General Conditions of Sale

1. APPLICABILITY

These general conditions for sale are applicable for all sales from Comba Telecom Ltd (“Comba”) and all its subsidiaries.

2. FORMATION OF CONTRACT

2.1 The Purchaser sends a written order based, and corresponding to a quotation from Comba.  Upon receipt of the purchase order Comba will send the Purchaser an order confirmation with Delivery Date.

 

2.2 An agreement, based on Comba’s order confirmation, will be entered into between Comba and the Purchaser at the day the Purchaser receives a copy of the order confirmation by Comba.

 

2.3 Unless otherwise agreed in writing, these General Conditions of Sales will constitute a significant part of the Contract.

3. DRAWINGS AND DESCRIPTIVE DOCUMENTS

3.1 All information in catalogues, prospectuses, circulars, advertisements, illustrated matter and price lists establish an approximate guide. Comba shall not be bound to these data to the extent that they are by reference expressly stated in the Contract.

 

3.2 All drawings and other technical documents delivered to the Purchaser or a portion thereof shall remain the exclusive property of Comba. They may not, without Comba’s consent, in any way be utilized by the Purchaser or copied, reproduced, transmitted or communicated to a third party or be used by the Purchaser in competition with Comba.

4. PACKING

All prices issued by Comba shall be applied to products packed for transportation in accordance with the packing standard from time to time applied by Comba.  Other packing requirements are object for case by case agreements.

5. ACCEPTANCE TEST

Acceptance tests if diverging from Comba’s standard procedures, (if any), shall be carried out upon the Purchaser’s reasonable request and at the Purchaser’s cost at Comba’s site after agreement with Comba.

6. PASSING OF RISK AND TITLE

6.1 Unless special arrangements are made, ownership of the goods and risk of damage/loss passes to the Purchaser when possession of the goods passes from Comba Telecom, Inc. to the freight carrier, and the Purchaser are responsible for filing any freight claims for damage or loss.

7. DELIVERY

Unless otherwise agreed in writing, the Delivery Date shall be defined as the date the order is fulfilled, with shipping information, such as tracking number, airway bill.

8. PAYMENT

Payment shall be made when it is stipulated by Comba.  If the Purchaser does not pay an invoice when it becomes due for payment, Comba reserves the right to stop delivery of products to the Purchaser until the invoice has been duly paid.  Comba agrees that this right shall not be executed without giving the Purchaser prior notice and a reasonable time period to settle the invoice.  Without prejudice to any of its other rights, Comba may charge the Purchaser all or parts of the costs incurred in collecting amounts due for payment. In addition hereto, Comba may from the date on which the Purchaser was in default charge a penalty interest on unpaid amounts at an annual rate of sixteen percent (16%).

9. PRICING

Prices are in accordance with written offers or contracts from Comba.  The prices, fees and other charges of Comba do not include value added tax, sales tax and similar taxes as well as any city, municipal, state or federal taxes or any withholding taxes, whether currently imposed or imposed in the future, excluding tax on income.  If any such tax is found to be applicable, the appropriate amount of tax shall be invoiced to and paid by the Purchaser to Comba at the same time and on the same terms as applied to the payment due.

10. CANCELLATION

For standard stock products, order can be cancelled without penalties 2 weeks prior to the delivery date confirmed by Comba Telecom,Inc.

For special order products, order can be cancelled without penalties within 48 hours. After 48 hours, the purchaser is liable for the full value of the order.

11. WARRANTY

11.1 Comba manufactures products which are inspected and submitted to final test before shipment. If, within the warranty period, any defect is discovered in whole or part of the products with respect to material or workmanship and which should reasonably have been expected to be within Comba’s control, Comba will at its own option make good the defect in either of the two following ways:
a) Comba will, without charge, carry out such repair at its own facilities provided that notice has been given by the Purchaser promptly after the defect is discovered and that the products in whole or part have been forwarded, without delay to Comba’s warehouse in Milpitas, CA. Labor costs for disassembly and reassembly in the Purchaser’s site in whole or in part, will be borne by the Purchaser. After repair the products will, in whole or in part, be returned to the Purchaser’s headquarters or manned regional office. Comba accepts no responsibility for any defects caused in connection with the assembly work at the Purchaser’s site.
b) Comba will send free replacement for the defective part to the Purchaser’s headquarters or manned regional office. Labor costs for disassembly and reassembly at site shall be borne by the Purchaser.  Comba takes no responsibility for defects in connection with the replacement work at the Purchaser’s site.

 

11.2 A new warranty period shall apply, under the same terms and conditions as those applicable to the original parts, for those parts supplied or repaired in accordance with these warranty conditions, although no longer than three (3) months after the end of the original warranty period. Defective parts replaced in accordance with these warranty conditions shall be placed at Comba’s disposal at site and shall upon request be returned to Comba’s warehouse in Milpitas, CA or agreed upon location.
11.3 This warranty does not apply to defects caused by normal wear and tear, abnormal conditions of working, accidental damage, improper handling, or neglect of instructions, given by Comba. It does not cover defects caused by faulty maintenance or from alterations or repair carried out without Comba’s authorization. The warranty does not include consumable parts in the products.
11.4 The warranty period is thirty-six (36) months from the date of delivery from Comba. The warranty period for repaired parts, repaired after the original warranty period has expired, is three (3) months.

 

 

12. LIMITATION OF REMEDIES

2.1 In all situations involving performance or non-performance of products delivered to the Purchaser, the Purchaser’s sole remedy is set forth in Section 1, Warranty, described above. For any other claim concerning performance or non-performance by Comba pursuant to, or in any way related to the subject matter of the Contract, the Purchaser shall be entitled to recover actual, proven damages to the limits set forth herein.
2.2 In no event Comba will be liable for any damage caused by the Purchaser’s failure to perform its responsibilities or for any indirect consequential damages including, but not limited to, loss (whether direct or indirect) of profits or business or for anticipated savings or for any incidental damages or for any claims made against the Purchaser.
2.3 Comba’s liability for damages to the Purchaser for any cause whatsoever shall be limited to the purchase price paid to Comba of the products delivered to the Purchaser. The limitation of liability set forth in the preceding sentence will not apply to claims for personal injury or damage to real property or tangible property in cases of intentional misconduct or gross negligence.

 

13. INTELLECTUAL PROPERTY RIGHTS

There may be patents, utility models, trademarks, trade names, design patterns, copyrights and other intellectual property rights relating to the products delivered to the Purchaser that belongs to Comba.  The Purchaser agrees to respect any such intellectual property rights and understands that the use of Comba’s intellectual property rights pursuant to the Contract does not include or cause the transfer of ownership thereof or give any proprietary rights in any of them to the Purchaser.  The Purchaser agrees to inform Comba as soon as it receives any knowledge of any intellectual property right belonging to or used by Comba being infringed or allegedly infringed.

 

13.2 To Comba’s knowledge, no intellectual property rights of third parties are infringed by manufacture, sale or use of the products delivered to the Purchaser or by any portion thereof.  Comba shall indemnify the Purchaser against any infringement claim if a product or any portion thereof infringes any intellectual property rights in a country where Comba markets the same or a similar product as provided to the Purchaser (unless the infringement is caused by Comba’s adherence to technical specifications, drawings, etc provided by the Purchaser) and Comba will pay resulting costs, damages and attorney’s fees finally awarded by a court for such claim provided that the Purchaser shall (a) notify Comba promptly in writing of any allegation of infringement; (b) make no admission relating to the alleged infringement; (c)allow Comba to conduct all negotiations and proceedings; and (d) give Comba, at Comba’s expense, all reasonable assistance.

 

13.3 If a product delivered to the Purchaser or a portion thereof becomes, or Comba believes it is likely to become, the subject of an allegation referred to in Section 13.2, Comba may, at its option and expense, either secure for the Purchaser a right of continued use or replace or modify the product so that it becomes non-infringing, provided that any such replacement or modification does not in a negative way affect the performance of the product. If neither of these alternatives is available on terms which Comba judges to be reasonable, the Purchaser shall upon written notice from Comba return such items of the product to Comba. Comba agrees to grant the Purchaser a credit equal to the depreciated price paid to Comba by the Purchaser for the returned products (calculated on a straight line basis over a five-year life).

 

13.4 This Section 13 states Comba’s entire obligation to the Purchaser regarding infringement of intellectual property rights. Comba will have no obligation with respect to any claim based upon the Purchaser’s modification of a product or its combination, operation or use with products not delivered by Comba.  The Purchaser shall indemnify and hold Comba harmless from and against all claims, proceedings and expenses arising from such modification, combination, operation or use.

14. FORCE MAJEURE

14.1 Neither Comba nor the Purchaser shall be liable to the other for any delay or non-performance of its obligations under the Contract in the event and to the extent that such delay or non-performance is due to an event of Force Majeure (as defined hereinafter).

 

14.2 Events of Force Majeure are events beyond the control of a party or any of its sub-contractors which occur after the date of Comba’s order confirmation referred to in Section 2.1 and which were not reasonably foreseeable at that time and whose effects are not capable of being overcome without unreasonable expense and/or loss of time to the party concerned. Events of Force Majeure shall include (without being limited to) war, civil unrest, strikes, lockouts and other general labor disputes, acts of government, natural disasters, exceptional weather conditions, breakdown or general unavailability of transport facilities, accidents,                                                                              fire, explosions, and general shortages of energy and materials.

 

14.3 A party directly affected by an event of Force Majeure shall lose the right to rely on the same, unless, reasonably soon after the time when the party became or ought to have become aware of the occurrence of the event, that party gives the other party written notice thereof.  When the event of Force Majeure has come to an end, the said other party shall be notified and also, if possible, be informed when any measure postponed by the event will be effected.

15. SUB-CONTRACTORS

Comba has the right to sub-contract any part of its obligations under the Contract to independent contractors selected by Comba.

16. ENTIRE AGREEMENT

The Contract shall incorporate the typed and written provisions in Comba’s order confirmation and it shall constitute the entire agreement between the parties with respect to the subject matter of the Contract and it shall not be modified or rescinded, except by Comba and the Purchaser in writing.  Printed provisions on the reverse side of the Purchaser’s purchase orders, etc. shall be deemed deleted and additional or different terms inserted in the Contract by the Purchaser, or deletions thereto, whether by alterations, addenda, or otherwise, shall be of no force and effect, except expressly consented to by Comba in writing.  The provisions of the Contract supersede all contemporaneous oral agreements and all prior oral and written quotations, communications, agreements and understandings of the parties with respect to the subject matter of the Contract.

17. GOVERNING LAW

The Contract shall be governed by, and construed and enforced in accordance with the substantive laws of the United States without regard to its principles of conflicts of laws or the United Nations Convention on the International Sale of Goods.

18. DISPUTES

 

Any and all disputes, controversies and claims arising out of or in connection with the Contract, or the breach, termination or invalidity thereof, shall be settled in arbitration in accordance with the rules of the Chamber of commerce in the United States.  Unless the parties agree otherwise, the arbitration proceedings shall be conducted in the United States, in English language. The arbitration award shall be final and binding upon the parties. The foregoing shall not restrict Comba from going to court or to a competent authority in order to seek payment from the Purchaser of an amount which is undisputed and due for payment.

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