Terms & Conditions
TERMS AND CONDITIONS
Montana Datacom Inc., a New York corporation (“MDI”), the “Seller” identified in the relevant MDI Quote, Sales Order Acknowledgement and/or Invoice, sets forth the following terms and conditions of sale. “Purchaser” hereby agrees as follows:
Pricing
Due to the current market instability, quoted prices are valid until the end of the business day. After said day, prices are subject to change until a Sales Order Acknowledgement is issued by MDI to Purchaser. Invoices will reflect the price in the Sales Order Acknowledgement. All prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind, and Purchaser shall be responsible for all such charges, costs, and taxes (other than MDI’s income and similar taxes).
Quantities
All Custom Orders will be shipped with an accepted tolerance of +/- 10%.
Payment Terms
All sales are Net 30 days from date of invoice, unless special credit terms have been established in writing in advance. Invoice date corresponds to date of shipment. Invoices more than 15 days past due may result in a credit hold being placed on the account until it is current. A 1 1/2 % per month finance charge (18% annual percentage rate) may be added to all invoices over 30 days past due, plus reasonable attorney fees, collection charges or court costs if the expenses are incurred. Purchaser shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with MDI. A surcharge of 3.50% will be added to all payments made by credit card.
Return Policy
Unless prohibited by the manufacturer or these Terms and Conditions, returns for damaged material will be accepted within twenty-four (24) hours of receipt; for defective material, within five (5) days of receipt. Prior contact must be made with MDI and an RMA number obtained before any return goods can be accepted. A 15% to 25% restocking fee may apply, in MDI’s sole and absolute discretion. Credit will not be issued for any goods: (1) returned without an RMA number, (2) goods that have been used, (3) Special Order materials, or (4) any returns outside of the aforementioned timeframes.
Acceptance of Orders
All orders by Purchaser are subject to acceptance by MDI in writing. Verbal orders will be accepted subject to receipt of written confirmation in a timely manner. Verbal orders will not be shipped until written confirmation is received.
Cancelation of Orders
Orders for special sizes or non-stock products or materials may not be canceled after the production process has begun. If cancelation is desired, contact Purchaser’s sales representative to determine if production has begun. All cancelation requests must be made in writing.
Freight Terms
All material will be shipped FOB applicable warehouse. Direct shipments will be subject to MDI’s freight terms. Risk of loss will pass to the Purchaser upon leaving applicable warehouse. MDI may, in its discretion, make partial shipments to Purchaser.
Delivery
Any delivery date specified shall be approximate only. Purchaser shall be responsible for all unloading costs and provide equipment and labor reasonably suited for receipt of the products or materials at the delivery point. The quantity of any products or materials recorded by MDI on dispatch from MDI’s place of business is conclusive evidence of the quantity received by Purchaser on delivery unless Purchaser can provide conclusive evidence proving the contrary. Any liability for non-delivery shall be limited to replacing the products or materials within a reasonable time or adjusting the invoice to reflect the actual quantity delivered. MDI will not be in default or liable for any expense, loss, or damage when and to the extent occasioned by a delay in performance due to causes beyond its control, including, but not limited to, acts of God, lockouts, strikes, or other labor disputes (whether or not relating to either party’s workforce), epidemic, pandemic, or other public health crisis, floods, fire, earthquake, explosion, transportation delays, inability to obtain materials, manufacturing equipment breakdown, governmental actions, war, invasion, or hostilities, terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, or other similar causes.
Material Pick-Up by Purchaser
Material Pick-Up is available at MDI’s warehouses Mondays through Fridays during the hours noted below:
Florida, New York: 8:30AM until 4:00PM
Long Island City, New York: 6:00AM until 9:00AM
MDI cannot guarantee material will be available for Pick-Up outside of the stated hours.
Acceptance of Products
Upon delivery, the Purchaser will inspect the products or materials and notify MDI of any nonconformity in writing, giving reasonable particulars. “Nonconformity” means only the following: (i) product/material shipped is different than identified in Purchaser’s purchase order; or (ii) product/material’s label or packaging incorrectly identifies its contents. Failure to give such notice within 30 days after delivery will constitute an irrevocable acceptance of the products or materials, and the Purchaser will be obligated to make payment in full. Upon notice of nonconformity prior to acceptance, as Purchaser’s exclusive remedy, MDI, in its sole and absolute discretion, will either replace the products or materials with conforming products/materials or accept the prepaid return of the products or materials and refund all corresponding payments, excluding freight, made to MDI.
Title
Title to any product or material will pass to the Purchaser upon the latter of acceptance as provided above or payment in full. As collateral security for the payment of the purchase price of the products or materials, Purchaser hereby grants to MDI a lien on and security interest in and to all of the right, title, and interest of Purchaser in, to, and under the products and materials, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the New York Uniform Commercial Code.
Tariffs
If, during the time that Purchaser’s purchase order is pending and during the time that MDI is fulfilling Purchaser’s order, any new or increased import tariffs are imposed on materials used in the production of the goods subject to the purchase order, resulting in a net cost increase MDI shall have the right to adjust the price of the goods accordingly, based on the actual tariff increase, with written notification to Purchaser at least 10 days prior to the price adjustment. order.
Storage
Non-Cancelable; Non-Returnable (NCNR) material ordered will be warehoused free of charge for 30 days. After such time you agree to pay a per pallet monthly storage fee and be invoiced for all material. For all other non-NCNR material ordered whose value does not exceed $5,000, after 30 days, you agree to pay a per pallet monthly storage fee, be invoiced for all material, or cancel said order. For all other non-NCNR material whose value exceeds $5,000, a restocking fee of 15% may apply unless given prior written notice that it will be waived. Any freight/shipping cost incurred by MDI for canceled material shall be the sole responsibility of the customer.
Product Warranty
MDI, with the exception of specialty paralleling, is a reseller of products and materials and shall transfer and assign to Purchaser any and all transferable warranties made to Purchaser by the manufacturer(s) of the products and materials. Unless otherwise specified in a writing signed by MDI, MDI provides no independent warranty for any products or materials. Except where it is otherwise expressly provided in these Terms and Conditions, Purchaser’s sole and exclusive remedy for any alleged nonconforming part, defect, failure, inadequacy, or breach of any warranty related to products or materials (collectively, “Defects”) shall be limited to those warranties and remedies provided by the manufacturers or licensor thereof. Purchaser shall contact MDI prior to contacting the manufacturer or licensor. In the event Purchaser provides notice of a Defect to the manufacturer or licensor, Purchaser shall immediately notify and engage MDI on any and all discussions and actions to be taken with such manufacturer.
Exclusion of Other Warranties
Except for the warranties discussed herein, there are no other warranties by MDI, including any implied warranties of merchantability or fitness for purpose, applicable to the products and materials, no warranties or representations at any time made by any MDI sales representative, dealer, agent, or any person, shall be effective to vary or expand the warranty-related limitations herein.
Limitation of Liability
Except where it is otherwise expressly provided in these Terms and Conditions, MDI’s sole obligation (and the Purchaser’s sole and exclusive remedy) with respect to any products or materials which are proven to be defective, will be the replacement of said material. To the fullest extent permitted by law, in no event shall MDI be liable for any lost profits, lost business, lost revenue, delay damages, or any other special, incidental, liquidated, indirect, punitive, or consequential damages, however arising, even if the parties have knowledge of the possibility of such damages and whether or not such damages are foreseeable, including, without limitation, any costs associated with the delivery of replacement products or materials, removing installed products or materials, installing replacement products or materials, or any related labor/overhead costs. Furthermore, to the fullest extent permitted by law, MDI’s liability on any claim arising out of or connected with the relevant MDI Quote, Sales Order Acknowledgement and/or Invoice, or the sale, delivery or use of the products or materials, whether in tort (including negligence and strict liability), misrepresentation, breach of contract, or otherwise, shall not exceed the amount actually paid for the products or materials giving rise to the claim.
DISCLAIMER
THE MANUFACTURERS’ AND LICENSORS’ WARRANTIES DISCUSSED HEREIN ARE EXCLUSIVE AND IN LIEU OF, AND PURCHASER DISCLAIMS AND EXCLUDES, AND WAIVES, ALL OTHER EXPRESS AND IMPLIED WARRANTIES OF ANY KIND BY MDI, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AGAINST REDHIBITORY DEFECTS, CONFORMITY TO ANY REPRESENTATION, DESCRIPTION, OR SPECIFICATION, PERFORMANCE, NON-INFRINGEMENT, AND OF ANY OTHER TYPE, REGARDLESS OF WHETHER ARISING BY LAW (STATUTORY OR OTHERWISE), COURSE OF PERFORMANCE, COURSE OF DEALING, OR ANY OTHER LEGAL OR EQUITABLE BASIS. IN THE EVENT DISCLAIMER OF WARRANTY STATEMENTS ARE DISALLOWED BY LAW, SUCH EXPRESS OR IMPLIED WARRANTIES SHALL BE LIMITED IN DURATION TO THE LESSER OF THE APPLICABLE WARRANTY PERIOD OR THE MINIMUM PERIOD REQUIRED BY LAW. EXCEPT AS OTHERWISE SET FORTH HEREIN, THE PRODUCTS AND MATERIALS ARE PROVIDED “AS IS” EXCEPT TO THE EXTENT THE MANUFACTURER OR LICENSOR HONORS ANY WARRANTY EXPRESSLY MADE BY IT.
Force Majeure
MDI shall not be liable for any failure to perform its obligations under an MDI Quote, Sales Order Acknowledgement and/or Invoice resulting directly or indirectly from, or contributed to or by acts of God, acts of terrorism, civil or military authority, epidemic or pandemic, fires, strikes or other labor disputes, accidents, floods, war, riot, inability to secure product or material or transportation facilities, hacking or other malicious attack, dissolution of the applicable manufacturer’s business, acts or omissions of carriers, or any other circumstances beyond MDI’s reasonable control.
LAW and VENUE
These Terms and Conditions and any transactions contemplated herein shall be governed according to the substantive laws of the State of New York, without regard to principles of conflicts of law, and shall not be governed by the U.N. Convention on the International Sale of Goods. Any issues, disputes or controversies arising out of or in connection with Purchaser’s payment for any products or materials under any MDI Quote, Sales Order Acknowledgement and/or these Terms and Conditions (“Payment Dispute”) shall be settled by the applicable exclusive jurisdiction and venue of the state or federal courts selected, at MDI’s sole discretion, to initiate the Payment Dispute and Purchaser shall not contest or challenge the personal jurisdiction or venue of such courts and extra-territorial service of process. Any other non-payment related issue, dispute, or controversy (“Dispute”) between the parties, including with respect to contract formation or the interpretation of any relevant MDI Quote, Sales Order Acknowledgement and/or these Terms and Conditions, that cannot be commercially resolved by the parties shall be submitted to nonbinding mediation as a condition precedent to litigation. The parties shall mutually agree upon the mediator and shall share equally in the mediator’s fees. If the parties cannot resolve their Dispute through the mediation process, the parties hereby consent to (i) the exclusive jurisdiction and venue of the state or federal courts located in New York County, New York and shall not contest or challenge the personal jurisdiction or venue of such courts, and (ii) extra-territorial service of process. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES HERETO EXPRESSLY, VOLUNTARILY, AND INTENTIONALLY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING IN ANY WAY RELATING TO, ARISING FROM OR IN CONNECTION WITH ANY RELEVANT MDI QUOTE, SALES ORDER ACKNOWLEDGEMENT AND/OR THESE TERMS AND CONDITIONS AND THE TRANSACTIONS CONTEMPLATED HEREIN AND SHALL APPLY TO ANY SUCH ACTION OR PROCEEDING, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE. Notwithstanding the foregoing, if MDI is sued in any other jurisdiction or forum (including but not limited an arbitration proceeding) for matters related to any products or materials sold to Purchaser, MDI shall have the right to join Purchaser as a party to any such proceeding, and Purchaser hereby consents to such joinder.
Remittances
Remittances should be sent to:
Montana Datacom Inc.
PO Box 70321
Newark, New Jersey 07101-0096
All payments should clearly indicate the customer’s purchase order number and
MDI invoice number to assure credit is applied to the proper account.