M2M Terms and Conditions
Purchase Terms and Conditions
EXCEPT AS OTHERWISE PROVIDED BELOW, THE FOLLOWING TERMS AND CONDITIONS (COLLECTIVELY, THIS “AGREEMENT”) SHALL APPLY TO THE PURCHASE OF ANY PRODUCTS AND/OR RELATED SERVICES BY ANY PARTY (“BUYER”) FROM NOVATEL WIRELESS, INC. (“NOVATEL WIRELESS”). NOVATEL WIRELESS’S ACCEPTANCE OF EACH PURCHASE ORDER FROM BUYER IS CONDITIONED UPON BUYER’S ACCEPTANCE OF THIS AGREEMENT. BUYER’S ACCEPTANCE OF DELIVERY OF ANY PRODUCTS, OR PAYMENT OF ANY PART OF THE PRICE, UNDER ANY PURCHASE ORDER PLACED WITH NOVATEL WIRELESS SHALL CONSTITUTE ITS EXPRESS ASSENT TO THIS AGREEMENT.
THIS AGREEMENT SHALL SUPERSEDE ANY INCONSISTENT OR CONTRADICTORY TERMS OR CONDITIONS, EXPRESSED OR IMPLIED, IN ANY AND ALL REQUESTS FOR QUOTATIONS, PURCHASE ORDERS, ACKNOWLEDGEMENTS, CONFIRMATIONS OR OTHER PROCUREMENT DOCUMENTS (IN WHATEVER FORM OR MEDIUM) EXCHANGED BETWEEN BUYER AND NOVATEL WIRELESS (COLLECTIVELY, “PROCUREMENT DOCUMENTS”). NOTWITHSTANDING THE FOREGOING, IN THE EVENT OF ANY CONFLICT OR INCONSISTENCY BETWEEN THIS AGREEMENT AND ANY SEPARATE WRITTEN AGREEMENT SIGNED BY AN AUTHORIZED OFFICER OF EACH OF BUYER AND NOVATEL WIRELESS (“SIGNED AGREEMENT”), THE TERMS AND CONDITIONS OF SUCH SIGNED AGREEMENT SHALL CONTROL AND PREVAIL OVER THIS AGREEMENT.
NO ADDITIONAL TERMS OR CONDITIONS APPEARING IN ANY PROCUREMENT DOCUMENTS SHALL BE BINDING ON NOVATEL WIRELESS UNLESS SUCH ADDITIONAL TERMS OR CONDITIONS ARE APPROVED IN WRITING BY AN AUTHORIZED OFFICER OF NOVATEL WIRELESS, OR ARE OTHERWISE INCLUDED IN A SIGNED AGREEMENT.
Buyer shall have no right of exclusivity in any territory, or with respect to any customer, as a result of its purchase of any products from Novatel Wireless, or its resale of such products to any customer in any territory, and Novatel Wireless reserves the right to sell, or to authorize or appoint other parties to distribute or resell, the Novatel Wireless products to any customer (including existing or prospective customers of Buyer) in any territory in which Buyer may use, distribute or resell the Novatel Wireless products. Furthermore, to the extent permitted by law, Novatel Wireless may prohibit Buyer from distributing or reselling the Novatel Wireless products in any territory in which Novatel Wireless has appointed a third party as an exclusive distributor or reseller of the Novatel Wireless products in that territory. From time to time, Novatel Wireless, in its sole discretion, may refer sales leads to Buyer, but Novatel Wireless shall have no obligation to refer any sales leads to Buyer at any time.
Novatel Wireless and Buyer are independent contractors acting for their own accounts as seller and buyer, respectively, and no agency, partnership, joint venture, franchiser-franchisee or employer-employee relationship is intended or created by this Agreement. Neither party shall have the power, or hold itself out as able, to obligate, bind or make any commitment or representation, express or implied, on behalf of the other party. Any personnel working for or on behalf of Buyer shall not be considered employees or agents of Novatel Wireless for any purpose, and Buyer assumes full responsibility for the acts or omissions of such personnel, and shall be solely responsible for their supervision, direction, control, compensation, benefits and any related taxes.
All purchase orders issued by Buyer to Novatel Wireless will be subject to acceptance by Novatel Wireless and will not be binding on it until accepted. Buyer may cancel any purchase order without payment of a cancellation charge at any time prior to ninety (90) days, or with payment of a cancellation charge at any time between sixty (60) and ninety (90) days, in advance of the scheduled delivery date. If Buyer cancels any purchase order between sixty (60) and ninety (90) days before the scheduled delivery date, a cancellation charge of fifteen percent (15%) of the purchase price of all the units specified in the canceled order will be immediately due and payable by Buyer to Novatel Wireless, as liquidated damages and not as a penalty. Buyer may not cancel the delivery of any units on an accepted purchase order (whether in whole or in part) within sixty (60) days of the scheduled delivery date. Buyer may not postpone the delivery of any units on an accepted purchase order within thirty (30) days of the scheduled delivery date. For purchase orders between thirty (30) and ninety (90) days of scheduled delivery, Buyer may postpone delivery only once and only until the end of Novatel Wireless’s then current fiscal quarter. For the sake of clarity, units whose delivery date Buyer has previously postponed may not be cancelled.
All prices and payments for products sold by Novatel Wireless to Buyer will be in United States Dollars. Payment terms are, at Novatel Wireless’s sole discretion, either cash in advance or cash on delivery, or where open credit, satisfactory to Novatel Wireless, is established by Buyer, payment will be net thirty (30) days from the date of invoice or as otherwise determined by Novatel Wireless, in its sole discretion. Any amounts not paid when due shall bear interest at the rate of one and one half percent (1.5%) per month or the maximum rate allowed under law, whichever is lower.
All products will be shipped by Delivered Duty Paid (“DDP”) Buyer’s delivery point (Incoterms 2010). Title and risk of loss or damage to all products purchased under this Agreement will pass to Buyer upon delivery by Novatel Wireless. Shipments will be made to Buyer’s warehouse facilities. Depending on the availability of products in stock, Novatel Wireless may delay delivery or make partial shipments of, and require partial payments for, the quantity of products specified in any accepted purchase order.
Except as permitted under the limited warranty set forth below, Novatel Wireless will not accept any returns of any products for any reason.
Please refer to the Product Warranty page.
LIMITATION OF LIABILITY
EXCEPT FOR THE LIMITED WARRANTY SET FORTH ABOVE, NOVATEL WIRELESS EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, SATISFACTORY PERFORMANCE AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL NOVATEL WIRELESS BE LIABLE FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OR INTERRUPTION OF USE, DATA, BUSINESS, REVENUES OR PROFITS), HOWEVER CAUSED, ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF NOVATEL WIRELESS’S PRODUCTS OR SERVICES PROVIDED HEREUNDER, EVEN IF NOVATEL WIRELESS HAS BEEN ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES. FURTHERMORE, IN NO EVENT SHALL NOVATEL WIRELESS’S CUMULATIVE LIABILITY FOR ALL CLAIMS OF WHATEVER KIND, IN THE AGGREGATE, ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, OR NOVATEL WIRELESS’S PRODUCTS OR SERVICES, EXCEED THE SUM OF FIFTY THOUSAND DOLLARS ($50,000) OR FIFTY PERCENT (50%) OF THE TOTAL AMOUNT PAID TO NOVATEL WIRELESS BY BUYER, WHICHEVER IS LOWER.
Some jurisdictions may require a longer warranty period than specified above and, accordingly, for products sold in those jurisdictions the warranty period shall be extended as required under the law of those jurisdictions. Furthermore, some jurisdictions may not allow the disclaimer of implied warranties or the exclusion or limitation of incidental or consequential damages, so the above disclaimer, exclusion or limitation may not apply to products sold in those jurisdictions.
Buyer shall be solely responsible for providing technical support to its direct or indirect customers with respect to any and all products purchased from Novatel Wireless and resold or otherwise provided by Buyer to such customers. Novatel Wireless shall not be responsible for the configuration, testing, validation, verification, installation, upgrade, support or maintenance of any products as deployed by Buyer or its customers in the field. Novatel Wireless, in its sole discretion, may provide to Buyer limited technical support (via email or telephone, or on Novatel Wireless’s website) with respect to the products purchased by Buyer from Novatel Wireless. Any such technical support will be provided by Novatel Wireless in accordance with its Technical Support Policy as posted on its website and updated from time to time, in its sole discretion.
Buyer acknowledges that Novatel Wireless (or its licensors, as applicable) own(s) and shall continue to own all title, interests and rights, including all intellectual property rights, in the data, schematics, layout, designs, specifications, firmware and software for the products. Buyer may not decompile, disassemble, reverse engineer or modify any product purchased from Novatel Wireless, or combine it with, or incorporate it in, other products without prior written authorization from Novatel Wireless.
From time to time, Novatel Wireless may grant to Buyer permission to use any of Novatel Wireless’s trademarks for the purposes of promoting, marketing, advertising and selling the products purchased by Buyer from Novatel Wireless. (The term "trademark" as used here includes trademarks, service marks, trade names, logos, domain names, or other commercial, product or service designations.) In each such instance, Buyer shall have a limited, non-exclusive, non-sublicenseable, royalty-free license to use such trademarks for such purposes, in the form and manner specified by Novatel Wireless and otherwise in strict conformance with its trademark usage policies, as communicated to Buyer from time to time. Novatel Wireless reserves the right to terminate any such license as to any of its trademarks if, in its sole discretion, Buyer’s use of such trademark does not conform to such policies. Buyer agrees to submit samples of any promotional, marketing or advertising materials containing any of Novatel Wireless’s trademarks to Novatel Wireless for its approval prior to public display or distribution of such materials. Buyer shall not use any marks that are confusingly similar with any of Novatel Wireless’s trademarks, or use any combination marks that include any such trademarks, without Novatel Wireless’s prior written approval. Title to and exclusive ownership of all of Novatel Wireless’s trademarks shall at all times remain with Novatel Wireless, and Buyer shall not take any action inconsistent with Novatel Wireless’s exclusive ownership of its trademarks. Any and all use of Novatel Wireless’s trademarks by Buyer shall inure to the benefit of Novatel Wireless.
Buyer shall defend, indemnify and hold Novatel Wireless harmless from and against any and all losses, damages, costs, expenses and fees (including reasonable attorney’s fees) resulting from (a) any breach of this Agreement by Buyer, and (b) any claim by a third party based on the acts, omissions or misrepresentations of Buyer or its employees, agents or contractors.
Without limiting any of the remedies available to Novatel Wireless at law or in equity, Novatel Wireless shall have the right to cancel, or withhold shipment under, any accepted purchase order for which payment has not yet been received, and to require prepayment, or change or limit the credit terms, for any subsequent purchase order, in the event (i) Novatel Wireless becomes aware of any material adverse change in the financial condition or creditworthiness of Buyer, (ii) Buyer sells a part or all of its business or assets to a third party, (iii) Buyer ceases to do business, dissolves or becomes insolvent or bankrupt, makes an assignment for the benefit of creditors, or commences or has commenced against it any proceeding under bankruptcy or insolvency laws, or (iv) Buyer fails to make any payment when due or is otherwise in material breach of any of its obligations to Novatel Wireless and has not cured such breach within thirty (30) days of receiving a written notice of such breach from Novatel Wireless.
Compliance with Laws
Buyer shall at all times comply with all applicable treaties, laws, statutes, ordinances or regulations, including without limitation the laws and regulations relating to export control.
This Agreement and Buyer’s rights and obligations under it are personal to Buyer, and Buyer may not assign its rights or delegate its duties without Novatel Wireless’s prior written consent, in its sole discretion. Any contrary assignment or delegation by Buyer shall be null, void and of no effect. Novatel Wireless may assign all or any part of this Agreement, or any of its rights under it, to any person. The parties’ rights and obligations under this Agreement shall be binding upon and inure to the benefit of their respective successors and permitted assigns.
Alternative Dispute Resolution
The parties agree to use their best efforts to amicably resolve all disputes arising under or in connection with this Agreement, and, if mutually agreeable, to use mediation or arbitration to resolve such disputes. Any such mediation or arbitration shall take place in Dallas, Texas, United States of America, and the parties shall equally share in its costs unless otherwise agreed between them.
Governing Law and Jurisdiction
This Agreement will be governed by and construed in accordance with the laws of the State of California, United States of America, without giving effect to principles of conflict of laws. The parties specifically exclude the application of the United Nations Convention on the International Sale of Goods. Buyer agrees to submit to exclusive jurisdiction and stipulates to proper venue in the courts of San Diego County, California, for the adjudication or disposition of any claim, action or dispute arising under or in connection with this Agreement, or related to Novatel Wireless’s products or services, and not amicably settled by the parties.
If any provision of this Agreement is held to be illegal, invalid or unenforceable for any reason, the remaining provisions shall continue in full force and effect, and the parties agree to negotiate in good faith to replace such illegal, invalid or unenforceable provision with a legal, valid and enforceable provision that most closely approximates the intent and economic effect of such illegal, invalid or unenforceable provision.
Rev. Jan. 2015