Terms & Conditions of Sale
UNLESS THERE IS A SEPARATE AGREEMENT SIGNED BY BOTH PARTIES EXPRESSLY COVERING THE SALE OF PRODUCTS FROM ONE PARTY TO THE OTHER, ALL PRODUCT SALES BY AIRGAIN, INC. ARE SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS:
Airgain, Inc., (“Airgain”) hereby offers for sale to the buyer named in the attached quotation or applicable order (“Buyer”) the products listed on the face thereof (the “Products”) on the express condition that Buyer agrees to accept and be bound by the terms and conditions set forth herein (these “Terms”). Any provisions contained in any document issued by Buyer that conflict with these terms are expressly rejected and if the terms and conditions in these Terms differ from the terms of Buyer’s offer, these terms shall be construed as a counter offer and shall not be effective as an acceptance of Buyer’s document. Buyer’s receipt of Products or Airgain’s commencement of the services provided hereunder will constitute Buyer’s acceptance of these Terms. These terms together with an accepted purchase order for the purchase of Products by Buyer from Airgain shall form the complete and exclusive statement of the contract between Airgain and Buyer with respect to Buyer’s purchase of the Products. No waiver, consent, modification, amendment or change of the terms contained herein shall be binding on Airgain unless in writing and signed by Airgain and Buyer. Notwithstanding the foregoing, Airgain reserves the right to make changes to these Terms and Conditions of Sale at any time by posting such changes here, and such changes shall apply to orders of Products made by Buyer thereafter. Airgain’s failure to object to terms contained in any subsequent communication from Buyer will not be a waiver or modification of the terms set forth herein. All orders are subject to acceptance in writing by an authorized representative of Airgain. Airgain reserves the right to reject any order for any reason. Airgain reserves the right to take any action it deems necessary to address Buyer’s violation of these terms, including, but not limited to, the suspension of Buyer’s ability to purchase Products.
Offers to purchase products shall be made by purchase orders submitted to Airgain’s order site, email, or such other methods as Airgain shall provide from time to time. For Buyers expecting to make serial purchases from Airgain, a six (6) month rolling forecast of its requirements for Products shall be provided on the first day of each month in order that Airgain is able to accept the purchase orders it receives from such Buyers. An order is accepted when acknowledged in an order acknowledgement confirming the Products, pricing, delivery location, delivery date, and such other terms as Airgain may include in such order acknowledgement. If any terms in its acknowledgement are inconsistent with the requested terms in the purchase order, Airgain shall inform Buyer and request submission of a replacement purchase order or acceptance of the order terms provided in the acknowledgement by Airgain. Buyer understands and acknowledges that Airgain may utilize third party contract manufactures in various countries to fulfill the orders it receives for products. Each purchase order when accepted shall form a firm commitment to purchase Products indicated therein and shall not be cancelled or changed unless as provided in accordance with these Terms.
All prices published by Airgain or quoted by Airgain’s representatives may be changed at any time without notice. All prices quoted by Airgain or Airgain’s representatives are valid for thirty (30) days, unless otherwise stated in writing. All prices for the Products will be as specified by Airgain or, if no price has been specified or quoted, will be Airgain’s price in effect at the time of shipment. All prices are subject to adjustment on account of specifications, quantities, raw materials, cost of production, shipment arrangements or other terms or conditions, in each case which are not part of Airgain’s original price quotation. List prices may vary from any published or advertised price, or the price displayed on any website for certain products, if applicable.
4. TAXES AND OTHER CHARGES
Prices for the Products exclude all sales, value added and other taxes and duties imposed with respect to the sale, delivery, or use of any Products covered hereby, all of which taxes and duties must be paid by Buyer. If Buyer claims any exemption, Buyer must provide a valid, signed certificate or letter of exemption to Airgain for each respective jurisdiction.
5. TERMS OF PAYMENT
Airgain may invoice Buyer upon shipment for the price and all other charges payable by Buyer in accordance with the terms on the face hereof and the accepted purchase order. If no payment terms are stated on the face hereof, payment shall be net thirty (30) days from the date of invoice. If Buyer fails to pay any amounts when due, Buyer shall pay Airgain interest thereon at a periodic rate of one and one-half percent (1.5%) per month (or, if lower, the highest rate permitted by law), together with all costs and expenses (including without limitation reasonable attorneys’ fees and disbursements and court costs) incurred by Airgain in collecting such overdue amounts or otherwise enforcing Airgain’s rights hereunder. Airgain reserves the right to require from Buyer full or partial payment in advance, or other security that is satisfactory to Airgain, or withhold performance or sale of goods to Buyer, at any time that Airgain believes in good faith that Buyer’s financial condition does not justify the terms of payment specified. All payments shall be made in U.S. Dollars. In the event Buyer disputes any invoiced amount, Buyer shall promptly, but in no event later than 15 days after the date of the invoice, notify Airgain of the basis for such dispute, whereupon the Parties shall use good faith efforts to resolve such dispute within the following 30 days.
6. DELIVERY; CANCELLATION OR CHANGES BY BUYER
Purchase orders will be acknowledged with an acceptance that identifies the requested shipping date, or the closest reasonably possible shipping date, if the requested date cannot be met. Airgain requests Buyer submit a replacement purchase order with the corrected date, however, if Buyer fails to replace such purchase order, then it will be agreed that the Buyer is deemed to accept the revised delivery date provided in the order acknowledgement.
The Products will be delivered as follows:
For products delivered to locations in PRC or Hong Kong, products shall be delivered FCA (Incoterms 2010) to the location provided on the agreed upon purchase order, or as otherwise agreed by Buyer and Airgain, generally in Shanghai or Hong Kong as indicated on the applicable purchase order, and shall be considered delivered when delivered on the vehicle or vessel of the designated freight forwarder at the agreed upon location.
For all other products sold by Airgain, products shall be shipped to the destination specified by Buyer, and shall be delivered FCA (Incoterms 2010) Airgain’s Scottsdale facility.
Airgain will have the right, at its election, to make partial shipments of the Products and to invoice each shipment separately. Airgain reserves the right to stop delivery of Products in transit and to withhold shipments in whole or in part if Buyer fails to make any payment to Airgain when due or otherwise fails to perform its obligations hereunder. All shipping dates are approximate only, and Airgain will not be liable for any loss or damage resulting from any delay in delivery or failure to deliver which is due to any cause beyond Airgain’s reasonable control. In the event of a delay due to any cause beyond Airgain’s reasonable control, Airgain reserves the right to terminate the order or any part of the order so affected, or to reschedule shipment within a reasonable period of time, and Buyer will not be entitled to refuse delivery or otherwise be relieved of any obligations as the result of such delay. Products as to which delivery is delayed due to any cause within Buyer’s control may be placed in storage by Airgain at Buyer’s risk and expense and for Buyer’s account. Orders are considered firm and if in process may be canceled by Buyer only with Airgain’s written consent and upon payment of Airgain’s cancellation charges. Requests to cancel or change orders within four (4) weeks of delivery will likely not receive approval by Airgain. Orders in process may not be changed by Buyer except with Airgain’s written consent and upon agreement by the parties as to an appropriate adjustment in the purchase price therefore. Credit will not be allowed for Products returned without the prior written consent of Airgain.
7. TITLE AND RISK OF LOSS
Notwithstanding the trade terms indicated above and subject to Airgain’s right to stop delivery of Products in transit, title to and risk of loss of the Products will pass to Buyer upon delivery of the Products by Airgain to the carrier, or otherwise, as provided in the applicable delivery terms above; provided, however, that title to any software incorporated within or forming a part of the Products shall at all times remain with Airgain or the licensor(s) thereof, as the case may be.
8. LIMITED WARRANTY STATEMENT
Airgain warrants that the Products will operate or perform substantially in conformance with Airgain’s published specifications and be free from defects in material and workmanship, when subjected to normal, proper and intended usage by properly trained personnel, for the period of time set forth in the product quotation, product documentation, published specifications, or package inserts. At the time of delivery to Buyer, all Products shall be free and clear of any liens or encumbrances, and at the time of delivery Airgain shall have all rights necessary to transfer title to such Products to Buyer. The period for this limited warranty shall be as specified in Airgain’s quote, product documentation, published specifications, or package inserts. If a period of time is not specified in Airgain’s quote, product documentation, published specifications, or package inserts, the warranty period shall be one (1) year from the date of delivery to Buyer for all products (the “Warranty Period”). Airgain agrees during the Warranty Period, to repair or replace, at Airgain’s option, defective Products so as to cause the same to operate in substantial conformance with said published specifications; provided that Buyer shall (a) promptly notify Airgain in writing upon the discovery of any defect, which notice shall include the product model and serial number (if applicable) and details of the warranty claim; and (b) after Airgain’s review, Airgain will provide Buyer with service data and/or a return material authorization (“RMA”); then, if applicable, Buyer may return the defective Products to Airgain with all costs prepaid by Buyer. Replacement parts may be new or refurbished, at the election of Airgain. All replaced parts shall become the property of Airgain. Shipment to Buyer of repaired or replacement Products shall be made in accordance with the Delivery provisions of these Terms. Consumables are expressly excluded from this warranty.
In no event shall Airgain have any obligation to make repairs, replacements or corrections required, in whole or in part, as the result of (i) normal wear and tear or cosmetic defects where such appearance is not a specified attribute of the Product, (ii) accident, disaster or event of force majeure, (iii) misuse, fault or negligence of or by Buyer, (iv) use of the Products in a manner for which they were not designed, (v) causes external to the Products such as, but not limited to, power failure or electrical power surges, (vi) improper storage and handling of the Products or (vii) use of the Products in combination with equipment or software not recommended by Airgain. If Airgain determines that Products for which Buyer has requested warranty services are not covered by the warranty hereunder, Buyer shall pay or reimburse Airgain for all costs of investigating and responding to such request at Airgain’s then prevailing time and materials rates. If Airgain provides repair services or replacement parts that are not covered by this warranty, Buyer shall pay Airgain therefor at Airgain’s then prevailing time and materials rates.
THE OBLIGATIONS CREATED BY THIS LIMITED WARRANTY STATEMENT TO REPAIR OR REPLACE A DEFECTIVE PRODUCT SHALL BE THE SOLE REMEDY OF BUYER IN THE EVENT OF A DEFECTIVE PRODUCT. EXCEPT AS EXPRESSLY PROVIDED IN THIS LIMITED WARRANTY STATEMENT, AIRGAIN DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE PRODUCTS, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. AIRGAIN DOES NOT WARRANT THAT THE PRODUCTS ARE ERROR-FREE OR WILL ACCOMPLISH ANY PARTICULAR RESULT.
9. INDEMNIFICATION BY AIRGAIN
Airgain agrees to indemnify and defend Buyer, its officer, directors, and employees from any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorney’s fees) (“Indemnified Items”) for (i) injury to or death of persons or damage to property to the extent caused by the negligence or willful misconduct of Airgain, its employees, agents or representatives or contractors in connection with the performance of services at Buyer’s premises under these Terms and (ii) claims that a Product infringes any valid United States patent, copyright or trade secret; provided, however, Airgain shall have no liability under this Section to the extent any such Indemnified Items are caused by either (i) the negligence or willful misconduct of Buyer, its employees, agents or representatives or contractors, (ii) by any third party, (iii) use of a Product in combination with equipment or software not supplied by Airgain where the Product would not itself be infringing, (iv) compliance with Buyer’s designs, specifications or instructions, (v) use of the Product in an application or environment for which it was not designed or (vi) modifications of the Product by anyone other than Airgain without Airgain’s prior written approval. Buyer shall provide Airgain prompt written notice of any third party claim covered by Airgain’s indemnification obligations hereunder. Airgain shall have the right to assume exclusive control of the defense of such claim or, at the option of Airgain, to settle the same. Buyer agrees to cooperate reasonably with Airgain in connection with the performance by Airgain of its obligations in this Section.
Notwithstanding the above, Airgain’s infringement related indemnification obligations shall be extinguished and relieved if Airgain, at its discretion and at its own expense (a) procures for Buyer the right, at no additional expense to Buyer, to continue using the Product; (b) replaces or modifies the Product so that it becomes non-infringing, provided the modification or replacement does not adversely affect the specifications of the Product; or (c) in the event (a) and (b) are not practical, refund to Buyer the amortized amounts paid by Buyer with respect thereto, based on a five (5) year amortization schedule. THE FOREGOING INDEMNIFICATION PROVISION STATES AIRGAIN’S ENTIRE LIABILITY TO BUYER FOR THE CLAIMS DESCRIBED HEREIN.
Buyer shall indemnify, defend with competent and experienced counsel and hold harmless Airgain, its parent, subsidiaries, affiliates and divisions, and their respective officers, directors, shareholders and employees, from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorneys’ fees and disbursements and court costs) to the extent arising from or in connection with (i) the negligence or willful misconduct of Buyer, its agents, employees, representatives or contractors; (ii) use of a Product in combination with equipment or software not supplied by Airgain where the Product itself would not be infringing; (iii) Airgain’s compliance with designs, specifications or instructions supplied to Airgain by Buyer; (iv) use of a Product in an application or environment for which it was not designed; or (v) modifications of a Product by anyone other than Airgain without Airgain’s prior written approval.
With respect to any software products incorporated in or forming a part of the Products purchased under these terms, Airgain and Buyer intend and agree that such software products are being licensed and not sold, and that the words “purchase”, “sell” or similar or derivative words are understood and agreed to mean “license”, and that the word “Buyer” or similar or derivative words are understood and agreed to mean “licensee”, in each case above as applies to the software portion of the Product. Notwithstanding anything to the contrary contained herein, Airgain or its licensor, as the case may be, retains all rights and interest in software products provided hereunder.
Airgain hereby grants to Buyer a royalty-free, non-exclusive, transferable license, without power to sublicense, to use software provided hereunder solely for use with the Product (the “License”), which License shall be transferrable solely in conjunction with the sale of Products by Buyer. This license shall run with the Product and is not severable from the use with the Product. Buyer agrees to hold in confidence and not to sell, transfer, license, loan or otherwise make available in any form to third parties the software products and related documentation except as expressly provided hereunder. Buyer may not disassemble, decompile or reverse engineer, copy, modify, enhance or otherwise change or supplement the software products provided hereunder without Airgain’s prior written consent. Airgain will be entitled to terminate this license if Buyer fails to comply with any term or condition herein. Buyer agrees, upon termination of this license, immediately to return to Airgain all software products and related documentation provided hereunder and all copies and portions thereof.
Certain of the software products provided by Airgain may be owned by one or more third parties and licensed to Airgain. Accordingly, Airgain and Buyer agree that such third parties retain ownership of and title to such software products. The warranty and indemnification provisions set forth herein shall not apply to software products owned by third parties and provided hereunder. Airgain shall make available to Buyer, during the term of this agreement, at no charge, bug fixes and updates released by Airgain for versions of the Licensed Software purchased by Buyer, as long as Buyer is not in breach of any section of this agreement.
11. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE LIABILITY OF AIRGAIN UNDER THESE TERMS AND CONDITIONS (WHETHER BY REASON OF BREACH OF CONTRACT, TORT, INDEMNIFICATION, OR OTHERWISE, BUT EXCLUDING LIABILITY OF AIRGAIN FOR BREACH OF WARRANTY (THE SOLE REMEDY FOR WHICH SHALL BE AS PROVIDED UNDER SECTION 7 ABOVE)) SHALL NOT EXCEED AN AMOUNT EQUAL TO THE LESSER OF (A) THE TOTAL PURCHASE PRICE THERETOFORE PAID BY BUYER TO AIRGAIN WITH RESPECT TO THE PRODUCT(S) GIVING RISE TO SUCH LIABILITY OR (B) ONE MILLION DOLLARS ($1,000,000). NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL AIRGAIN BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF USE OF FACILITIES OR EQUIPMENT, LOSS OF REVENUE, LOSS OF DATA, LOSS OF PROFITS OR LOSS OF GOODWILL), REGARDLESS OF WHETHER AIRGAIN (a) HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES OR (b) IS NEGLIGENT.
12. EXPORT RESTRICTIONS
Buyer acknowledges that each Product and any related software and technology, including technical information supplied by Airgain or contained in documents (collectively “Items”), is subject to export controls of the U.S. government. The export controls may include, but are not limited to, those of the Export Administration Regulations of the U.S. Department of Commerce (the “EAR”), which may restrict or require licenses for the export of Items from the United States and their re-export from other countries. Buyer shall comply with the EAR and all other applicable laws, regulations, laws, treaties, and agreements relating to the export, re-export, and import of any Item. Buyer shall not, without first obtaining the required license to do so from the appropriate U.S. government agency; (i) export or re-export any Item, or (ii) export, re-export, distribute or supply any Item to any restricted or embargoed country or to a person or entity whose privilege to participate in exports has been denied or restricted by the U.S. government. Buyer shall cooperate fully with Airgain in any official or unofficial audit or inspection related to applicable export or import control laws or regulations, and shall indemnify and hold Airgain harmless from, or in connection with, any violation of this Section by Buyer or its employees, consultants, agents, or customers.
13. AUTHORIZED USE OF PRODUCTS
Products sold by Airgain are intended solely for the use(s) specified by the manufacturer and are not to be used for any other purposes including, but not limited to, unauthorized commercial purposes. Buyer warrants and represents that it will properly test, use, and, to the extent authorized, manufacture and market any final articles made from Airgain’s Products in accordance with the practices of a reasonable person who is an expert in the field, and in strict compliance with all applicable national, state and local laws and regulations. Buyer acknowledges and understands that the purchase of Products only conveys to Buyer the non-transferable right for only the Buyer to use the Products purchased in compliance with any applicable manufacturer’s published restricted user statement, limited user statement, or limited license, if any. All such statements or licenses are incorporated by reference herein and in any Order as if set forth therein in their entirety. Buyer is solely responsible for conducting any research necessary to learn the hazards involved for any of its intended uses of the Products purchased from Airgain and to properly warn its customers, employees and other personnel who may be exposed to such Products of any risks involved in using or handling the Products.
14. QUOTES CONFIDENTIAL
Information provided in any quotation regarding the offer to sell Products is considered confidential and trade secret and may not be disclosed outside of Buyer’s organization without written permission of Airgain. Buyer may only disclose information contained in a quotation to those of its employees or agents who have a need to know the information for legitimate bona fide business purposes related to the purchase and sale of Products. The obligations under this section shall survive so long as the information remains trade secret under applicable laws.
(a) Buyer may not delegate any duties nor assign any rights or claims hereunder without Airgain’s prior written consent, and any such attempted delegation or assignment shall be void. (b) The rights and obligations of the parties hereunder, and any action regarding, or to enforce, these Terms shall be governed by and construed in accordance with the internal laws of the State of California, without reference to its choice of law provisions, as such laws apply to California citizens conducting business with each other. Each party hereby irrevocably consents to the exclusive jurisdiction of the state and federal courts located in San Diego County, California, U.S.A., in any action arising out of or relating to these Terms and waives any other venue to which it may be entitled by domicile or otherwise. (c) In the event of any legal proceeding between the Airgain and Buyer relating to these Terms, neither party may claim the right to a trial by jury, and both parties waive any right they may have under applicable law or otherwise to a right to a trial by jury. Any action arising under these Terms must be brought within one (1) year from the date that the cause of action arose. (d) The application to these Terms of the U.N. Convention on Contracts for the International Sale of Goods and its conflicts of laws provisions is hereby expressly excluded. (e) In the event that any one or more provisions contained herein shall be held by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall remain in full force and effect, unless the revision materially changes the bargain. (f) Airgain’s failure to enforce, or Airgain’s waiver of a breach of, any provision contained herein shall not constitute a waiver of any other breach or of such provision. (g) Unless otherwise expressly stated on the Product or in the documentation accompanying the Product, the Product is intended for its intended purposes only and is not to be used for any other purpose. (h) Airgain shall cooperate with Buyer to monitor invoicing accuracy and will conduct appropriate internal reviews upon request. Reviews shall be limited to once per year and shall cover the prior twelve month period. Reasonable credit shall be given to undercharges and overcharges. If Buyer engages external consultants to review invoice accuracy, Airgain reserves the right to charge a reasonable fee for support provided to such party. (i) Buyer agrees that all pricing, discounts and technical information that Airgain provides to Buyer are the confidential and proprietary information of Airgain. Buyer agrees to (1) keep such information confidential and not disclose such information to any third party, and (2) use such information solely for Buyer’s internal purposes and in connection with the Products supplied hereunder. Nothing herein shall restrict the use of information available to the general public. (j) Any notice or communication required or permitted hereunder shall be in writing and shall be deemed received when personally delivered or three (3) business days after being sent by certified mail, postage prepaid, to a party at the address specified herein or at such other address as either party may from time to time designate to the other. (k) Airgain may, in its sole discretion, provide (1) applicable Product training to Buyer or its employees, or (2) samples of Products to Buyer for distribution to customers of Buyer. Buyer agrees that any such samples shall be distributed to patients for patient use or, if not so distributed, returned to Airgain. Buyer shall not use such samples to provide care to patient and shall not bill patients or third party payers for the provision of such samples.
15. ACCEPTABLE PAYMENT METHODS
Airgain prefers to receive payment via ACH or other electronic interface methods that directly exchange funds between the Buyer’s and Airgain’s bank accounts. Airgain also accepts checks mailed to one of its published remittance locations. Although Airgain does accept credit card payments at the time of purchase, it does not accept credit card payments after the point of sale. Payment options for particular purchases shall be provided on the applicable invoice.