Terms & Conditions
M2C LLC Terms and Conditions
Unless otherwise specified by prior written agreement of the parties, any orders entered into by M2C LLC. (“M2C”), shall be (a) a purchase of the equipment, components or services, and (b) a non-exclusive right to use the software provided or incorporated solely in connection with the product or service with which it was delivered. M2C provides no warranties or support. All purchases (or licenses) are subject to the following terms and conditions:
1. Orders: Orders are not binding until accepted by M2C, in its sole discretion. Except in the case of a breach, as provided in Section 8, once an order is accepted by M2C, it may be changed or cancelled only with the written consent of the parties.
2. Payments: All prices are F.O.B. M2C's Racine Wisconsin location, payable 100% of the aggregate price before shipment unless otherwise agreed in writing by an authorized M2C representative. Prices are exclusive of any freight, taxes (sales, use, personal property tax, etc.), duties or imposts, all of which are the responsibility of Buyer. Buyer agrees to pay all amounts due upon receipt of invoice as provided above; plus a service charge of 1-1/2% per month (or portion thereof), or such lesser maximum allowable by law, on all balances not paid within 10 days of the due date. Customer waives the right to process charge backs on their credit card for M2C LLC purchases. Notwithstanding any partial payment by Buyer, title to goods shipped shall remain with M2C until the entire price has been paid; and, if Buyer defaults in the payment of any charges hereunder when due, M2C may remove and repossess any and all such goods delivered, in addition to any other legal remedies it may have.
3. Delivery: All shipments shall be F.O.B. Fonality Inc. (“Fonality”), , Los Angeles, California, and Buyer shall bear the cost of delivery and handling. Risk of loss shall transfer to Buyer upon delivery of goods to the carrier. M2C will make every reasonable effort to complete shipment on or before the dates set forth in its written quotation or the face of this order, as applicable; however, M2C shall not be liable for delay in performance or inability to perform occasioned by acts beyond its reasonable control, including acts of God, fire, flood, strike, war, embargo, government regulation or materials shortage. If performance is delayed by such an event, M2C shall notify Buyer, and time of performance shall be extended for the period of such contingency.
4. Pre-Test; Installation: Before any Fonality products are boxed and shipped to customer sites, all such products and services are provisioned, tested, and verified as “working” by Fonality. Following shipment, Fonality will provide, upon request, free remote installation of all ordered products and services.
5. Acceptance; No Warranty. Fonality will provide free installation support and “debugging” technical services during the 21 day acceptance period, but no warranty thereafter. To enable Fonality to correct persistent ‘bugs’ effectively, the customer must sufficiently communicated or be able to replicate the “bug” for Fonality
a. Acceptance Period; During the 21 day period following transfer of title, Fonality shall assist Buyer in the installation and programming of the Fonality products, and facilitate the enforcement of any manufacturer’s warranties related to hardware. Buyer agrees to inspect all goods within such 21 day period, after which time all equipment, components and/or software, as applicable, are deemed accepted. All shipments shall be deemed accepted by Buyer, and Buyer waives the right of rejection, unless Fonality receives a notice of rejection within 21 days following delivery, or such other period specifically agreed in writing in advance by the parties.
b. Pass-Through Warranties: Following the foregoing acceptance period, Fonality shall extend to Buyer, on a ‘pass through’ basis, the manufacturer’s warranty on purchased equipment and components to the extent permissible. Unless otherwise provided in a separate maintenance or support agreement, all other obligations of Fonality to maintain, service or provide warranty repair to the equipment, components or software shall terminate at the end of the acceptance period.
c. Limitation of Obligations: THE FOREGOING WARRANTY IS IN LIEU OF, AND BUYER WAIVES, ALL OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PURPOSE, AND SETS FORTH THE EXCLUSIVE AND ENTIRE LIABILITY OF M2C WITH RESPECT TO ANY DEFECTIVE PRODUCT OR COMPONENT, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE OR OTHERWISE. IN NO EVENT SHALL M2C BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES. The maximum liability of M2C for any and all claims of any kind, including negligence, for loss or damages arising out of with this Agreement, shall in no case exceed the price allocable to the item of equipment, component or software which gives rise to the claim.
d. Returns: No return of goods will be accepted by M2C without a Return Material Authorization Number (RMA Number) obtained from M2C. All returned goods must be shipped prepaid, clearly marked RMA number, and be accompanied by a complete description of the nature of the defect. All of the following conditions must be met for M2C to authorize an RMA#. All returns will be subject to a 15% “reconfiguration/restocking” fee. To receive a refund, all items must be in “like new” condition and customer must ship back all materials including: boxes, wires, manuals, shipping materials, etc. Items that are not returned in “like new” condition will not be refunded, and will be returned to the customer at the customer’s expense.
6. Support: Following successful installation, Fonality support is only available to customers who purchase such support under separate annual software maintenance and support agreements.
7. Intellectual Property: All intellectual property (including software or programming) delivered hereunder are solely for use by Buyer or its customers as shipped, and may not be used as a replication master or otherwise copied without the expressed consent of Fonality. Use of software delivered as a separate item shall be subject to a separate license agreement that Buyer shall be required to accept prior to delivery. Buyer acknowledges that all intellectual property furnished by Fonality hereunder and the contents thereof are the proprietary property of Fonality, and Buyer has no right or interest therein except the nonexclusive right to use it in the product in which it was delivered or as otherwise provided in a written license agreement. Buyer agrees not to directly or indirectly reproduce, decompile or provide or otherwise make available to any third party any Fonality intellectual property. Buyer shall be liable for all damages, including loss of anticipatory profits, incurred by Fonality as a result of such unauthorized use, copy or replication. The rights granted hereunder or use of Fonality products does not convey any rights or ownership in Fonality patents, copyrights, trademarks, intellectual property or know-how.
8. Remedies for Breach:
a. By M2C: If M2C shall be in material breach of this Agreement, Buyer may cancel the undelivered portion of purchase orders upon 30 days written notice unless M2C cures such breach with such notice period. Any money paid in advance by Buyer to M2C for goods not shipped will be promptly reimbursed. The foregoing shall be the exclusive remedy of Buyer for any M2C breach of this Agreement.
b. By Buyer: If Buyer shall be in material breach of this Agreement and fails to cure said breach within 30 days of written notice thereof from M2C, M2C shall thereupon have the right without further notice to (1) bill and declare due and payable the aggregate purchase price for all undelivered products under this Agreement, (2) defer shipment hereunder until such default, breach or repudiation is removed, and/or (3) cancel the undelivered portion of this Agreement in whole or in part, with Buyer remaining liable for damages. Further, if Buyer fails to pay any amount hereunder as it becomes due or wrongfully rejects goods hereunder, in addition to any other remedies it may have in law or equity or hereunder, M2C shall have the right to recover, in addition to the purchase price of such goods, all costs incurred by M2C to collect the same.
c. Delayed Enforcement: No delay or omission to exercise any right, power, or remedy upon a breach or default under this Agreement shall impair any such right, power, or remedy of the non-defaulting party or be construed as a waiver of any such breach or default.
9. Notices: Any notice required or permitted to be sent under this Agreement shall be delivered by first class mail, return receipt requested, or via an international courier service (e.g. FedEx, DHL, UPS, etc.) to the addresses of the parties set forth in this order. Notice so sent will be deemed effective three days following deposit in the mail, proper postage prepaid or one day following delivery to an international courier, prepaid for overnight delivery.
10. Entire Agreement: This Agreement contains the entire agreement between Buyer and M2C and supersedes any prior or contemporaneous oral or written agreements or communications between them relating to the subject matter hereof. No printed terms in any document of Buyer shall apply to the goods or services delivered under this Agreement nor shall they be binding on M2C In the event that any provisions in this Agreement, for any reason, shall be held void or unenforceable, the remaining provisions shall remain in full force and effect and shall control.
11. Governing Law: This Agreement and all orders hereunder shall be governed by and construed under the laws of the State of Wisconsin, USA and shall be subject to the exclusive jurisdiction of the courts in Racine County, Wisconsin, USA. In any action brought to enforce this agreement, the prevailing party shall be entitled to also recover the cost of enforcement, including attorney fees related thereto.
