DUNCAN DISTRIBUTION CO, LLC dba HUMMINGBIRD NETWORKS
TERMS AND CONDITIONS OF SALE
GENERAL: Welcome to Duncan Distribution Co. LLC dba Hummingbird Networks (“Hummingbird”). By using Hummingbird’s services or website, or purchasing products or services from Hummingbird, you agree to these conditions. Please read them carefully. No understandings or agreements which modify or add to these conditions, and no modifications you propose shall bind Hummingbird. Your assent to these conditions shall be conclusively presumed (A) when you receive this document, electronically or otherwise, and make no written objection within two (2) days of receipt; or (B) when you place an order for products.
PLACING ORDERS: All billing and registration information provided by you must be accurate, complete and correct. Submitting inaccurate, incomplete or incorrect information constitutes a breach of these conditions. By confirming your purchase at the end of the checkout process, you agree to accept and pay for the products that you have requested. Receiving an order acknowledgement via email does not guarantee the acceptance of an order.
WARRANTY: For Hummingbird Networks branded products (“Hummingbird Products”) only, Hummingbird warrants that such Hummingbird Products, at the time of shipment, will substantially conform to the specifications described in the written documentation supplied to you for such products for a period ending twelve (12) months after Hummingbird’s discontinuation of such Hummingbird Products. Discontinuation of a Hummingbird Product will be posted on the website. ALL OTHER PRODUCTS ARE SUBJECT SOLELY TO THE APPLICABLE MANUFACTURER’S STATED WARRANTY. YOU MUST PROCESS ANY WARRANTY CLAIMS DIRECTLY WITH THE MANUFACTURER. For Hummingbird Products, you must provide notice to Hummingbird of noncompliance with the foregoing limited warranty within the warranty period. Hummingbird shall, as your sole and exclusive remedy for any nonconformity, promptly, at its option, correct by repair or replacement any nonconforming Hummingbird Products. You must (1) obtain a Returned Materials Authorization (“RMA”); (2) adequately package the products; and (3) ship the products, at your expense, to the address provided by Hummingbird. Hummingbird Products are to be used only in accordance with Hummingbird’s installation and operating instructions. Hummingbird is not obligated to provide the warranty, repair or replacement herein if there has been any unauthorized alteration, modification or repair of the products, if the products have been used or combined with accessories or devices not approved by Hummingbird as being compatible, or in the case of accidents, misuse, abuse, neglect, tampering, improper installation, maintenance, unauthorized use, damage due to exposure to the elements, failure to install or use the products in accordance with instructions, or acts of God. This limited warranty is valid only between you and Hummingbird, and is non-transferable.
ALL SALES FINAL: All sales are final. In Hummingbird’s sole discretion, Hummingbird may accept the return of a product within 15 days of purchase; provided, you pay a restocking fee equal to twenty percent (20%) of the product price, or $50, whichever is greater. You must (1) obtain a RMA; (2) adequately package the products with all original parts, accessories, and original box; (3) ship the products, at buyer’s expense, to the address provided by Hummingbird; (4) product must arrive at Hummingbird warehouse in a non-damaged and re-sellable condition no later than 7 days after RMA is issued. RMA may be rejected, credit denied, and product returned at buyer’s expense if all RMA instructions are not followed and/or conditions not met.
DISCLAIMER OF WARRANTIES: EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PRODUCTS ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND YOU ASSUME ALL RISK AND LIABILITY ASSOCIATED WITH THE PERFORMANCE, USE AND RESULTS THEREOF. HUMMINGBIRD EXPRESSLY DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUALITY OR NON-INFRINGEMENT. Hummingbird makes no representations regarding the accuracy or completeness of the information and materials displayed on its website, including, without limitation, prices, product images and descriptions, specifications, dimensions, availability and services. The information may contain inaccuracies. Products and services are the responsibility of the manufacturer and service provider, respectively, and subject to the warranties offered by such manufacturer or service provider only. The website may contain links to other websites so that you can learn more about the products available on the website. These links are provided as a convenience and their presence on the website does not imply endorsement by Hummingbird or of any association with such websites’ operators. All technical advice and recommendations and services of Hummingbird are for your convenience only and are intended for use by persons having skill, at their own risk, and Hummingbird assumes no responsibility, and you hereby waive all claims against Hummingbird, for results obtained or damages incurred from the use of Hummingbird’s advice, recommendations and services.
LIMITATION OF LIABILITY: HUMMINGBIRD SHALL NOT BE LIABLE TO YOU FOR ANY LOSS OR DAMAGE CAUSED BY THE USE OF ANY PRODUCTS, REGARDLESS OF CAUSE. IN NO EVENT SHALL HUMMINGBIRD’S AGGREGATE LIABILITY EXCEED THE AMOUNT PAID BY YOU FOR THE PRODUCTS IN QUESTION. HUMMINGBIRD SHALL NOT BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, GENERAL, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF OR DAMAGE TO YOUR PROPERTY OR DATA, OR LOSS OF PROFITS OR REVENUES, EVEN IF HUMMINGBIRD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Certain of the above limitations may not apply in some states. To the extent that any such limitations are precluded in a given state, such preclusion shall not affect any other limitations not so prohibited or precluded.
SHIPMENT: Products are shipped FOB Hummingbird’s facility.Risk of loss passes to you when the products are delivered to the carrier. You pay all costs of freight. If there is a shipping error or a problem with the product upon arrival, you must do the following: (1) notify Hummingbird within 24 hours of delivery by phone at (866) 551-3278; (2) request an immediate inspection by the carrier; and (3) submit to Hummingbird a detailed report setting forth the condition of the product, with copies of the inspection reports, and detail the basis of any credit requested within 3 days of delivery.
BUYER'S CREDIT: Credit terms, if any are extended to you in Hummingbird’s sole discretion, may be decreased, cancelled or limited by Hummingbird, both as to time and amount, at any time without notice and the price of any part of the material deliverable under this Agreement shall, at Hummingbird's option, be payable in cash before shipment or on offer of delivery. Hummingbird shall not be obliged to make any shipment until you have paid for such shipment in full. You shall make no deduction or offset (including for alleged damages) from payments due hereunder.
TAXES: All taxes, excises or other governmental charges (except taxes based on Hummingbird's net income) imposed on production, sale or transportation of the products will be added to the price and shall be your obligation.
CONTROVERSIES: The parties agree this Agreement was made, accepted and entered in the County of Ventura, California. Any dispute or controversy arising in connection with this Agreement will be governed by the laws of the state of California with venue proper for all purposes only in the County of Ventura, California, or United States District Court for the Central District of California, and you and Hummingbird hereby submit and consent to the exclusive jurisdiction of such courts. In any litigation, arbitration, or other proceeding by which one party either seeks to enforce its rights under this Agreement (whether in contract, tort or both) or seeks a declaration of any rights or obligations under this Agreement, the prevailing party shall be awarded reasonable attorney's fees, together with any costs and expenses, to resolve the dispute and to enforce the final judgment.
SERVICE CHARGE: Hummingbird will add a service charge of one and one-half percent (1.5%) per month to all past due invoices, except when prohibited by law, in which case the service charge will be the maximum permitted. An invoice is considered past due if not paid within fifteen (15) days after Hummingbird's invoice date. You agree that the actual damage to Hummingbird because of delinquent payments is difficult to estimate and that the foregoing service charge is the parties’ best estimate of such damage. You further agree to pay all costs and expenses, including attorney's fees, paid or incurred by Hummingbird in endeavoring to collect any sums you owe, whether or not a court proceeding is commenced.
INDEMNIFICATION: You agree to indemnify, defend and hold Hummingbird, its employees, officers, directors, shareholders and agents, harmless from and against all damages, claims, liabilities, costs and expenses (including reasonable attorney’s fees) arising, directly or indirectly, from your use, purchase, handling or resale of the products, your use of the website, or your breach of any these conditions. This indemnification obligation shall survive termination of the purchase order.
MISCELLANEOUS: You may not assign your rights or obligations under this Agreement without the prior written consent of Hummingbird. This Agreement shall be binding upon and inure to the benefit of the parties’ successors and assigns. These conditions take precedence over those contained in any purchase order. Any additional or different terms contained in your purchase order shall be deemed objected to by Hummingbird. This Agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior oral or written proposals and agreements between the parties relating to the subject matter. No modifications to this Agreement or waivers will be enforceable unless evidenced in writing and signed by both parties.