1. These terms and conditions ("Agreement") apply to the purchase by the Customer ("Customer" or "you") of products ("Products") and/or services and support ("Services") sold by BroadHop Inc. ("BroadHop"), including its affiliates or subsidiaries. By accepting the price quotation attached hereto ("Price Quotation") and issuing a purchase order to BroadHop for Product(s) and/or Services, you hereby accept and are bound to the terms and conditions of this Agreement. In the event of a conflict between the terms of this Agreement and any terms of a Price Quotation or any other document of any nature or kind provided by Broadhop to you, the terms of this Agreement shall control.
2. No terms and conditions other than the terms and conditions set forth herein, including any terms and conditions in any document attached hereto to or incorporated by reference, shall be binding upon BroadHop unless accepted by it in writing and signed. All terms and conditions contained in any prior price quotation which are different from or in addition to the terms and conditions of the Price Quotation attached to this Agreement are hereby rejected and shall not be binding on BroadHop, whether or not they would materially alter any subsequent purchase order (the "Order"), and BroadHop hereby objects thereto. Customer will be deemed to have assented to all terms and conditions contained in this Agreement if Customer sends to BroadHop any purchase order for Product(s) or Service(s) that BroadHop accepts, or any part of the Products or Services covered by the purchase order is shipped or an invoice is presented in connection with the said Products or Services.
3. PRICES: All prices quoted include any applicable cash discount and are exclusive of taxes and freight charges. Any local taxes, import duties and/or freight charges shall be borne by the Customer and are in addition to the prices quoted. A BroadHop issued price quotation shall govern all other pricing terms of the corresponding purchase unless otherwise specified in this Agreement.
4. TERMS OF PAYMENT: All payments are payable no later than thirty (30) days following Invoice Acceptance (as defined below) of Products or the delivery of Services, unless otherwise arranged. For all Products and Services, final and complete payment shall become payable upon Acceptance of Products or delivery of Services. Finance charges of 1.5% per month (not to exceed maximum allowed by law) shall be applied on balances over 15 days past due (greater than 30 days following the date of Acceptance) and then monthly thereafter. Handling charges will be assessed for returned checks. In the event of Customer’s default on payment for Products or Services purchased hereunder, (i) Customer shall be responsible for all reasonable costs and expenses incurred by BroadHop in collection of any sums owed by Customer, including, but not limited to, reasonable attorney's fees, plus any other costs of such action, and (ii) BroadHop shall not be obligated to make any further deliveries of Products or Services to Customer.
5. DELIVERY: Shipment of all Products shall be EXW Denver (Ex Works as defined in the International Chamber of Commerce Incoterms 2000), Colorado. In the event of carrier's damage, loss, or misdelivery of Products, it shall be the responsibility of the Customer to deal with the carrier. Delivery schedules are approximate only. BroadHop will make reasonable business efforts to deliver all Products and Services on time and to assist Customers.
6. TITLE: Title and risk of loss or damage to Products shall pass to Customer upon delivery to carrier or Customer or Customer’s Agent at EXW point (Ex Works as defined in the International Chamber of Commerce Incoterms 2000). The above notwithstanding, Customer hereby grants BroadHop a purchase money security interest in all Products sold to Customer, and to all Products now or hereafter acquired by Customer ("Collateral") and to any proceeds from the disposition of said Collateral to secure payment of any purchase by Customer, which security interest shall remain in effect until the purchase price associated with the Collateral and other associated charges due BroadHop have been paid in full. Upon any default by Customer hereunder, BroadHop shall have, in addition to any other rights in equity or law, all rights and remedies of a secured party under Article 9 of the Uniform Commercial Code, which rights shall be cumulative. Customer hereby authorizes BroadHop to file UCC financing statements, and Customer agrees to take any actions necessary to assist Broadhop, to secure the Collateral by making UCC financing statements, in such jurisdictions as BroadHop may deem necessary or advisable in order to perfect its security interest in the collateral.
7. PURCHASE ORDERS: BroadHop will acknowledge the receipt of an Order in writing within seven (7) working days, otherwise the Order will be considered rejected. Prices quoted are applicable only to those quantities of Products and/or Services shown. Orders for other than quoted quantities "or conditions of purchase" may be subject to price changes and should be confirmed with BroadHop prior to placing an Order. Quotes are valid for sixty (60) calendar days from date of issuance stipulated on the Price Quotation.
8. ACCEPTANCE OF PRODUCTS. The date upon which any Product delivered pursuant to this agreement is accepted or deemed accepted as the same are described below, shall be considered the “Acceptance Date” and upon said Acceptance Date the Product(s) shall be considered “Accepted” or the Customer shall be said to have provided “Acceptance.” Product(s) delivered pursuant to this Agreement may not be put into use by Customer (i.e. no commercial traffic is permitted to pass through the Product(s)) until the Product(s) have been Accepted by Customer. In the event of any such use by Customer either before or following Acceptance, allowing commercial traffic, such Product shall become deemed Accepted by Customer and the first date of such use shall be the Acceptance Date. Upon receipt of any Product(s), Customer shall have thirty (30) days in which to inspect the Product(s) and provide written notice to BroadHop of its non-Acceptance of the Product(s) due to any defect(s). Upon receipt of the written defect notice, BroadHop shall have the option of modifying or replacing the defective Product(s), upon receipt of the defective Product(s) sent from Customer at Customer's cost. Customer shall have a further ten (10) days from receipt of the modified or replaced Product(s) to provide notice of Acceptance of such replacement/modified Product(s). Customer shall be deemed to have provided notice of Acceptance of the replacement/modified Product(s) after the expiry of such ten (10) day period, unless Customer sends written notice of further defects in the replacement/modified Product(s) within such ten (10) day period, in which case the steps set forth above with respect to defective Products shall be repeated as necessary. If BroadHop determines, in its sole and absolute discretion, at any time during the time in which BroadHop is modifying or replacing the Product(s), that the Product(s) cannot be modified or replaced to correct the defect(s), BroadHop may provide written notice to Customer of same and refund Customer the cost of such defective Product(s). Any Product returned to BroadHop must be complete and in original condition (including all original documentation, manuals, parts, diskettes, packaging, cables, etc.). If Customer fails, within the initial thirty (30) day or any following ten (10) day Acceptance period following delivery or re-delivery or repair, to provide written notice of its rejection of the Product(s), Customer shall be deemed to have provided notice of Acceptance of the Product(s), and following Acceptance of any kind, any defects or faults in the Product(s) thereafter shall be dealt with by BroadHop in accordance with the Product hardware and/or Product software warranties set forth below.
9. CUSTOMER RIGHTS: The Customer has certain rights outlined in this Agreement. The Customer for a given Product sale shall be defined as the company that has issued the Order to BroadHop. If Customer intends to resell the Products or Services to a third-party customer, then Customer is required to execute a valid Broadhop reseller agreement with BroadHop prior to reselling to a third party. Any sale or provision of Broadhop products to any third party without first executing a reseller agreement shall be a default under this Agreement and Customer agrees to be liable to Broadhop for the return of all Products delivered under this Agreement to Broadhop as well as to provide Broadhop with any and all revenue received by the sale to any third party of any Broadhop Product(s).
10. THIRD PARTY PRODUCTS. Customer acknowledges that the Product requires third-party products as specified in Exhibit B (the “Third-Party Products”) in order to be operable. Prior to using the Product, Customer must obtain the Third-Party Products (and/or a license to use the Third-Party Products, as applicable) from the applicable third-party suppliers. Changes in the Product software which BroadHop may make from time to time may make it necessary for Customer to acquire, at its own expense, updated versions of the Third-Party Products or additional Third-Party products. Customer shall use access control mechanisms and virus detection systems it reasonably deems reliable, utilize appropriate backup procedures, and monitor access to its network and computers. BroadHop shall have no obligation of any kind or nature and provides no warranty or maintenance obligations for any Third-Party Products. Procurement, installation, configuration and updating of the Third-Party Products or any additional third-party products are solely the responsibility of Customer. Customer acknowledges and agrees that any assistance provided by BroadHop in connection with Third-Party Products or any additional Third-Party Products shall not alter Customer’s responsibility under this Section.
11. GRANT OF LICENSE/USE OF SOFTWARE
(a) BroadHop hereby grants to Customer a perpetual, non-exclusive, non-transferable, non-assignable, limited, worldwide license to use the Product(s) and the software contained in the Product(s) ("Product software") solely in connection with the provision of broadband services and management to its end user customers and only on computers owned and/or controlled by Customer.
(b) Customer is licensed and authorized to operate the Product(s) up to the number of subscriber sessions authorized by Customer's purchased licenses as set forth on the Price Quotation. Customer agrees to not, either knowingly or otherwise, utilize the Product(s) for more subscriber sessions than licensed.
(c) Customer is licensed and authorized to utilize the Product features authorized by Customer’s purchased licenses. Customer agrees to not, either knowingly or otherwise, access and/or utilize features that are not licensed by Customer.
12. PRODUCT USE RESTRICTION
(a) Customer acknowledges that the Product(s) acquired hereunder can only be used by Customer for the Product(s) intended use of broadband services provisioning and management for its end user customers. Use of the Product(s) for any other purposes, including but not limited to use in competitor evaluation, reverse engineering, decompilation, and/or disassembly are all violations of this Agreement and subject to any and all penalties and remedies available at law or in equity for violation of intellectual property laws and treaties.
(b) Customer will NOT use the Product to control the operation of equipment in any nuclear facilities; aircraft navigation, communications or flight control systems; air traffic control; mass transit; medical equipment; weapons systems; or in any other inherently dangerous applications or environments in which the failure of the Product(s) could lead directly to death, personal injury, or severe physical damage or environmental damage.
(c) Customer shall not modify, reverse engineer, disassemble, or decompile the Product(s) or Product software.
(d) Except as expressly authorized in this Agreement, Customer will not lease, lend or rent the Product, Product software, or use the Product or Product software to provide service bureau, time sharing, rental, application services provider, hosting or other computer services to third parties, or otherwise make the functionality of the Product of Product software available to third parties.
13. RESERVATION OF RIGHTS AND TITLE
(a) Customer acknowledges and agrees that BroadHop and its suppliers own all right, title and interest in and to the Products and all proprietary rights in and to the Products and Product software, including without limitation, all patent, trademark, copyright, trade secret and any other intellectual property rights, and any corrections, bug fixes, enhancements, updates or other modifications, including custom modifications to the Product software or related documentation, whether made by BroadHop or any third party. This Agreement shall not be construed in any manner as transferring any rights of ownership or license to the Product(s) or Product software or to the features or information therein, except as specifically stated herein.
(b) Except as expressly granted under this Agreement, BroadHop prohibits Customer (directly or indirectly, in whole or in part) from loaning, renting, re-selling, leasing, sublicensing or otherwise hosting or distributing or operating the Products to or for the benefit of any third party, and from altering, adapting, translating or preparing any derivative work of the Product or Product Software. All Customer subsidiaries using the Product must be identified by Customer to Broadhop and included, in writing, by Customer, to Broadhop prior to execution of this Agreement. Any such subsidiary allowed by Broadhop shall be bound by the terms of this Agreement and Customer shall be responsible for ensuring that its subsidiaries comply with the terms of this Agreement; taking all necessary and reasonable means to ensure compliance. Qualifying affiliate or subsidiary companies shall be those companies where Customer maintains controlling equity interest and such subsidiary is approved by Broadhop in writing and in advance of Customer’s purchase.
14. HARDWARE WARRANTY: When Products are purchased from BroadHop, Product hardware is warranted free from defect in material and workmanship for one (1) year from the BroadHop invoice date. This limited warranty is extended only to Customers who purchase Products from BroadHop and enter into a “Maintenance and Support Agreement” with BroadHop concurrently with such purchase and, subject to the following conditions. Should the Product prove defective by reason of improper workmanship or material under normal use and service conditions within one (1) year on new systems parts & labor from the date of original purchase by Customer, BroadHop will repair or, at its sole option, replace the Product. In order to return a Product under the foregoing warranty, Customer must provide both: 1) BroadHop's invoice number and date, and 2) Product model and serial number. Any Product returned to BroadHop must be complete and in original condition (including all original documentation, manuals, parts, media (any and all software of any nature or kind), packaging, cables, etc.). This warranty does not cover broken or marred cabinets, cases or covers of Products. This limited warranty also does not apply if: (a) the Product is damaged by accident, improper installation, misuse, lightning, fire, water, electrical surges or other acts of nature, (b) the Product is altered or repaired by anyone other than HP (unless approval is provided by BroadHop, in advance, by email or other written means), or (c) the Product serial number is removed or tampered with. This warranty does not cover damage to any Product component caused by power surge or power spike due to improperly connected equipment or Customers’ misuse of Product Software. If a Product component fails during the warranty period and the Product component is not available from BroadHop’s supplier, BroadHop has the option to upgrade the Customer’s hardware. Any cost difference between the failed Product component and the upgraded Product component will be borne by the Customer. All Product hardware items are subject to the original manufacturer warranty unless expressly stated and noted by BroadHop.
15. HARDWARE SERVICE: All warranty service and support required to be performed onsite at Customer's premises shall be provided by an authorized manufacturer repair technician pursuant to BroadHop’s OEM Agreement. Standard Product hardware support is provided 9am – 5pm Customer local time, Monday through Friday, with next business day response. Upgraded 24x7 Product hardware support with four hour response is available for an additional fee. UNDER NO CIRCUMSTANCES SHALL BROADHOP BE LIABLE FOR ANY LOSS OR DAMAGE OF ANY NATURE OR KIND ARISING FROM THE SERVICES PROVIDED BY MANUFACTURER TO CUSTOMER.
16. SOFTWARE WARRANTY. BroadHop warrants and conditions that the media on which the Product software is furnished will be, under normal use, free from defects in materials and workmanship for a period of one (1) year following delivery. BroadHop warrants that Product software will not fail to execute its programming instructions due to defects in materials and workmanship when properly installed and used on the systems designated by BroadHop for one (1) year from the BroadHop invoice date. This limited warranty is extended only to Customers who purchase Products from BroadHop and enter into a “Maintenance and Support Agreement” with BroadHop concurrently with such purchase, and is subject to the terms of the Maintenance and Support Agreement and, the following conditions. BroadHop’s entire liability and customer’s exclusive remedy under this provision will be for BroadHop to use reasonable commercial efforts to remedy defects covered by this warranty and condition within a reasonable period of time or, at BroadHop’s option, either to replace the defective Product(s) or to refund the amount paid for the Product(s). This warranty and condition shall not apply if: (a) the Product(s) or Product Software are not used in accordance with BroadHop’s instructions; (b) the Product or Product software defect has been caused by any of Customer’s or Customer’s end-user customer’s malfunctioning equipment; (c) any other cause within the control of Customer causes the Product(s) or Product software to malfunction; (d) Customer or Customer’s end-user customer has made modifications to the Product(s) or Product software not expressly authorized in writing by BroadHop; or (e) Customer has used or integrated the Product(s) or Product software with third party equipment not authorized in writing by BroadHop, where, but for the use or integration of such third party equipment, such defect would not have arisen. No employee, agent, or representative of BroadHop has authority to bind BroadHop to any oral representations, warranties or conditions concerning the Product(s) or Product software. Any written representation, warranty or condition not expressly contained in this Agreement shall not be enforceable.
17. DISCLAIMER OF WARRANTIES. OTHER THAN THE WARRANTIES GRANTED ABOVE, BROADHOP SPECIFICALLY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. BROADHOP MAKES NO WARRANTIES AND HAS NO RESPONSIBILITY FOR NETWORK SECURITY, SERVICES PROVIDED BY EQUIPMENT MANUFACTURERS, FIREWALLS, ANTI-VIRUS MECHANISMS, OPERATING SYSTEM AND OTHER THIRD-PARTY PRODUCT UPDATES AND UPGRADES, AND ANY OTHER ASPECTS OF CUSTOMER'S NETWORK OR COMPUTERS. BroadHop does not warrant or condition that the operation of the Product(s) or Product software will be uninterrupted or error free, or that all Product Software defects can be corrected.
18. INFRINGEMENT INDEMNITY. BroadHop shall defend or at its option, settle any claim, action, or proceeding brought against Customer by a third party on grounds that any Product (including Product software) infringes such third party's patent, copyright, trademark or other proprietary right; or misappropriates any third party trade secret, and shall indemnify Customer against all damages and costs finally awarded against Customer in any such action or proceeding which results from any such claim, and reasonable expenses incurred in connection with such claim. If a Product or any part thereof becomes, or in BroadHop’s opinion is likely to become the subject of a valid claim of infringement or the like under any patent, copyright, trade secret or other proprietary right law, BroadHop shall have the right, at its option and expense, either to (i) obtain for Customer a license permitting the continued use of the Product or such part, (ii) to replace or modify it so that it becomes non-infringing, or (iii) if (i) or (ii) are not reasonably possible in Broadhop’s sole and absolute discretion, then Broadhop may return the fees paid for the infringing Product and terminate this Agreement. BroadHop shall have no obligation to indemnify Customer if the infringement claim arose from (a) a modification made by Customer to the Product or Product software not authorized by BroadHop, where, but for the modification, the claim would not have arisen; or (b) use of the Product or Product Software with any third party product or software, where, but for such use, the claim would not have arisen.
19. CUSTOMER INDEMNITY. Customer shall defend (if required by BroadHop and with counsel selected by BroadHop), indemnify and hold BroadHop and its affiliates, and the officers, directors, agents, employees and assigns of each, harmless from and against any and all third party claims, demands, suits, judgments, losses, or expenses of any nature whatsoever (including reasonable attorneys’ fees) arising directly or indirectly from or out of any breach of Customer's representations, warranties or obligations as set forth in this Agreement.
20. LIMITATION OF LIABILITY: IN NO EVENT SHALL BROADHOP BE LIABLE FOR THE PAYMENT OF ANY CONSEQUENTIAL, INDIRECT, PUNITIVE, INCIDENTAL OR SPECIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF GOODWILL; WORK STOPPAGE; HARDWARE OR SOFTWARE FAILURE, REPAIR TIME VALUE OR OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY of CUSTOMER TO USE THE PRODUCT OR PRODUCT SOFTWARE, EVEN IF CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL BROADHOP’S TOTAL LIABILITY TO CUSTOMER FOR ALL DAMAGES IN ANY ONE OR MORE CAUSE OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE EXCEED THE AMOUNT PAID BY CUSTOMER DURING THE TWELVE (12) MONTH PERIOD immediately PRECEDING THE EARLIER OF EITHER a) THE DATE THE CLAIM FIRST AROSE OR b) THE DATE UPON WHICH THE CUSTOMER SHOULD REASONABLY HAVE KNOWN THE CLAIM WOULD ARISE.
21. CONFIDENTIALITY. Customer understands that the Product (including Product software) contains confidential and proprietary trade secret information of BroadHop that is not commercially available to the public. Customer shall: (i) treat the Product in the same manner that it treats its other confidential and proprietary trade secret materials, and (ii) take all reasonable measures necessary to prevent the Product from falling into the possession of persons not bound to maintain the confidentiality of the trade secrets contained within the Product. As such, Customer shall only permit employees and contractors who have a need to use the Product for the purposes stated in the license grant (Section 11) to have access to and use the Product, and Customer’s contractors shall not use the Product unless and until they have entered into written non-disclosure agreements with the Customer that require them to maintain the confidentiality of the Product. Customer shall promptly advise BroadHop, in writing, of any misappropriation or misuse of the by any person which may come to the Customer’s attention. In the event of any such misappropriation or misuse, Customer shall be liable to Broadhop for any damages incurred by Broadhop, including legal fees necessary to enforce this provision.
(a). BroadHop may terminate this Agreement on the occurrence of any of the following events: (i) Customer’s violation of Section 11 (Grant of License), Section 13 (Reservation of Rights and Title) or Section 21 (Confidentiality) of this Agreement; (ii) Any breach by Customer of this Agreement which has not been cured within thirty (30) days of written notice given to Customer by BroadHop; (iii) If Customer ceases to do business or becomes bankrupt or insolvent; (iv) If Customer attempts to assign this Agreement without the prior written approval of BroadHop; or (v) If the Software Maintenance Agreement entered into by the parties of even date herewith is terminated for any reason whatsoever.
(b). Upon termination of this Agreement for any reason whatsoever, the license granted under this Agreement is immediately revoked and Customer shall cease using the Product(s).
23. SUPPORT, MAINTENANCE AND ENHANCEMENTS: A valid and current annual Maintenance and Support Agreement is required for all BroadHop Customers purchasing BroadHop Products. BroadHop will issue the invoice for the annual Maintenance and Support Agreement each year without any purchase order needed on the anniversary of the original Purchase Order date. The terms and conditions of the Maintenance and Support Agreement are as set forth in Exhibit A to this Agreement. All Maintenance and Support Agreements shall automatically renew for successive one (1) year terms unless and until Customer provides not less than ninety (90) days prior written notice to Broadhop of termination of its Maintenance and Support Agreement prior to the end of any successive one (1) year term. Upon receipt of said notice Broadhop’s obligations under the Maintenance and Support Agreement shall terminate following the end of the appropriate term as shall the appropriate obligations as referenced in this Agreement.
24. ENTIRE AGREEMENT. These terms and conditions shall constitute the final, complete and exclusive agreement of the parties with respect to all sales by BroadHop to Customer and supersede all prior offers, negotiations, understanding and agreements. Unless Customer and BroadHop have executed a master contract which specifically supersedes and replaces the terms and conditions herein, it is expressly agreed that no prior or contemporaneous agreement or understanding, whether written, or oral, shall contradict, modify, supplement or explain the terms and conditions herein.
25. GOVERNING LAW/VENUE. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without giving effect to the principles of conflicts of law. Any dispute under this Agreement shall be heard in the state courts of the State of Delaware.
26. NON-ASSIGNMENT. This Agreement shall not be assigned, in whole or in part, by Customer.
27. FORCE MAJEURE. BroadHop is not liable for any delay, interruption or failure in the performance of its obligations if caused by acts of God, war, declared or undeclared, fire, flood, storm, slide, earthquake, power failure, inability to obtain equipment, supplies or other facilities not caused by a failure to pay, labor disputes, or other similar event beyond the control of BroadHop which may prevent or delay such performance.
28. NOTICE Any notice or communication required or permitted in this Agreement shall be in writing and shall be deemed to have been duly given on the day of service if served personally or 3 days after mailing if mailed by first class mail, registered or certified, postage prepaid, to the address set forth on the Order or to any other address that a party designates by providing notice.
29. MODIFICATION/ENFORCEABILITY. Any amendment or modification of the terms and conditions set forth herein or any waiver of such terms and conditions must be agreed to in a writing signed by both Broadhop and Customer. If any part of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, that part will be enforced to the maximum extent permitted by law, and the remainder of this Agreement will remain fully in force. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto, their successors, assigns, subsidiaries, and/or or affiliates.
30. SURVIVAL. Sections 13, 20, 21, 22(b) and 25 shall survive termination of this Agreement.
31. EXPORT RESTRICTIONS. Customer acknowledges that the Product(s) acquired hereunder are subject to the export control laws and regulations of the U.S.A., and any amendments thereof. Customer confirms that with respect to the Product(s), it will not export or re-export them, directly or indirectly, either to (i) any countries that are subject to U.S.A export restrictions; or (ii) any end user who has been prohibited from participating in the U.S.A. export transactions by any federal agency of the U.S.A. government. Customer further acknowledges that the Product(s) may include technical data subject to export and re-export restrictions imposed by U.S.A. law.