Policies, Terms & Conditions
American Communications, LLC' Website Terms & Conditions of Use
In using this website you are deemed to have read and agreed to the following terms and conditions:
The following terminology applies to these Terms and Conditions, Privacy Statement and Disclaimer Notice and any or all Agreements: "Client", “You” and “Your” refers to you, the person accessing this website and accepting the American Communications’ terms and conditions. "The Company", “Ourselves”, “We” and "Us", refers to American Communications. “Party”, “Parties”, or “Us”, refers to both the Client and ourselves, or either the Client or ourselves. All terms refer to the offer, acceptance and consideration of payment necessary to undertake the process of our assistance to the Client in the most appropriate manner, whether by formal meetings of a fixed duration, or any other means, for the express purpose of meeting the Client’s needs in respect of provision of the Company’s stated services/products, in accordance with and subject to, prevailing laws. Any use of the above terminology or other words in the singular, plural, capitalization and/or he/she or they, are taken as interchangeable and therefore as referring to same.
Privacy Statement -
We are committed to protecting your privacy. Authorized employees within the company on a need to know basis only use any information collected from individual customers. We constantly review our systems and data to ensure the best possible service to our customers.
Confidentiality -
Client records are regarded as confidential and therefore will not be divulged to any third party, other than our suppliers, unless legally required to do so to the appropriate authorities.
We will not sell, share, or rent your personal information to any third party or use your e-mail address for unsolicited mail. Any emails sent by this Company will only be in connection with the provision of agreed services and products.
Disclaimers -
Exclusions and Limitations -
The information on this web site is provided on an "as is" basis. To the fullest extent permitted by law, this Company:
•excludes all representations and warranties relating to this website and its contents or which is or may be provided by any affiliates or any other third party, including in relation to any inaccuracies or omissions in this website and/or the Company’s literature; and
•excludes all liability for damages arising out of or in connection with your use of this website. This includes, without limitation, direct loss, loss of business or profits (whether or not the loss of such profits was foreseeable, arose in the normal course of things or you have advised this Company of the possibility of such potential loss), damage caused to your computer, computer software, systems and programs and the data thereon or any other direct or indirect, consequential and incidental damages.
The above exclusions and limitations apply only to the extent permitted by law. None of your statutory rights as a consumer are affected.
Links To This Website -
You may not create a link to any page of this website without our prior written consent. If you do create a link to a page of this website you do so at your own risk and the exclusions and limitations set out above will apply to your use of this website by linking to it.
Links From This Website -
We do not monitor or review the content of other party’s websites which are linked to from this website. Opinions expressed or material appearing on such websites are not necessarily shared or endorsed by us and should not be regarded as the publisher of such opinions or material. Please be aware that we are not responsible for the privacy practices, or content, of these sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these sites. You should evaluate the security and trustworthiness of any other site connected to this site or accessed through this site yourself, before disclosing any personal information to them. This Company will not accept any responsibility for any loss or damage in whatever manner, howsoever caused, resulting from your disclosure to third parties of personal information.
Copyright Notice -
Copyright and other relevant intellectual property rights exists on all text relating to the Company’s services and the full content of this website.
Communication -
We have several different e-mail addresses for different queries. These, & other contact information, can be found on our Contact link on our website or via Company literature or via the Company’s stated telephone, facsimile or mobile telephone numbers.
Force Majeure -
Neither party shall be liable to the other for any failure to perform any obligation under any Agreement which is due to an event beyond the control of such party including but not limited to any Act of God, terrorism, war, Political insurgence, insurrection, riot, civil unrest, act of civil or military authority, uprising, earthquake, flood or any other natural or man made eventuality outside of our control, which causes the termination of an agreement or contract entered into, nor which could have been reasonably foreseen. Any Party affected by such event shall forthwith inform the other Party of the same and shall use all reasonable endeavors to comply with the terms and conditions of any Agreement contained herein.
Waiver -
Failure of either Party to insist upon strict performance of any provision of this or any Agreement or the failure of either Party to exercise any right or remedy to which it, he or they are entitled hereunder shall not constitute a waiver thereof and shall not cause a diminution of the obligations under this or any Agreement. No waiver of any of the provisions of this or any Agreement shall be effective unless it is expressly stated to be such and signed by both Parties.
These terms and conditions form part of the Agreement between the Client and ourselves. Your accessing of this website and/or undertaking of its uses indicates your understanding, agreement to and acceptance, of the Disclaimer Notice and the full Terms and Conditions contained herein.
American Communications, LLC' Standard Terms & Conditions of Sale
1. EXCLUSIVE WARRANTY TERMS – Seller sells new, refurbished, new surplus (unused in original box), and de-installed (used) goods. Any and all warranties provided by Seller are specified on the Sales Quotation attached hereto. To the extent a warranty is provided, said warranty covers new surplus and de-installed equipment that: 1) has been received Damaged On Arrival (“DOA”) or 2) fails to function to the original manufacturers' written specifications. Any warranty provided by Seller does not cover misuse and/or damage due to improper installation and/or operation of the goods, or new and refurbished goods that are not already warranted by the manufacturer, or the refurbisher. In addition to the limitations set forth below, the warranty above shall not apply to Products that have been either resold or transferred from BUYER to any other party. Any such transfer voids the above warranty. In addition, the warranty will not apply to Products where the AC or “AA” tamper proof warranty label has been removed or in anyway manipulated. The AA label is a sticker with a 6 digit number preceded by “AA”. Extended warranties can be purchased by BUYER and are subject to the same terms and conditions listed in this Limited Warranty. If within the applicable warranty period, Buyer discovers that the goods are not functioning properly, or were received DOA, Buyer must contact its sales representative at Seller and request a Return Materials Authorization (“RMA”). Once an RMA is issued, Seller will do one of the following at Seller’s sole option:1) repair the goods, 2) replace the goods, or 3) issue a refund or credit memo. For an RMA to be honored, the goods must be returned to Seller in the same condition and packaging in which it was received by Buyer. All costs of shipping, insurance, and risk of loss arising in connection with performance of this warranty shall be borne by Buyer. THERE SHALL BE NO EXPRESS OR IMPLIED WARRANTY OF MERCHANTABILITY BEYOND THE EXPRESS TERMS OF THIS AGREEMENT UNLESS EXPRESSLY AGREED TO IN A WRITING SIGNED BY AN OFFICER OF SELLER. SELLER DOES NOT WARRANT ITS GOODS AS TO THEIR FITNESS FOR ANY SPECIAL USE OR FUNCTION OR AS TO THEIR LIFE AFTER SALE TO BUYER AND/OR TO SUBSEQUENT BUYERS OR USERS OF THE GOODS. There are no warranties, express or implied, arising from course of dealing, course of performance, or usage of trade which extend beyond the face of this Agreement. Except as provided above, Seller neither assumes nor authorizes any person to assume for it any other liability in connection with the sale of its goods. Seller has no responsibility whatsoever for reimbursing Buyer, its customers or users of the goods, nor shall Seller be liable in damages for repair or replacement costs incurred by Buyer, its customers or users of the goods in connection with the goods or parts thereof, without Seller first having given its written authorization for such charges and without Seller having an opportunity to perform its warranty obligations as hereinabove set forth. Seller’s warranties as hereinabove set forth shall not be enlarged or affected by, and no obligation or liability shall arise or grow out of Seller’s rendering of technical assistance or service in connection with the goods furnished hereunder. The limitations set forth herein shall not be affected by the failure of the repair and replacement remedy provided hereinabove. In no event shall Buyer, its successors, assigns, customers or users of the goods commence any action against Seller arising out of the sale, delivery or use of the goods 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. Buyer’s assertion of any rights under this warranty provision shall be in writing and shall specify with particularity the alleged defects in the goods.
2. DAMAGES – Seller shall not be liable for any exemplary, indirect or consequential damages (including loss of goodwill, revenues or profits) suffered by Buyer, any customer of Buyer or any user of the goods resulting from the non-delivery, use or inability to use the goods, integration of the goods with equipment not provided by Seller and/or from any other cause whatsoever, even if Seller has been advised of the possibility of such damage. Seller’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 goods in conformance with this Agreement (regardless of the form of action, whether in contract or in tort) shall not exceed the lesser of: (i) the amount Buyer has paid to Seller for the goods, or (ii) the amount of Buyer’s actual damages, or (iii) in the case of property damage or personal injury, the amount of such damages covered by Seller’s liability insurance, and the period of such liability shall not extend beyond the warranty period under this Agreement. Buyer’s remedies and measure of damages as set forth in this Agreement shall be exclusive.
3. PRICE – Seller’s quotations are for budgetary purposes only. Actual sales prices and availability may change from Seller’s quotation. Availability of goods on hand is subject to change prior to sale. All terms of sale are stated in Seller’s quotation and this Agreement and will not be deemed superseded by virtue of Seller’s receipt or execution of Buyer’s purchase order. All prices are in US dollars. Unless otherwise specified, price includes domestic packaging and crating charges, and transportation to the specified FOB point. Buyer will pay any additional transportation charges. Prices do not include any federal, state, or local taxes, assessments, or import duties applicable to the sales, ownership, production, transportation or use of goods sold. Any such tax or duties shall be separately itemized on Seller’s invoice and paid by Buyer, or, in lieu thereof, Buyer shall furnish Seller with a valid tax exemption certification in the event Seller is required to pay such tax or assessments Buyer shall reimburse Seller upon demand, plus interest on such amount at the rate of ten percent (10%) per annum from the date paid by Seller. Seller shall be under no obligation to contest the validity of any such tax or assessments or to prosecute any claims for refunds or returns. Any personal property taxes or similar taxes or assessments against the goods or on account of materials segregated for the Buyer and being held by the Seller at Buyer’s request shall be paid by Buyer.
4. SHIPMENTS AND PACKAGING – Unless otherwise agreed in writing, all shipments shall be FOB Origin Seller’s warehouse(s), and title passed to Buyer upon delivery to carrier at such point, and packaging will be accomplished in accordance with Seller’s standard commercial practice for domestic shipments. Seller may ship goods to the Buyer’s place of business by such means as Seller shall select if adequate shipping instructions are not received from Buyer at least five (5) days before the shipment date. Buyer accepts all risk of loss or damage thereto, upon delivery of goods by Seller to a carrier, shipper, forwarding agent, transporter, or Government mailbox or post office, whether selected by Buyer or Seller. In no event shall Seller be responsible for any goods after delivery to such shipping means.
5. PAYMENTS – Seller requires prepayment prior to shipping. For those Buyers who have established a consistent business payment history and who have an approved and current credit application on file with Seller, Seller may, in its sole discretion, extend credit, including COD company check and terms, up to Net 30 days, to Buyers. “Net 1 Day” terms mean FULL AMOUNT OF INVOICE DUE UPON RECEIPT. Buyers with PAST DUE invoices are automatically placed on prepayment terms. Outstanding balances not received within the agreed payment terms shall 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. Buyer agrees to pay any expenses incurred by the Seller in collecting such unpaid balance and finance charges, or in recovering possession of the goods.
6. CANCELLATION – This Agreement is subject to cancellation only upon Seller’s accepting such cancellation in writing, and the effective date of such cancellation shall be the date of such acceptance. Upon acceptance of cancellation, Seller shall commence efforts to terminate the purchase commitments relating to the order, and Buyer shall be liable for the costs of terminating such commitments, as well for any lost profits. Buyer shall make payment of cancellation charges upon receipt of statement of same. Cancellation charges shall not exceed the purchase price of the cancelled portion of the Agreement. Seller reserves the right NOT to accept cancellation requests (for example when Seller purchased equipment in order to fill the Buyer’s order), and to charge additional cancellation fees.
7. ACCEPTANCE – Buyer shall inspect all goods immediately upon their delivery to the destination stated in the Agreement and shall within twenty-four (24) hours provide written notice to Seller at its principal place of business of any claim that the goods do not conform to the items listed on the packing slip. Any such notice shall specify with particularity each alleged defect or nonconformity. If Buyer shall fail to give such timely notice, the goods shall be conclusively deemed to conform to the terms and specifications of this Agreement and shall constitute an irrevocable acceptance of the goods except as indicated in the Exclusive Warranty section above. Any use by Buyer of the goods other than solely for test purposes, or any alternation of the goods by Buyer without Seller’s prior written consent, shall be conclusive and binding evidence that the goods conform to the terms and specifications of this Agreement. If Buyer accepts or is deemed to have accepted the goods as hereinabove provided, Buyer shall not be entitled to revoke acceptance thereof at a subsequent time. In the event Buyer timely rejects the goods in accordance with the terms of this Agreement, Buyer shall hold the goods without charge to Seller for a reasonable time until Seller shall give instructions to Buyer with respect to the goods. Should Buyer sell or dispose of the goods, such sale or disposition shall constitute an unequivocal acceptance of the goods, notwithstanding any prior rejection of the goods.
8 EXCUSABLE DELAYS – Seller 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 Seller, and if such delay or failure arises out of causes beyond the control of Seller, Seller shall not be liable in damages nor shall Seller 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 Seller to meet the required delivery schedule using reasonable effort. Any of the above excusable delays shall not terminate this Agreement, and Seller shall deliver the goods 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 Buyer, for such period as is reasonably necessary for Seller to comply with any such change order or request for modification. In the event of a failure to deliver the goods in a timely manner, Buyer shall not have any right to procure goods from any other source except at Buyer’s sole expense, provided, however, that after payment to Seller of the contract price for any completed goods and work in process, according to the terms of this Agreement, Buyer may procure such goods or portions thereof with Seller’s written approval, and at Buyer’s expense, the price of which shall not exceed the amount still owing under this Agreement after required payments for such completed goods and work in process that have been subtracted therefrom. Buyer’s acceptance of late delivery goods shall constitute complete and satisfactory performance by Seller.
9. TERMINATION – If Buyer fails to comply with any of the provisions hereof, or becomes the subject of a proceeding under state or federal law for relief of debtors, or makes an assignment for the benefit of creditors, Seller shall have the right to hold Buyer in default and, in addition to any other rights it may have, may cancel this Agreement in whole or in part.
10. EFFECT OF INVALIDITY – The invalidity in whole or in part of any provision hereto shall not affect the validity of any other provision.
11. CREDIT – Seller reserves the right an any time to alter or suspend credit, or to change credit terms provided herein, when in its sole opinion the financial condition of the Buyer so warrants. In such case, in addition to any other remedies herein or by law provided, cash payment or satisfactorily security from Buyer may be required by Seller before shipment, or Seller may, at its option, defer further shipments to Buyer until Buyer reestablishes satisfactory credit, cancel the unshipped portions of the order without any liability for failure to ship, or make shipments to Buyer on a prepayment or COD basis. Payments made by trade acceptances, notes, securities, postdated checks, etc., are unacceptable unless first approved in writing by Seller.
12. DAMAGES – The rights and remedies provided Seller herein shall be cumulative, and in addition to any other rights and remedies provided by law or equity. Seller’s failure to insist upon strict performance of any provision of this Agreement shall not be deemed to be a waiver of Seller’s rights or remedies, nor a waiver by Seller of any subsequent default by the Buyer in performance of compliance with any of the terms of this Agreement.
13. DISPUTES – 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 California in and for the County of Santa Barbara, and Seller and Buyer hereby each accept for itself and in respect of its property, generally and unconditionally, the personal and subject matter jurisdiction of said Court. Seller and Buyer 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 purchase order or arising out of this purchase order, 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.
14. ASSIGNMENT – Buyer may not assign this Agreement, or any portion thereof without the express prior written consent of Seller. 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 Buyer of liability for performance of the obligations imposed by this Agreement.
15. CONFORMANCE WITH LAW – Buyer assumes all responsibility for conformance of the goods with laws, rules, regulations and ordinances of any governmental or quasi-governmental agency applicable to the use or operation of the goods.
16. ENTIRE AGREEMENT – This Agreement shall constitute the entire understanding of the parties with reference to the subject matter hereof, and it is agreed that there are no understandings, promises, representations or agreements, whether oral or written, heretofore entered into between Seller and Buyer which have any force or effect. Only a writing signed by the parties may amend this Agreement. No agent, employee, or representative of Seller has any authority to bind Seller to any affirmation, promise, representation or warranty concerning the goods, and any such affirmation, promise, representation or warranty shall be of no force or effect unless set forth in this Agreement. The laws of the State of California shall govern the formation, performance, and construction of this Agreement.
American Communications, LLC' Standard Terms & Conditions of Purchase Order
1. ACCEPTANCE – Seller’s commencement of work on the goods subject to this purchase order or shipment of such goods, whichever occurs first, shall be deemed an effective mode of acceptance of this purchase order. Any acceptance of this purchase order is limited to acceptance of the express terms contained on the face and reverse side of this purchase order. Any proposal for additional or different terms or any attempt by Seller to vary in any degree any of the terms of this offer in Seller’s acceptance is hereby objected to and rejected, but such proposal shall not operate as a rejection of this purchase order unless such variances are in the terms of the description, quantity, price or delivery schedule of the goods, but shall be deemed a material alteration thereof, and this offer shall be deemed accepted by Seller without said additional or different terms. If this purchase order shall be deemed an acceptance of a prior offer by Seller, such acceptance is limited to the express terms contained on the face and reverse side of this purchase order. Additional or different terms or any attempt by Seller to vary in any degree any of the terms of this purchase order shall be deemed material and are objected to and rejected, but this purchase order shall not operate as a rejection of Seller’s offer unless it contains variances in the terms of the description, quantity, price or delivery schedule of the goods.
2. EXTRAS – Taxes - All sales, use, excise or similar taxes applicable to this transaction shall be paid by Seller, except as specifically provided in this purchase order. All sales, use, excise or similar taxes to be paid by American must be itemized separately in this purchase order and on invoices. Shipment – Seller shall enclose a packing slip with each shipment. The packing slip shall indicate the contents of each container, excluding prices. On shipments without a packing slip, American’s count or weight shall be conclusive. American’s order number, Seller’s name, packing slip number, piece number and other identification as American shall require shall appear on all containers, invoices, correspondence, bills of lading and other shipping papers, and where Seller and shipper are not the same, the names of both shall be shown thereon. Seller shall not make any COD shipments unless requested by American or issue drafts against this purchase order. Unless provided herein, no charge shall be made for boxing, crating, handling, carting, drayage, storage or other packing requirements. All goods shall be packed, marked and prepared for shipment in the manner which is (a) in accordance with good commercial practice, (b) acceptable to common carriers for shipment at the lowest rate for the particular goods and in accordance with the applicable delivery requirements, and (c) adequate to insure safe arrival of the goods at the named destination. Seller shall mark all containers with the necessary lifting, handling and shipping information. No partial or complete delivery shall be made prior to the delivery date shown on this purchase order, unless American has given its prior written consent thereto, nor shall deliveries exceed the quantities specified. Unless provided otherwise in this purchase order, goods ordered shall be delivered on an FOB destination basis to American’s designated plant or plants. If, in order to comply with American’s required delivery date, it becomes necessary for Seller to ship by a more expensive method than specified in this purchase order, any increased transportation costs resulting therefrom shall be paid by Seller, unless the necessity for such rerouting or expedited handling has been caused by American. Extras – Goods in excess of, or different from, those ordered by American and unauthorized advanced shipments may be rejected by American and returned, or held subject to Seller’s disposal at Seller’s risk and expense. When part of an order is rejected, the acceptance or rejection of the remainder of the order is a matter within American’s sole determination.
3. SPECIFICATIONS – All goods ordered to American's specifications must comply with specifications current as of the date of this order, unless otherwise specified by American.
4. WARRANTY – Warranty will last for the duration that has been specified on the face of the PO and will commence on the date Buyer receives the equipment, Seller warrants the goods delivered hereunder to be of merchantable quality, fit for the purpose intended, free from defects in labor, material and manufacture, and in compliance with any specifications incorporated or referenced herein. Without American's written consent, no materials may be substituted in lieu of those specified. All warranties shall run to American, its successors, assigns, and customers and to the users of its products. Seller agrees that this warranty shall survive acceptance of the goods. Said warranties shall be in addition to any warranties of additional scope given to American by Seller and those implied by law.
5. INSPECTION – Unless otherwise specified all goods ordered will be subject to final inspection and approval at the warehouse of American, notwithstanding any payments or any inspection at source. American may reject or require the prompt correction in place or otherwise of any goods which are defective in material or workmanship or otherwise fail to meet the requirements of this purchase order. American may, in addition to any other rights it may have by law, prepare for shipment and ship the goods to Seller, require Seller to remove them, or direct their correction in place, and the expense of any such action, including transportation both ways, if any, shall be borne by Seller. If Seller fails promptly to remove such goods or to proceed promptly to replace or correct them, American may replace or correct such goods at the expense of Seller, including any excess costs. Seller shall not again tender rejected or corrected goods unless Seller discloses the former tender and rejection or requirement of correction. All work under this purchase order is subject to source and surveillance inspection by American, agencies of the U.S. Government and American's customer. Seller, without additional cost, shall provide all reasonable facilities and assistance for the safety and convenience of such inspectors. At the time of inspections Seller shall make available to the inspectors copies of all drawings, specifications and process, preservation and packaging data applicable to the goods ordered herein.
6. ADVERTISING – Seller shall not, without the prior written consent of American, in any manner advertise or publish the fact that American has placed this order.
7. PATENT INDEMNITY AND USE OF PRODUCTS – (a) Seller agrees to indemnify and hold harmless American, its successors, assigns and users of its goods against loss, damage or liability, including costs and expenses (including attorneys’ fees), which may be incurred on account of any suit, claim, judgment, or demand involving infringement or alleged infringement of any patent rights in the manufacture, use or disposition of any article or material hereunder, provided American shall notify Seller of any suit instituted against it and to the full extent of its ability to do so, shall permit Seller to defend the same or make settlement in respect thereof. (b) Seller hereby grants to American the right and license without further consideration to utilize any of Seller's patents, inventions or information, embodied in, which form a part of or involves the use of the goods and/or services which are the subject matter of this order.
8. DEFAULTS & EXCUSABLE DELAYS – (a) Time is of the essence with respect to this purchase order, and American reserves the right to cancel all or any part of the undelivered portion of this purchase order in the event Seller fails to perform any of the provisions of this purchase order, or fails to make progress so as to endanger performance of this purchase order in accordance with its terms, or if deliveries are not made within specified times. American shall also have the right to cancel this purchase order or any part thereof if Seller becomes insolvent or if a bankruptcy petition is filed which is not vacated within thirty (30) days from the date of filing. Except with respect to defaults of its subcontractors (including lower-tier subcontractors), Seller shall not be liable for damages if the delay or failure to perform this purchase order arises out of causes beyond the control and without the fault or negligence of Seller, such as acts of God or the public enemy, fires, floods, strikes, freight embargoes, or acts of the Government in either its sovereign or contractual capacity; but in every case the failure to perform must be beyond the control and without the fault or negligence of Seller. If the failure to perform is caused by the default of a subcontractor, and if such default arises out of causes beyond the control of both Seller and the subcontractor, and without fault or negligence of either of them, Seller shall not be liable for damages suffered by American. Seller must notify American in writing within ten (10) days after the beginning of any such cause that may delay performance under the purchase order.
(b) In the event American terminates this order in whole or in part as provided in this paragraph, American, in addition to any other rights it may have by law, may procure, upon such terms and in such a manner as American may deem appropriate, goods or services similar to those so terminated, and Seller shall be liable to American for any excess costs for such similar goods or services; provided, however, that Seller shall continue the performance of this order to the extent not terminated under the provisions of the preceding subparagraph. (c) If after notice of termination of this order under the provisions of this paragraph, it is determined that Seller’s failure to perform this order is due to causes beyond the control and without the fault or negligence of Seller or its subcontractors, such notice of default shall be deemed to have been issued pursuant to paragraph 9 of this order entitled "Termination for Convenience," and the rights and obligations of the parties hereto shall in such event to be governed by said paragraph.
9. TERMINATION FOR CONVENIENCE – American reserves the right to terminate this purchase order or any part thereof for its sole convenience. In the event of such termination, Seller shall immediately stop all work hereunder, and shall immediately cause any of its suppliers or subcontractors to cease such work. Seller shall be paid a reasonable termination charge consisting of a percentage of the order price reflecting the percentage of the work performed prior to the notice of termination, plus the actual direct costs of Seller resulting from termination. Seller shall not be paid for any work done after receipt of the notice of termination, nor for any costs incurred by Seller’s suppliers or subcontractors which Seller could reasonably have avoided. Nothing in this provision shall limit American’s rights to terminate this purchase order for default of Seller.
10. ASSIGNMENT – This purchase order may not be assigned in whole or in part without the written consent of American. No subcontract shall be made by the Seller with any other party for furnishing any of the completed or substantially completed goods, spare parts, or work required by this purchase order without the prior written approval of American.
11. EFFECT OF INVALIDITY – The invalidity in whole or part of any terms or conditions of this purchase order shall not affect the validity of any other terms or conditions.
12. REMEDIES – The remedies herein reserved shall be cumulative, and additional to any other remedies in law or equity. No waiver of a breach of any provision of this purchase order shall constitute a waiver of any other breach, or of such provision. Any waiver must be in writing and signed by an authorized representative of American.
13. RISK OF LOSS; IDENTIFICATION OF GOODS; INSURANCE – The risk of loss for all goods ordered hereunder shall be borne by Seller until such goods are delivered to and received by American at the place specified on the face of the purchase order. Goods ordered hereunder shall be deemed identified as goods to which this purchase order refers at the time such goods are actually in existence and in the possession of Seller, its successors, assigns or agents. Seller agrees to carry fire insurance and all other insurance necessary to protect American from loss of goods in which American has an interest or title while the same are in the custody or possession of Seller. Copies of policies or certificates of such insurance will be furnished to American on request.
14. INDEMNIFICATION; INSURANCE – Seller shall indemnify and hold American harmless against all expenses (including attorneys’ fees), claims, damages, demands, losses or liabilities arising out of Seller’s breach in the performance of this purchase order. In furtherance of the foregoing indemnity and not in limitation thereof, Seller agrees that: (a) American shall be entitled to all incidental damages resulting from a breach by Seller, including, but not limited to, all expenses reasonably incurred in inspection, receipt, transportation, care and custody of goods rightfully rejected, any commercially reasonable charges, expenses or commissions incurred in effecting cover, and any other reasonable expense incident to a delay or breach by Seller; and (b) American shall also be entitled to consequential damages resulting from a breach by Seller for any loss resulting from general or particular requirements and needs of American of which Seller is aware at the time of executing this purchase order, and which reasonably cannot be prevented by cover or otherwise, and damages sustained by American from any injury to person or property proximately resulting from any breach of warranty by Seller. This indemnification shall be in addition to the warranty obligations of Seller. Seller shall maintain such general liability insurance, including products liability, completed operations, contractors liability and protective liability, automobile liability insurance (including non-owned automobile liability), workers’ compensation and employer liability insurance as will adequately protect American against such damage, liabilities, claims, losses, demands and expenses (including attorneys’ fees). Seller agrees to submit to American certificates of insurance evidencing such insurance coverage when requested by American.
15. LIMITATION ON AMERICAN’S LIABILITY – In no event shall American be liable for anticipated profits or for incidental or consequential damages. American’s liability on any claim of any kind for loss or damage arising out of or in connection with or resulting from this purchase order or for the performance or breach thereof by American shall in no case exceed the price allocable to the goods or unit thereof which gives rise to the claim. American shall not be liable for penalties of any description. Any action resulting from any breach on the part of American hereunder must be commenced within one (1) year after the cause of action has accrued.
16. APPLICABLE LAW; DISPUTES – This purchase order and the rights and obligations of the parties hereunder or arising out of the purchase and sale of the goods pursuant hereto shall be governed and construed in accordance with the laws of the State of California, excluding conflict of law provisions. Any controversy or claim arising out of or relating to this purchase order or a breach thereof shall be settled by arbitration in Santa Barbara, California, in accordance with the Rules of the Judicial Arbitration Mediation Service (“JAMS”). Any award or decision obtained from any such arbitration proceeding shall be final and binding on the parties, and judgment on any award thus obtained may be entered in any court having jurisdiction thereof. The arbitrator(s) shall have the right to award any form of relief; provided, however, that the arbitrator(s) shall not have authority to award punitive damages. The cost of the arbitration shall be borne equally by the parties and each party shall be responsible for payment of its own attorneys’ fees, expert witness fees and other expenses incurred in connection with the arbitration. In the event JAMS is not available to conduct the arbitration, the arbitration shall be conducted by the American Arbitration Association in accordance with its Rules for Commercial Arbitration then in effect. In the event any action is instituted to enforce or interpret this purchase order or arising out of this purchase order, 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.
17. ENTIRE AGREEMENT – This purchase order, and any documents referred to on the face hereof, constitute the entire agreement between American and Seller with respect to the subject matter hereof. This purchase order may be amended only in a writing signed by authorized representatives of the parties. No course of prior dealings between American and Seller and no usage of trade shall be relevant to supplement any term used in this purchase order. Acceptance or acquiescence in a course of performance rendered under this purchase order shall not be relevant to determine the meaning of this purchase order, even though the acquiescing party has knowledge of the nature of the performance and opportunity for objection.
American Communications, LLC' Standard Terms & Conditions of Repair
Warranty Policy: American Communications, LLC, a California limited liability company (“AC”) warrants to BUYER 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 period of twelve (12) months from the date of shipment by AC, unless otherwise agreed to in writing by AC. In addition to the limitations set forth below, this warranty shall only apply to those parts that AC has repaired. If the same unit is returned for repair because of a part other than that which AC has previously repaired AC will charge for the repair of that part. The warranty above shall not apply to Products that have been either resold or transferred from BUYER to any other party. Any such transfer voids the above warranty. In addition, the warranty will not apply to Products where the AC or “AA” tamper proof warranty label has been removed or in anyway manipulated. The AA label is a sticker with a 6 digit number preceded by “AA”. Extended warranties can be purchased by BUYER and are subject to the same terms and conditions listed in this Limited Warranty.
Warranty Procedure: BUYER must promptly notify AC of any defect in the Product as provided below and comply with AC’s return/repair policy and procedures. AC or its agent will have the right to inspect the Product or workmanship on BUYER’s premises or have the Product returned to AC. Freight and rush fees for Product being returned to AC are the responsibility of the BUYER. With respect to reported warranty defects in the Product hardware or workmanship properly provided by BUYER to AC during the warranty period, AC as its sole obligation and option, will use commercially reasonable efforts to either: (a) repair, replace, or service the Product or component therein at its facility or on the BUYER’s premises so that the Product hardware operates substantially in accordance manufacturer specifications, or (b) credit BUYER for the Product or service that was contracted. Refurbished material may be used to repair or replace the Product. BUYER shall bear the risk of loss for Products returned to AC for repair, replacement, or service.. All timelines begin when product is correctly received from BUYER at and AC designated facility.
Repair/Return Procedure: Requests for warranty services and troubleshooting must be made to, and will be provided by, the AC Repair Support 805-968-3800. BUYER will need to provide the Product part number, serial number, and original purchase order number issued to AC, and details of the service effecting failure via telephone during the warranty period and during normal business hours. Normal business hours for AC Customer Support Center are 8:00 a.m. to 5:00 p.m. Central Standard Time, Monday through Friday, excluding weekends and standard AC recognized holidays.
Limitation of Warranty and Limitation of Remedies. Correction of defects by repair, replacement, or service as set forth above will be at AC’s option and constitute AC's sole and exclusive obligation under the warranty. Any such repair or replacement provided to BUYER does not extend the original warranty period. AC assumes no warranty liability with respect to defects in the Product caused by:
i. improper modification, repair, installation, operation, or maintenance of the Product.
ii. the negligent, unlawful or other improper use or storage of the Product, including its use with incompatible equipment or software.
iii. fire, explosion, power failures, acts of God, or any other cause beyond AC’s reasonable control.
iv. handling or transportation after title of the Product passes to BUYER. v. Cosmetic damage to the Product.
THE WARRANTIES IN THIS AGREEMENT REPLACE ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THOSE OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. AC SHALL NOT BE LIABLE FOR ANY ACTUAL, EXEMPLARY, INDIRECT, OR CONSEQUENTIAL DAMAGES SUFFERED BY BUYER AND/OR ANY END USER RESULTING FROM THE NONDELIVERY, USE OR INABILITY TO USE THE PRODUCTS, INTEGRATION OF THE PRODUCTS WITH EQUIPMENT NOT PROVIDED BY AC, LOSS OF GOODWILL OR PROFITS AND/OR FROM ANY OTHER CAUSE WHATSOEVER, EVEN IF AC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE WHICH EXTEND BEYOND THE FACE OF THIS LIMITED WARRANTY. AC NEITHER ASSUMES NOR AUTHORIZES ANY PERSON TO ASSUME FOR IT ANY OTHER LIABILITY IN CONNECTION WITH THE SALE OF ITS PRODUCTS. AC HAS NO RESPONSIBILITY WHATSOEVER FOR REIMBURSING BUYER OR BUYER’S CUSTOMERS, NOR SHALL AC BE LIABLE IN DAMAGES FOR REPAIR OR REPLACEMENT COSTS INCURRED BY BUYER OR ITS CUSTOMERS, IN CONNECTION WITH AC’S PRODUCTS WITHOUT AC FIRST HAVING GIVEN ITS WRITTEN AUTHORIZATION FOR SUCH CHARGES AND WITHOUT AC HAVING AN OPPORTUNITY TO PERFORM ITS WARRANTY OBLIGATIONS AS SET FORTH HEREIN. AC’S WARRANTIES AS HEREINABOVE SET FORTH SHALL NOT BE ENLARGED OR AFFECTED BY, AND NO OBLIGATION OR LIABILITY SHALL ARISE OR GROW OUT OF, AC’S RENDERING OF TECHNICAL ASSISTANCE OR SERVICE IN CONNECTION WITH BUYER’S ORDER.
Representations, Warranties and Indemnification by Customer
NO LIABILITY FOR VOIDING WARRANTY. CUSTOMER ACKNOWLEDGES AND AGREES THAT, IN THE EVENT THE PERFORMANCE OF THE REQUESTED SERVICES (“SERVICES”) VOIDS ANY ORIGINAL EQUIPMENT MANUFACTURER’S WARRANTY (“WARRANTY”) ON THE EQUIPMENT OR COMPONENTS FOR WHICH THE SERVICES ARE TO BE PERFORMED, (I) AC EXPRESSLY DISCLAIMS ANY LIABILITY FOR THE VOIDING OF SUCH WARRANTY, AND (II) CUSTOMER AGREES TO RELEASE, INDEMNIFY AND HOLD AC HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, LIABILITY, OR CAUSES OF ACTION (INCLUDING WITHOUT LIMITATION, REASONABLE ATTORNEY’S FEES) ARISING IN CONNECTION WITH THE VOIDING OF SUCH WARRANTY.
PATENT INFRINGEMENT. CUSTOMER REPRESENTS AND WARRANTS THAT THE PERFORMANCE OF THE SERVICES WILL NOT INFRINGE ON ANY PATENT ON OR RELATED TO THE EQUIPMENT OR COMPONENTS FOR WHICH THE SERVICES ARE TO BE PERFORMED, AND AGREES TO RELEASE, INDEMNIFY AND HOLD AC HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, LIABILITY, OR CAUSES OF ACTION (INCLUDING WITHOUT LIMITATION, REASONABLE ATTORNEY’S FEES) ARISING IN CONNECTION WITH THE ALLEGED INFRINGEMENT OF ANY SUCH PATENT.
NO CONFLICT. CUSTOMER REPRESENTS AND WARRANTS THAT NEITHER THE EXECUTION AND DELIVERY OF THIS AGREEMENT OR THE PERFORMANCE OF THE SERVICES CONTEMPLATED HEREBY WILL CONFLICT WITH, RESULT IN A BREACH OF, CONSTITUTE A DEFAULT UNDER, RESULT IN THE ACCELERATION OF, CREATE IN ANY PARTY THE RIGHT TO ACCELERATE, TERMINATE, MODIFY, OR CANCEL, OR REQUIRE ANY NOTICE UNDER ANY AGREEMENT, CONTRACT, LEASE, LICENSE, INSTRUMENT, OR OTHER ARRANGEMENT TO WHICH CUSTOMER IS A PARTY OR BY WHICH IT IS BOUND OR TO WHICH ANY OF ITS ASSETS IS SUBJECT, AND AGREES TO RELEASE, INDEMNIFY AND HOLD AC HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, LIABILITY, OR CAUSES OF ACTION (INCLUDING WITHOUT LIMITATION, REASONABLE ATTORNEY’S FEES) ARISING IN CONNECTION WITH ANY SUCH CONFLICT.
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