NETARUS, LLC – STANDARD TERMS AND CONDITIONS
(Updated January 31, 2022)
1. SALE, PRICES AND RELEASES
Netarus determines product prices by Netarus published price lists in effect and Netarus price quote. In the event of extraordinary market-price increases for fuels, metals, raw materials, components, equipment and other productions costs, Netarus shall have the right and Buyer shall have the obligation to renegotiate in good faith the price of the goods hereunder not yet shipped, and if agreement is not reached, Netarus shall have the right to cancel this contract without liability.
2. TERMS AND METHOD OF PAYMENT
Where Netarus has extended credit to Buyer, terms of payment shall be (as negotiated with each customer). The amount of credit or terms of payment may be changed or credit withdrawn by Netarus at any time for any reason. If the goods are delivered in installments, Buyer shall pay for each installment in accordance with the terms of payment hereof. When Buyer fails to make each payment when it is due, Netarus reserves the right to withdraw credit and thereby suspend or cancel performance under any or all purchase orders or agreements in which Netarus has extended credit to Buyer. Netarus’ suspension of performance may result in a rescheduling delay contingent on current product availability. If Netarus deems Buyers financial condition does not justify the terms of payment specified herein, Netarus may cancel this contract unless Buyer shall immediately pay for all goods which have been delivered and pay in advance for all goods to be delivered.
LATE FEES ARE ASSESSED ON A DAILY BASIS. ANY PAST DUE ACCOUNT MAY BE TURNED OVER TO AN ATTORNEY FOR COLLECTION AT THE DISCRETION OF NETARUS. IF THE ACCOUNT IS TURNED OVER TO AN ATTORNEY FOR COLLECTION THE CLIENT AGREES TO PAY ALL COSTS OF COLLECTION INCLUDING BUT NOT LIMITED TO COURT COSTS AND ATTORNEY FEES EQUAL TO THIRTY-THREE AND ONE-THIRD (33 1/3%) PERCENT OF THE OUTSTANDING BALANCE AT THE TIME OF REFERRAL.
3. TAXES
Prices do not include taxes. Netarus is a manufacturer and wholesale distributor and does not collect sales tax. Buyer must provide Netarus with a tax-exemption certificate if they are a non-government entity. Buyer pays international duties and taxes (if any).
4. TITLE AND DELIVERY
Domestic shipments of goods within the U.S. shall be delivered F.O.B. shipping point. Title and liability for loss or damage shall pass to Buyer upon Netarus’ tender of delivery of goods to a carrier or forwarder for shipment to Buyer, and any subsequent loss or damage shall not relive buyer from any obligation. Buyer shall reimburse Netarus for costs of insurance and transportation on international shipments and shall be responsible for all import duties, taxes and any other expenses incurred or licenses or clearances required at port of entry and destination. Netarus may deliver the goods in installments. Delivery dates are estimates. Netarus shall not be liable for any loss or expense (consequential or otherwise) incurred by Buyer if Netarus fails to meet the estimated delivery dates because of unavoidable production or other delays.
5. WARRANTIES AND RELATED REMEDIES
The following are in lieu of all conditions or warranties, express, implied or statutory, including but not limited to, any implied conditions or warranty of merchantability or fitness for a particular purpose and of any other warranty obligation on the part of Netarus. Netarus, except as otherwise provided below, warrants the product against faulty workmanship or use of defective materials, and warrants that the products conforms to Netarus’ published specifications or other mutually agreed upon written specifications for a period of one (1) year from the date of shipment. Testing and other quality control techniques are used to the extent Netarus deems necessary to support this warranty. Netarus warrants that at the time of delivery, Netarus has title to the products free and clear of all liens and encumbrances. These warranties are only warranties made by Netarus and only a written document signed by an authorized Netarus officer can amend the warranty. Continued use or possession of the products after expiration of the applicable warranty period stated above shall be conclusive evidence that the warranty is fulfilled to the full satisfaction of Buyer. Netarus makes no warranty as to software products, which are supplied AS-IS, or as to experimental or developmental products or products not manufactured by Netarus. For products not manufactured by Netarus, Netarus shall assign to Buyer any rights Netarus may have under any warranty of the supplier to the extent permitted by Netarus’ contract with its supplier. Netarus
reserves the right to void all warranties for any product used in conjunction with components not manufactured by or approved by Netarus. If Netarus breaches its warranties as contained herein, Netarus’ sole maximum liability shall be at Netarus’ option to repair, replace, or credit Buyers account for any products returned by Buyer during the applicable warranty period set forth above, provided that:
(a) The Buyer promptly notifies Netarus with a detailed written explanation of any alleged deficiencies upon the discovery by the Buyer that the products
failed to conform to this contract;
(b) The Buyer returns the products F.O.B. to Netarus’ facility from where products were shipped; and,
(c) Netarus’ examination of the products discloses that such alleged deficiencies actually exist and were: not caused by damage that occurred in shipment; failure caused by products not supplied by Netarus; failures that result from accident, misuse, abuse, neglect, mishandling, misapplication, alteration, modifications, improper installation, unauthorized repair or improper testing; or damage attributable to Acts of God. Product(s) under warranty shall be shipped prepaid to Netarus for a Return Material Authorization (RMA) number. An original packing slip, invoice or other proof of date of original purchase will be required before Netarus renders warranty performance.
Domestic customers within the Continental USA are responsible for shipping/transportation cost from the customer to Netarus. Netarus pays the shipping cost from Netarus to the customer via UPS, Fedex ground or USPS parcel service only. International customers are responsible for shipping/transportation from the customer to Netarus and from Netarus to the customer. The customer is responsible for all local and international customs, duties and taxes (if any). If Netarus elects to repair or replace the products, Netarus shall have a reasonable time to make the repair(s) or replacement. Such repair, replacement or credit shall constitute fulfillment of all liability of Netarus to Buyer whether based in contract, tort, indemnity, and statutory provisions or otherwise.
There are no express warranties except as listed above. Netarus shall not be liable, or in any way responsible for special, incidental, consequential, punitive, property, or other damages, including, without limitation, loss of goodwill, profits or revenue, loss of use of this product(s) or any associated equipment, cost of substitute equipment, downtime cost, or claims of any part dealing with Buyer for such damages, resulting from the use of this product(s), or arising from breach of warranty or contract, negligence, or any other legal theory. All express and implied warranties, including the warranties of merchantability and fitness for a particular purpose, are limited to the applicable warranty period set forth above.
Netarus may provide technical, applications or design advice, quality characterization, and reliability data or service in connection with Buyers order. Providing these items shall not expand or otherwise affect Netarus’ warranties set forth above and no obligation or liability shall arise from Netarus’ provision of such items.
6. CONTINGENCIES
Netarus is not liable, either wholly or in part, for nonperformance or a delay in performance due to force majeure or contingencies or causes beyond the reasonable control of Netarus, including but not limited to, shortage of labor, fuel, raw material, components or machinery or technical or yield failure where Netarus has exercised ordinary care in the prevention thereof. Production and deliveries may be allocated by Netarus in a reasonable manner in the event of shortage of goods.
7. HARSH AND/OR ENVIRONMENTS.
Netarus products are considered Commercial off the Shelf (COTS) products that are suitable for use AS-IS in extreme conditions and/or harsh environments that do not exceed Netarus products specifications.
8. CRITICAL APPLICATIONS
Certain applications using Netarus product may invoke potential risks of death, personal injury or severe property or environmental damage (Critical Applications). Netarus products are not designed and are not warranted as suitable for use in life-support applications, devises or systems or other Critical Applications. Use of Netarus products in such Critical Applications is understood to be fully at the risk of Buyer.
9. CONFIDENTIALITY
Confidential information means information of Netarus that relates to Netarus products, specifications, drawings, design, computer programs, trade secrets, business and technical information, and data disclosed by Netarus to Buyer in document or other tangible form bearing an appropriate legend indicating its confidential or proprietary nature. Netarus shall indicate Confidential Information to the Buyer within fifteen (15) days of the initial disclosure. Buyer may use Confidential Information of Netarus only for the purpose of this contract and shall protect such Confidential Information from disclosure to others, using the same degree of care used to protect its own proprietary information of like importance, but in any case using no less than a reasonable degree of care. Buyer agrees not to reverse engineer Tactical Support Equipment products by any means, shape or form. Buyer my disclose Confidential information received hereunder only for the purpose described in this contract and only to its employees and consultants who have a need to know for such purpose and who are bound by signed, written agreements to protect the received Confidential Information for unauthorized use and disclosure. All obligations hereunder, including without limitation any and all obligations regarding the use and disclosure of Confidential Information, shall continue for a period of ten (10) years from the disclosure date of the affected Confidential Information.
10. LIMITATION AND DISCLAIMER OF DAMAGES
If Netarus breaches any provisions of this contract other than its warranties as contained in Section 8, Netarus’ sole liability shall not exceed the total contract price specified herein less the purchase price for any items delivered and accepted hereunder. Remedies for breach of warranty are limited to those stated in Section 8. In no event shall Netarus be liable to anyone for special, collateral, indirect, exemplary, incidental or consequential damages for breach of any of the provisions of this contract, such damages to include but not be limited to, costs of rework, retesting or removal and re-installation of products, loss of goodwill, loss of profits, or loss of use.
11. TERMINATION AND CANCELLATION
All sales are final. No returns. Buyer may terminate this contract in whole or in part upon ninety (90) days advance written. In such event, the Buyer shall pay for products shipped before the termination date and is responsible for all costs incurred by Netarus including, but not limited to, initial costs, labor costs, cost of procured parts, termination costs of contracts with subcontractors, and other costs, expenses and losses incurred by Netarus in the performance of the work terminated.
12. NON-WAIVER OF DEFAULT
Netarus may decline to make further shipments for any default by the Buyer. If Netarus elects to continue to make shipments, Netarus action shall not constitute a waiver of any default by Buyer or in any way affect Netarus legal remedies for any such default.
13. GOVERNING LAW
State of Virginia laws shall govern the validity, performance and construction of this contract.
14. EXPORT CONTROL
The products covered by this contract may fall within the group of strategic electronic products or technical data that are wholly or partly of U.S. origin or technology, the export of which is subject to export license control by the U.S. government. Therefore, prior to exportation, Buyer is required to obtain any licenses which may be required under the applicable laws of the U.S., including the export administration act and regulations.
15. GOVERNMENT CONTRACTS
If the goods are to be used in a U.S. Government contract or subcontract, those mandatory clauses, except as noted below, of the applicable U.S. Government procurement regulations shall be incorporated by reference. Unless otherwise agreed upon in writing, certified cost or pricing data will not be provided and Cost Accounting Standards, Defective Pricing, and Audit requirements will not apply.
16. ASSIGNMENT
This contract shall not be assignable by either party without the written consent of the other party. Unauthorized assignment shall be void.
17. MODIFICATION
This contract constitutes the entire agreement between the parties relating to the sale of the goods described on the face hereof and supersedes all previous communications, representations, or agreement, either oral or written, with respect to the subject matter hereof. No representations or statements of any kind made by any representative of Netarus, which are not stated herein, shall be binding on Netarus. No addition to or modification of any provision upon the face or reverse of this contract shall be binding upon Netarus unless made in writing and signed by a duly authorized representative of Netarus. No course of dealing or usage of trade or course of performance shall be relevant to explain or supplement any term expressed in this contract.
18. REFUNDS/RETURNS
Netarus accepts product returns received within 30 days from the original invoice date with a valid RMA number. Orders cancelled after processing (order has been placed, invoiced and/or shipped) AND unopened items are subject to a 5% restocking fee. Goods only accepted within 30 days of the original invoice date. Excludes custom and bulk orders. Refused shipments are subject to return freight charges. Opened items are subject to a 15% restocking fee. Partial order returns on orders that were extended a shipping or other promotional discount will proportionally have such a discounts deducted from the refund. All authorized refunds will be refunded via the method of payment originally billed. Please note that Netarus will process all refunds within 48 hours of receipt of returned goods. All refunds are subject to the financial institutions’ processing timelines. Netarus is happy to answer any questions regarding our portion of the refund processing, but you may need to contact your financial institution for more details.
19. SOLE TERMS. These terms including all appendices, constitutes the sole terms between Netarus and the Buyer regarding the hardware and services depicted. Any additional hardware or services not specified in this contract must be authorized by a written change order by both parties.
20. FORCE MAJEURE. Except for the payment of fees by Buyer, if the performance of any part of this terms by either party is prevented, hindered, delayed, or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God, acts of terrorism, or any other causes beyond the control of either party, that party shall be excused from such performance to the extent that it is prevented, hindered, or delayed by such causes.
21. ATTORNEYS FEES AND LIMITATION OF LIABILITY: The Buyer agrees to limit Netarus’ liability for any damages to the Buyer arising from Netarus’
performance of the terms to the fees paid under this terms. This limitation of liability shall apply regardless of the cause of action or legal theory pled or
asserted by the Buyer against Netarus. If Netarus brings an action or proceeding to enforce the terms hereof or declare rights hereunder, Netarus shall be
entitled to reasonable attorneys fees. Such fees may be awarded in the same suit or recovered in separate suit arising from or out of the same cause of action.
These terms become effective only when services are rendered or equipment is received by the Buyer. The Buyer agrees that for purposes of venue, these
terms were entered into in Norfolk, Virginia, and any dispute will be litigated or arbitrated in Norfolk, Virginia.