termsconditions
Unless otherwise specified by prior written agreement of the parties, any orders entered into by Cyvotel Communication LLC. ("Cyvotel "), shall be:-
(a) a purchase of the equipment, components or services
(b) for any software not
otherwise licensed under the GNU General Public License
(GPL), as described in Section 10, a non-exclusive right
to use the software provided or incorporated solely
in connection with the product or service with which
it was delivered (collectively, the "Product"). All
purchases (or licenses) are subject to the following
terms and conditions:
1.Orders.
Orders are not binding until accepted by Cyvotel ,
in its sole discretion. Except in the case of a breach,
as provided in Section 12, once an order is accepted
by Cyvotel , it may be changed or cancelled verberlly or with
the written consent of the parties.
2.Payments.
All prices are F.O.B. Cyvotel's facility, Raymore, Missouri, payable 100% of the aggregate price before
shipment unless otherwise agreed in writing by an authorized
Cyvotel representative. Prices are exclusive of any
freight, taxes (sales, use, personal property tax, etc.),
duties or imports, 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 chargebacks on their credit card for Cyvotel
purchases. Notwithstanding any partial payment by Buyer,
title to goods shipped shall remain with Cyvotel until
the entire price has been paid; and, if Buyer defaults
in the payment of any charges hereunder when due, Cyvotel
may remove and repossess any and all such goods delivered,
and may terminate access to any remotely hosted services
and cause expiration of any software licenses delivered
in conjunction with such goods, in addition to any other
legal remedies it may have.
3.Delivery.
All shipments shall be F.O.B. Cyvotel , Raymore, Missouri, and Buyer shall bear the cost of delivery
and handling. Risk of loss shall transfer to Buyer upon
delivery of goods to the carrier. Cyvotel 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, Cyvotel
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, Cyvotel
shall notify Buyer, and time of performance shall be
extended for the period of such contingency.
4.Terms of Service.
Certain elements of Cyvotel 's products are delivered
as an ongoing service via an Internet connection. Maintenance
of a working connection to the Internet is mandatory
to have full access to the products and services provided
by Cyvotel . This connection may be disconnected by
you at any time, but such disconnection will significantly
limit your ability to utilize the products.
2. Return Policy: All purchases are final. Cyvotel will repair and or replace any defective equipment sent within 30days of purchase.. Notification
of intent to return on defective equipment must be received by Cyvotel in
writing or email during the specified Period, and must be approved
by Cyvotel representative in writing or email.
No returns will be accepted after the specified Period.
3. Complete Orders: This Return Policy applies only
to complete orders. Returns of partial orders will be
at Cyvotel 's discretion.
4. Restocking Fee: All returns will be subject to a
15% "reconfiguration/restocking" fee.
5. Shipping Charges: All Shipping and Handling fees
are non-refundable. Buyer is responsible for the cost
of return shipping to Cyvotel .
6. Breakage / Damaged Goods: All items must be returned
in "like new" condition and customer must ship back
all materials including, but not limited to, boxes,
wires, manuals, and packing materials. 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.
7. Return Procedure: If, during the Acceptance Period,
Buyer has notified Cyvotel in writing of intent to
return the Product, a Return Material Authorization
Number (RMA Number) will be issued. All returned goods
must be shipped prepaid, clearly marked with an RMA
number, and be accompanied by a complete description
of the nature of the defect. No return of goods will
be accepted by Cyvotel without an RMA Number obtained
from Cyvotel .
8. Limited Warranty: Unless provided through a separately
purchased maintenance, support or warranty agreement,
no warranty is provided by Cyvotel after the Acceptance
Period. All other obligations of Cyvotel to maintain
service or provide warranty repair shall terminate at
the end of the Acceptance Period.
6.Manufacturer's Warranties.
1. Pass-Through Warranties: Cyvotel shall extend to
Buyer, on a 'pass through' basis, any warranty provided
by the manufacturer of the purchased equipment and components
to the extent permissible. Cyvotel may assist Buyer
with such pass-through warranty service at Cyvotel 's
discretion. Cyvotel may require a security deposit,
pre-payment or prior return of any products or components
covered under such a pass-through warranty. Cyvotel
reserves the right to reject any returned products or
components which it determines not to be covered under
a pass-through warranty, beyond the warranty period,
not purchased from Cyvotel or with damage resulting
from mis-use or other actions not covered under the
manufacturer's warranty. Such products or components
will be returned to the Buyer at the Buyer's expense.
2. Separately Purchased Limited Warranty: Certain equipment
provided by Cyvotel is not covered by a manufacturer's
warranty. For this equipment, a separately purchased
Warranty may be available. For equipment covered under
a separately purchased "Next-Business-Day Replacement"
warranty, as specified in the original invoice ("Covered
Equipment"), the following terms and conditions apply:
1. Cyvotel warrants to the original purchaser or, for
products purchased from a Reseller, to the original
end-user that the Covered Equipment will be free from
defects in materials and workmanship from the date of
shipment for 1 year from the date of shipment or invoice
or, if longer, the period stated on your invoice.
2. During the warranty period, Cyvotel will, at its
option: (1) provide replacement parts and instructions
necessary to repair the product or (2) replace the product
with a comparable product. To receive any benefits under
this warranty, Buyer must assist Cyvotel in diagnosing
issues with the Covered Equipment and follow Cyvotel 's
warranty processes.
3. If Cyvotel determines that a replacement part or
product is needed, Cyvotel will ship the part and installation
instructions to the Buyer within one business day of
such determination. If Buyer is located in the United
States or Canada, Cyvotel will pay the costs of shipping
these parts or products to you via overnight air.
4. Customers outside the United States and Canada are
responsible for paying all freight charges incurred
in shipping, importing/exporting and receiving replacement
products and parts and for arranging and paying for
the shipment of any defective part(s) back to the Cyvotel .
All international customers are responsible for all
customs duties, VAT and other associated taxes and charges.
5. Purchasing additional products from Cyvotel does
not extend your warranty period.
6. If Cyvotel asks Buyer to return defective parts
or products, Buyer must do so within 14 days after receipt
of the replacement parts or products. Cyvotel will
charge Buyer for replacement parts or products if Buyer
fails to do so.
7. THIS LIMITED WARRANTY COVERS NORMAL USE. Cyvotel
DOES NOT WARRANT AND IS NOT RESPONSIBLE FOR DAMAGES
CAUSED BY MISUSE, ABUSE, ACCIDENTS, VIRUSES, UNAUTHORIZED
SERVICE OR PARTS, OR THE COMBINATION OF COVERED PRODUCTS
WITH OTHER PRODUCTS. ANY WARRANTY APPLICABLE TO THIRD-PARTY
PRODUCTS IS PROVIDED BY THE ORIGINAL MANUFACTURER.
7.Disclaimer of Warranties; Limitation of Liability.
1. Disclaimer of Warranties. except as expressly set
forth ABOVE, Cyvotel provides the product "as is" and
with all faults. Cyvotel hereby disclaims ALL OTHER
WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, ARISING BY
LAW OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE OR USE, TITLE and NONINFRINGEMENT, with regard
to the product. without limiting the foregoing, Cyvotel
does not warrant that the product will be free of bugs,
errors, viruses or other defects.
2. (Disclaimer of Certain Damages. IN NO EVENT WILL
Cyvotel BE LIABLE FOR THE COST OF COVER OR FOR ANY INCIDENTAL,
INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL OR SIMILAR
DAMAGES OR LIABILITIES WHATSOEVER (INCLUDING, BUT NOT
LIMITED TO LOSS OF DATA, INFORMATION, REVENUE, PROFIT
OR BUSINESS) ARISING OUT OF OR RELATING TO THE USE OR
INABILITY TO USE THE PRODUCT OR OTHERWISE UNDER OR IN
CONNECTION WITH THIS EULA OR THE PRODUCT, WHETHER BASED
ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY
OR OTHER THEORY EVEN IF CYVOTEL HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES.
3. Limitation of Liability: CYVOTEL'S LIABILITY ARISING
OUT OF OR RELATING TO THE USE OR INABILITY TO USE THE
PRODUCT OR OTHERWISE UNDER OR IN CONNECTION WITH THIS
EULA OR THE PRODUCT IS LIMITED TO THE AMOUNT ACTUALLY
PAID BY YOU FOR THE PRODUCT REGARDLESS OF THE AMOUNT
OF DAMAGES YOU MAY INCUR AND WHETHER BASED ON CONTRACT,
TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER
THEORY. The foregoing disclaimer of warranties, disclaimer
of certain damages and limitation of liability will
apply to the maximum extent permitted by applicable
law. The laws of some states/jurisdictions do not allow
the exclusion of implied warranties or the exclusion
or limitation of certain damages. To the extent that
those laws apply to this EULA, the exclusions and limitations
set forth above may not apply to you. You may have other
rights which vary from state to state or province to
province. For further warranty information, you may
contact Cyvotel at 701 S. SUNSET LANE, RAYMORE, MISSOURI
64083
8.Indemnification.
You agree to hold harmless and defend Cyvotel , at
your expense, from and against any and all third party
claims, actions proceedings, and suits and all related
liabilities, damages, settlements, penalties, fines,
costs or expenses (including, without limitation, reasonable
attorneys' fees and other litigation expenses) incurred
by Cyvotel arising out of or relating to your (a) violation
or breach of any term of this license agreement, or
(b) misuse of the Product.
9.Support
During the Acceptance Period, Cyvotel will provide
remote installation and configuration support to Buyer on hourly charged basis.
This support is limited to telephone and email support
necessary to remotely get the system performing to specification
at the customer's location, including the identification,
but not resolution, of changes required in the customer's
network or communications services. Following successful
installation, Cyvotel support is only available to customers
who purchase such support under separate annual software/PBX
maintenance and support agreements.
10.Open Source Software
Some software distributed by Cyvotel is licensed under
the GNU General Public License (GPL) ("Open Source Software").
The terms of this license can be found at http://www.gnu.org/licenses/gpl.html.
11.Intellectual Property.
1. For the purpose of this Section (8), the term "Cyvotel
Intellectual Property" shall mean all intellectual property
(including software or programming) delivered hereunder,
except for any Open Source software as described in
section (7). Any software distributed by Cyvotel which
is licensed under the GNU General Public License (GPL)
is specifically excluded from this definition.
2. All Cyvotel Intellectual Property is 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 Cyvotel . 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 Cyvotel Intellectual
Property furnished by Cyvotel hereunder and the contents
thereof are the proprietary property of Cyvotel , 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 Cyvotel Intellectual Property. Buyer
shall be liable for all damages, including loss of anticipatory
profits, incurred by Cyvotel as a result of such unauthorized
use, copy or replication. The rights granted hereunder
or use of Cyvotel products does not convey any rights
or ownership in Cyvotel patents, copyrights, trademarks,
intellectual property or know-how.
12.Remedies for Breach.
1. By Cyvotel : If Cyvotel shall be in material breach
of this Agreement, Buyer may cancel the undelivered
portion of purchase orders upon 30 days written notice
unless Cyvotel cures such breach with such notice period.
Any money paid in advance by Buyer to Cyvotel for goods
not shipped will be promptly reimbursed. The foregoing
shall be the exclusive remedy of Buyer for any Cyvotel
breach of this Agreement.
2. 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 Cyvotel , Cyvotel
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, Cyvotel shall have the right to recover,
in addition to the purchase price of such goods, all
costs incurred by Cyvotel to collect the same.
3. 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.
13.Ownership.
The Product is valuable property of Cyvotel and is
protected by copyright and other intellectual property
laws and treaties. With the sole exception of software
licensed un the the GPL, Cyvotel owns all right, title
and interest in and to the Product and all copyright
and other intellectual property rights in the Product.
14.Trademarks.
These Terms and Conditions do not grant you any rights
in connection with any trademarks or service marks of
Cyvotel .
15.Audit.
Cyvotel shall have the right to audit your compliance
with the terms of this agreement. You agree to grant
access to Cyvotel to facilities, equipment, books,
records and documents and to otherwise reasonably cooperate
with Cyvotel in order to facilitate any such audit.
16.Termination.
Without prejudice to any other rights, Cyvotel may
terminate this EULA if you do not abide by the terms
and conditions contained herein. Upon termination of
this EULA, you must cease use of the Product and destroy
all copies of the Product and all of its component parts.
In the event that Cyvotel terminates a "lifetime buyout"
of the Cyvotel Pbx, as provided for in Section 3 above,
Cyvotel will prorate your upfront payment towards a
five-year agreement. 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.
17.Export Restrictions.
You acknowledge that the Product is subject to U.S.
export restrictions. You agree to comply with all applicable
laws and regulations that apply to the Product, including
without limitation the U.S. Export Administration Regulations.
18.U.S. Government License Rights.
All Product provided to the U.S. Government is provided
with the commercial license rights and restrictions
described in this agreement. By installing, copying
or using the Product, the U.S. Government agrees that
the Product is "commercial computer software" or "commercial
computer software documentation" within the meaning
of DFAR Section 227.7202 and FAR Section 12.212, as
applicable. Any use, modification, reproduction release,
performance, display or disclosure of the Product by
the U.S. Government shall be governed solely by the
term of this license agreement and shall be prohibited
except to the extent expressly permitted by the terms
of this License Agreement.
19.Governing Law; Jurisdiction.
Unless expressly prohibited by local law, this agreement
and all orders hereunder shall be governed by and construed
under the laws of the State of Missouri, U.S.A. without
regard to any conflict of law principles to the contrary.
The 1980 U.N. Convention on Contracts for the International
Sale of Goods or any successor thereto does not apply.
You hereby irrevocably submit to jurisdiction of the
state and federal courts located in Casas County, Missouri
with respect to any proceeding under this agreement
or relating to the Product. You will not prosecute any
action, suit, proceeding or claim arising under or by
reason of this agreement except in such courts.
20.Attorneys' Fees.
In any action or proceeding to enforce rights under
this Agreement, the prevailing party will be entitled
to recover costs and reasonable attorneys' fees.
21.English Language.
It is the express wish of the parties that this Agreement
and all related documents be drawn up in English.
22.Entire Agreement.
This agreement sets forth the entire agreement of
Cyvotel and you with respect to the Product and the
subject matter hereof and supersedes all prior and contemporaneous
understandings and agreements whether written or oral.
No amendment, modification or waiver of any of the provisions
of this agreement will be valid unless set forth in
a written instrument signed by the party to be bound
thereby.
23.Severability.
If any provision of this agreement is held by a court
of competent jurisdiction to be invalid, illegal, void,
or unenforceable, the remainder of this EULA will remain
in full force and effect and shall control.
24.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.