Standard Terms & Conditions of Sale
SECTION 1 - GENERAL
All references to RDL herein shall mean Redline Communications Inc., and all references to Buyer herein shall mean the customer named in a contract, purchase order, quotation, proposal, or other agreement between the parties. All quotations from RDL shall be considered solicitations of offers. All orders placed by Buyer shall be considered offers which shall be deemed accepted upon notice thereof from RDL. Buyer will provide RDL with a complete written authorization or purchase order (with frequencies and all other technical specifications required to manufacture the equipment to completion), containing necessary information, such as site name, type and quantity of radios, requested delivery date and delivery instructions Notwithstanding any terms or conditions which may be included in Buyer’s purchase order or other communication, RDL’s acceptance is conditional upon Buyer’s assent to the terms and conditions set forth herein or in any other binding contract or agreement between the parties incorporating these terms and conditions. RDL’s failure to object to any term or condition contained in Buyer’s purchase order or other communication shall not be deemed to be acceptance of such term or condition. In the absence of Buyer’s written acceptance of these terms, acceptance of or payment for purchases hereunder shall constitute an acceptance of these terms and conditions. The terms and conditions set forth herein shall be deemed incorporated (as though set forth in full) into any agreement of sale entered into between RDL and Buyer unless otherwise modified in writing. RDL quotations are not firm unless expressly indicated, with a specific period of time during which the quotation will remain firm on the face thereof. RDL reserves the right, without any increase in price, to modify the design and specifications of equipment designed by RDL, provided that the modification does not adversely affect the original performance specifications as specified by RDL or as requested by the Buyer. Buyer shall not assign any interest in the contents of this quotation without the prior written consent of RDL. All orders are subject to prior credit approval. Typographic and clerical errors are subject to correction. All headings contained in these terms and conditions are for reference purposes only and shall not in any way affect the meaning or interpretation of these terms and conditions.
SECTION 2 - SHIPPING AND HANDLING
All deliveries and risk of loss shall be determined in accordance with the FOB shipping point for domestic shipments and EXW (Ex Works) for international shipments in accordance with International Commercial Terms (Incoterms) 2010, unless otherwise specified by Buyer and agreed to by RDL in writing. All shipping and handling charges incurred by RDL and approved by Buyer will be included on the applicable invoice as a separately priced item to be paid by the Buyer. Freight quotes provided are subject to change without notification, and freight charges will be invoiced based on final carrier freight bills. It is understood that RDL will not provide the Buyer with any copies of carrier freight bills. All packaging and packing shall be in accordance with sound commercial practice. Special export packaging, packing or crating, as required, will be quoted separately.
SECTION 3 - DELIVERY AND TITLE
Shipping or delivery dates are best estimates only and subject to change based on RDL commitments at the time Buyer’s purchase order is received and accepted. RDL reserves the right to make deliveries in installments, and contracts or other agreements between the parties shall be severable as to such instalments. A delay in delivery or default of any instalment shall not relieve Buyer of its obligation to accept and pay for remaining deliveries. Claims for shipment shortage or damage shall be deemed waived unless presented to RDL in writing within ten (10) days of delivery of each shipment, and failure to make any claim within ten (10) days after receipt of each product covered hereunder shall constitute an irrevocable acceptance thereof. Title to the products shall pass to Buyer upon receipt of full payment by RDL for such goods, except that in any jurisdiction in which such retention of title is not recognized, RDL shall be deemed to have retained a purchase money security interest and right of possession in the products until Buyer makes full payment. RDL’s rights to enforce such purchase money security interest and its right of possession shall be nonexclusive remedies. Buyer agrees to cooperate as necessary to assist RDL in perfecting such security interest, upon request.
SECTION 4 – SERVICE COMPLETION
Service completion dates indicated on quotations are subject to review and revision on the basis of RDL commitments at the time Buyer’s order is received and accepted. All service completion dates are subject to credit approval, are approximate until confirmed in writing by RDL, and are based upon receipt of timely, accurate, and complete instructions and information from the Buyer.
SECTION 5 - ACCESS
Buyer hereby grants access to RDL to all equipment, sites, premises, and other areas where work is to be performed under these terms and conditions. RDL will make all reasonable efforts to comply with Buyer’s standard rules and regulations for access, a copy of which will be furnished to RDL by Buyer upon the submission of any order to be performed under these terms and conditions. Buyer acknowledges that RDL may use nonunion personnel to perform work. RDL will make all reasonable efforts to observe Buyer’s procedures in cooperation with union personnel; however, Buyer agrees to indemnify and hold RDL harmless from all costs associated with the compliance of union work rules or union activities which may interfere with RDL’s performance requirements.
SECTION 6 - COMMERCIAL WARRANTY
RDL manufactured products are warranted to be free from defect in material and workmanship under normal use and service for a period of one (1) year from the date of shipment. In the event of a defect during the warranty period, Buyer will return the defective item to the RDL depot repair facility for repair or replacement. Repair at RDL’s option may include the replacement of parts or equipment and all replaced parts or equipment shall be the property of RDL. Parts or equipment replaced during the warranty period are warranted for the remainder of the original applicable warranty period or ninety (90) days, whichever is greater. This express warranty is extended by RDL to the original Buyer for commercial, industrial or governmental use. Such action on the part of RDL shall be the full extent of RDL’s liability and Buyer’s exclusive remedy for breach of warranty. Expenses of Buyer such as travel expenses and shipping costs are not covered by this warranty. This warranty extends only to products manufactured by RDL, and it is expressly conditioned upon the equipment having been installed in accordance with the standard installation and configuration practices Redline Communications Inc. | Standard Terms & Conditions of Sale 2 recommended by RDL, and the equipment having been maintained in accordance with RDL recommended standard maintenance practices. Vendor products and other equipment not manufactured by RDL are excluded, but may carry their own separate limited warranties. This warranty shall automatically terminate if the product is used in other than its normal and customary manner, has been subject to misuse, accident, neglect, or damage, is improperly disassembled or has improper alterations or repairs, or if nonconforming parts are used in the product, unless done by a service facility authorized by RDL to perform warranty service. The warranty for Network Management Systems (NMS) shall automatically terminate if software is altered, added, or removed from the platform without prior RDL approval. NMS provided by RDL does not include virus protection software and this warranty does not cover damages caused by computer viruses. Because each radio system is unique, RDL disclaims liability for range, coverage, or operation of a system as a whole under this warranty, except by a separate written agreement signed by an officer of RDL. This warranty shall not cover any damages caused by Acts of God including, but not limited to, flood, lightning, seismic activity; and events of Force Majeure, such as fire, explosion, war, civil disturbance et al.
THIS RDL WARRANTY IS GIVEN IN LIEU OF ALL OTHER WARRANTIES, EITHER EXPRESSED OR IMPLIED, WHICH ARE SPECIFICALLY EXCLUDED, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
An authorization to return products under this warranty must be obtained from a RDL representative prior to making shipment to RDL’s service location, and all returns shall be shipped freight pre-paid. In the event that RDL provides services only, RDL warrants the performance and specifications of such services but does not warrant that such services performed will fulfill the total system requirement of the Buyer.
SECTION 7 - PAYMENT
For domestic shipments, RDL’s standard terms of sale are net thirty days of invoice date, subject to the approval of RDL. For export shipments, the standard payment terms are irrevocable Letter of Credit (in accordance with RDL Letter of Credit Guidelines) or Cash in Advance (as described below), unless RDL has, prior to its acceptance of Buyer’s purchase order, approved in writing other credit arrangements. All payments, whether by Letter of Credit or Cash in Advance, shall be made in U.S. Dollars (US$) by electronic funds transfer. All orders on terms of Cash in Advance require a 25% payment upon placement of the order and the balance shall be paid prior to shipment. Exceptions to the payment terms included herein shall be subject to the prior consideration and written approval of RDL. The Buyer shall make payments in full to RDL at the address stated on the RDL invoice or as otherwise specified in writing by RDL. Overdue payments are subject to a service charge of 1½% per month or the maximum legal rate, whichever is lower. To the extent permitted by applicable law, Buyer agrees to pay any and all costs and disbursements, including reasonable attorney’s fees, incurred by RDL in legal proceedings to collect overdue invoices or enforce indebtedness. Buyer agrees that any and all costs or disbursements may be added to the total invoice amount already due at time of placement with an attorney or collection agency.
SECTION 8 - TAXES
Except for the amount, if any, of tax stated in a RDL contract, quotation, proposal, or customer purchase order, or other agreement between the parties, RDL sale prices and warranty provisions are exclusive of any amount for federal, state, provincial, local, excise, sales, use, property, retailer occupation, in-country, import, VAT, or similar taxes or duties. Such prices are also exclusive of all government permit fees, license fees, customs fees and similar fees levied upon delivery of the RDL products and services. The Buyer shall be liable for all such taxes, duties and fees, regardless of whether or not the same are separately stated by RDL, and the Buyer shall pay the amount thereof to RDL or, in lieu thereof, the Buyer shall provide RDL with a properly executed tax exemption certificate acceptable to the taxing authorities prior to delivery of RDL product. If RDL is required to pay or bear the burden of any excluded tax then the Buyer shall reimburse to RDL the full amount of any such tax payment no later than ten (10) days after receipt of an invoice.
SECTION 9 - TERMINATION, CHANGES AND DELAYS
RDL shall not be liable for any delay or failure to perform due to any cause beyond its control, including, but not limited to: events of Acts of God including, but not limited to, flood, lightning, seismic activity; and events of Force Majeure such as fire, explosion, war, civil disturbances, default of any supplier; delays caused by any government or regulatory body, frequency authorization, license grant; government intervention; inability to obtain necessary labour, material, or facilities; interruptions of transportation or utilities and strikes. The delivery schedule shall be considered extended by a period of time reasonably necessary to perform after such event(s). Notwithstanding the preceding sentence, in the event RDL is unable to wholly or partially perform due to any cause beyond its control, RDL may terminate any contract without liability to Buyer. Buyer may cancel any order due to the default of RDL upon thirty (30) days prior written notice and failure to cure by RDL. Otherwise orders may be terminated, changed or delayed by Buyer only with the specific approval of RDL and shall be subject to termination, change or delay charges which shall include compensation for specific expenses and costs related to commitments already made in connection with the order and a reasonable allowance for the cost of overhead, general and administrative expenses and profit in accordance with RDL’s standard accounting practices. A 50% cancellation fee will be applicable to any order cancelled after fifteen (15) days. Change orders may also necessitate a change in the delivery schedule or service completion date. In the event Buyer causes a delay in contract completion or delivery, RDL shall have the right to submit invoices, due and payable upon receipt, at sales value for progress to date, and Buyer.
SECTION 10 - GOVERNMENT OR IN-COUNTRY LICENSING
The Buyer is solely responsible for obtaining any licenses or other authorizations required by any applicable government regulatory bodies, and for complying with their rules and with the rules and regulations of any U.S., Canadian or foreign regulatory agency, whether federal, state, provincial, local or otherwise. Neither RDL, nor any of its employees, will be an agent or representative of the Buyer in such matters or otherwise. RDL may assist in the preparation of the license application by the Buyer; however, RDL’s warranty shall not be modified to the detriment of RDL, and RDL shall have no liability to Buyer or any third parties arising out of or relating to RDL rendering technical advice, facilities or service in connection with such assistance.
SECTION 11 - GOVERNING LAW
This document shall be governed by and construed under the laws of the Province of Ontario, Canada, as applied to contracts. The parties hereby agree that this document shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods. This document is prepared and executed in the English language only and any translation of this document into any other language shall have no effect on effectiveness of or the interpretation of this document.
SECTION 12 - EXPORT COMPLIANCE
The rights and obligations of the Buyer shall be subject to such Canadian laws and regulations as shall from time to time govern the license and delivery of technology abroad by persons subject to the jurisdiction of Canada. Enforced regulations are The Export and Import Permits Act (EIPA), The Customs Act, United Nations Act, Special Economic Measures Act or other relevant Acts of Parliament which prohibit the export of the goods and/or technology. The Buyer shall certify that it will not, directly or indirectly, export, re-export or tranship the Redline Products or any parts or copies thereof in such manner that will violate such laws and regulations in effect from time to time. Buyer certifies that all products from Redline including Cryptography will be used solely for purposes such as demonstration or evaluation of products, protection of company proprietary and/or internal communications, secure communication with clients, secure communication with branches, secure communication with supply chain, provision of a network/crypto service for the Buyer at the final destination as specified by the Export Permit used to export such products from Redline facilities. Further, the Buyer certifies that all products from Redline including cryptography will not be used for military purposes nor will they be used in any nuclear or missile proliferation activity, in the design of chemical or biological weapons nor resold or exported to any entity involved in such activity without the authorization of the appropriate government. The Buyer is not authorized to export goods received from Redline including cryptography to any of the following destinations/entities without appropriate export permitthe the authorization of Redline Communications and the Government of Canada: Any country on Canada’s Area Control List, Afghanistan, Belarus, Central African Republic, Cote D’Ivoire, Cuba, Democratic Republic of Congo, Democratic People’s Republic of Korea (North Korea), Egypt, Eritrea, Guinea, Guinea – Bissau, Iran, Iraq, Lebanon, Liberia, Libya, Myanmar (Burma), Pakistan, Russia, Rwanda, SierraLeone, Somalia, Sudan, South Sudan, Syria, Tunisia, Ukraine, Venezuela, Yemen, and Zimbabwe, or any country subject to Canadian Economic Sanctions (including the United Nations Act, the Special Economic Measures Act, or any other relevant Act of Parliament which prohibits the export of the goods and/or technology including Military Use or Terrorist activities). The Buyer is required to complete an End Use Statement for product that is controlled under the EIPA. An export permit may be required upon assessment of the End Use Statement.
SECTION 13 - LIMITATION OF LIABILITY
RDL’s total liability is limited to the net price of the products sold hereunder, excluding any charges stated separately from the product price on the invoice. Buyer’s sole remedy for liability of any kind, including negligence, with respect to the equipment and documentation furnished hereunder is to request RDL, at RDL’s option, to refund the purchase price, except that in the case of a breach of product warranty, the buyer’s sole remedy is to return the product to RDL for repair in accordance with section 5 of these standard terms and conditions of sale. No action shall be brought for any breach of this contract more than one year after the accrual of such cause of action except for money due upon an open account. In no event shall RDL be liable for increased costs, loss of profits, loss of goodwill, or any incidental or consequential damages for any reason. With respect to services, RDL liability for any path survey, site survey, field measurements, or path engineering is limited to the re-survey, remeasurement, or re-engineering of the path or site. RDL does not warranty propagation or path performance. All surveys are accurate as of the date the survey was conducted. RDL is not responsible for uncontrolled events, such as future building obstructions or microwave paths in or near the surveyed path or controlled site, which could cause blockage or interference.
SECTION 14 - WAIVER
The failure of RDL to insist, in any one or more instances, upon the performance of any of the terms, covenants or conditions herein or to exercise any right hereunder, shall not be construed as a waiver or relinquishment of the future performance of any such term, covenant or condition, or the future exercise of such right, but the obligation of the Buyer with respect to such future performance shall continue in full force and effect.
SECTION 15 - SUBSURFACE OR STRUCTURAL CONDITIONS
The prices for any towers included in a RDL proposal are based upon normal soil conditions of Electronics Industries Association (EIA) standard RS-333-C. Should RDL encounter subsurface, structural and/or latent conditions at the site materially differing from those used in the preparation of the quotation, an equitable adjustment to the price shall be mutually agreed upon prior to installation. The Buyer is responsible for specifying tower hardware requirements. If no requirements are provided by the Buyer, RDL will provide its standard production climbing devices and no representation is made by RDL that such devices will be in compliance with Occupational Safety and Health Administration (OSHA)’s Tower Climbing Device Specifications.
SECTION 16 - SPECIAL CONDITIONS OF QUOTATION AND SALE
Supplementary to the above terms and conditions of sale, circumstances which require quotation of special terms and conditions of sale are available from RDL Sales relating to the following: (A) Installation services (weather, employees, normal workday, construction permits, realignment of existing equipment coordination, relocation of plant and equipment); (B) Frequency coordination (Buyer provided frequencies, RDL proposed frequency plan) and path survey (Buyer path survey, RDL proposed path survey); (C) RDL provided antenna installations of Buyer (antenna pipe mount, waveguide bridge, indoor waveguide runs, accessibility to building work areas, modification to Buyer’s or Owner’s premises, existing towers); (D) RDL provided towers (grounding (REA), tower lighting, modification to Buyer’s or Owner’s premises); (E) RDL provided roof mounted towers (roof reinforcing, transmission line entry, plot terrain, site accessibility, clearing and grading, tower load, future antenna loading); (F) Construction and/or civil work; (G) Dangerous or hazardous work conditions or environment.
SECTION 17 - COMPLETE AGREEMENT
Buyer acknowledges that Buyer has read and understands these Standard Terms and Conditions of Sale as stated, and agrees to be bound by them and that these are the complete and exclusive statement of the agreement between the parties and supersede all proposals, oral or written, and all other communications between the parties relating to the subject matter. No modification hereof shall be binding upon either party unless such modification is in writing signed by duly authorized representatives of the parties. If any part of the terms and conditions included herein is deemed contrary to, prohibited by or invalid under applicable laws or regulations, such provision shall be deemed omitted to the extent so contrary, prohibited or invalid, but the remainder shall not be invalidated and shall be given effect as far as possible.