Empowering Technology. Provided by People.
These Terms and Conditions (“Terms”) shall govern the sale of hardware, software, subscription or licensing (“Products”) and any related installation services (“Services”), provided by Ascend Technologies, LLC (“Ascend”) to Client, each a “party” and together the “parties”. These Terms, together with the executed quote for purchase or Products (“Quote”) constitute the entire understanding and agreement between Client and Ascend with respect to the Products and Services purchased, and supersede all prior oral and written communications, and may be amended, modified or changed only in writing when signed by both parties. If there is a conflict between these Terms and the terms of any existing MSA, the terms of the MSA shall govern. The parties acknowledge and agree that any terms and conditions of any purchase order, sales acknowledgement or other document submitted by Client which conflicts with these Terms shall be of no force or effect, and the Terms control and supersede any such conflicting documents.
1. Price and Payment:
Payment for Product(s) is due upon receipt of the invoice for such Product(s). Unless expressly stated in the Quote, pricing does not include costs of shipping to Client’s premises, and Client will be billed for any applicable shipping costs. Payment of invoices for Services are due within thirty (30) days of the date indicated on each invoice. Client shall be responsible for any and all taxes levied upon the transfer of ownership, installation, license/use of Products and Services. Delinquent payments on any undisputed balance are subject to a late payment charge of the lower of one and one half percent (1.5%) per month or portion thereof, or the maximum amount allowed by law. Client shall reimburse Ascend for reasonable attorneys’ fees and any other costs associated with collecting delinquent payments.
2. Delivery:
Unless stated otherwise in Quote, Product will be shipped from Supplier as stated in Quote, FOB shipping point. Upon shipping, Client will be invoiced. Title and risk of loss for any Product procured by Ascend for Client pursuant to these Terms shall pass to the Client on such date that such Product is shipped from Supplier to any location specified by Client. If Client is unable, unwilling, or fails to cooperate in accepting delivery on the date Ascend tenders delivery, Ascend may cancel the applicable Quote and bill Client for cancellation charges as described in these Terms. Client is responsible for procuring any insurance it requires.ient for cancellation charges as described in these Terms. Client is responsible for procuring any insurance it requires.
3. Ascend Installation:
If Ascend is providing professional installation Services for Products, such Services will be set forth in the Quote or a separate agreement. If Ascend determines during installation, that Client requires additional pre-requisites for installation, Client will be charged accordingly and invoiced for any additional charges. Extra labor time and/or site visits associated with delays due to the responsibilities of any third party not under Ascend’s direct control are billable at Ascend’s standard hourly rates. Client shall be responsible for any increased costs due to rescheduling or requested changes, in addition to any changes or additions to the scope of work, which shall be billed at standard time and materials rates. Any changes requested by Client may delay installation Services or require a new timeline.
4. Client’s Installation Responsibilities:
Client shall:
(a) Provide Ascend personnel appropriate access to the location, systems and facilities where the Product is to be installed, in addition to appropriate work space;
(b) Assure that the premises will meet all environmental requirements (based on manufacturer specification of optimal use case) and will be dry and free from dust and other hazards;
(c) Provide all necessary structural or mechanical modifications including the necessary electric current of proper voltage;
(d) Check with building codes and standards as well as city codes and standards, as work will be performed under the assumption that Client has identified proper standards and codes prior to performing any work;
(e) Provide 24/7 permanent remote access and administrative credentials to necessary devices; failure to do so will result in the voiding of any applicable SLA. Client shall be responsible for any additional necessary Services or increased costs due to its failure to comply with it responsibilities under this Section 4.
5. Managed Services Support:
This engagement is limited to project based Services, if any. Any additional ongoing managed services support relating to the Products must be set forth in a separate managed services agreement.
6. Provider Terms:
Client and its end user(s) agree to comply with and are bound by underlying carrier, provider and/or manufacturer (“Provider”) End User License Agreement (“EULA”), Acceptable Use Policy (“AUP”), Fair Use and/or Reasonable Use terms (collectively, “Provider Terms”). Provider Terms have been made available on Provider’s website or can be requested at any time. Client may only use the Products in accordance with the Provider Terms. Client will be billed accordingly for all overage charges as well as additional fees associated with non-compliance of Provider Terms.
7. Standard Warranties:
Purchased Products may be covered by a standard Provider warranty period designated by the Provider from date of purchase, depending on the Provider and the specific Product. If a Product does not operate in accordance with the documentation during the service period, you must promptly notify Ascend. Ascend shall pass through any such warranty rights to Client and pursue available remedies on Client’s behalf. Any available remedies under such warranties shall be Client’s sole remedy for Product performance issues.
8. Maintenance:
Client agrees that Ascend shall not be responsible, in any way, for maintenance of any Products ordered by Client pursuant to these Terms unless Client executes a separate agreement with Ascend setting forth maintenance coverage, terms, duration and cost. Client may also have the option to execute a separate written maintenance agreement with the Provider (if available). If under a Provider maintenance agreement, Client will look solely to such Provider in connection to any such maintenance responsibilities and issues.
9. Limited Services Warranty:
AAscend warrants that any Services shall be performed with reasonable care in a diligent and workmanlike manner, consistent with industry standards. Ascend’s sole obligation and liability and Client’s sole and exclusive remedy for breach of this warranty shall be for Ascend to reperform any Services brought to its attention in writing within thirty (30) days after the Services are performed. Issues identified that are outside of the agreed scope, or outside of the thirty (30) day timeframe will not be covered under Ascend’s limited warranty.
10. Disclaimer:
EXCEPT AS OTHERWISE STATED WITHIN THESE TERMS, ASCEND MAKES NO INDEPENDENT WARRANTIES, EXPRESS OR IMPLIED, IN RELATION TO THE PRODUCTS AND SERVICES AND SPECIFICALLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SYSTEMS INTEGRATION AND NON-INFRINGEMENT. ASCEND DOES NOT WARRANT UNINTERRUPTED OR ERROR FREE OPERATION OF THE PRODUCT(S).
11. Cancellation/Termination:
Client acknowledges and agrees that upon execution of these Terms, Ascend will expend substantial funds to fulfill Client’s purchase, including, without limitation, costs of purchasing and ordering Products, costs associated with providing installation by its personnel, costs involved with the inability to resell any specifically configured Products to a third party. Client agrees that in the event the Client terminates or cancels its purchase prior to installation of the Product, Client shall only be entitled to a refund upon confirmation from Provider that the Product purchase may be cancelled and is eligible for refund. Ascend shall credit any available refund to Client after receipt of the funds from Provider. Client shall be billed for any labor expended by Ascend up to the point of cancellation at time and materials rates. If Client purchases prepaid subscriptions or licensing, Client is responsible for 100% of the purchase price with no refund. All subscriptions will automatically renew ninety (90) days prior to anniversary. Client is required to provide ninety (90) days’ prior written notice of cancellation to Ascend or Client is 100% responsible for subscription renewals. Additional applicable termination or offboarding charges can apply. These Terms shall remain in effect so long as Client has an active license or subscription purchased pursuant to these Terms, including during any renewal term.
12. Cap on Liability:
Ascend’s total liability arising out of these Terms for all claims in any manner arising in connection with the Terms (whether in contract, tort, negligence, strict liability in tort or by statute or otherwise, whether arising from contractual or extra-contractual liability) shall be the payment of direct damages and such damages in no event shall: (a) exceed in the aggregate of the fees Ascend receives for the purchase associated with these Terms during the six (6) months immediately preceding the claim; or (b) include any indirect, special, consequential, incidental, punitive or exemplary damages or loss (including business interruption, lost profits, lost savings or lost business), even if it has been advised of their possible existence. Without limiting the foregoing, Ascend will have no liability of any kind arising from any failure, degradation or delay of any Products or Services: (i) caused by the failure or dysfunction of any Client property, third party materials, third party services, energy sources or communication devices; and/or (ii) related to networks, systems or infrastructure of Client or third parties not within Ascend’s exclusive control.
13. Indemnification:
Client will indemnify Ascend, its affiliates and their partners, principals and personnel against all costs, fees, expenses, damages and liabilities (including defense costs) associated with any third party claim, relating to or arising as a result of Client’s improper use of the Products, failure to comply with Provider Terms or breach of these Terms, excluding any claims resulting from the negligence, willful misconduct or fraud of Ascend.
14. Force Majeure:
Ascend shall have no liability for circumstances beyond its control including, delays, failure in performance, or damages caused by acts of God, war, terrorism, disturbances, riot, fire, explosions, accident, flood, inability to obtain to fuel or power, government laws, regulations, acts or inaction of the Client, or any other cause beyond the reasonable control of Ascend. If any of these incidents delay delivery and/or installation, Ascend shall use reasonable efforts to make timely delivery/installation: however, Ascend shall not be liable for these delays in delivery and installation.
15. Subcontracting:
Ascend may subcontract Services to be performed under this Agreement, but shall retain responsibility for the Services performed.
16. General:
(a) These Terms may not be assigned or otherwise transferred by Client without the prior approval of Ascend, which shall not be unreasonably withheld or delayed, except in the event of an acquisition of all or substantially all of Client’s assets, Client may assign these Terms to the acquiring company.
(b) Any notices given pursuant to this Agreement shall be in writing, delivered to the address set forth in the Quote, via registered mail, overnight mail, courier, or personal delivery and shall be considered given when received.
(c) No term of these Terms shall be deemed waived, and no breach of these Terms excused, unless the waiver or consent is in writing signed by the party granting such waiver or consent.
(d) If any term or provision of these Terms is determined to be illegal or unenforceable, such term or provision shall be deemed stricken, and all other terms and provisions shall remain in full force and effect.
(e) These Terms do not make either party an agent or legal representative of the other party, and does not create a partnership or joint venture. Both parties are independent contractors and principals for their own accounts.
(f) The laws of the State of Delaware shall govern these Terms without regard to the principles of conflicts of law, and the parties agree to submit to the exclusive jurisdiction of the state and federal courts of Delaware.
(g) These Terms may be executed in one or more counterparts and/or by facsimile or electronic submission, each of which will be deemed an original and all of which signed counterparts, taken together, will constitute one instrument.