The terms and conditions which follow control your legal rights with respect to all Products and Services purchased from Clover Telecom Asset Management LLC (“Clover”). All Products are sold by Clover and purchased by you. You may have additional rights under the laws of your state. By placing an order on the Clover website, submitting a purchase order, or placing an order over the phone or via email, you agree to be bound by and accept these terms and conditions ("Agreement"). Clover reserves the right to alter these terms and conditions of the Agreement at any time, without prior notice to you.
As used in these terms and conditions, the term "Products" collectively refers to all equipment, accessories, parts, services, software, consumables and supplies ordered from Clover, including new Products, refurbished Products, “New Surplus” Products (unused Products that have been previously sold but are in their original box) and de-installed (“”De-Installed”) Products.
2. PRICING AND ORDERS.
Prices are in U.S. Dollars and are exclusive of taxes, shipping, and insurance. Clover’s quotations are for budgetary purposes only. Actual sales prices and availability may change from Clover’s quotation. All orders are subject to acceptance by Clover. You may not cancel or reschedule an order without Clover’s consent, which consent may be given or withheld by Clover in its sole discretion. Availability of Products on hand is subject to change prior to shipping. All terms of sale are stated in America’s quotation and this Agreement (collectively the “Purchase Terms”). You warrant and represent that the terms of any Purchase Order or other purchase documentation from you (1) shall be null and void and of no effect; and (2) will not alter or add to the Purchase Terms in any respect.
Unless you provide Clover with a valid and correct tax exemption certificate applicable to your purchase and the ship-to location, you are responsible for any and all state and local sales, use, excise, privilege, import and other taxes and duties associated with the order. In addition, any personal property taxes or similar taxes or assessments against the Products or on account of materials segregated for you and being held by Clover at your request shall be paid by you. All such taxes, duties or assessments shall be separately itemized on Clover’s invoice and paid by you. In the event Clover is required to pay any tax or duties that are your obligation under these Purchase terms, you shall immediately reimburse Clover for such payment plus interest on such amount at the rate of ten percent (10%) per annum from the date paid by Clover. Clover shall be under no obligation to contest the validity of any taxes, duties or assessments or to prosecute any claims for refunds or returns.
4. PACKAGING; SHIPPING AND DELIVERY; TITLE; RISK OF LOSS.
Unless otherwise specified, prices include packaging and crating. Packaging will be performed in accordance with Clover’s standard commercial practices for domestic shipments. Shipping and handling charges are in addition to the Product prices unless otherwise stated at the time of sale. Unless otherwise agreed in writing, all shipments shall be FOB Origin Clover’s warehouse(s), and Product title shall pass to you upon delivery to the carrier at such point. Clover may ship Products to your place of business by such means as Clover shall select if you do not provide adequate shipping instructions at least five (5) days before the shipment date. You accept all risk of loss or damage thereto, upon delivery of Products by Clover to a carrier, shipper, forwarding agent, transporter, or Government mailbox or post office, whether selected by you or Clover. In no event shall Clover be responsible for any Products after delivery to such shipping location. You are responsible for insuring all shipments against loss, damage or destruction unless otherwise agreed to in writing by Clover. Products are customer-installable unless installation is expressly included in the Product description or added as a separate item on an order.
You must pay for all Products prior to shipping. If you establish a consistent business payment history have an approved and current credit application on file with Clover, then Clover may in its sole discretion extend credit terms to you, including COD company check or terms up to Net 30 days. “Net 1 Day” terms mean FULL AMOUNT OF INVOICE IMMEDIATELY DUE UPON RECEIPT. If you have a PAST DUE invoice you will automatically be placed on prepayment terms. Outstanding balances not received within the agreed payment terms shall also be subject to a finance charge of 1.5% per month (but no greater than the maximum rate allowed by law) of the outstanding balance. You agree to pay any expenses incurred by Clover in collecting such unpaid balance and finance charges, or in recovering possession of the Products, including reasonable attorney fees, expenses, and court costs. You hereby agree to grant a Purchase Money Security Interest (“PMSI”) in all Product sold to you until such time as Clover has received full payment, and shall take all steps necessary to enable Clover to perfect said PMSI, including filing all required liens.
Clover reserves the right at any time to alter or suspend credit, or to change credit terms provided herein, when in its sole opinion your financial condition so warrants. In such case, in addition to any other remedies herein or by law provided, Clover may require cash payment or satisfactorily security from you before shipment, or Clover may, at its option, defer further shipments to you until you reestablish satisfactory credit, cancel the unshipped portions of the order without any liability for failure to ship, or make shipments to you on a prepayment or COD basis. Payments made by trade acceptances, notes, securities, postdated checks, etc., are unacceptable unless first approved in writing by Clover.
Orders placed under this Agreement may only be cancelled only if Clover agrees to accept such cancellation in writing, and the effective date of such cancellation shall be the date of such acceptance. Upon acceptance of cancellation, Clover shall commence efforts to terminate the purchase commitments relating to the order. By requesting a cancellation you agree to be liable for the costs of terminating such commitments, as well for any lost profits of Clover. You shall pay any such of cancellation charges upon receipt of statement of same. Cancellation charges shall not exceed the purchase price of the cancelled order. Clover reserves the right NOT to accept cancellation requests (for example when Clover has purchased equipment specifically to fill your order) and to charge additional cancellation fees.
Equipment Warranty: Clover warrants that all New Surplus and De-Installed Products, when stored, installed and used under normal conditions, will function to the original manufacturers' written specifications for a period of twelve (12) months from the date of purchase. Clover’s warranty does not cover misuse and/or damage due to improper installation and/or operation of the Products. Clover provides no warranty for new or refurbished Products other than such warranty that may be provided directly by the Original equipment manufacturer or the refurbisher.
Repair Services Warranty: Clover warrants to you that the components used to repair or replace a Product will be free from substantial defect in material and workmanship under normal use given proper installation and maintenance for the warranty period referenced on the first page of this Quote.
Warranty Remedies: If within the applicable warranty period you discover that warrantied Products are not functioning in accordance with the manufacturer’s specifications, or if any Products that are damaged on arrival (“DOA”), you must contact your Clover sales representative and request a Return Materials Authorization (“RMA”). Once an RMA is issued, Clover will do one of the following at its sole option: 1) repair the Products, 2) replace the Products, or 3) issue a refund or credit memo. For an RMA to be honored for DOA Product, the Product must be returned to Clover in the same condition and packaging in which it was received by you. Clover affixes its own specific tamper proof reference label to each Product sold for warranty administration. Should you remove or tamper with Clover’s label, the RMA will not be honored. All costs of shipping, insurance, and risk of loss arising in connection with performance of this warranty shall be borne by you. To the extent allowed by local law, the remedies provided in this Limited Warranty Statement are your sole and exclusive remedies. TO THE EXTENT ALLOWED BY LOCAL LAW, EXCEPT FOR THE OBLIGATIONS SPECIFICALLY SET FORTH IN THIS WARRANTY STATEMENT, IN NO EVENT SHALL CLOVER BE LIABLE FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER LEGAL THEORY AND WHETHER ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. The limitations set forth herein shall not be affected by the failure of the repair and replacement remedy provided hereinabove. In no event shall you, your successors, assigns, customers or users of the Products commence any action against Clover arising out of the sale, delivery or use of the Products and regardless of the form of the action (whether in contract or tort) later than one (1) year after the cause of action has accrued. Any assertion by you of any rights under this warranty provision must be in writing and specify with particularity the alleged defects in the Products.
THE ABOVE WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES EXPRESSED, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY AND SETS FORTH YOUR EXCLUSIVE REMEDY IN CONNECTION WITH SUCH WARRANTIES. IN NO EVENT SHALL CLOVER BE LIABLE FOR COLLATERAL, CONSEQUENTIAL, INDIRECT, INCIDENTAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION, ANY LOST PROFITS, LOSS OF DATA OR LOSS OF USE, ARISING OUT OF, OR CONNECTED IN ANY WAY WITH, THIS AGREEMENT OR ANY PRODUCTS OR SERVICES SOLD PURSUANT HERETO. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTIAL OR CONSEQUENTIAL DAMAGES OR IMPLIED WARRANTIES, SO THE ABOVE LIMITATIONS MAY NOT APPLY.
You shall inspect all Products immediately upon their delivery to the shipping destination and shall provide written notice to Clover at its principal place of business within twenty-four (24) hours of any claim that the Products do not conform to the items listed on the packing slip. Any such notice shall specify with particularity each alleged defect or nonconformity. If you fail to give such timely notice, the Products shall be conclusively deemed to conform to the terms and specifications of this Agreement and shall constitute an irrevocable acceptance of the Product except as indicated in Section 7 (Warranty) above. Any use by you of the Products other than solely for test purposes, or any alternation of the Products by you without Clover’s prior written consent, shall be conclusive and binding evidence that the Products conform to the terms and specifications of this Agreement. If you accept or are deemed to have accepted the Products as hereinabove provided, you shall not be entitled to later revoke such acceptance. In the event you timely reject the Products in accordance with the terms of this Agreement, you shall hold the Products without charge to Clover for a reasonable time until Clover provides you instructions with respect to the rejected Products. If you sell or dispose of the Products, such sale or disposition shall constitute an unequivocal acceptance of the Products notwithstanding any prior rejection of the Products.
10. EXCUSABLE DELAYS.
Clover shall not be in default for failure to deliver or delay in delivery arising out of causes beyond its control and without its negligence, including, but not limited to: Acts of God or the public enemy; Acts of the Government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, shortages of materials or suppliers, labor disputes, freight embargoes, delays in transit, and unusually severe weather. If the delay or failure to deliver is caused by a delay or failure of a subcontractor supplier of Clover, and if such delay or failure arises out of causes beyond the control of Clover, Clover shall not be liable in damages nor shall Clover be in default hereunder, unless the material or services to be furnished by the subcontractor or supplier were obtainable from other sources in sufficient time to permit Clover to meet the required delivery schedule using reasonable effort. Any of the above excusable delays shall not terminate this Agreement, and Clover shall deliver the Products as promptly as practical thereafter. The time of the delivery set forth in the Agreement shall be extended, in the event of any change order or request for modification required by you, for such period as is reasonably necessary for Clover to comply with any such change order or request for modification. In the event of a failure to deliver the Products in a timely manner, you shall not have any right to procure Products from any other source except at your sole expense, provided, however, that after payment to Clover of the contract price for any completed Products and work in process, according to the terms of this Agreement, you may procure such Products or portions thereof with Clover’s written approval, and at your expense, the price of which shall not exceed the amount still owing under this Agreement after required payments for such completed Products and work in process that have been subtracted there from. Your acceptance of late delivery Products shall constitute complete and satisfactory performance by Clover.
If you fail to comply with any of the provisions of this Agreement, become the subject of a proceeding under state or federal law for relief of debtors, or make an assignment for the benefit of creditors, Clover shall have the right to hold you in default and, in addition to any other rights it may have, may cancel this Agreement in whole or in part.
The rights and remedies provided Clover herein shall be cumulative, and in addition to any other rights and remedies provided by law or equity. Clover’s failure to insist upon strict performance of any provision of this Agreement shall not be deemed to be a waiver of Clover’s rights or remedies, nor a waiver by Clover of any subsequent default by you in performance of compliance with any of the terms of this Agreement.
13. LIMITATION OF LIABILITY.
Clover shall not be liable for any exemplary, indirect or consequential damages (including loss of goodwill, revenues or profits) suffered by your, any customer of yours or any user of the Products resulting from the non-delivery, use or inability to use the Products, integration of the Products with equipment not provided by Clover and/or from any other cause whatsoever, even if Clover has been advised of the possibility of such damage. Clover’s maximum total liability under this Agreement for actual, exemplary, incidental, proximate and/or consequential damages or expenses arising from any breach or breaches of warranty or failure to deliver the Products in conformance with this Agreement (regardless of the form of action, whether in contract or in tort) shall not exceed the least of: (i) the amount you have paid to Clover for the Products that relate to the claim, or (ii) the amount of your actual damages, or (iii) in the case of property damage or personal injury, the amount of such damages covered by Clover’s liability insurance. The period of the foregoing liability shall not extend beyond the warranty period under this Agreement. Your remedies and measure of damages as set forth in this Agreement shall be exclusive.
14. CHOICE OF LAWS AND DISPUTES.
The laws of the State of Texas shall govern the formation, performance, and construction of this Agreement. Any legal action or proceeding with respect to this Agreement or arising out of this Agreement shall be brought and maintained exclusively in the appropriate court of the State of Texas in and for the County of Dallas, and Clover and you hereby each accept for itself and in respect of its property, generally and unconditionally, the personal and subject matter jurisdiction of said court. Clover and you each hereby irrevocably waive any objection that it may now or hereafter have to the laying of venue in any action or proceeding arising out of or in connection with this purchase order in such court that any action or such proceeding brought in such court has been brought in an inconvenient forum. In the event any action is instituted to enforce or interpret this Agreement or arising out of this Agreement or any purchase order relating to this Agreement, the prevailing party shall be entitled to all costs and legal expenses including, without limitation, reasonable attorneys’ fees, expert witness fees, accountants’ fees and court costs.
15. CONFORMANCE WITH LAW.
You assume all responsibility for conformance of the Products with laws, rules, regulations and ordinances of any governmental or quasi-governmental agency applicable to the use or operation of the Products.
This Agreement constitutes the complete and final expression of the agreement of the Parties and is intended as a complete and exclusive statement of the terms of their agreement and supersedes all prior and contemporaneous offers, promises, representations, negotiations, discussions, communications, and agreements which may have been made in connection with the subject matter hereof. This Agreement may be amended only by the written agreement of both parties. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, the remainder of the Agreement shall remain in full force and effect and shall in no way be impaired. The failure of a Party to insist upon strict compliance with any term of this Agreement or the failure to assert any right the party may have hereunder shall not be deemed a waiver of such provision or right or any other provision or right of this Agreement. You may not assign this Agreement, or any portion thereof without the express prior written consent of Clover. Subject always to the foregoing, this Agreement insures to the benefit of, and is binding upon, the heirs, legatees, personal representatives, successors and assigns of the parties hereto. In no event shall assignment relieve you of liability for performance of the obligations imposed by this Agreement. No agent, employee, or representative of Clover has any authority to bind Clover to any affirmation, promise, representation or warranty concerning the Products, and any such affirmation, promise, representation or warranty shall be of no force or effect unless set forth in this Agreement.