Terms and Conditions of Sale

NOTICE:  PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY.  YOU (EITHER AN INDIVIDUAL OR A SINGLE ENTITY) AGREE THAT THESE TERMS AND CONDITIONS ARE ENFORCEABLE LIKE ANY WRITTEN CONTRACT SIGNED BY YOU.

1.        Scope and Definitions.

1.1 These Terms and Conditions of Sale (these “Terms”) apply to all sales of Products by MeshNetics and its parents, subsidiaries and affiliates (collectively, “MeshNetics”) to the buyer of the Products (“Buyer”).  Any quotation or similar communication sent out by MeshNetics to Buyer shall be deemed to be only an invitation for offers. Orders made by Buyer shall constitute offers to buy Products (each an “Order”) and shall come into effect upon MeshNetics’ acceptance of an Order.  Such acceptance shall be made either upon written confirmation by MeshNetics or by Delivery of Products.  If MeshNetics accepts by Delivery then, acceptance shall only be as to the quantity Delivered. Orders must specify a Product, unit quantities, a “ship to” address and have a delivery date.  Any of Products sale and use may also be subject to additional terms and conditions and/or end user license agreements pertaining to and accompanying such particular Product.

1.2 “Hardware” means computer and related devices and equipment, related documentation, accessories and parts.

1.3 “Product” means Hardware and Software listed in the accepted Order, and including products that are modified, altered, or customized to meet Buyer requirements.

1.4 “Specification” means technical information about Products published in MeshNetics’ Product manuals, and end user documentation in effect on the date of Delivery to Buyer.

1.5 “Software” means all of the contents of the files, disk(s), CD-ROM(s) or other media (including electronic and on-line media) including but not limited to (a) MeshNetics or third party computer information or software; and (b) related explanatory materials in printed, electronic or online form which MeshNetics generally distributes to end users (“Documentation”).

1.6 Updates.  The license granted in Section 8 and warranty provisions are limited to the standard versions of the Software Delivered by MeshNetics pursuant to the Order and does not include any updates, upgrades or enhancements (each an “Update”).  Any Updates will be provided only pursuant to a separate support written agreement between Buyer and MeshNetics.

1.7 “Use” or “Using” means to access, install, download, copy or otherwise benefit from using the Software.

2.        Prices and taxes. Payment.

2.1 Prices. The prices for Products covered hereunder shall be those stated in the Order confirmation; provided, however, that if such prices are based on the purchase of a particular quantity of products and the Buyer fails to purchase such quantity of Products, MeshNetics shall have the right (in addition to any other remedies available at law) to collect from the Buyer the difference between the price paid by the Buyer for the Products purchased and the price for such Products commensurate with the quantity actually purchased by the Buyer. The prices for Products and Support are specified in the Order confirmation.  Prices are quoted net and EXW (Ex-Works, Incoterms 2000) unless otherwise stated on the Order confirmation.  Prices are subject to change at any time prior to MeshNetics’ acceptance of the Order.

2.2 Taxes. Prices are exclusive of, and Buyer shall pay, all taxes, duties, levies or fees, or other similar charges imposed on MeshNetics or on the Buyer by any taxing authority (other than taxes imposed on MeshNetics’ income) related to the Order.

2.3 Payments. All payments shall be made in full without set-off, counterclaims or withholding of any kinds (save where and the extent that this cannot by law be executed) and in a currency stated on MeshNetics’ invoice within thirty (30) calendar days of MeshNetics’ invoice date unless otherwise specified in the invoice. MeshNetics may change credit or payment terms for unfulfilled Orders.

2.4 Buyer Default.  MeshNetics may discontinue performance if Buyer fails to pay any sum due, or if after ten (10) calendar days written notice Buyer has not cured any other failure to perform under these Terms.  All amounts past due shall incur interest at the rate of 1.5% per month and may be subject to claim by MeshNetics at its discretion.

3.        Title and Delivery.

3.1 Title and Risk of Loss.  Delivery is EXW (Ex-Works, Incoterms 2000), our shipping point (“Delivery”).  Risk of loss and title pass to the Buyer on MeshNetics’ shipment.  In the event governing law requires a change in title, then MeshNetics hereby reserves and Buyer hereby grants to MeshNetics a purchase money security interest in the Products sold and the proceeds thereof, including accounts receivable, until Buyer pays MeshNetics the purchase price in full.  Upon MeshNetics’ request, Buyer shall execute any financing statements or other documents to protect MeshNetics’ security interest.

3.2 Delivery and Storage.  Any scheduled Delivery date quoted is approximate and not the essence of these Terms.  If Buyer fails to claim the Products within thirty (30) days of Delivery, MeshNetics may elect to store the Products.  Such storage shall be at Buyer’s risk and expense.  MeshNetics may charge Buyer an initial storage fee and an additional weekly storage fee.  MeshNetics may, at its sole option, continue to store the Products at Buyer’s expense or sell the Products to mitigate MeshNetics’ damages.

3.3 Delay in Delivery.  Should Delivery of all or any part of the Products (or any other obligation of MeshNetics) be delayed by events beyond MeshNetics’ reasonable control, MeshNetics’ time for performance shall be extended by the period of the delay.  MeshNetics may at MeshNetics’ option upon fifteen (15) days notice to Buyer cancel the Buyer’s Order, in whole or in part, without liability.  In such event Buyer shall remain liable for all Deliveries already made.

3.4 Extended Delivery Dates. Changes to Orders that extend Delivery dates beyond thirty (30) calendar days from the date stated on the Order confirmation shall be considered new Orders at the prices in effect when MeshNetics receives the changed Order.

3.5 Shipment. Shipment of the Products shall be made in accordance with customary shipping practices for such Products.  Unless otherwise specified in MeshNetics’ invoice, no fees will be charged for packing, boxing, cartage or insurance.  Special packing or shipping arrangements will be charged separately to Buyer.  Transportation and handling charges are payable by Buyer and will be specified in the invoice unless otherwise defined by MeshNetics.

4.        Acceptance.  Products are accepted by Buyer unless MeshNetics receives written notice to the contrary specifying the nonconformance within 10 (ten) days commencing the Delivery. Buyer waives any rights to revoke acceptance thereafter. Buyer may only reject the Products if the Products do not conform to the mutually agreed upon specifications therefor or if no such specifications exist, then the specifications then generally provided by MeshNetics to the public regarding the Products. No return of Products shall be accepted by MeshNetics without Return Material Authorization number, as set forth in the item 5.1.3 hereof.

5.        MeshNetics’ Limited Warranty and Limitation of Liabilities.

5.1 Limited Warranty.  MeshNetics warrants that each Product, other than Software, development kits, under normal use and conditions, will comply in all material respects with the accompanying written Documentation (if any) for such Product for the period of one (1) year after Delivery.  Unless otherwise agreed in writing, development kits are warranted for a period of three (3) months after Delivery.

All Products which are “samples” and/or “prototypes” are sold “AS IS,” “WITH ALL FAULTS,” and with no warranty and return privileges whatsoever. Software is provided “AS IS” with no warranties or indemnities whatsoever.  MeshNetics disclaims any and all express, implied or statutory warranties with respect to THE Software.  MeshNetics shall have the right to make substitutions and modifications from time to time in the specifications of the Products.

5.1.1        All warranty claims must be made by contacting MeshNetics at www.meshnetics.com/support.  Support inquiries must a detailed description of the defect, Buyers’ name, contact person, physical address and phone number. The notice should be done immediately but no later than thirty (30) calendar days after discovery of the defect.  Failure to timely notify MeshNetics shall void the warranty.

5.1.2        If MeshNetics confirms that a defect exists, MeshNetics at its sole discretion, or the reseller, if approved by MeshNetics, may (i) repair the Hardware at no charge or (ii)exchange the Hardware with Hardware that is new or which has been manufactured from new or serviceable used parts and is at least functionally equivalent to the original Hardware, or (iii) refund the purchase price of the Hardware.  In no event shall MeshNetics’ liability under these Terms exceed the purchase price of the warranted Hardware, exclusive of shipping costs.

5.1.3        All returns of Products require a Returned Merchandise Authorization (“RMA”) number from MeshNetics and must be accompanied by a completed MeshNetics’ RMA form.  RMA numbers may be obtained by contacting MeshNetics’ customer service at www.meshnetics.com/support.  Product will not be accepted by MeshNetics for return if not accompanied by a valid RMA number, which must be clearly marked on the outside of the package, and a completed RMA form.  Any RMA obtained from MeshNetics shall be valid for thirty (days) and shall thereafter expire.

5.1.4        No returns, exchange of Products or refund purchase price of the Product shall be done by MeshNetics in case of any faults or defects in Software. If a defect in Software exists, at its sole discretion, MeshNetics or the authorized reseller may replace such defective Software.

5.2 Limitations.  Except for the limited warranty set forth in Section 5.1, (i) MeshNetics SPECIFICALLY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED OR STATUTORY WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, OF MERCHANTABILITY AND AGAINST INFRINGEMENT, and (ii) BUYER ASSUMES RESPONSIBILITY FOR SELECTING THE PRODUCTS TO ACHIEVE BUYER’S INTENDED RESULTS AND FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM THE PRODUCTS. WITHOUT LIMITING THE FOREGOING PROVISIONS, MESHNETICS MAKES NO WARRANTY THAT THE SOFTWARE WILL BE ERROR-FREE OR FREE FROM INTERRUPTIONS OR OTHER FAILURES OR THAT THE SOFTWARE WILL THE BUYER’S REQUIREMENTS.  THE EXPRESS WARRANTY IN SECTION 5.1 SHALL EXTEND TO BUYER ONLY AND NOT TO ANY THIRD PARTY.  NO PERSON IS AUTHORIZED TO MAKE ANY WARRANTY OR REPRESENTATION ON BEHALF OF MeshNetics CONCERNING THE PERFORMANCE OF THE PRODUCTS OTHER THAN THE LIMITED WARRANTY EXPRESSLY SET FORTH IN SECTION 5.1.

5.3 Liability.  With respect to any claims asserting breach of the limited warranty set forth in Section 5.1, MeshNetics’ exclusive liability and Buyer’s sole remedy, is, at MeshNetics’ option, to replace or repair the defective Hardware or to issue credit to Buyer for the purchase price of the Hardware (without interest), provided that prior to any replacement, repair or credit the following conditions are satisfied:  (i) such failures did not arise as a result of misuse, abuse, improper installation or application, repair, alteration or accident or negligence in use, storage, transportation or handling by anyone other than MeshNetics, and (ii) Buyer complies with the provisions of Section 5.1.3 hereof.  Any replacement Hardware will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer.  MeshNetics shall in no event be responsible for any labor or other costs incurred by Buyer incident to the replacement of any defective Hardware t.

5.4 High Risk Activities.  The Products are not fault-tolerant and are not designed or intended for use in hazardous environments requiring fail-safe performance, including without limitation, in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, weapons systems, direct life-support machines or any other application in which the failure of the Software could lead directly to death, personal injury or severe physical or property damage (collectively, “High Risk Activities”).  MESHNETICS EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES.

5.5 NOTWITHSTANDING ANY OTHER PROVISION OF THESE TERMS OR THE ORDER, MeshNetics SHALL NOT BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY NATURE INCLUDING WITHOUT LIMITATION LOSS OF PROFIT, PROMOTIONAL OR MANUFACTURING EXPENSES, OVERHEAD, DATA, INJURY TO REPUTATION OR LOSS TO BUYERS, ARISING OUT OF OR IN CONNECTION WITH THE PURCHASE, SALE, USE, PERFORMANCE OR FAILURE OF THE PRODUCTS, WHETHER SUCH LIABILITY ARISES UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF MeshNetics HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGE COULD HAVE BEEN REASONABLY FORESEEN.  IN NO EVENT WILL MeshNetics’S LIABILITY TO BUYER ARISING OUT OF OR RELATING TO THE PRODUCTS OR THESE TERMS EXCEED THE AMOUNT OF THE PURCHASE PRICE PAID TO MeshNetics BY BUYER FOR THE PRODUCT THAT GIVES RISE TO THE CLAIM.

5.6 Modification, Accident, Abuse, Misapplication.  The limited warranty set forth in Section 5.1 is void if any of the Products are altered or modified in any way or if the defect has resulted from accident; abuse; negligence; misuse (including but not limited to use of the Product or any of its removable parts other than as authorized by MeshNetics in writing), improper installation, misapplication, tampering, repair or service, modification, unsuitable physical or operating environment, or improper maintenance; Product or any part thereof if the model or serial number is missing or has been removed, altered, tampered with or defaced; electrical disturbances, transportation by Buyer, or other causes beyond MeshNetics’ control.

6.        Default.  If Buyer (i) becomes insolvent, bankrupt, (ii) makes an assignment for the benefit of its creditors, (iii) is otherwise unable to meet Buyer’s obligations as they come due or (iv) breaches Buyer’s obligations under these Terms, MeshNetics may cease performance hereunder and avail itself of all legal and equitable remedies MeshNetics may have against Buyer.  If, despite default by Buyer, MeshNetics elects to continue to make Deliveries, MeshNetics’ action shall not constitute a waiver of any default by Buyer or in any way affect MeshNetics’ legal remedies of any such default.

7.        Support/Advice/Training/Installation.  Buyer acknowledges that no customer support, installation, training or education is contracted for or purchased hereunder.  If MeshNetics offers or gives support, technical advice or performs any installation or training in connection with the use of any of the Products, such advice or training will be provided only pursuant to a separate written agreement between Buyer and Seller or solely as an accommodation to Buyer in which case, Seller shall have no responsibilities or liabilities whatsoever for the content or use of such advice.

8.        Software.  The Hardware may be used in conjunction with Software.  Such Software is licensed and not sold.  Buyer may Use the Software solely in conjunction with Buyer’s use of and as a component of the Products. 

8.1 Ownership Rights.  The Software is protected by United States’ and other copyright laws, international treaty provisions and other applicable laws in the country in which it is being used.  MeshNetics and its suppliers own and retain all right, title and interest in and to the Software, including all copyrights, patents, trade secret rights, trademarks and other intellectual property rights therein. Buyer’s possession, installation or Use of the Software does not transfer to Buyer any title to the intellectual property in the Software, and Buyer will not acquire any rights to the Software except as expressly set forth in these Terms. Any copy of the Software and Documentation authorized to be made hereunder must contain the same proprietary notices that appear on and in the Software and Documentation.

8.2 Restrictions.  Buyer will not, nor will Buyer permit any third party to, (i) distribute, copy, rent, lease, sublicense or otherwise transfer or provide access to the Software to any third party; (ii) reverse engineer, disassemble, unbundle or decompile the Software in whole or in part or otherwise attempt to determine or discern source code of the Software; (iii) alter or modify the Software in any way (iv) permit third parties to benefit from the use or functionality of the Software via a timesharing, service bureau or other arrangement (v) remove any proprietary notices or labels on the Software (vi) use the Software for any illegal purposes; (vii) use the Software to store, retrieve, transmit or view any file, data, image or program that contains: (a) any material that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law or regulation; (b) any code or material that violates the intellectual property rights of others, or (c) any viruses, worms, “Trojan horses” or any other similar contaminating or destructive features.  If Buyer undertakes any of the forgoing activities, the license granted above shall automatically terminate.  Buyer agrees to promptly notify MeshNetics of, and to assist MeshNetics with respect to any infringement or unauthorized use of the Software of which Buyer is aware or reasonably suspects.  Buyer shall not remove, alter, cover or obscure any copyright, trademark or other proprietary rights notice placed by MeshNetics on the Software or any portion thereof.

8.3 Notice to United States Government End Users.  The Software and accompanying Documentation are deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction, release, performance, display or disclosure of the Software and accompanying Documentation by the United States Government shall be governed solely by these Terms and shall be prohibited except to the extent expressly permitted by these Terms.

8.4 Export Controls. Buyer acknowledges that the Software is subject to the export control laws and regulations of the Unites State of America (“US”), and any amendments thereof.  Buyer shall not export or re-export the Software, directly or indirectly, to (i) any countries that are subject to US export restrictions (currently including, but not necessarily limited to, Cuba, Iran, Libya, North Korea, Sudan and Syria); (ii) any end user known, or having reason to be known, will utilize them in the design, development or production of nuclear, chemical or biological weapons; or (iii) any end user who has been prohibited from participating in the US export transactions by any federal agency of the US government.  Buyer further acknowledges that Software may include technical data subject to export and re-export restrictions imposed by US law.

8.5 Free Software.  The Software includes or may include some software programs that are licensed (or sublicensed) to the user under the GNU General Public License (GPL) or other similar licenses which, among other rights, permit the user to copy, modify and redistribute certain programs, or portions thereof, and have access to the source code (“Free Software”).  The GPL requires that for any software covered under the GPL and which is distributed to someone in an executable binary format, that the source code also be made available to those users.  For any such Free Software, the source code is made available in a designated directory created by installation of the Software or designated internet page.  If any Free Software licenses require that MeshNetics provide rights to use, copy or modify a software program that are broader than the rights granted in these Terms, then such rights shall take precedence over the rights and restrictions herein.

8.6 Audit.  MeshNetics reserves the right to periodically audit Buyer to ensure that Buyer is not using any Software in violation of these Terms.  During standard business hours and upon prior written notice, MeshNetics may visit Buyer and Buyer will make available to MeshNetics or its representatives any records pertaining to the Software. The cost of any requested audit will be solely borne by MeshNetics, unless such audit discloses an underpayment or amount due to MeshNetics in excess of five percent (5%) of the initial license fee for the Software or Buyer is using the Software in an unauthorized manner, in which case Buyer shall pay for the cost of the audit in addition to any other fees due MeshNetics based on Buyer’s violations.

9.        Privacy.  By agreeing to these Terms, Buyer agrees that the collection and use of Buyer’s personal information shall be governed by MeshNetics’ privacy policy, which may be viewed on the MeshNetics’ website at www.meshnetics.com.

10.      Miscellaneous.

10.1               Notices.  All notices are effective upon receipt and shall be addressed as set forth on the Order or to such other address as the party to receive the notice or request so designates by written notice to the other.

10.2               Law; Venue.  These Terms shall be governed by the laws of the State of New York, US, without reference to its choice of law provisions.  Each party hereby consents to the jurisdiction and venue of the state and federal courts in and for the state of New York, US.  The International Convention on the Sale of Goods and UCITA are expressly excluded from application to these Terms.

10.3               Additional Terms.  In case of any discrepancies and controversies between these Terms and any additional terms or any end user license agreement (if any) related to any of Products, then the particular additional terms and/or such particular end-user license agreement prevail and shall govern.

10.4               Severability; Assignment.  If any provision of these Terms is declared invalid, illegal or unenforceable, all remaining provisions shall continue in full force and effect and the offending provision shall be modified, if possible, to give effect to such provision.  Buyer shall not assign the Order, in whole or part.  All unauthorized attempted assignments shall be null and void.

10.5               Excused Performance.  Nonperformance of either party, except for financial obligations, shall be excused to the extent that performance is delayed or rendered by any reason beyond the party’s reasonable control and not caused by the negligence of the non-performing party.

10.6               Headings/Interpretation.  Headings herein are for reference purposes only and in no way define, limit or describe the contents of a section or an item.  Where the context provides, the singular shall include the plural and terms shall be interpreted as gender neutral.  “Including” means “including without limitation.” These Terms are in the English language and this language shall be controlling in all respects.  All communications and documentation to be furnished under this Agreement shall be in the English language.  However at MeshNetics’ option these Terms may be translated into other languages, if necessary for Buyers’ information and their convenience.

                  These Terms are effective commencing May 1, 2006.