakwave's shipping policy that is in place on the date of order. Title to the Products shall pass to Customer upon delivery of the Products to a) common carrier or b) Customer's representative at Streakwave's dock. Streakwave's delivery of the Products shall be Ex Works (Incoterms 2010) Streakwave's shipping point unless otherwise indicated in writing, with all risk of loss, damage, theft or destruction passing to Customer at such point, subject to Streakwave's rights under applicable law. No such loss, damage, theft or destruction to the Products, in whole or in part, shall impair the obligations of Customer under this agreement, all of which shall continue in full force and effect. Streakwave shall not be liable for any shipping delays. Customer shall bear all applicable federal, state, municipal or other governmental tax, as well as any applicable import or customs duties, license fees and similar charges, however designated or levied on the sale of Products (or delivery thereof) or measured by the purchase price paid for the Products. Customer must notify Streakwave, by contacting Streakwave within three (3) business days after delivery of any claimed shortages or rejections. Failure to give such notice of a claim will be deemed an acceptance in full of any such delivery. Approval of any short shipment claim is in Streakwave's sole power and discretion. In the event that Streakwave grants a short shipment claim, Streakwave will provide the missing items or issue a credit memo at its sole discretion.
4. SECURITY INTEREST
Customer grants Streakwave security interest in all Products sold under these Terms and Conditions and to all Products now or hereafter purchased and or acquired by Customer from Streakwave, and to any proceeds thereof, until the purchase price and any other amounts due to Streakwave have been paid in their entirety. Customer hereby authorizes Streakwave to prepare and file any financing statement listing the Products as collateral and to file such financing statement in such filing offices as Streakwave deems appropriate. Customer further agrees promptly to execute any other documents requested by Streakwave in order to protect Streakwave's security interest in said Products. Upon any default by Customer of any of its obligations to Streakwave, Streakwave shall have all the rights and remedies of a secured party under the Uniform Commercial Code, which rights and remedies shall be cumulative and not exclusive.
Streakwave accepts payment via wire transfer, PayPal, draft, or major credit card (Visa, MasterCard, Discover and American Express). International orders require payment in advance via wire transfer including a $35.00 US Dollar fee unless otherwise noted. If the order is under $1000.00 US Dollars a major credit card may be accepted. A copy of the purchasing individual's government issued picture identification along with a copy of the front and back of the credit card being used are required. If Streakwave is unable to verify the authenticity of the Customer and credit card the order will be denied. All products are sold in US Dollars.
For terms customers: Payment is due from date of invoice, not receipt of goods according to the payment terms allowed. All payments will be made in US Dollars. Customers will pay a late fee of (1.5%) per month of any outstanding balance owed, or the maximum amount permitted under applicable law. All drafts dishonored for any reason shall be assessed a $35.00 US Dollar service charge. In the event Customer stops payment on any drafts issued to Streakwave, for any reason, Customer hereby recognizes that Streakwave would suffer damage, the exact amount of which cannot be determined with certainty, and Customer shall pay Streakwave liquidated damages in the amount of $500.00 US Dollars for each such draft in addition to the outstanding balance. Customer may not use anticipated credit memos before Streakwave issues the credit on Customer's account. Payment using an anticipated credit memo for purchases before Streakwave issues the credit on Customer's account will be considered a short payment and may result in delayed shipments. It is not Streakwave's policy to issue refunds. Credit Memos must be used on current outstanding balances or future purchases.
Streakwave reserves the right to withhold shipment of any part of an order or to require pre-payment of any given shipment if Customer does not make timely payment(s). If an account goes past due more than 3 times in a given year Net Terms may be forfeited and pre-payment required. Customer will pay and is responsible for all applicable taxes, duties, licenses, excises, and tariffs (taxes) levied upon the sale, purchase or delivery of the Products. Streakwave may require a valid major credit card to be kept on file, reserving the right to charge the credit card on file including applicable finance charges of up to 3% if payment is not received by the date due.
Product returns or exchanges may be approved on a case by case basis at Streakwave's sole discretion and are limited to the terms set forth in Streakwave's return merchandise authorization ("RMA") policies and procedures, which are located on Streakwave's website. These policies and procedures may be modified in any manner by Streakwave at any time without notice. All returns must be accompanied by a RMA from Streakwave. All returns are subject to in-house credit only.
Streakwave makes no warranties whatsoever on any products it does not manufacture and passes through any manufacturer warranties issued for the products it represents. Warranty returns are subject to the individual manufacturer's warranty return policy. Warranties vary by manufacturer. Customer agrees to consult the manufacturer of the product purchased regarding their warranty policy prior to contacting Streakwave. If the Product purchased is determined to be within the manufacturers' warranty policy Streakwave may assist in obtaining warranty service. If Customer has trouble obtaining warranty service from the manufacture contact Streakwave for individual manufacture warranty procedures.
IN NO EVENT SHALL STREAKWAVE BE LIABLE FOR ANY CONSEQUENTAL, INCIDENTAL, SPECIAL, INDIRECT OR PUNITIVE DAMAGES OR DAMAGES OF ANY KIND OR NATURE ALLEDGED TO HAVE RESULTED FROM ANY BREACH OF WARRANTY. STREAKWAVE DOES NOT WARRANT THE MERCHANTABILITY OF THE PRODUCTS OR THEIR FITNESS FOR ANY PARTICULAR PURPOSE. STREAKWAVE SHALL HAVE NO DUTY TO DEFEND, INDEMNIFY, AND HOLD HARMLESS CUSTOMER FROM AND AGAINST ANY OR ALL DAMAGES OR COSTS INCURRED BY CUSTOMER ARISING FROM THE INFRINGEMENT OR VIOLATION OF ANY PATENTS, TRADEMARKS, COPYRIGHTS OR OTHER PROPRIETARY RIGHTS BY ANY PRODUCTS. STREAKWAVE MAKES NO WARRANTY, EXPRESS OR IMPLIED. NOTWITHSTANDING ANY OTHER TERMS OR CONDITIONS TO THE CONTRARY, STREAKWAVE'S LIABILITY UNDER THIS SECTION SHALL NOT EXCEED THE PURCHASE PRICE OF THE PRODUCT GIVING RISE TO THE ALLEGED LIABILITY.
8. EVENTS OF DEFAULT
Customer shall be in default under this agreement upon the happening of any of the following events or conditions: a) default by Customer on payment of any installment, invoice, bill or any other indebtedness or obligation now or hereafter owed by Customer to Streakwave, b) default in the performance of any obligation, covenant or liability contained in this agreement or any other agreement or document between Customer to Streakwave, c) any inaccuracy with respect to any warranty, representation or statement made or furnished by Customer, d) dissolution, termination of existence, insolvency, business failure, or discontinuance of Customer's business or the appointment of a receiver for any part of the property of, or assignment for the benefit of creditors by, Customer or the commencement of any proceedings under any bankruptcy reorganization or arrangement laws by or against Customer or the attachment, levy, seizure or garnishment of any of Customer's property, rights, assets (contingent or otherwise) including the Products, or e) any change in control of the ownership or management of Customer, unless prior to the occurrence of such change of control Streakwave shall have been notified in writing and Customer shall have obtained Streakwave's prior written approval to such change in control.
9. REMEDIES OF STREAKWAVE
- In General. Upon the occurrence of any event of default or any time thereafter, Streakwave may, at its option and without notice to Customer, exercise one or more of the following remedies as Streakwave, in its sole discretion, shall elect: 1) declare immediately due and payable all outstanding invoices under this or any other contract and demand or, without demand, sue for amounts then due or thereafter accruing under this invoice or under any other invoice, bill or other document evidencing Customer's indebtedness to Streakwave, 2) suspend deliveries as to any or all Products, 3) take possession of the Products wherever found and for this purpose enter upon any premises of Customer and remove the Products, without court order or other process of law, without any liability for damages, suit, action or other proceeding by Customer as a result of such entry and/or removal, 4) cause Customer, at its expense, to promptly return the Products to Streakwave in good, like-new condition, 5) sell the Products, or any part thereof at public or private sale (for cash or credit) at such time or times as Streakwave shall determine, free and clear of any rights of Customer, and if notice thereof is required by law, any notice in writing of any such sale by Streakwave to Customer not less than ten (10) days prior to the date thereof shall constitute reasonable notice thereof to Customer, and 6) exercise any and all rights accruing to Streakwave under any applicable contract or law upon a default by Customer, including all rights and remedies accorded to Streakwave's or secured parties under the Uniform Commercial Code.
- Mitigation of Damages. Should Streakwave repossess any of the Products because of Customer's default, Streakwave may make a commercially reasonable effort to sell such Products at a reasonable price to a third party, provided, however, that Streakwave shall have no obligation to actively seek out and solicit potential third party Customers for said Products.
- Collection Costs. In the event of any default on the part of Customer hereunder, Customer shall pay any and all collection costs, including reasonable attorneys' fees and costs, incurred by Streakwave.
- Rights and Remedies Not Exclusive. No right or remedy conferred upon or reserved to Streakwave by this agreement shall be exclusive of any other right or remedy provided herein or by law. All rights or remedies conferred upon Streakwave by this agreement and by law shall be cumulative and in addition to any other right or remedy available to Streakwave.
10. TIME OF THE ESSENSE
Time is of the essence with respect to each of the provisions of this agreement.
Customer agrees to indemnify and hold Streakwave and its officers, directors, servants, employees, agents and advisors harmless from and against any and all claims, damages, costs, expenses (including, but not limited to, reasonable attorneys' fees and costs) or liabilities that may result, in whole or in part, from any third party using the Products provided under this agreement. Any defense provided hereunder shall be by counsel of Streakwave's choice.
12. LIMITATION OF LIABILITY
In the event that any of the Products malfunction and such malfunction leads to damage or injuries to the Products, to Customers business, the end-user's business, to other equipment, or residence, or to employees or to other persons, Streakwave shall not be liable for such damages or injuries. Customer understands and agrees that if Streakwave shall be found liable for loss or damage caused by failure of Streakwave to perform any of Streakwave's obligations hereunder or the failure of the Products in any respect whatsoever, Streakwave's liability shall be limited to the price paid for such Products, and this liability shall be exclusive. Customer understands and agrees that the provisions or this section shall apply if loss or damage, irrespective of cause or origin, results directly or indirectly to persons or property, from performance or non-performance of any of Streakwave's obligations or from negligence, active or otherwise, of Streakwave, or its agents, servants, assignees or employees.
IN NO EVENT SHALL STREAKWAVE BE LIABLE FOR ANY LOSS OF REVENUE, PROFIT, USE OF DATA, INTERRUPTION OF BUSINESS OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRODUCT, OR IN ANY WAY CONNECTED TO THIS AGREEMENT, EVEN IF STREAKWAVE HAS BEEN ADVISED OF SUCH DAMAGES.
THE FOREGOING LIMITATION OF LIABILITY WILL APPLY WHETHER ANY CLAIM IS BASED UPON PRICIPLES OF CONTRACT, WARRANTY, NEGLIGENCE OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, PRINCIPLES OF INDEMNITY OR CONTRIBUTION, OR OTHERWISE. IN NO EVENT WILL STREAKWAVE'S LIABILITY TO CUSTOMER EXCEED THE PURCHASE PRICE PAID FOR THE PRODUCT THAT IS THE BASIS OF THE CLAIM.
This agreement and all rights, obligations and performance hereunder may not be assigned by Customer without prior written consent of Streakwave.
14. WAIVER No delay or omission by Streakwave to exercise any right or power shall impair any such right or power or be construed to be a waiver thereof. A waiver by Streakwave of any term, condition or agreements to be performed by Customer or any breach thereof shall not be construed to be a waiver of any succeeding breach thereof or of any other term, condition or agreement herein contained. No change, waiver, or discharge hereof shall be valid unless presented in writing to Streakwave and signed by an authorized representative of Streakwave.
If any section, term, condition or portion of this agreement shall be found to be illegal or void as being against public policy, it shall be stricken and the remainder of this document shall stand as the original.
16. GOVERNING LAW / VENUE / JURISDITION
This agreement shall be construed and enforced in accordance with the laws of the state of California without regard to the conflicts of law provisions thereof. ALL SALES TRANSACTIONS EXCLUDE THE APPLICATION OF THE 1980 UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALES OF GOODS, IF OTHERWISE APPLICABLE. All claims, actions, disputes, controversies or suits shall be litigated exclusively in the courts of competent jurisdiction in Santa Clara County, California, United States. Each party specifically consents to service of process by and the jurisdiction of and venue in those courts and Customer, if not a resident of the United States, hereby appoints the Secretary of State of California as its agent for service of process in the United States.
17. ENTIRE AGREEMENT / MODIFICATION
The parties intend this agreement to be the complete statement of the terms of their agreement. This agreement replaces and supersedes any prior agreements between them with respect to the subject matter hereof. No course of prior dealing or usage of trade shall be relevant to amend or interpret this agreement. This agreement may not be changed, modified or amended except by an instrument in writing signed by both Streakwave and Customer.
Customer agrees that during the term of this agreement and for a period of eighteen (18) months following the expiration or termination of this agreement, Customer shall not, without the prior written consent, either separately or on behalf of or through any third party (i) directly or indirectly, solicit, entice or persuade or attempt to solicit, entice or persuade any employee of Streakwave or its affiliates to leave the services of Streakwave for any reason, or (ii) hire or attempt to hire any such persons.
19. COMPLIANCE WITH LAWS
Customer agrees to comply with the laws, regulations and requirements of the United States. This includes, without limitation, the applicable export control and economic sanctions laws, regulations and requirements administered by the Commerce Department's Bureau of Industry and Security and the Treasury Department's Office of Foreign Assets Control as they may govern the export and re-export of items purchased under these Terms and Conditions. Customer acknowledges that all Products purchased may be controlled for export by the U.S. Department of Commerce and that the Products may require authorization prior to export from the United States. Customer further agrees that it will not make any payment, directly or indirectly, that would cause a violation of the anti-bribery laws of any country or jurisdiction, including without limitation the U.S. Foreign Corrupt Practices Act which, inter alia, prohibits certain payments to foreign government officials for the purpose of obtaining or retaining business. The Federal Equal Credit Opportunity Act (ECOA) prohibits creditors from discriminating against credit applications on the basis of race, color, religion, national origin, sex, marital status, age (provided the applicant has the capacity to enter into a binding contract); because all or part of the applicant's income derives from any public assistance program; or because the applicant has in good faith, exercised any right under the Consumer Credit Protection Act. The federal agency that administers compliance with law concerning the creditor is the Federal Trade Commission, Division of Credit Practices, 600 Pennsylvania Avenue, NW, Washington, SC 20580.
20. NO AGENT
It is understood that Customer is not an agent of Streakwave and shall not refer to the Streakwave's corporate name in any of its products, services or literature without the express written consent of the Streakwave.
All notices and other communications relating to this Agreement or its terms must be either: (1) in writing and sent via first class United States Postal Service certified or registered mail with return receipt requested; or (2) via other similar overnight courier to Streakwave Wireless, Inc., 840 Jury Ct., San Jose, CA 95112. All notices sent by Streakwave hereunder will be deemed received two (2) days after postmark or shipping date, or on the day of actual receipt if earlier. In addition, Streakwave may provide notices hereunder to Customer via facsimile to the facsimile number(s) Customer provided to Streakwave via Customer's completion of Streakwave's credit application, with such facsimile notices being deemed received upon Streakwave's receipt of its facsimile machine's confirmation of successful transmission. If the day on which such facsimile is received by Customer is not a business day or is after five (5) p.m. on a business day, then such facsimile shall be deemed to have been received on the next following business day.