Terms of Sale

Revised 11-24-21
DUNCAN DISTRIBUTION CO, LLC dba HUMMINGBIRD NETWORKS
GENERAL TERMS AND CONDITIONS OF SALE

GENERAL: Welcome to Duncan Distribution Co. LLC dba Hummingbird Networks. By using Hummingbird Network’s services or website, or purchasing products or services from Hummingbird Networks, 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 Networks. 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.Your credit card statement may indicate that the charge may be from: Hummingbird Networks, Duncan Distribution Co. LLC, or similar/partial spelling of these names. In some cases, Hummingbird Networks may have questions for you regarding your order. In the event you fail to respond to Hummingbird Network’s inquiry within three (3) business days, Hummingbird Networks reserves the right to cancel and refund your order.

WARRANTY: NON-HUMMINGBIRD NETWORKS PRODUCTS ARE SUBJECT SOLELY TO THE APPLICABLE MANUFACTURER’S STATED WARRANTY. YOU MUST PROCESS ANY WARRANTY CLAIMS DIRECTLY WITH THE MANUFACTURER. For Hummingbird Networks branded products (“Hummingbird Networks Products”) only, Hummingbird Networks warrants that such Hummingbird Networks 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 Network’s discontinuation of such Hummingbird Networks Products. Discontinuation of a Hummingbird Networks Product will be posted on the website. Products are to be used only in accordance with applicable installation and operating instructions. Hummingbird Networks 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 Networks 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 Networks and is non-transferable.

RETURNS: The following terms and conditions apply to all sales unless there is a written contractual agreement between you and Hummingbird Networks stating otherwise:

  • Requests for returns are only available to customers located in the United States. All sales are final with respect to products shipped outside of the United States.
  • All returns are subject to the applicable product manufacturer’s policies, and manufacturers often impose return restrictions. Hummingbird Networks reserves the right to decline any return request based on the manufacturer’s policy. You may review each manufacturer’s return policy here: https://www.hummingbirdnetworks.com/manfacturer-information/ or contact us prior to making your purchase.
  • An incompatible product is not defective. Hummingbird Networks tests defective items. Any product returned under a “defective” return request and deemed not defective will be returned to you at your expense.
  • For all returns, please keep the original box, packing material, documentation, and accessories. Hummingbird Networks likely will instruct you to contact the manufacturer directly to troubleshoot or replace the defective product. Manufacturer contact information can be found here: https://www.hummingbirdnetworks.com/manfacturer-information/  In the event Hummingbird Networks requests you return the defective product to us, Hummingbird Networks will test the product, and if it is determined not to be defective or dead-on-arrival, you will be charged the greater of a 20% restocking fee or $50, plus freight and processing costs. Manufacturer specific restocking fees may apply as well.
  • Hummingbird Networks will not accept any returns more than 14 days after shipment, after which time all inquiries, return requests, and troubleshooting, must go through the product manufacturer only.
  • In addition to specific manufacturer return policies, prohibitions, and restrictions, the following products and services are not returnable or eligible for refund or exchange for any reason: shipping charges, ink and toner, maintenance kits, spare parts, headsets/headphones, UPS products and batteries, racks and enclosures, projectors, TVs, electronic signs, opened hard drives, installation/configuration/consulting services, labor, warranty and support contracts, licenses, software, subscriptions, special orders, build to/custom/configured/provisioned/modified products, end of life or discontinued products, refurbished products, open box/used products, products from manufacturers that are out of business. This may not be a complete list, and you are encouraged to contact your Account Manager or Customer Service before ordering to confirm specific return policy.
  • For all returns, you must obtain an RMA and follow Hummingbird Network’s RMA process, found here: https://www.hummingbirdnetworks.com/returns and https://www.hummingbirdnetworks.com/faq The product, together with all accessories, original packaging, and documentation must arrive at Hummingbird Networks warehouse no later than 14 days after the RMA is issued. RMA will be cancelled, rejected, credit denied, and product returned at your expense if all RMA instructions are not followed or conditions not met. You will be responsible for return shipping costs in all circumstances unless the return is due to an error by Hummingbird Networks. If approved, you typically will be reimbursed for your returned items the same way you paid for your items. We reserve the right to refund you by check. You authorize Hummingbird Networks to charge your credit card on file and debit any credit balance for any restocking fees, return shipping fees, and any other fees associated with an RMA.

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 NETWORKS 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 Networks is not responsible for manufacturer specifications, changes, production delays, or instructions issued by the manufacturer. Please contact the manufacturer with any questions regarding the specifications or use of products. Hummingbird Networks 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 Networks or of any association with such websites’ operators. This disclaimer in no way affects the terms of the applicable manufacturer's warranty, if any.  All technical advice and recommendations and services of Hummingbird Networks are for your convenience only and are intended for use by persons having skill, at their own risk, and Hummingbird Networks assumes no responsibility, and you hereby waive all claims against Hummingbird Networks, for results obtained or damages incurred from the use of Hummingbird Network’s advice, recommendations, and services.

ERRORS:  From time to time, the website, your official quote, quote via email, or any published pricing may have an error, including but not limited to: pricing, availability, specifications, images, promotions, rebates, shipping costs, transit time, warranty, typographical errors, and other errors. Hummingbird Networks reserves the right to cancel your order, in part or whole, or contact you to determine if you want to continue your order at the corrected/updated price or ship date. We may also offer substitute products but will only ship a substitute product with your permission. Although the website and pricing quoting systems are updated regularly, the manufacturer may change prices, specifications, compatibility, and/or availability at any time without notice.

LIMITATION OF LIABILITY: HUMMINGBIRD NETWORKS 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 NETWORKS’S AGGREGATE LIABILITY EXCEED THE AMOUNT PAID BY YOU FOR THE PRODUCTS IN QUESTION. HUMMINGBIRD NETWORKS 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 NETWORKS 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 Network’s facility or applicable distribution warehouse.Risk of loss passes to you when the products are delivered to the carrier. You pay all costs of freight. Title to products is retained by Hummingbird Networks until the products are paid for, and at that time title passes to you. Products sold by Hummingbird Networks may not be shipped or exported outside of the United States. If there is a shipping error or a problem with the product upon arrival, you must do the following: (1) notify Hummingbird Networks within 7 calendar days of delivery by phone at (805) 522-9123; (2) request an immediate inspection by the carrier; and (3) submit to Hummingbird Networks 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. Any package that is visibly damaged should be refused and/or noted with the carrier to have on record prior to the driver leaving your location. If you refuse an order for any reason other than freight damage, the order will be subject to our restocking fees, and you will be responsible for the return shipping charges.

RESALES PROHIBITED: All products sold by Hummingbird Networks are intended for the end-user only and not for resale. Hummingbird Networks prohibits the resell of its products without the prior written consent of Hummingbird Networks. In the event you resell a product without consent, Hummingbird Networks and its manufacturer partners reserve the right at any time to cancel your order without refund and/or void your product warranty. The resale prohibition applies to hardware, licenses, software, and extended warranties.

BUYER'S CREDIT: Credit terms, if any are extended to you in Hummingbird Network’s sole discretion, may be decreased, cancelled, or limited by Hummingbird Networks, 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 Network’s option, be payable in cash before shipment or on offer of delivery. Hummingbird Networks 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 Network’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 Networks 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 Networks 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 Network’s invoice date. You agree that the actual damage to Hummingbird Networks 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 Networks 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 Networks, 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 Networks. This Agreement shall be binding upon and inure to the benefit of the parties’ successors and assigns. These terms and 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 Networks. 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. Hummingbird Networks may modify these terms and conditions, or any part thereof, or add or remove terms at any time, and such modifications, additions or deletions will be effective immediately upon posting to our website. Your use of the website after such posting shall be deemed to constitute acceptance by you of such modifications, additions, or deletions.