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    Fiber Optic Center, Inc. Terms and Conditions of Sale

    1. ACCEPTANCE; GOVERNING PROVISIONS. All sales by Fiber Optic Center, Inc. (“Seller”) are made only on these terms and conditions, including those on the face of this form. If any other terms have been submitted by Buyer, they are rejected and these terms are proposed as a counter-offer. If Buyer takes possession of the goods to be sold hereunder, Buyer shall be deemed to have agreed to these terms. If buyer has submitted a purchase order or other document to Seller for the purchase of the goods described herein, the terms and conditions thereof are hereby rejected. Acceptance of this offer, whether express, by action indicating Buyer’s intent to purchase goods ordered, or implied, by Buyer’s failure to reject this offer and return the goods forthwith, is limited to the terms and conditions stated herein. All subsequent action shall be pursuant to these terms and conditions, and any additional or different terms are hereby rejected and shall not be binding upon the parties, unless agreed to in writing by Seller.
    2. PRICES; PRICES ARE SUBJECT TO CHANGE WITHOUT NOTICE. Unless otherwise stated on the face of this invoice or packing slip, all prices are subject to adjustment by Seller to reflect Seller’s prices in effect on the date of shipment. All Fiber and Cable have a -0% / +5% billable manufacturing tolerance. Written or verbal quotations are subject to daily changes and expire at the end of the day that they are made unless otherwise agreed to by Seller in writing.
    3. TERMS OF PAYMENT: Prepayment via MasterCard, VISA, Discover, American Express, wire transfer or check. Net thirty (30) days can established upon CREDIT APPROVAL. Orders paid by credit card will include a service charge of 2 ½ %.
    4. TAXES AND OTHER CHARGES. The amount of any present or future transfer, sales, revenue, excise, customs, or other duties or taxes, or any other charges imposed on or measured by any transaction between Buyer and Seller shall be added to the prices quoted or invoiced and shall be paid by Buyer, except those taxes or charges specifically itemized and included in the total price on the face hereof; or in lieu thereof, Buyer shall provide Seller with a tax exemption certificate acceptable to the authorities imposing the same.
    5. PAYMENT; DEFAULT. Buyer agrees to pay for the goods and any shipping or other charges in full on the terms set forth in Seller’s invoice or other documents. In addition to all other remedies Seller has under applicable law, in the event of Buyer’s default. Seller shall have the right to charge interest on overdue balances at the rate of One and One-Half (1 ½%) percent per month. Buyer shall also pay all costs of collection including without limitation, attorney’s fees. If, in Seller’s opinion, the financial condition or actions of Buyer at any time indicate that payment for goods ordered may not be received, Seller may discontinue shipment and require payment in advance. Further, in such circumstances, Seller shall have the right, at Buyer’s expense, to repossess all goods which may be stored with Seller for Buyer’s account, without the necessity of taking any other proceedings. Buyer acknowledges that all of the goods so repossessed shall be the property of Seller. Buyer hereby grants to Seller a purchase money security interest in the goods sold, pursuant to the Uniform Commercial Code as enacted in the Commonwealth of Massachusetts as amended from the time (hereinafter, the “U.C.C.”), until payment in full has been made. In the event of default by Buyer under this Agreement, Seller shall have all the rights and remedies of a secured creditor under the U.C.C. Buyer agrees that Seller may file financing statements and other documents, and Buyer also agrees to execute such other documents as may be reasonably necessary at Seller’s request, in order to perfect Seller’s security interest in the goods and proceeds thereof.
    6. Goods must be obtained by Buyer at Seller’s place of business unless Seller agrees to ship goods or to make delivery. If goods are to be shipped or delivered by Seller, prices are exclusive of the costs thereof, and unless different terms are stated by Seller on the face hereof, all prices are EXW Seller’s facility. Method and route of shipment will be at the discretion of Seller and Seller shall not be liable for any reasonable delay in the delivery of goods or for any damage suffered by Buyer by reason of such delay. All shipments shall be at Buyer’s risk and shall be insured, if at all, solely at Buyer’s expense. Unless otherwise requested in writing by Buyer, Seller shall, in its sole discretion, determine whether, under what terms and for what amounts, shipments shall be insured and shall make arrangements accordingly. Seller reserves the right to make delivery in installments, and all such installments when separately invoiced shall be paid for when due per invoice, without regard to the date of subsequent deliveries. All goods accepted shall be paid for regardless of any claim relating to other deliveries or undelivered goods.
    7. DELAYS AND LIMITATIONS. Sales and shipments to be made are subject to Seller’s ability to obtain the goods to be sold. Seller shall attempt to meet any shipment or delivery date specified, but in no event shall Seller otherwise be responsible or liable for failure to produce, ship or deliver by such date nor shall Seller be liable to Buyer or to any third party for indirect or consequential damages due to delays in the production, shipment or delivery of goods, whether or not due to causes within Seller’s control.
    8. ACCEPTANCE OF GOODS. Buyer shall examine all goods immediately upon receipt and shall be deemed to have accepted such goods as conforming unless written notice to the contrary is delivered to Seller within five (5) business days of the receipt of goods by Buyer.
    9. SELLER’S WARRANTIES AND CLAIMS, ANY PRODUCTS AND GOODS SOLD HEREUNDER ARE WARRANTED TO FREE FROM DEFECTS IN MATERIALS AND WORKMANSHIP. SELLER MAKES NO OTHER WARRANTY OF ANY OTHER KIND, EXPRESS OR IMPLIED OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE OR OTHERWISE. SELLER’S OBLIGATIONS HEREUNDER SHALL BE LIMITED TO REPAIR OF REPLACEMENT OF DEFECTIVE GOODS OR, AT THE OPTION OF THE SELLER, THE REIMBURSEMENT OF THE ORIGINAL PURCHASE PRICE FOR THE GOODS. IN THE EVENT THAT SELLER PROVIDES REPLACEMENT OR REPAYMENT OF THE PURCHASE PRICE AS AFORESAID, BUYER SHALL RETURN THE NON-CONFORMING GOODS TO SELLER. ANY CLAIMS OF DEFECT IN MATERIAL OR WORKMANSHIP MUST BE MADE IN WRITING AND DELIVERED TO SELLER WITHIN THIRTY (30) DAYS OF DELIVERY OF THE PRODUCT. SELLER SHALL HAVE NO OTHER OBLIGATION OR LIABILITY OF ANY KIND. SELLER AND BUYER AGREE AND UNDERSTAND THAT THE PRICE STATED FOR FOR THE GOODS AND PRODUCTS HEREIN DESCRIBED IS CONSIDERATION FOR THE LIMITATION OF SELLER’S LIABILITY FOR A BREACH OF THE ABOVE DESCRIBED EXPRESS WARRANTIES AND THAT SUCH LIMITATION REPRESENTS A VALID AND REASONABLE ALLOCATION OF COMMERCIAL RISK BETWEEN THE PARTIES. THIS PARAGRAPH STATES BUYER’S SOLE AND EXCLUSIVE REMEDY AGAINST SELLER FOR BREACH OF WARRANTY.
    10. LIMITATION OF LIABILITY, THE MAXIMUM LIABILITY, IF ANY, OF SELLER FOR ALL DIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION, CONTRACT DAMAGES AND DAMAGES FOR INJURIES TO PERSONS OR PROPERTY, WHETHER ARISING FROM SELLER’S BREACH OF THIS AGREEMENT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT WITH RESPECT OF THE GOODS, OR ANY SERVICES IN CONNECTION WITH THE GOODS, IS LIMITED TO AN AMOUNT NOT TO EXCEED THE PRICE OF THE PARTICULAR GOODS. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR TO ANY THIRD PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST REVENUES AND PROFITS, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE RIGHT TO RECOVER DAMAGES WITHIN THE LIMITATIONS SPECIFIED IS BUYER’S EXCLUSIVE ALTERNATIVE REMEDY IN THE EVENT THAT ANY OTHER CONTRACTUAL REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
    11. PATENTS, Seller makes no representation of warranty whatsoever as to any patent matters.
    12. CANCELLATION, SUSPENSION OR MODIFICATION BY BUYER. These terms and conditions, and Buyer’s order as indicated on the efface hereof, can be canceled, suspended or modified only with Seller’s written consent.
    13. CUMULATIVE RIGHTS AND REMEDIES OF SELLER. These terms shall be binding upon and inure to the benefit, as appropriate, of Seller and Buyer as well as their respective successors and assigns. All rights of and remedies available to Seller hereunder shall be cumulative and in addition to all rights and remedies available to Seller under all applicable laws including, without limitation, the U.C.C. No waiver of any right or remedy available to Seller in any instance shall constitute a waiver of any prior or subsequent right or remedy.
    14. APPLICABLE LAW. This instrument and the rights and obligations of the parties hereunder shall be governed by, construed and interpreted in accordance with the laws of the Commonwealth of Massachusetts and this instrument shall be considered a contract made in that Commonwealth. Buyer agrees that it may bring suit against Seller only in a court of appropriate jurisdiction located within the Commonwealth of Massachusetts, and for purposes of suit against Buyer, submits itself to the jurisdiction of Massachusetts. Any action against Seller under agreement of related to the goods purchased hereunder must be brought within one (1) year after such cause of action accrues.
    15. ENTIRE AGREEMENT. The terms and conditions hereof constitute the final, complete and exclusive agreement between the parties and supersedes all other agreements, written or oral, regarding the subject matter hereof. No course of dealing or course of performance, and no parole evidence of any nature, shall be used to supplement or modify the terms hereof.
    16. PARTIAL INVALIDITY. If any term or provision hereof shall to any extent be illegal, invalid or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations or of such provision or obligation in any other jurisdiction shall not in any way be affected or impaired thereby.