Commercial Terms and Conditions of Sale
BY ASSENTING TO THIS AGREEMENT EITHER BY CLICKING “ACCEPT”, CHECKING A BOX, OR SUBMITTING A PURCHASE ORDER, THE CUSTOMER (“CUSTOMER”) ASSENTS TO THESE COMMERCIAL TERMS AND CONDITIONS OF SALE (THE “TERMS”), WHICH WILL BE DEEMED A BINDING CONTRACT BETWEEN CUSTOMER AND CYBER SWITCHING, FOR THE PURCHASE AND USE OF PRODUCTS MADE AVAILABLE BY CYBER SWITCHING THROUGH THE ORDERING PROCESS DESCRIBED BELOW (the “PRODUCTS”) UNLESS CUSTOMER HAS ANOTHER VALID MASTER PURCHASE AGREEMENT WITH CYBER SWITCHING WITH RESPECT TO THE PURCHASE OF SUCH PRODUCTS.
- These Terms shall supersede any conflicting terms and conditions on an order and Cyber Switching will not be bound by any terms of Customer’s order documents that are in addition to or inconsistent with the Terms herein. All sales made by Cyber Switching are subject to these Terms unless otherwise agreed to in writing by a duly authorized officer of Cyber Switching. Customer shall be deemed to have accepted the quotation and these Terms by Cyber Switching’s receipt of order.
- Terms as quoted by Cyber Switching shall apply. Pricing on all Cyber Switching quotations will be valid for thirty (30) days from the date of issue of a quotation, unless modified by Cyber Switching in writing prior to acceptance of the quotation by Customer. In order to receive pricing specified on the quotation, Customer must return the signed quotation to Cyber Switching within thirty (30) days from the date of issue and prior to the placement of an order. Customer’s mere acceptance of the quotation does not constitute an order.
- All orders are firm unless written permission to cancel is issued by Cyber Switching. All orders are subject to acceptance by Cyber Switching. Orders may be submitted online at cyberswitching.com/shop/, or a signed purchase order may be submitted via emailed to firstname.lastname@example.org. Any orders submitted via email that do not include a valid, signed purchase order will be placed on hold pending the return of a signed order confirmation from the purchaser. To help ensure proper shipment, please order by complete part number and description.
- Order Confirmations. If Cyber Switching accepts an order, Cyber Switching will send Customer a written order confirmation. Cyber Switching will ship all orders as stated on the order confirmation unless (a) Customer sends Cyber Switching a written correction within 24 hours of receiving of the order confirmation, and (b) Cyber Switching approves such correction.
- Prices. All prices are in USD. Prices, discounts, quotations, and specifications are subject to change without notice. All prices are exclusive of all withholding, excise, sales, use and similar taxes, fees, charges, duties, and assessments, in each case imposed by any governmental authority on the transactions, shipments, or amounts payable hereunder (except taxes on Cyber Switching’s income which shall be Cyber Switching’s responsibility) (collectively, “Taxes”). If Customer is a commercial entity engaged in the resale of the Products, Customer must furnish Cyber Switching a resale certificate prior to purchase. Any Taxes on any sale will be charged to and paid by the Customer.
- Payment. Except as set forth below, all payments must be made in advance. Commercial customers seeking to purchase on credit are required to complete and submit to Cyber Switching a confidential credit application and receive credit approval from Cyber Switching prior to shipment. For commercial customers with approved credit, all payments will be made in U.S. dollars, unless otherwise agreed by Cyber Switching in writing. Cyber Switching has the right to charge interest on late payments at the rate of 1.5% per month, or the maximum amount allowed by law, if lower, from the due date until paid. Cyber Switching may at any time change its payment terms, including requiring payment prior to delivery or placing the account on credit hold. Wire transfers are accepted as a payment alternative and may be required on certain orders. Delinquent accounts may be processed with a collections service.
- Security Interest. If any proceeding is brought by or against Customer under bankruptcy or insolvency laws, Cyber Switching has the right to cancel any outstanding orders. Until full payment for the Products has been received by Cyber Switching, Cyber Switching has a purchase money security interest in the Products sold hereunder and all proceeds thereof. Customer agrees to execute any document appropriate or necessary to perfect the security interest of Cyber Switching, or Cyber Switching may file these Terms and/or any invoice as a financing statement and/or chattel mortgage. Cyber Switching reserves all rights granted to a secured creditor under the California Commercial Code or other applicable law, including the right to repossess the Products upon default by Customer. Customer agrees to assist in Cyber Switching repossession of the Products upon such default.
- Shipping will be billed at the prices in effect at the time of shipment and may include handling and insurance charges. All shipments are F.O.B. Cyber Switching San Jose, California. Cyber Switching will use commercially reasonable efforts to follow the specified routing requested by Customer for shipment. Otherwise, routing is determined by Cyber Switching at its sole discretion.
- Product Shortages. All claims for product shortages or incorrect shipments must be made within ten (10) days after receipt of the merchandise. Please call 408-436-9830, attention: Operations Manager
- Freight Claims. If any shipment is received in a damaged condition, a claim must be filed with the delivery carrier and noted on the freight bill before acceptance of the merchandise.
- All Product returns MUST: (a) have prior authorization from Cyber Switching, and (b) returns for refunds or exchanges must be made within 30 days of the original purchase date. Customer MUST request and obtain a return materials authorization (“RMA”) BEFORE returning any Product. To obtain an RMA, contact Cyber Switching Technical Support 408-436-9830. After Customer receive an RMA, Customer must package the Product securely in original packaging or a reasonable substitute and clearly mark the RMA number on the outside of the box. Cyber Switching may email Customer a pre-paid return shipment label or (in the case of an approved return for refund or exchange) Customer may prepay the freight provided Customer insures the shipment for the full price of the Product. Cyber Switching will not accept collect shipments or shipments without a clearly identifiable RMA number. If Cyber Switching provides Customer a pre-paid shipment label in connection with a valid Product return (other than a limited warranty return), Cyber Switching may deduct the cost of shipment or damage incurred during shipping from any refund due. All goods returned for reasons other than under the limited warranty may be subject to a 20% restocking charge.
- Warranty; Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THE STANDARD LIMITED WARRANTY FOR THE PRODUCT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PRODUCTS ARE PROVIDED ON AN “AS IS” BASIS WITHOUT ANY WARRANTY WHATSOEVER, AND CYBER SWITCHING AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED, AND STATUTORY INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
- Intellectual Property. Cyber Switching retains ownership of all intellectual property rights in the Products. The Products are offered for sale and sold on the condition in every case that, except as expressly set forth below, such sale does not convey any license, express or implied, under any intellectual property right of Cyber Switching, and all such rights are reserved. There are no implied licenses in these Terms. Embedded Software is provided under license and is not sold, notwithstanding the use of the word “sell” in these Terms. Subject to these Terms, Cyber Switching grants to Customer a non-exclusive and non-transferable license to use the Embedded Software solely on the applicable Product in accordance with the applicable Cyber Switching documentation, for the End User’s own internal purposes. “Embedded Software” means firmware and software embedded in the Products, and any modified, updated, or enhanced versions of such firmware or software provided by Cyber Switching.
- Customer shall defend, indemnify and hold harmless Cyber Switching and its officers, directors, agents and employees from and against any and all liability, damages, losses, claims, demands, actions, causes of action, and costs, including attorney’s fees and expenses, arising out of any claim arising from: (a) Customer’s installation or use of products other than as described in the Cyber Switching Documentation accompanying the product order or made available by Cyber Switching online, (b) any acts or omissions of Customer, or its distributors, installers or agents, in marketing, selling, distributing, or installing the Products, (c) any unauthorized representations, warranties, or guarantees made by Customer or its distributors and installers, or any of Customer’s or its distributors’, installers’ or customers’ employees or agents, relating to the Products.
- Limitation of Liability. NOTHING IN THESE TERMS IS INTENDED TO LIMIT EITHER PARTY’S LIABILITY FOR DEATH OR PERSONAL INJURY RESULTING FROM SUCH PARTY’S NEGLIGENCE OR FOR FRAUD, FRAUDULENT MISSTATEMENT OR FRAUDULENT MISREPRESENTATION. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL Cyber Switching OR ITS SUPPLIERS BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, OR FOR ANY LOST PROFITS OR LOST DATA, ARISING FROM OR RELATING TO THESE TERMS OR THE PRODUCTS, EVEN IF Cyber Switching HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Cyber Switching’s TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATING TO THESE TERMS OR THE PRODUCTS, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNTS PAID TO Cyber Switching HEREUNDER FOR THE SPECIFIC PRODUCT GIVING RISE TO THE CLAIM. Cyber Switching DISCLAIMS ALL LIABILITY OF ANY KIND OF Cyber Switching’s SUPPLIERS. THE FOREGOING LIMITATIONS OF LIABILITY ARE INDEPENDENT OF ANY EXCLUSIVE REMEDIES SET FORTH IN THESE TERMS.
- No Future Agreement Created. Shipment of Products does not constitute a commitment to accept or ship future product. Cyber Switching retains all rights to decline a purchase order and/or terminate any contractual obligations on thirty (30) days written notice unless such rights are expressly waived by Cyber Switching pursuant to a signed agreement with Customer.
- Legal Compliance. Customer will at all times comply with all applicable laws and regulations, including (a) obtaining and complying with all reports, licenses, permits and authorizations required to perform hereunder, (b) obtaining and complying with all licenses and approvals required under all applicable export and import control laws and regulations including those of the U.S. Department of Treasury’s Office of Foreign Assets Control and the U.S. Bureau of Industry and Security (Customer acknowledges that Products and technical data delivered under these Terms are subject to U.S. export control laws), (c) complying with the U.S. Foreign Corrupt Practices Act, the U.K. Bribery Act 2010 and similar applicable laws, and (d) not engaging in any unfair trade practice.
- Miscellaneous. Customer shall not assign or transfer these Terms or any rights or obligations hereunder, by operation of law or otherwise, without the prior written consent of Cyber Switching. These Terms constitute the entire agreement between Cyber Switching and Customer, and, except as expressly set forth in the first paragraph of these Terms, supersede all previous communications, course of dealing representations and agreements, whether oral or written, between Customer and Cyber Switching with respect to the subject matter hereof. The Terms may not be modified, supplemented, qualified, or interpreted except in writing signed by an officer of Customer and Cyber Switching. No course of dealing or usage of trade may be invoked to modify this Agreement. The failure by Cyber Switching to enforce at any time any of the provisions in these Terms will in no way be construed as a waiver of such provisions. If any provision of these Terms is unenforceable as written, the unenforceable provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and enforceable. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party will not be applied in connection with the construction or interpretation of these Terms. Cyber Switching shall not be held responsible for delays caused by Act of God, war, government rulings, civil disturbance, casualty, riots, strikes, pandemic, or labor disputes or any cause beyond its control. The term “including” means “including without limitation”.