Effective Date: September 21, 2020
These Terms of Sale, Rental and Service (“Terms”) are effective as of the date noted above. These Terms explain the terms and conditions under which CommUSA, a BearCom company (“us” or “we”) will provide the sale of equipment (“Sale Equipment”), rental of equipment (“Rental Equipment”), installation services (“Installation Services”) and/or maintenance services (“Maintenance Services”).
1. SCOPE AND RATES. Scopes of work (“SOW”) are as defined in our quote. Rates are subject to change upon 30 days advance written notice. When we ship Rental Equipment or Sale Equipment to you, you are obligated to pay the shipping charges, including any express or expedited rates if you request expedited delivery. When you return Rental Equipment to us, you are obligated to pay any packing and shipping charges. Cancelled orders are subject to a 20% restocking fee.
2. AGREEMENT TO PAY. Unless we have agreed to different payment terms, you are obligated to pay us the rates listed on our quote, without offset or deduction, within 30 days of the date of our invoice. Unpaid invoices will incur late charges at the lower of 1 ½% per month or the maximum legal rate of interest until such overdue amounts (and interest accrued on such overdue amounts) are paid by you to us. You have the sole responsibility for, and you agree to pay all taxes and license and similar fees payable at any time with respect to the Sale, Installation, Maintenance or Rental of Equipment. If you represent that any particular transaction is exempt from taxes, you are obligated to provide us with a current and accurate exemption certificate prior to product shipment or service delivery. You agree that if your exemption status changes, you are obligated to repay to us any tax we were required to pay on your account to any taxing authority. For Sale or Rental Equipment that is specially ordered for you, you may be required to make a deposit at the time of order. If the Equipment is sold on credit, you acknowledge that we retain a purchase money security interest in the Equipment. To secure your obligations to us under these Terms or any other agreement, you hereby grant to us a security interest in all the Equipment sold under these Terms, whether now owned or hereafter acquired, and all proceeds of such Equipment. We may file any financing statements and send any notices necessary or appropriate to perfect or protect such security interest. You agree that we may file a construction lien or other lien in respect of amounts owed by you to us. You agree to pay or reimburse on demand all costs, including attorneys’ fees and legal costs, incurred by us in the enforcement of our rights in connection with the Equipment or these Terms, including, without limitation, lien rights. All payment terms set forth in these Terms are subject to our approval of your credit, in our discretion; if such approval is withheld or the amount of your purchases exceeds such approval limit, payment will be due in advance of us delivering any Equipment to you. We may suspend the delivery of any or all Equipment if you fail to pay any invoice when due.
3. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY. WE DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AS TO THE MERCHANTABILITY OF THE EQUIPMENT, SYSTEMS, OR SERVICES PROVIDED HEREUNDER, NOR THEIR FITNESS FOR ANY PARTICULAR PURPOSE. For new Sale Equipment, we will extend to you any manufacturer’s warranty that is assignable. Used Equipment is sold as-is with all faults. Where we install a system, we warrant that the system will perform in accordance with the specifications of our quote in all material respects. Upon System Acceptance or Operational Use (whichever occurs first), this limited warranty expires. Our liability in connection with any asserted defect with respect to the Equipment or Services shall be to repair or replace the Equipment or to reperform the Services. We are not liable for any outside RF interference that may cause disruptions or outages of your systems and services. Where telephone lines and equipment you own are used in conjunction with Equipment we maintain, we disclaim liability for telephone lines and any equipment not owned by us or covered by us through a SOW. We do not warrant that the Equipment or Services are suited for your intended use, or that they are free from defects. Except as may be specifically set forth in these Terms, we disclaim all other warranties, expressed or implied, made in connection with this transaction. These warranty provisions cannot be modified orally or in writing, and they supersede any contrary representations or warranties, expressed or implied. In no event will we be liable for any lost profits, LOSS OF USE OR CONNECTIVITY, or other indirect, special, punitive or consequential damages related to our obligations under these Terms.
4. INDEMNITY/HOLD HARMLESS/DAMAGES. You acknowledge and assume all risks inherent in the operation and use of the Equipment. You agree to reimburse, defend, indemnify and hold us harmless from and against any and all liability, losses, injuries, demands, costs, expenses, fines, settlements, penalties, claims and damages of any kind (including attorneys’ fees) OF ANY KIND OR NATURE (“Claims”) ASSERTED BY ANY PERSON OR BY OR BEFORE ANY GOVERNMENTAL ENTITY Arising out of the PURCHASE, use, maintenance, instruction, operation, transportation, possession, ownership or rental of the Equipment or Services rendered hereunder, however caused or related in any other way to these Terms, except to the extent those Claims are the result of our negligence.
5. SERVICES EXCLUSIONS. Any services not specifically noted in a SOW are excluded. These exclusions are, by way of illustration but not limitation: service of any transmission line, antennas, tower or tower lighting, unless such work is described in the SOW; consumables and the installation of consumables; replacement of Equipment that has otherwise become defective, including, but not limited to, damage caused by accidents, physical or electrical abuse or misuse, acts of God, fires or other casualty; and other non-covered repairs. We will bill you at our then-current rates for any service call made in response to issues not covered by a SOW. If, in our reasonable opinion, the Equipment cannot be economically or properly repaired due to (for example) excessive wear, deterioration or unavailability of parts, we will give you no less than 30 calendar days’ notice and will either remove the Equipment from a SOW or provide you with updated pricing to service the Equipment. Equipment that cannot be repaired at your location will be transported to our branch for repair.
6. RECEIPT AND RISK OF LOSS. We will deliver the Equipment to the site designated by you (“Job Site”). We will endeavor to meet your expected schedule but cannot guarantee any specific time or date of delivery. For Rental Equipment, you agree that you will not remove the Rental Equipment from the Job Site without our prior written consent. You are obligated to inspect any Equipment prior to accepting delivery, and to confirm that the Equipment is in good working order and is sufficient for the purpose for which you intend it to be used. For Sale and Rental Equipment, you accept the risk of loss at the time of delivery. We retain title to Sale Equipment until the entire purchase price has been paid. We retain title to Rental Equipment throughout any rental period, and you agree to keep the Rental Equipment free and clear of all liens and encumbrances during the rental period. You agree that delivery occurs at the earliest of the following: (1) your physical receipt of the Equipment; (2) upon our transfer of the Equipment to a transportation agent for shipment to you. You agree that you will provide an authorized individual at the delivery point in order to receive delivery of the Equipment. Upfitted Vehicles: For vehicles that were upfitted and ready for delivery to you (“Completed Vehicles”), we will provide you with 3 days free storage of the Completed Vehicle at our branch. Starting on the fourth day, we will charge you storage fees at the rate noted in the quote. Regardless of when you pick up the Completed Vehicle, you are obligated to provide insurance coverage on the Completed Vehicle which will include the value of our Equipment that has been incorporated into it. During the storage period, we will take reasonable precautions to protect the Completed Vehicle, but you acknowledge that your insurance will cover any loss or damage to the Completed Vehicle and that you will remain obligated to pay us for the Equipment incorporated into it.
7. RENTAL TERM. Rental of Rental Equipment begins at the time noted in our quote or in any other CommUSA Document we send you related to the particular Rental Equipment. We may require that you rent the equipment for a minimum Rental Term. If you wish to retain the Rental Equipment beyond the original Rental Term, you are obligated to contact us and request a Rental Term extension, which we can accept or decline at our sole discretion. If you retain the Rental Equipment without our prior approval, we reserve the right to invoice you for additional weeks at our discretion or invoice you for the replacement value of the Rental Equipment you have retained. We will not credit rental charges for Rental Equipment returned to us prior to the end of the Rental Term, and we may charge you a cancellation charge of 80% of the remaining amount of the Rental Term.
8. USE AND RETURN OF RENTAL EQUIPMENT. You are obligated to ensure that you are familiar with the proper operation and use of each item of Rental Equipment and your acceptance of any Rental Equipment is your representation that you have the required familiarity. We will demonstrate the proper operation of the Rental Equipment if that is included in the SOW. You will not use or allow anyone to use the Rental Equipment for an illegal purpose or in an illegal manner, or without a license or permit, if such is required under any applicable law. You are obligated to keep the Rental Equipment in good and efficient working order, condition and repair, reasonable wear and tear excepted. When you are returning Rental Equipment at the end of the Rental Term, you are obligated to ensure that you pack the Rental Equipment properly and in accordance with any shipping instructions we may give you. If the Rental Equipment is damaged in transit back to us, you are liable for those damages up to the replacement value of the Rental Equipment damaged, destroyed or lost. You agree that you will visually inspect the Rental Equipment regularly and immediately notify us when it needs repair or maintenance. You agree that you will not make any alterations, additions or improvements to the Rental Equipment, and that you will not remove any identification, warning or other labels that are affixed to the Rental Equipment. If the Rental Equipment is lost, stolen, destroyed or if the estimated cost of repair exceeds its book value, then you will be invoiced for the replacement cost of the Rental Equipment, as well as the rental fee for the damaged or lost Rental Equipment through the date of replacement. You acknowledge that the value of our damages is equal to the replacement cost, not the book value, of the damaged Rental Equipment, as well as the rental fees that we could have received had the Rental Equipment not been destroyed or lost. You are required to pay any of these listed costs. You are obligated to ensure that any Equipment that is covered under a SOW for Services is maintained in the proper environmental conditions.
9. SITE CONDITIONS. You are obligated to ensure that all Job Sites are safe, secure and comply with industry standards. Job Sites must have adequate physical space, air conditioning and other environmental conditions; adequate and appropriate electrical power outlets, distribution, equipment and conditions; adequate telephone or other communication lines, all for the installation, use and maintenance of the system. We may, but are not required to, inspect the Job Site and notify you of any apparent deficiencies in advance of performing work. If we determine that the Job Site conditions are materially different from the conditions we anticipated in our quote, we will negotiate in good faith a change order with modified scope and pricing.
10. SYSTEM ACCEPTANCE. We will give you no less than 10 calendar days’ notice of the acceptance testing date. After the successful completion of any acceptance test, we will provide you with a System Acceptance Certificate (“Acceptance Certificate”). If separate tests are required for individual subsystems or phases, separate Acceptance Certificates will be issued. If the system or subsystem fails within the first 5 days of receiving the System Acceptance Certification, you will have 10 calendar days in which to provide us with a written notice that includes sufficient information to allow us to evaluate your assessment. Minor omissions or variances that do not materially impair the system do not constitute a failure. If you do not provide us with a written notice within 15 calendar days, the system will be deemed accepted by you. You agree that you will not begin operational use (“Operational Use”) until you receive an Acceptance Certificate. If you place the system into Operational Use prior to being issued an Acceptance Certificate, you void any warranty as noted in these Terms and you accept responsibility for damages or loss arising out of this unauthorized Operational Use.
11. INSURANCE COVERAGE. Where we are providing rental equipment to you, you agree to maintain and carry, at your sole cost and expense, with insurers acceptable to us, adequate liability, physical damage, public liability, property damage and casualty insurance for the full replacement cost of the Equipment against all risks of loss and sufficient to cover your indemnity and liability obligations stated in these Terms. Upon our request, you agree to supply a Certificate of Insurance (COI) clearly setting forth the coverage for the Equipment and naming us as loss payee and additional insured. Upfitted Vehicles: For vehicles being upfitted, your insurance must cover your vehicle against all risks of loss from the time you deliver the vehicle to us until the Completed Vehicle is delivered to you. Your insurance must include the value of the equipment we installed into the Completed Vehicle. The amount and type of insurance on your vehicle does not limit your obligation to pay us for the full value of our services and equipment.
12. DEFAULT. You will be in default with respect to your obligations under these Terms upon the occurrence of any of the following (“Default”): (a) you fail to make any payment when due; (b) any insurance coverage required to obtained and maintained by you lapses, expires or is cancelled; (c) any representation or warranty you made in these Terms or other order for Equipment or Services is false or misleading in any material respect; (d) you remain in breach of any obligation under these Terms for 10 or more days after receiving notice of such breach from us; (e) you breach any other agreement between the parties; (f) you become insolvent, are liquidated or dissolved, amalgamated, merge, transfer substantially all your stock or assets, cease or threaten to cease doing business, or assign rights or property for the benefit of creditors; or (g) a petition is filed by or against you under any bankruptcy or insolvency law. Upon the occurrence of a Default event, we may do any of the following: (a) terminate any transaction pending between us; (b) declare any amounts owed immediately due and payable and commence legal action; (c) retake possession of any Sale Equipment for which we have not received full payment; (d) retake possession of any Rental Equipment, holding you liable for all rent and other charges; and/or (e) pursue any other remedies available by law.
13. REPOSSESSION OF EQUIPMENT. In the event of any actual or anticipatory violation of or default in any of the material terms and conditions of these Terms by you, we may terminate these Terms and without notice or legal process, enter onto your premises and take all action reasonably necessary to repossess of any Sale Equipment for which we have not received full payment, and/or any Rental Equipment. You waive all claims for damages and losses, physical or pecuniary, caused by our repossession action, and shall pay all costs and expenses incurred by us in retaking the Equipment.
14. CONFIDENTIALITY. Confidential or proprietary information disclosed by us or on our behalf, either orally or in writing (“Confidential Information”) may include the following types of information and other information of a similar nature (whether or not reduced to writing or still in development): designs, concepts, drawings, ideas, inventions, specifications, techniques, discoveries, models, documentation, diagrams, flow charts, research, development, processes, procedures, know-how, marketing techniques and materials, marketing plans, timetables, strategies and development plans (including prospective trade names or trademarks), customer names and other information related to customers, employee information, pricing policies and financial information. Confidential Information does not include information that is now or later becomes generally known in the industry, is independently developed by you without reference to information provided by us, or which you lawfully obtain from a third party. You agree not to use any of the Confidential Information for any purpose at any time other than in connection with this Agreement. You agree to protect Confidential Information using at least as much care as you use to protect your own confidential or proprietary information. You acknowledge that the confidentiality provisions of these Terms are necessary and reasonable to protect our Confidential Information, that it is unique, and that the loss or disclosure of it will cause us irreparable harm for which we will have no adequate remedy at law. Therefore, in addition to any other rights and remedies, we are entitled to seek injunctive or such other equitable relief as necessary to prevent or mitigate a breach of the confidentiality obligations of this Agreement.
15. Non-Solicitation. During the term of this Agreement and for 1 year after any termination, you agree to not actively solicit for employment any of our personnel who had a direct involvement in developing systems, selling, renting, installing or servicing Equipment, without our express written consent.
16. USE OF SUBCONTRACTORS. You agree that we may use subcontractors to perform any Services hereunder. Notwithstanding the use of any subcontractors, we remain responsible for the proper provision of Services and/or Equipment.
17. NON-DISCRIMINATION. Both parties agree to abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity or national origin. Moreover, these regulations require that parties take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, protected veteran status or disability.
18. CHANGE ORDERS. Either party may determine that a change order is required, which may impact the scope of work and any rates charged. For change orders accepted by us, you agree to pay the prices quoted by us. If you authorize us to make changes, you are obligated to pay our quoted change order price, irrespective of whether you have signed a written change order.
19. LICENSES AND PERMITS; COMPLIANCE WITH LAWS. Although we may assist in preparation of the FCC license applications, you are solely responsible for obtaining any licenses or other authorizations required by the Federal Communications Commission ("FCC") or any other Federal, State or Local Governmental agency. You agree that you are solely responsible for complying with applicable common law and any statute, ordinance, code or other law, rule, permit, permit condition, regulation, order, decree, technical or other standard, requirement or procedure enacted, adopted, promulgated, applied or followed by any governmental entity including, but not limited to, the Communications Act of 1934, as amended, Title 47 of the Code of Federal Regulations, as amended from time to time, and the written decisions, policies, reports, and orders of the FCC issued pursuant to such regulations and the applicable rules and regulations of any other Federal, State or Local governmental agency. Neither we nor any of our employees is an agent of yours with respect to FCC or other governmental matters. You will provide all construction and building permits, zoning variances, licenses and any other approvals that are necessary for us to work on the Job Site. You certify that neither you nor any person who directly or indirectly owns or controls you is identified as subject to economic sanctions by the United States, United Nations, European Union, or United Kingdom (collectively referred to as a “Sanctioned Person”). You agree that you will not resell, export, or otherwise transfer Equipment to any (a) Sanctioned Person, (b) location subject to economic sanctions including but not limited to Cuba, Iran, North Korea, Syria, or the Crimea Region of Ukraine, or (c) location that would require a license issued by the U.S. government.
21. OTHER PROVISIONS. Each provision of these Terms is severable. If a court should find any provision of these Terms to be unenforceable, all other provisions shall remain in full force and effect. You acknowledge that you have read and agree that the provisions of these Terms are commercially reasonable. Our failure to insist upon your strict performance of any one provision of these Terms shall not be construed as a continuing waiver of that provision or any other provision. You agree that you must commence any action that may arise under the terms of these Terms within 1 year of the date on which the loss, damage or other legal basis for a claim occurs. Except for your obligation to pay for services rendered or equipment ordered, neither party is responsible for failure to perform its obligations if it is prevented or delayed in performing them by an event of force majeure, which is defined as an event or circumstance which is beyond the control and without the fault or negligence of the party affected, and which by the exercise of reasonable diligence was unable to be avoided or prevented. Unless otherwise specifically agreed to by us in writing, we may terminate for convenience and without cause, any agreement to sell, rent or provide service with 30 days advance written notice to you.
22. ELECTRONIC SIGNATURES. You agree to conduct business electronically. You acknowledge that a Job Site representative or other representative of your company will be electronically acknowledging receipt of Equipment or Services and may electronically sign an Acceptance Certificate. You acknowledge that your electronic signature has the same validity and meaning as a handwritten signature.
23. ENTIRE AGREEMENT. We offer to sell the Equipment and/or Services described in the accompanying quote, bid, proposal, order acknowledgment, invoice or other document provided by us to you with these Terms (the “CommUSA Document”) in accordance with these Terms, is not an acceptance of any offer made by you, and is expressly conditioned upon your agreement to these Terms. We object to any additional or different terms contained in any request for proposal, purchase order, acknowledgement or other communication previously or hereafter provided by you to us. No such additional or different terms or conditions will be of any force or effect. We offer the Equipment and/or Services at the rates quoted based on these terms and conditions; and any other document you may provide to us, including your purchase order or other document, will not apply to this transaction. This is true regardless of whether your purchase order or other document contains language that attempts to supersede or cancel these Terms. By accepting delivery of our Equipment or allowing our Services to commence, you have accepted these Terms. These Terms, together with the consistent terms provided by us in the CommUSA Document, shall be referred to herein as the “Agreement” and will be the entire agreement between us and you on the subject of the transaction described in these Terms and in the CommUSA Document; there are no conditions to the Agreement that are not so contained or incorporated.