Terms and Conditions

The sale of goods ("Products") by Advanced Network Devices (“AND”) to customer (“Customer”) are subject to the following terms and conditions (collectively "Agreement"), and supersede any conflicting terms or conditions set forth in any purchase order, document, or other communication. Preprinted terms and conditions in any document of Customer’s (for example, and without limitation, purchase orders or confirmations) and/or AND's failure to object to conflicting or additional terms will not modify the Agreement. Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of Products covered herein, the terms and conditions of said contract shall prevail to the extent they are inconsistent with this Agreement.

1. ORDERS. Quotes from AND are invitations to tender Products to Customer and are subject to change at any time without notice. All offers to purchase Products received from Customer are subject to acceptance by AND. All orders for Products identified by AND as non-standard or "NCNR" are non-cancelable, non-returnable and final. AND may identify Products as non-standard or "NCNR" by various means including, but not limited to, quotes, scope of services, contracts, products lists, attachments or exhibits. Customer may not modify, cancel or reschedule orders for standard Products without AND's consent. 
2. PRICES. Prices are subject to change at any time. Prices are for Products only and do not include taxes, shipping charges, freight, duties, and other charges or fees, such as fees for special packaging and labeling of the Products, permits, certificates, customs declarations and registration (collectively "Additional Fees"). Customer is responsible for any Additional Fees.
3. PAYMENT. Payment of the total invoice amount for Products delivered, without offset or deduction, is due 30 days from the invoice date or as otherwise approved in writing by AND, and shall be paid in US dollars. On any past due invoice, AND may charge interest from the payment due date to the date of payment at 1.5% per month, or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall reimburse AND for all costs and fees incurred in collecting any payments, including, without limitation, attorneys' and collection fees. In addition to all other remedies available under this Agreement or at law (which AND does not waive by the exercise of any rights hereunder), AND shall be entitled to suspend the delivery of any further Products if Customer fails to pay any amounts when due hereunder. Customer shall not withhold payment of any amounts due and payable by reason of any claim or dispute with AND, whether relating to AND’s breach, bankruptcy or otherwise.
4. DELIVERY AND TITLE. Unless otherwise specified by AND in writing, all deliveries by AND to Customer are Freight on Board (“FOB”) shipping point from AND's manufacturing locations. Title and risk of loss shall pass to Customer upon delivery of the Products to a carrier. AND shall not be liable for any delays, loss or damage in transit. AND's delivery dates are estimates only and subject to change and timely receipt of supplies by AND. AND reserves the right to make partial deliveries and Customer will accept delivery and pay for the Products delivered. Each shipment will constitute a separate sale, and Customer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Customer’s order. As collateral security for the payment of invoices relating to the Products, Customer hereby grants to AND a lien on and security interest in and to all of the right, title and interest of Customer in, to and under the Products, 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 Illinois Uniform Commercial Code.
5. WARRANTY OF PRODUCTS.  The warranty of all Products sold by AND under this Agreement are governed by the most recent AND Limited Warranty, which is available from AND, on AND’s website, and here. AND reserves the right to change any terms or conditions of that Limited Warranty without notice.
6. LIMITATION OF LIABILITY.  In no event shall AND be liable for any consequential, indirect, incidental, special, exemplary, or punitive damages, lost profits or revenues, or diminution in value, arising out of or relating to any breach of this agreement, whether or not the possibility of such damages has been disclosed in advance by customer or could have been reasonably foreseen by and or customer, regardless of the legal or equitable theory (contract, tort or otherwise) upon which the claim is based, and notwithstanding the failure of any agreed or other remedy of its essential purpose.

In no event shall AND’s aggregate liability arising out of or relating to this Agreement, whether arising out of or related to breach of contract, tort (including negligence) or otherwise, exceed the total of the amounts paid to and for the products sold to customer hereunder.        

 AND’SLIABILITY FOR ANY DEFECTIVE PRODUCT(S) IS LIMITED TO REPAIR OR REPLACEMENT OF THE PRODUCT. DDC IS NOT LIABLE FOR ANY DAMAGES BASED ON INCONVENIENCE, LOSS OF USE, LOSS OF TIME, USE OF THE PRODUCT, LOSS OF DATA, COLLATERAL DAMAGE, INTERRUPTED OPERATION OR COMMERCIAL LOSS, LOST PROFITS OR ANY OTHER DAMAGES, WHETHER INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR OTHERWISE.

The limitation of liability set forth herein shall not apply to (i) liability resulting from AND’s gross negligence or willful misconduct and (ii) death or bodily injury resulting from AND’s acts or omissions.

7. USE OF PRODUCTS. Customer shall comply with AND’s Product specifications. Products are not authorized for use in critical safety or other applications where a failure may reasonably be expected to result in personal injury, loss of life, or serious property damage. If Customer uses or sells the Products for use in any such applications or fails to comply with AND's Product specifications, Customer acknowledges that such use, sale, or non-compliance is at Customer's sole risk. Customer shall comply with all applicable laws, regulations and ordinances relating to the use of the Products. Customer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. Customer shall comply with all export and import laws of all countries involved in the sale of the Products under this Agreement or any resale of the Products by Customer. Customer assumes all responsibility for shipments of Products requiring any government import clearance. AND may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Products.
8. PRODUCT INFORMATION. Product information (for example, statements or advice (technical or otherwise), advertisement content, and information related to a Product's specifications, features, export/import control classifications, uses or conformance with legal or other requirements) is provided by AND for informational purposes only on an "AS IS" basis and does not form a part of the properties of the Product. AND makes no representation as to the accuracy or completeness of such Product information.  All Product information is subject to change without notice. AND is not responsible for typographical or other errors or omissions in Product information.
9. TERMINATION. In addition to any remedies that may be provided under this Agreement, AND may terminate this Agreement with immediate effect upon written notice to Customer, if Customer: (i) fails to pay any amount when due under this Agreement ; (ii) has not otherwise performed or complied with any of this Agreement, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
10. WAIVER. No waiver by AND of any of this Agreement is effective unless explicitly set forth in writing and signed by AND. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
11. CONFIDENTIAL INFORMATION. All non-public, confidential or proprietary information of AND, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by AND to Customer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential" in connection with this Agreement, is confidential, solely for the use of performing this Agreement, and may not be disclosed to anyone or copied unless authorized in advance by AND in writing. Upon AND's request, Customer shall promptly return all documents and other materials received from AND. AND shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Customer at the time of disclosure; or (c) rightfully obtained by Customer on a non-confidential basis from a third party.
12. FORCE MAJEURE. AND shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of AND including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
13. AMENDMENT AND MODIFICATION. This Agreement may be amended by AND without notice.
14. ASSIGNMENT. Customer may not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of AND. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under this Agreement.
15. RELATIONSHIP OF THE PARTIES. The relationship between the parties is that of buyer and seller. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
16. NO THIRD-PARTY BENEFICIARIES. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
17. GOVERNING LAW. All matters arising out of or relating to this Agreement is governed by and construed in accordance with the laws of the State of Illinois without giving effect to any choice or conflict of law provision or rule (whether of the State of Illinois or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Illinois.
18. SUBMISSION TO JURISDICTION. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Illinois in each case located in the City of Chicago and County of Cook, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
19. NOTICES. All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth on the face of the Sales Confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
20. SEVERABILITY. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
21. SURVIVAL. Provisions of this Agreement which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Compliance with Laws, Confidential Information, Governing Law, Limitation of Liability, Submission to Jurisdiction, and Survival.