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Freevoice Telecom LLC. Terms and Conditions
Unless otherwise specified by prior written agreement of the parties,
any orders entered into by Freevoice Telecom LLC., LLC. (“Freevoice
Telecom LLC.”), shall be (a) a purchase of the equipment, components or
services, and (b) for any software not otherwise licensed under the GNU
General Public License (GPL), as described in Section 7, a
non-exclusive right to use the software provided or incorporated solely
in connection with the product or service with which it was delivered.
All purchases (or licenses) are subject to the following terms and
conditions:
1. Orders: Orders are not binding until accepted by Freevoice Telecom
LLC., in its sole discretion. Except in the case of a breach, as
provided in Section 8, once an order is accepted by Freevoice Telecom
LLC., it may be changed or cancelled only with the written consent of
the parties.
2. Payments: All prices are F.O.B. Freevoice Telecom LLC.’s facility,
Orange County, California, payable 100% of the aggregate price before
shipment unless otherwise agreed in writing by an authorized Freevoice
Telecom LLC. representative. Prices are exclusive of any freight,
taxes (sales, use, personal property tax, etc.), duties or imposts, all
of which are the responsibility of Buyer. Buyer agrees to pay all
amounts due upon receipt of invoice as provided above; plus a service
charge of 1-1/2% per month (or portion thereof), or such lesser maximum
allowable by law, on all balances not paid within 10 days of the due
date. Customer waives the right to process charge backs on their
credit card for Freevoice Telecom LLC. purchases. Notwithstanding any
partial payment by Buyer, title to goods shipped shall remain with
Freevoice Telecom LLC. until the entire price has been paid; and, if
Buyer defaults in the payment of any charges hereunder when due,
Freevoice Telecom LLC. may remove and repossess any and all such goods
delivered, in addition to any other legal remedies it may have.
3. Delivery: All shipments shall be F.O.B. Freevoice Telecom LLC.,
Orange County, California, and Buyer shall bear the cost of delivery
and handling. Risk of loss shall transfer to Buyer upon delivery of
goods to the carrier. Freevoice Telecom LLC. will make every
reasonable effort to complete shipment on or before the dates set forth
in its written quotation or the face of this order, as applicable;
however, Freevoice Telecom LLC. shall not be liable for delay in
performance or inability to perform occasioned by acts beyond its
reasonable control, including acts of God, fire, flood, strike, war,
embargo, government regulation or materials shortage. If performance
is delayed by such an event, Freevoice Telecom LLC. shall notify Buyer,
and time of performance shall be extended for the period of such
contingency.
4. Acceptance Period; No Warranty; Return Policy:
1. Pre-Test: Before any Freevoice Telecom LLC. products are
boxed and shipped to customer sites, all products are provisioned,
tested, and verified as “working” by Freevoice Telecom LLC..
2. Acceptance Period: During the 21-day period following
transfer of title, or such other period specifically agreed in writing
in advance by the parties (the “Acceptance Period”), Buyer shall
inspect all products, including the performance of such products in
their network environment, after which time all equipment, components
and/or software, as applicable, are deemed accepted. All shipments
shall be deemed accepted by Buyer, and Buyer waives the right of
rejection, unless Freevoice Telecom LLC. receives a written notice of
rejection during the Acceptance Period,
3. Installation Support: During the Acceptance Period,
Freevoice Telecom LLC. will provide remote installation and
configuration support to Buyer. This support is limited to telephone
and email support necessary to remotely get the system performing to
specification at the customer’s location, including the identification,
but not resolution, of changes required in the customer’s network or
communications services.
4. Buyer Participation: Freevoice Telecom LLC. will require
participation from the Buyer to resolve any installation, configuration
or performance issues during the Acceptance Period. To enable Freevoice
Telecom LLC. to correct persistent ‘bugs’ effectively, the customer
must sufficiently communicate or be able to replicate the “bug” for
Freevoice Telecom LLC.. No remedy or right of return will be granted
to Buyer without such participation.
5. Return Policy: If, during the Acceptance Period, Buyer has
identified and communicated to Freevoice Telecom LLC. an irresolvable
performance issue with the products purchased from Freevoice Telecom
LLC., and has worked in good faith with Freevoice Telecom LLC. to
resolve such issues, Buyer may notify Freevoice Telecom LLC. in writing
of an intent to return the products. Notification must be received by
Freevoice Telecom LLC. during the Acceptance Period, and must be
approved by an appropriate Freevoice Telecom LLC. representative in
writing.
6. Return Procedure: If all of the conditions in Section 4e
(“Return Policy”) have been met, Buyer will be issued an Return
Material Authorization Number (RMA Number). No return of goods will
be accepted by Freevoice Telecom LLC. without an RMA Number obtained
from Freevoice Telecom LLC.. All returned goods must be shipped
prepaid, clearly marked with an RMA number, and be accompanied by a
complete description of the nature of the defect. To receive a refund,
all items must be in “like new” condition and customer must ship back
all materials including: boxes, wires, manuals, shipping materials,
etc. Items that are not returned in “like new” condition will not be
refunded, and will be returned to the customer at the customer’s
expense. All returns will be subject to a 15%
“reconfiguration/restocking” fee.
7. No Warranty: Unless provided through a seperately purchased
maintenance support or warranty agreement. No warranty is provided by
Freevoice Telecom LLC. after the acceptance period. All other
obligations of Freevoice Telecom LLC. to maintain, service or provide
warranty repair to the equipment, components or software shall
terminate at the end of the acceptance period.
5. Manufacturer’s Warranties
1. Pass-Through Warranties: Freevoice Telecom LLC. shall
extend to Buyer, on a ‘pass through’ basis, any warranty provided by
the manufacturer of the purchased equipment and components to the
extent permissible. Freevoice Telecom LLC. may assist Buyer with such
pass-through warranty service at Freevoice Telecom LLC.’s discretion.
Freevoice Telecom LLC. may require a security deposit, pre-payment or
prior return of any products or components covered under such a
pass-through warranty. Freevoice Telecom LLC. reserves the right to
reject any returned products or components which it determines not to
be covered under a pass-through warranty, beyond the warranty period,
not purchased from Freevoice Telecom LLC. or with damage resulting from
mis-use or other actions not covered under the manufacturer’s
warranty. Such products or components will be returned to the Buyer at
the Buyer’s expense.
2. Separately Purchased Limited Warranty: Certain equipment
provided by Freevoice Telecom LLC. is not covered by a manufacturer’s
warranty. For this equipment, a separately purchased Warranty may be
available. For equipment covered under a separately purchased
“Next-Business-Day Replacement” warranty, as specified in the original
invoice (“Covered Equipment”), the following terms and conditions apply:
1. Freevoice Telecom LLC. warrants to the original
purchaser or, for products purchased from a Reseller, to the original
end-user that the Covered Equipment will be free from defects in
materials and workmanship from the date of shipment for 1 year from the
date of shipment or invoice or, if longer, the period stated on your
invoice.
2. During the warranty period, Freevoice Telecom LLC.
will, at its option: (1) provide replacement parts and instructions
necessary to repair the product or (2) replace the product with a
comparable product. To receive any benefits under this warranty, Buyer
must assist Freevoice Telecom LLC. in diagnosing issues with the
Covered Equipment and follow Freevoice Telecom LLC.’s warranty
processes.
3. If Freevoice Telecom LLC. determines that a
replacement part or product is needed, Freevoice Telecom LLC. will ship
the part and installation instructions to the Buyer within one business
day of such determination. If Buyer is located in the United States or
Canada, Freevoice Telecom LLC. will pay the costs of shipping these
parts or products to you via overnight air.
4. Customers outside the United States and Canada are
responsible for paying all freight charges incurred in shipping,
importing/exporting and receiving replacement products and parts and
for arranging and paying for the shipment of any defective part(s) back
to the Freevoice Telecom LLC.. All international customers are
responsible for all customs duties, VAT and other associated taxes and
charges.
5. Purchasing additional products from Freevoice Telecom LLC. does not extend your warranty period.
6. If Freevoice Telecom LLC. asks Buyer to return
defective parts or products, Buyer must do so within 7 days after
receipt of the replacement parts or products. Freevoice Telecom LLC.
will charge Buyer for replacement parts or products if Buyer fails to
do so.
7. THIS LIMITED WARRANTY COVERS NORMAL USE. FREEVOICE
TELECOM LLC. DOES NOT WARRANT AND IS NOT RESPONSIBLE FOR DAMAGES CAUSED
BY MISUSE, ABUSE, ACCIDENTS, VIRUSES, UNAUTHORIZED SERVICE OR PARTS, OR
THE COMBINATION OF COVERED PRODUCTS WITH OTHER PRODUCTS. ANY WARRANTY
APPLICABLE TO THIRD-PARTY PRODUCTS IS PROVIDED BY THE ORIGINAL
MANUFACTURER.
Limitation of Obligations: THE FOREGOING WARRANTY IS IN LIEU
OF, AND BUYER WAIVES, ALL OTHER EXPRESS OR IMPLIED WARRANTIES,
INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PURPOSE, AND
SETS FORTH THE EXCLUSIVE AND ENTIRE LIABILITY OF FREEVOICE TELECOM LLC.
WITH RESPECT TO ANY DEFECTIVE PRODUCT OR COMPONENT, WHETHER BASED ON
CONTRACT, TORT, NEGLIGENCE OR OTHERWISE. IN NO EVENT SHALL FREEVOICE
TELECOM LLC. BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT OR
CONSEQUENTIAL DAMAGES. The maximum liability of Freevoice Telecom LLC.
for any and all claims of any kind, including negligence, for loss or
damages arising out of this Agreement, shall in no case exceed the
price allocable to the item of equipment, component or software which
gives rise to the claim.
6. Support: Following successful installation, Freevoice Telecom LLC.
support is only available to customers who purchase such support under
separate annual software maintenance and support agreements.
7. Open Source Software: Some software distributed by Freevoice
Telecom LLC. is licensed under the GNU General Public License (GPL)
(“Open Source Software”). The terms of this license can be found at
http://www.gnu.org/licenses/gpl.html.
8. Intellectual Property:
1. For the purpose of this Section (8), the
term “Freevoice Telecom LLC. Intellectual Property” shall mean all
intellectual property (including software or programming) delivered
hereunder, except for any Open Source software as described in section
(7). Any software distributed by Freevoice Telecom LLC. which is
licensed under the GNU General Public License (GPL) is specifically
excluded from this definition.
2. All Freevoice Telecom LLC. Intellectual
Property is solely for use by Buyer or its customers as shipped, and
may not be used as a replication master or otherwise copied without the
expressed consent of Freevoice Telecom LLC.. Use of software delivered
as a separate item shall be subject to a separate license agreement
that Buyer shall be required to accept prior to delivery. Buyer
acknowledges that all Freevoice Telecom LLC. Intellectual Property
furnished by Freevoice Telecom LLC. hereunder and the contents thereof
are the proprietary property of Freevoice Telecom LLC., and Buyer has
no right or interest therein except the nonexclusive right to use it in
the product in which it was delivered or as otherwise provided in a
written license agreement. Buyer agrees not to directly or indirectly
reproduce, decompile or provide or otherwise make available to any
third party any Freevoice Telecom LLC. Intellectual Property. Buyer
shall be liable for all damages, including loss of anticipatory
profits, incurred by Freevoice Telecom LLC. as a result of such
unauthorized use, copy or replication. The rights granted hereunder or
use of Freevoice Telecom LLC. products does not convey any rights or
ownership in Freevoice Telecom LLC. patents, copyrights, trademarks,
intellectual property or know-how.
9. Remedies for Breach:
1. By Freevoice Telecom LLC.: If Freevoice Telecom
LLC. shall be in material breach of this Agreement, Buyer may cancel
the undelivered portion of purchase orders upon 30 days written notice
unless Freevoice Telecom LLC. cures such breach with such notice
period. Any money paid in advance by Buyer to Freevoice Telecom LLC.
for goods not shipped will be promptly reimbursed. The foregoing shall
be the exclusive remedy of Buyer for any Freevoice Telecom LLC. breach
of this Agreement.
2. By Buyer: If Buyer shall be in material breach
of this Agreement and fails to cure said breach within 30 days of
written notice thereof from Freevoice Telecom LLC., Freevoice Telecom
LLC. shall thereupon have the right without further notice to (1) bill
and declare due and payable the aggregate purchase price for all
undelivered products under this Agreement, (2) defer shipment hereunder
until such default, breach or repudiation is removed, and/or (3) cancel
the undelivered portion of this Agreement in whole or in part, with
Buyer remaining liable for damages. Further, if Buyer fails to pay any
amount hereunder as it becomes due or wrongfully rejects goods
hereunder, in addition to any other remedies it may have in law or
equity or hereunder, Freevoice Telecom LLC. shall have the right to
recover, in addition to the purchase price of such goods, all costs
incurred by Freevoice Telecom LLC. to collect the same.
3. Delayed Enforcement: No delay or omission to
excercise any right, power, or remedy upon a breach or default under
this agreement shall impair any such right, power, or remedy of the
non-defaulting party or be construed as a waiver of any such breach or
default.
10. Notices: Any notice required or permitted to be sent under this
Agreement shall be delivered by first class mail, return receipt
requested, or via an international courier service (e.g. FedEx, DHL,
UPS, etc.) to the addresses of the parties set forth in this order.
Notice so sent will be deemed effective three days following deposit in
the mail, proper postage prepaid or one day following delivery to an
international courier, prepaid for overnight delivery.
11. Entire Agreement: This Agreement contains the entire agreement
between Buyer and Freevoice Telecom LLC. and supersedes any prior or
contemporaneous oral or written agreements or communications between
them relating to the subject matter hereof. No printed terms in any
document of Buyer shall apply to the goods or services delivered under
this Agreement nor shall they be binding on Freevoice Telecom LLC.. In
the event that any provisions in this Agreement, for any reason, shall
be held void or unenforceable, the remaining provisions shall remain in
full force and effect and shall control.
12. Governing Law: This Agreement and all orders hereunder shall be
governed by and construed under the laws of the State of California,
USA and shall be subject to the exclusive jurisdiction of the courts in
Orange County County, California, USA. In any action brought to
enforce this agreement, the prevailing party shall be entitled to also
recover the cost of enforcement, including attorney fees related.
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