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Legal Notice

Terms and Conditions of Sale

Customer and Netcordia, Inc. ("Netcordia") agree that the purchase and sale of Netcordia hardware and software products (the "Products") are made under these Terms and Conditions of Sale (this "Agreement"), and that Netcordia SHALL NOT BE BOUND BY CUSTOMER'S ADDITIONAL OR DIFFERENT TERMS. Customer's order and purchase of the Products shall constitute acceptance of this Agreement.

1. Prices and Payment. All quotations shall expire thirty (30) days from the date of issuance, unless otherwise set forth on the quotation or agreed in writing. Customer shall make payment in full prior to or upon delivery by cashier's check, credit card or money order, unless Netcordia approves Customer for credit terms. If Netcordia approves Customer's credit application, payment shall be due no later than thirty (30) days from the date of Netcordia's invoice. All sums not paid when due shall accrue interest daily at the lesser of a monthly rate of one and one-half percent (1.5%) or the highest rate permissible by law on the unpaid balance until paid in full. All payments shall be made in U.S. Dollars. In the event of any order for several units, each unit will be invoiced when shipped. If any invoice issued to Customer is not paid within sixty (60) days of the invoice date, notwithstanding any agreement or course of dealing between Netcordia and Customer, (a) Customer shall make payment in full prior to or upon subsequent Product deliveries by cashier's check, credit card or money order until credit is reestablished to Netcordia's satisfaction, and (b) Netcordia may suspend shipment of any Products ordered by Customer.

2. Taxes. Product prices are exclusive of, and Customer shall pay, applicable transportation, insurance, federal, state, local, excise, sales, use, property (ad valorem), service, value-added or like taxes or duties now in force or hereafter enacted. Customer agrees to pay all taxes, fees or charges of any nature whatsoever imposed by any governmental authority on, or measured by, the transaction between Customer and Netcordia, in addition to the prices quoted or invoiced. If Netcordia is required to collect the foregoing, such amounts will appear as separate items on Netcordia's invoice and paid by Customer unless Customer provides Netcordia with a valid tax exemption certificate authorized by the appropriate taxing authority. Customer agrees to provide Netcordia with a valid resale certificate for any Products purchased for resale.

3. Import and Export Requirements. Customer shall, at its own expense, pay all import and export licenses and permits, pay customs charges and duty fees, and take all other actions required to accomplish the export and import of the Products purchased by Customer. Customer understands that Netcordia is subject to regulation by agencies of the U.S. government, including the U.S. Department of Commerce, which prohibit export or diversion of certain technical products to certain countries. Customer warrants that it will comply in all respects with the export and re-export restrictions set forth in the export license for every Product shipped to Customer.

4. Orders. All orders are subject to acceptance by Netcordia. Netcordia's booking of an order shall constitute its acceptance of an order.

5. Shipment; Delivery.

  • (a) Shipment dates are scheduled after Netcordia's acceptance of orders and the receipt of necessary documents from Customer. For shipments to all locations, delivery will be made Ex Works Netcordia's facility, Annapolis, Maryland. The time of delivery is the time the goods to be delivered are picked up by the carrier at the Ex Works point, or tendered for delivery at the Ex Works point, as applicable. For shipments to all locations, title to the goods will pass to Customer upon delivery of the goods by Netcordia to the carrier at the Ex Works point. Notwithstanding the foregoing, upon delivery to the Ex Works point, as applicable, Customer will be responsible for and bear the entire risk of loss or damage to the goods.
  • (b) In the absence of specific shipping instructions, Netcordia will ship by the method it deems most advantageous. Transportation charges will be collected on delivery or, if prepaid, will be subsequently invoiced to Customer. Unless otherwise indicated, Customer is obligated to obtain insurance against damage to the goods being shipped. Unless otherwise specified, the goods will be shipped in standard commercial packaging. When special or export packaging is requested or, in the opinion of Netcordia, required under the circumstances, the cost of the same, if not set forth on the invoice, will be separately invoiced.

6. Security Interest. Netcordia hereby reserves a purchase money security interest in all Products sold hereunder and the proceeds thereof, in the amount of the purchase price. If Customer defaults in any of its obligations to Netcordia, Netcordia will have the right to repossess the Products sold hereunder without liability to Customer. These security interests will be satisfied by payment in full. A copy of the invoice may be filed with appropriate authorities at any time as a financing statement and/or chattel mortgage to perfect Netcordia's security interest. On request of Netcordia, Customer will execute financing statements and other instruments that Netcordia may request to perfect Netcordia's security interest.

7. Limited Warranty; Customer Remedies.

  • 7.1. Software. All software Products are warranted solely as set forth under the terms of the applicable Netcordia license agreement in effect between Netcordia and Customer with respect to such software Products.
  • 7.2. Hardware. Netcordia hardware Products are warranted against material defects in materials and workmanship for a period of one (1) year from the Delivery Date. Customer must obtain a Return Material Authorization number from Netcordia before returning any Products under warranty to Netcordia. Customer shall pay expenses for shipment of repaired or replacement Products to and from Netcordia. After examining and testing a returned Product, if Netcordia concludes that such Product is not defective, Customer will also be responsible for examination and testing charges, however if the Product is defective Netcordia with either repair or replace the defective product within 30 days of receipt of the defective Product. This limited warranty is void if failure of a Product has resulted from accident, abuse, misapplication, use of third party software not approved or intended for use with the Product, utilization of an improper hardware or software key, or unauthorized maintenance or repair of a Product.
  • 7.3. Customer Remedies. Netcordia's sole obligation (and Customer's sole remedy) with respect to the foregoing limited warranty shall be, at Netcordia's option, return of the price paid for or repair or replacement of any defective Products, provided that Netcordia receives written notice of such defects during the warranty period. Customer may not bring an action to enforce its remedies under the foregoing limited warranty more than one (1) year after the accrual of such cause of action.
  • 7.4. Return/Cancellation/Change Policy. Customer may return unwanted Products within thirty (30) days of the Delivery Date. No returns will be accepted after the thirty (30) day period has expired. Where special equipment or services are involved, Customer shall be responsible for all related work in progress; however, Netcordia shall take responsible steps to mitigate damages immediately upon receipt of a written cancellation notice from Customer. A Return Material Authorization number must be obtained from Netcordia for return of any Products. Netcordia may terminate any order if any representations made by Customer to Netcordia are false or misleading. Changes to orders shall not be binding upon nor be put into effect by Netcordia unless confirmed in writing by Netcordia's appropriate representative.
  • 7.5. No Other Warranties. EXCEPT AS EXPRESSLY SET FORTH ABOVE, THE PRODUCTS ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, AND NO OTHER WARRANTIES, EITHER EXPRESSED OR IMPLIED, ARE MADE WITH RESPECT TO THE PRODUCTS, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY OTHER WARRANTIES THAT MAY ARISE FROM USAGE OF TRADE OR COURSE OF DEALING. NETCORDIA DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE OF OR THE RESULTS OF THE USE OF THE PRODUCTS IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE AND DOES NOT WARRANT THAT THE OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE. NETCORDIA EXPRESSLY DISCLAIMS ANY WARRANTIES NOT STATED HEREIN.
  • 7.6. No Liability for Consequential Damages. The entire liability of Netcordia and its licensors, distributors and suppliers (including its and their directors, officers, employees and agents) is set forth above. To the maximum extent permitted by applicable law, in no event shall Netcordia or its licensors, distributors and suppliers (including its and their directors, officers, employees and agents) be liable for any damages, including, but not limited to, any special, direct, indirect, incidental, exemplary or consequential damages, expenses, lost profits, lost savings, business interruption, lost business information, or any other damages arising out of the use or inability to use the Products, even if Netcordia or its licensors, distributors or suppliers have been advised of the possibility of such damages. Customer acknowledges that the applicable purchase price or license fee for the Products reflects this allocation of risk. Because some states/jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply. If the foregoing limitation of liability is not enforceable because a Product sold or licensed to Customer is determined by a court of competent jurisdiction in a final, non-appealable judgment to be defective and to have directly caused bodily injury, death, or property damage, in no event shall Netcordia's aggregate liability for damages exceed the fees paid by Customer to Netcordia for the specific Product that caused such damage.

8. Limited Indemnity Against Infringement. Netcordia shall, at its own expense, defend any litigation resulting from sales of the Products hereunder to the extent that such litigation alleges that a Product or any part thereof infringes any United States patent, copyright or trademark, provided that Customer notifies Netcordia immediately upon its obtaining notice of such impending claim and cooperates fully with Netcordia in preparing a defense. If Customer provides to Netcordia the authority, assistance and information Netcordia needs to defend or settle such claim, Netcordia shall pay any final award of damages in such suit and any expense Customer incurs at Netcordia's written request, but Netcordia shall not be liable for a settlement made without its prior written consent. If the Products are held to be infringing and the use thereof is enjoined, Netcordia shall, at its option, either (a) procure for the Customer the right to use the Products, (b) replace the Products with others which do not constitute infringement, or (c) accept the return of the infringing Products and refund the payment(s) made therefor by Customer. Notwithstanding the foregoing, Netcordia will not be responsible for, and the foregoing indemnity obligation shall not apply to, (x) infringement of any patent covering the use of the Products in combination with any other products, process, equipment or materials not furnished by Netcordia, (y) a use of the Products that is not their intended use, or (z) any device, part, good or product specified by Customer. The foregoing states the Customer's sole remedy for, and Netcordia's entire liability and responsibility for, infringement of any patent, trademark or copyright relating to the Products provided hereunder. THIS LIMITED INDEMNITY IS IN LIEU OF ANY OTHER STATUTORY OR IMPLIED WARRANTY AGAINST INFRINGEMENT.

9. Cancellation. This Agreement may be canceled by Customer only upon the payment of reasonable cancellation charges, which will include but not be limited to expenses already incurred for labor and material costs, overhead, commitments made by Netcordia, and a reasonable profit. In the event of cancellation, Customer will have no rights in partially completed goods. If Customer (a) becomes bankrupt or insolvent, (b) makes an assignment for the benefit of its creditors, (c) commences to be wound up, or (d) suffers a receiver to be appointed, Netcordia will be at liberty by notice in writing to cancel this Agreement without judicial intervention or declaration of default of Customer and without prejudice to any right or remedy which may have accrued or may accrue thereafter to Netcordia.

10. General Provisions.

  • 10.1. Acknowledgement/Governing Law. Customer acknowledges having read, understands and agrees to be bound by the terms and conditions of this Agreement. This Agreement shall be governed by and construed under the laws of the State of Maryland without regard to the conflicts of law provisions thereof. Any dispute arising under this Agreement shall be subject to the exclusive jurisdiction of the courts of Anne Arundel County, Maryland. Customer shall bring action relating to any dispute Customer may have hereunder within one (1) year of the accrual of such dispute.
  • 10.2. Attorney's Fees. Reasonable attorneys' fees and costs will be awarded to the prevailing party in the event of litigation involving the enforcement or interpretation of this Agreement.
  • 10.3. Waiver. The failure by Netcordia to enforce at any time the provisions of this Agreement, to exercise any election or option provided herein, or to require at any time the performance by Customer of any of the provisions herein will not in any way be construed as a waiver of such provisions.
  • 10.4. Errors. Stenographic and clerical errors in sales made under this Agreement are subject to correction.
  • 10.5. Entire Agreement. The terms and conditions set forth herein constitute the entire agreement between Netcordia and Customer and supersede any other agreements or offers including any purchase order of Customer. This Agreement may not be modified, supplemented, qualified or interpreted by any trade usage or prior course of dealing not made a part of the agreement by its express terms. Customer hereby acknowledges that it has not entered into this Agreement in reliance upon any warranty or representation by any person or entity except for the warranties or representations specifically set forth herein. No modification of this Agreement shall be effective unless in a writing signed by both Customer and Netcordia.
  • 10.6. Force Majeure. Netcordia shall be excused for any delay or failure to perform due to any cause beyond its reasonable control, including but not limited to acts of governments, natural catastrophes, acts of Customer, interruptions of transportation or inability to obtain necessary labor or materials. Netcordia's estimated shipping schedule shall be extended by a period of time equal to the time lost because of any excusable delay. In the event Netcordia is unable to perform in whole or in part because of any excusable failure to perform, Netcordia may cancel orders without liability to Customer.