The following constitutes a legally binding Contract between visitors and users of the Hummingbirdnetworks.com website, any entity or individual purchasers of products or services (collectively referred to as ‘BUYER”) from Duncan Distribution Co., LLC dba Hummingbird Networks (“HUMMINGBIRD”) and HUMMINGBIRD.
1. Ordering Instruction. All orders are subject to availability and are not confirmed until and unless the product is shipped.
2. Pricing. Prior to the placement of an order HUMMINGBIRD reserves the right to adjust prices without advance notice.
3. Terms of Payment. Payment of the total invoice amount is due 15 days from the invoice date. Past due amounts will be charged interest from the payment due date to the date of payment at the rate of 1½ per-cent per month. The entire balance of the account is immediately due and payable in full in the event that payments on the account are not made in accordance with this Contract.
4. Shipping, Handling and Taxes. Applicable taxes and shipping and handling charges will be billed in addition to the price of the product or service.
5. Product Returns. All sales are final.
a. At HUMMINGBIRD’s sole discretion it may accept returns for products (that still have original OEM Seal not broken) within 15 days of purchase subject to a restocking fee of 20 percent or $50, whichever is greater.
b. If applicable HUMMINGBIRD will issue BUYER a Return Authorization Number (“RMA”). After receiving the RMA, BUYER will ship the return product to HUMMINGBIRD, and HUMMINGBIRD will either refund the BUYER’s purchase price less the restocking charge or ship a replacement product to BUYER at HUMMINGBIRD’s cost. Requests for returns must be submitted in writing to HUMMINGBIRD within 3 days of product delivery with an explanation supporting the request and a copy of the BUYER’s invoice.
6. Delivery and Title. BUYER is responsible for all shipping costs and any applicable surcharges. Title and risk of loss pass to BUYER upon HUMMINGBIRD’s delivery of products to the freight carrier at HUMMINGBIRD’s location or shipping dock. HUMMINGBIRD’s delivery dates are estimates only and HUMMINGBIRD is not liable for delays in delivery or any consequential damages.
7. Delivery Claims, Damages, and Shortages. HUMMINGBIRD will file claims for shortage or damage on shipments that have been shipped by HUMMINGBIRD with its designated carrier as long as BUYER provides a properly signed Bill of Lading, delivery receipt and any other documents necessary to support the claim. Any claim must be made by BUYER in writing to HUMMINGBIRD within 3 days of receip and include a copy of the BUYER’s invoice. The original packaging and box packing contents must be kept until the claim process is complete. Claims resulting from discrepancies between invoiced quantities and actual product quantities received by BUYER must be made in writing within 15 days of the date of the invoice and include a copy of the BUYER’s invoice or they are waived.
8. Disputes. All notices of any claims or disputes must be made by BUYER in writing and sent to HUMMINGBIRD by certified mail return receipt to the address listed on the invoice with all supporting documentation and a copy of the invoice regarding the claim or dispute.
9. Installation and Operation. Unless otherwise agreed in writing by HUMMINGBIRD, BUYER assumes all responsibility for the proper selection, installation, operation and maintenance of any product purchased from HUMMINGBIRD.
10. Manufacturers’ Warranty. All products are sold “as is” subject to manufactures’ warranties only and are not warranted by HUMMINGBIRD.
11. Limited Warranty on Refurbished Equipment. Except in cases of abuse or damage by BUYER, if used or refurbished products do not function according to their specifications, HUMMINGBIRD may replace the product in its sole discretion with a comparable product of similar specifications and cost. This limited warranty is valid only between BUYER and HUMMINGBIRD. HUMMINGBIRD makes no other express or implied warranties.
12. Limitation of Liability. HUMMINGBIRD is not liable for any indirect, special, incidental or consequential damages regarding the sale of products or services. Damages for any reason are limited to the purchase price of the product or service. BUYER will indemnify, defend, and hold HUMMINGBIRD harmless from any claims based on: (i) HUMMINGBIRD’s compliance with BUYER’s designs, specifications, or instructions, (ii) modification of any product by anyone other than HUMMINGBIRD, or (iii) use in combination with other products.
13. Change of Address. BUYER shall notify HUMMINGBIRD in writing of any changes of name or address, or of any corporate reorganization or change in ownership which results in a change of name or principal place of business of BUYER within 15 days of the change.
14. Product Information. HUMMINGBIRD makes no representation as to the accuracy or completeness of Product information obtained from third parties.
15. Default. Upon a breach by BUYER of this Contract, HUMMINGBIRD is relieved of any and all of its duties and responsibilities to BUYER and the full purchase price for all products, whether or not delivered, shall become immediately due.
16. Miscellaneous Provisions:
a. This Contract and all HUMMINGBIRD transactions are governed by California law and venue for any disputes is exclusively in Ventura County, California.
b. BUYER may not assign this Contract without the prior written consent of HUMMINGBIRD.
c. This Contract can only be modified in writing by an authorized representative of HUMMINGBIRD.
d. Statements or advice (technical or otherwise) are an accommodation to BUYER. HUMMINGBIRD has no responsibility or liability for the content or use of such statements or advice.
e. HUMMINGBIRD’s failure to object to any document, communication, or act of BUYER will not be deemed a waiver of any of the Terms and Conditions of this Contract.
f. This Contract constitutes the entire agreement between the parties, and supersedes prior negotiations, representations, or contracts, either written or oral.
g. The unenforceability of any of these Terms and Conditions will not affect the remainder of the Terms and Conditions.
h. If either party becomes involved in litigation or arbitration arising out of this Contract, or the performance thereof, the court or arbitrator shall award reasonable costs and expenses, including attorney’s fees, to the prevailing party.