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Standard Terms and Conditions of Sale

These Standard Terms and Conditions of Sale (“Terms and Conditions”) apply to the Products listed on the Quote Sheet, Packing Slip or Invoice received by the Customer (the “Order”) from Champion Optical Network Engineering (“C1”).

Contract. By placing an Order, Customer creates a binding contract with C1 and accepts these Terms and Conditions. Any other terms and conditions contained in any purchase order or other document issued by Customer are null and void and any prior course of dealing between C1 and the Customer or usage of trade will not be relevant in determining the meaning of these Terms and Conditions . No variation to these Terms and Conditions shall apply unless contained in a document signed by C1’s President.

Payment. Customer shall pay C1 in U.S. dollars within ten days of delivery (or on such other terms as stated on the Order) the total purchase price plus all applicable freight, sales, use, products and service, and other similar taxes or charges, custom duties, and value added tax based upon the location(s) to which the Order is shipped. C1 reserves the right to separately ship part of an Order. Customer agrees to accept delivery of Products unless it does not conform to the Order. Customer is not responsible for Ohio’s Commercial Activity Tax or other tax based upon C1’s receipts or income. Customer agrees to pay interest on all past due sums at the highest rate allowed by law or one and one-half percent (1 ½%), whichever is lower. On past due accounts, Customer will be responsible for C1’s cost of collection including attorneys fees, filing fees and court costs.

Sales. Quotations are valid for thirty (30) days or such period of time specified on the Quote Sheet. Customer shall be entitled to cancel an Order, unless Quote Sheet, Invoice, or Packing Slip includes language otherwise, in whole or in part up to two (2) weeks prior to the estimated shipping date on all Memory Upgrades, Cables, Optical Transceivers, Optical Passives, CCTx (“C1 Products”) and four (4) weeks prior to the estimated shipping date on Orders for non-C1 Products by giving written notice to C1. Unless the cancellation notice is timely received by C1, C1 shall be entitled to a payment equivalent to 50% (fifty percent) of the value of the cancelled Order. The Order may not be cancelled after shipment, but Products may be returned under the policies listed below.

Damage; Loss; Assignment. C1 shall not be liable for failure of the delivery service to make ontime delivery. Customer assumes all risk of loss or damage to Products following delivery. Title to merchandise does not transfer until payment in full is received by C1. Prior to that time, Customer shall not remove, sell, pledge or mortgage the merchandise without the prior written consent of C1. This Order or any of the rights or obligations hereunder may not be assigned by Customer without prior written consent of C1.

Returns. Return privileges vary by manufacturer and C1 must approve all returns for any reason. Call customer service at 800-860-7466 to obtain a Return Material Authorization (RMA) number. All Memory Upgrades, Cables, Optical Transceivers, Optical Passives, CCTx (“C1 Products”) may be returned within thirty (30) days of shipment, unless otherwise stated on the Quote Sheet, Packing Slip or Invoice. In the case of all approved returns, Customer must ship the product(s) at Customer’s risk and expense to C1 in the original packaging, prepaid and insured, with the RMA number clearly marked on the packaging to Champion Optical Network Engineering, Attn: RMA Dept.-RMA No. ___________, 23400 Mercantile Rd., Suite #2, Beachwood, OH 44122. On warranty claims on C1 Products that C1 determines are as result of a defect in materials or workmanship, replacement parts will be shipped at C1’s expense, subject to availability, via a common air delivery service after the RMA number is obtained. DATED PROOF OF PURCHASE MUST BE PROVIDED WITH THE RETURNED EQUIPMENT. Replacement parts may be refurbished or repaired. When C1 rejects a warranty claim C1 will notify the Customer and reserves the right to charge Customer for parts and labor at then current rates. C1 may charge a restocking fee of up to 100% of the value of the goods for unauthorized returns. Any product(s) returned to C1 shall become C1’s property.

Warranties; C1 Products.
This warranty applies only to the following C1 Products under normal use: DRAM, Flash, Cables, optical transceivers, optical passives, CCTx modules, . C1 warrants to the original Customer only (not any lessees, transferees or assignees) that the following products, will be free from defects in material and workmanship for the stated time periods beginning with the date of purchase: A) DRAM, lifetime; B) Flash, 5 years; C) Cables, 1 year; D) optical transceivers, CCTx modules, 5 years; E) MDAs and SFPs with “HP”, Limited lifetime. This warranty applies only to C1 Products and excludes any software incorporated therein. In the event that C1 receives returned C1 Products with defects in material or workmanship, it will, at its option, repair or replace the C1 Products to whatever extent it deems necessary to restore the C1 Products to proper operating condition, or provide a credit or refund of the purchase price or fair market value, whichever is lower. Replacement parts may be refurbished or repaired. All material and labor required for such a restoration will be provided at no charge when a C1 Product with material or workmanship defects is properly returned within the applicable warranty period under the procedure described herein. Not covered under the warranties are: failures due to accident, misuse, abuse, neglect, improper installation, product modification, or unauthorized repair or attempted repair, or shipping damage. Customer expressly understands and agrees that C1 does not warrant that any product is free of claims of patent infringement by any third party. C1 hereby disclaims any such warranty or indemnification against patent infringement. Customer acknowledges that it is not authorized on behalf of C1 to make any other warranties or representations not expressly set forth herein on behalf of C1 concerning any C1 Products.

Manufacturer's Warranties; Non-C1 Products.
Customer acknowledges that unless it is purchasing a C1 Product described in the immediately preceding paragraph, only the warranties offered by the manufacturer are available. In purchasing such a product from C1, Customer agrees to rely upon the manufacture’s specifications and warranties and is not relying upon any statements, specifications, illustrations, photographs, or other document provided by C1. Customer has familiarized itself with the manufacturer’s warranty prior to purchasing the product from C1 and understands that warranty claims must be presented directly to the manufacturer and not to C1.

Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, AND GUARANTEES WITH RESPECT TO THE EQUIPMENT, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS BY C1, ITS LICENSORS OR REPRESENTATIVES, OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE AND CONFORMITY TO MODELS OR SAMPLES, OR WARRANTY OF NON-INFRINGEMENT) ARE HEREBY OVERRIDDEN, EXCLUDED, AND DISCLAIMED.
THIS DISCLAIMER DOES NOT APPLY TO THE MANUFACTURER’S WARRANTY, IF ANY.

Special Limitations. C1 DOES NOT WARRANT THAT THE PRODUCTS IT SELLS WILL WORK IN ALL COMBINATIONS OF HARDWARE AND SOFTWARE SELECTED FOR USE BY THE CUSTOMER AND C1 MAKES NO WARRANTY FOR THE DESIGN, FUNCTIONALITY OR PERFORMANCE OF ANY INTEGRATED SYSTEM CREATED USING A C1 PRODUCT.

No Consequential Damages. WITH THE EXCEPTION OF CLAIMS FOR DEATH OR PERSONAL INJURY WHERE AND TO THE EXTENT THAT APPLICABLE LAW REQUIRES SUCH LIABILITY, UNDER NO CIRCUMSTANCES WILL C1 BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, OR INCIDENTAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, BASED ON C1’S CLAIMS OR THOSE OF ANY CUSTOMERS (INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR LOSS OF DATA, GOODWILL, PROFITS, USE OF MONEY OR USE OF THE PRODUCTS, INTERRUPTION IN USE OR AVAILABILITY OF DATA, STOPPAGE OF OTHER WORK, OR IMPAIRMENT OF OTHER ASSETS), ARISING OUT OF BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE. IN NO EVENT WILL THE AGGREGATE LIABILITY WHICH C1 MAY INCUR IN ANY ACTION OR PROCEEDING EXCEED THE GREATER OF THE TOTAL AMOUNT ACTUALLY PAID BY CUSTOMER FOR THE SPECIFIC PRODUCT THAT DIRECTLY CAUSED THE DAMAGE OR $25,000.

Waiver. Any waiver of any provision of these Standard Terms and Conditions of sale, or a delay by either party in the enforcement of any right hereunder, shall neither be construed as a continuing waiver, nor create an exception of non-enforcement of that or any other provision or right. If any provision of these Standard Terms and Conditions of Sale is held illegal or unenforceable by any court of competent jurisdiction, such provision shall be deemed separable from the remaining provisions of these Terms and Conditions and shall not affect or impair the validity or enforceability of the remaining provisions.

Notices. Any notice required to be given under these Terms and Conditions must be in writing and is effective upon delivery by certified mail or confirmed facsimile transmission to the other party at the address identified in the Order.

Export Control. Products acquired under these Terms and Conditions may be subject to U.S. and other government export control regulations. Customer agrees that it will comply with those regulations whenever they export or re-export controlled products obtained from C1.

Force Majeure. Neither party shall be liable for the failure to perform any of its obligations under these Terms and Conditions if such failure is caused by the occurrence of any act of force majeure or any other contingency beyond its reasonable control.

Dispute Resolution; Ohio Law. Each party agrees that any dispute between the parties will first be submitted in writing to the designated senior executives of C1 and Customer who will meet in an effort to resolve such dispute within thirty (30) days. In the event the executives are unable to resolve the dispute, if both parties agree, the dispute may be arbitrated in accordance with the rules and procedures set forth in a mutually agreed arbitration agreement.
Customer and C1 agree that any dispute arising out of the Order or its subject matter shall be interpreted under the laws of the State of Ohio, without regard to conflicts of laws rules, and that the Federal and State Courts located in Cuyahoga County Ohio shall have exclusive jurisdiction over the dispute and Customer waives any right to change venue and consents to the exercise of personal jurisdiction by any such court with respect to any such court proceeding.

Contract Terms Exclusive. This Agreement constitutes the entire agreement between the parties hereto and the parties acknowledge and agree that neither of them has made any representation with respect to the subject matter of this Agreement or any representations inducing the execution and delivery hereof except as specifically set forth herein and each of the parties hereto acknowledges that he or it has relied on his or its own judgment in entering into the same.
Rev. 03.08