Terms and Conditions

1. PRICE, PAYMENT AND CREDIT TERMS

Price: The enclosed descriptions and prices (the “Price Book”) are for equipment and services only as printed and prices represent Factory List Prices without consideration for any other obligations including, labor for installation, programming, development, maintenance, and purchase discounts. Prices in catalogs, brochures and on COMMEND’s website are not binding unless confirmed in writing by COMMEND in an order confirmation. The Price Book is valid from January 1, 2024 and supersedes any and all other Price Books.

Payment Terms: Buyer agrees to fully pay all valid COMMEND invoices within thirty (30) calendar days of the date of such invoices and to pay a service charge of one and one-half percent (1 ½%) per month on all past due amounts. Receipt of any check, draft or other commercial papers shall not constitute payment unless, and until, such instrument has been honored by the appropriate financial institution(s). Buyers account will be placed on “credit hold” when any invoice exceeds sixty (60) calendar days past due. Buyer may deduct one-half percent (1/2%) from COMMEND's net invoice amount provided COMMEND receives payment from Buyer for such invoice within ten (10) calendar days of the date of such invoice.

Credit Terms: Buyer agrees that the purchase of Product shall at all times be contingent upon the credit approval of Buyer by COMMEND’s credit department. Upon COMMEND’s request, Buyer agrees to promptly furnish COMMEND financial and business information. COMMEND reserves the right to grant or refuse, or at any time vary, change, or limit the amount or duration of credit. Buyer does not enjoy a right of set-off at under any circumstances.

2. WARRANTY

Commencing upon the shipment date and continuing for a period of 60 months, COMMEND warrants, that under normal use, each Hardware Product sold and purchased hereunder shall be free from manufacturing defects of material and workmanship. Products which are end of life, customized, repaired, or specifically stated with differing warranty period in the published Commend pricelist are exceptions to the stated 60 month warranty period. COMMEND’s sole obligation, and Buyer’s sole remedy, under this warranty shall be limited to COMMEND repairing or replacing, at its sole discretion, defective Product or components thereof when such are returned to COMMEND freight prepaid. All products quoted, programmed, altered as ‘custom products’ are covered under the standard COMMEND warranty, but not available for return.

THE FOREGOING WARRANTIES ARE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED. COMMEND SPECFICALLY DISCLAIMS THE IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSEM, NON-INFRINGEMENT, AND THOSE WARRANTIES ARISING FROM A COURSE OF PERFORMANCE, A COURSE OF DEALING OR TRADE USAGE. The aforesaid warranties are afforded by COMMEND only to Buyer and shall not be deemed to be warranties to Buyer’s customers or to any other person or entity. Should Buyer elect to offer its own warranty with respect to the Product, said warranty shall be in Buyer’s name only, and Buyer shall make no representation that COMMEND has any responsibility therein.

All warranties shall become null and void in the event the Buyer, or anyone, alters, modifies, or abuses or misuses any Product without COMMEND’s written authorization and/or should Buyer, or anyone, fail to follow COMMEND’s and/or the manufacturer’s recommended installation procedure and instructions. The foregoing warranty is subject to proper storage, transportation, and use of Products, and does not include defects due to normal wear and tear or damage caused by disasters such as fire, flood, wind, and lightning. The Buyer shall immediately, but in no event no later than seven (7) business days following the delivery of Products, inspect the Products for conformity and visible defects. The Buyer shall give COMMEND immediate written notice of any non-conformities or visible defects regarding the Products. In the event that the Buyer fails to provide COMMEND within seven (7) days following delivery of the Products with notice of any non-conformities or visible defects, any warranty claims in this regard shall be deemed waived. With respect to orders made to custom, any defects of the Products caused by the Buyer’s specifications are excluded from the warranty set forth herein. COMMEND also makes no warranty that the Products manufactured under an order made to custom do not infringe the intellectual property or other proprietary rights of any third party and the Buyer is solely responsible for assuring that such Products do not so infringe.

3. INTELLECTUAL PROPERTY AND PATENT INDEMNITY

The name “COMMEND” and/or its associated trade names, logos, and trademarks, patents, copyrights and other intellectual property relating to COMMEND’s products are the exclusive properties of COMMEND and nothing herein gives Buyer any interest in the same and that no right or license is conveyed by COMMEND to the Buyer to manufacture, have manufactured, modify, import or copy such products. Buyer may not use the name ”COMMEND“ and/or its associated trade names, logos, and trademarks without prior written authorization, in each and every instance, from COMMEND.

If a Product delivered by COMMEND to the Buyer becomes or, in COMMEND’s opinion, may become the subject of any claim, suit or proceeding for infringement of any patent, COMMEND may at its option and expense (i) obtain for the Buyer the right to use, lease or sell the Product, (ii) replace the Product, (iii) modify the Product, or (iv) remove the Product and refund the purchase price paid by the Buyer less a reasonable amount for use, damage or obsolescence. COMMEND will not be liable for any infringement arising from any modification of a Product, from any combination of a Product with any other product(s), or from the use of a Product in practicing a process or unintended applications. COMMEND’s total liability to the Buyer will not, under any circumstances exceed the purchase price paid for the allegedly infringing Product. The Buyer agrees, at its expense, to protect and defend COMMEND against any claim of patent infringement arising from compliance with the Buyer’s designs, specifications or instructions and to hold COMMEND harmless from damages, costs and expenses attributable to any such claim.

4. ORDER PLACEMENT

Order Acceptance: All purchase orders for equipment and services (the “Product”) shall be subject to acceptance by COMMEND at its office location at 63 Ramapo Valley Road, Suite 201, Mahwah, NJ 07430, and may be rejected for any reason, including without limitation: (i) Buyer’s breach of any provision of these Terms and Conditions, or other written agreement between COMMEND and Buyer; or (ii) Buyer’s purchase order has a requested shipment date less than normal lead time for the product.

Order Cancellation: Except under extreme circumstances, purchase orders submitted by Buyer and accepted by COMMEND are non-cancelable. Buyer shall have the right to cancel such purchase order and, in such event, Buyer agrees to pay COMMEND, COMMEND’s then prevailing restocking fee for the Product set forth on such purchase order (25% of invoice amount.) All Buyer purchase orders for non-standard Product and/or Product whose part number is prefixed with a special designation (the “Custom Product”) are noncancelable once accepted by COMMEND.

*Orders should be sent to fax 201-529-0008 or emailed to orders@commendusa.com. Standard delivery times are 4-6 weeks.

5. SHIPMENT PROVISION

Shipment Terms: All shipments by COMMEND to Buyer shall be F.O.B. COMMEND’s warehouse loading dock in Mahwah, New Jersey, and all delivery obligations of COMMEND hereunder shall be deemed satisfied on the date the Product is delivered to a common carrier at such loading dock. Buyer shall have the right to specify the common carrier and shall be responsible for freight, insurance and handling charges, levies, duties, or any other government charges as well as any all taxes, including VAT, but excluding any taxes payable by Commend with respect to its net income. Title and all risk of loss or damage to the Product shall pass to Buyer upon COMMEND’s placement of the Product in the custody of such common carrier. The Shipment Dates for any order which contains standard Product, Custom Product or special-order equipment are tentative and based upon the best information available at the time of quotation or acceptance of an order.

COMMEND shall be entitled to make partial deliveries or deliveries prior to the agreed-upon delivery date, provided that COMMEND notifies the Buyer of the same.

COMMEND shall use its reasonable efforts to deliver the Products to the Buyer by the agreed upon date. However, time shall not be of the essence. Except in cases of COMMEND’s willful misconduct or gross negligence, COMMEND shall not be liable to the Buyer for delays in delivery or damage to Products while in transit, irrespective of whether COMMEND or the Buyer determined the mode of transportation.

6. PRODUCT RETURNS

General: All Product returned to COMMEND must be accompanied by a valid COMMEND Return Authorization Number and shipped freight pre-paid to COMMEND. This “RMA” number issuance also requires the system serial number for all component items; i.e., boards. All non-warranty items returned for repair require the issuance of a company purchase order at time of “RMA” number is given. Return Product for Repair: If Return of Product is Under Warranty: COMMEND, at its sole option, shall either repair or replace such defective Return Product and Ship, freight pre-paid, to Buyer. If Return Product is not Under Warranty: COMMEND shall use its best efforts to either repair or replace, at its sole option, such defective Return Product and Buyer shall be charged COMMEND’s then prevailing rate for said repair or replacement, plus return freight. If, after testing the Return Product, COMMEND determines that the Return Product is not defective (“No Problem Found”), Buyer shall be charged COMMEND’s prevailing rates for said testing, plus freight.

Return of Product for Restocking: Custom, non-standard Product and/or Product whose part number or model is prefixed with a description ‘CP’ designation may not be returned to COMMEND for credit. All Buyer Requests to return Product for restocking must be in writing and in advance of any shipment of such Return Product to COMMEND. Such written request must contain: (i) the part number of the Return Product; (ii) the quantity of Product to be returned; (iii) Buyer’s original purchase order number; and (iv) COMMEND’s original invoice number and amount. The Return Product for restocking must, at the time of Buyer’s request, be currently listed in COMMEND Product Catalog. The Return Product for restocking must: (i) have been shipped by COMMEND to Buyer within the immediately preceding ninety (90) calendar day period; (ii) be unused; and, (iii) be boxed in the original COMMEND labeled container(s) and have the original seal unbroken. All shipping and handling costs for Return Product for restocking shall be borne completely and exclusively by Buyer. All Return Products for restocking are subject to inspection and testing by our technical department if the seal is broken. Credit may be issued on standard product in new condition, based on shipping invoice, less 25% percent restocking fee. At COMMEND’s discretion, an additional restocking fee may be applied or product may be returned to customer.

RMA numbers can be obtained through our website, www.commendusa.com First choose the company drop down menu, then select warranty. The RMA form should then be completed and submitted to the tech department. No number will be issued without prior telephone diagnostic from Commend Inc. tech support 201-529-2425 ext 72.

7. LIMITATION ON LIABILITY

COMMEND neither assumes nor authorizes any other person or entity to assume for COMMEND any liabilities in connection with the sale of the Product.

IN NO EVENT SHALL COMMEND BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR ANY LOSS OR DAMAGE RESULTING FROM THE INTERRUPTION OR FAILURE IN THE OPERATION OF THE PRODUCT WITH RESPECT TO ANY PRODUCT SOLD OR SHIPPED OR ANY SERVICE RENDERED BY COMMEND OR FOR COMMEND’S FAILURE TO MEET SHIPMENT SCHEDULES OR FOR ANY LOSS OF PROFITS, REVENUE, GOODWILL, USE, INCURRED BY THE BUYER OR ANY THIRD PARTY, WHETHER IN AN ACTION IN AGREEMENT, TORT, STRICT LIABILITY, OR IMPOSED BY STATUTE, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COMMEND’S LIABILITY FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL IN NO EVENT EXCEED TWO (2) TIMES THE TOTAL OF THE AMOUNTS PAID (AND AMOUNTS ACCRUED BUT NOT PAID YET) TO COMMEND PURUSUANT TO THIS AGREEMENT IN THE ONE (1) YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. IT IS AGREED AND ACKNOWLEDGED THAT THE PROVISIONS OF THIS AGREEMENT ALLOCATE THE RISKS BETWEEN COMMEND AND THE BUYER, THAT COMMEND’S PRICING REFLECTS THIS ALLOCATION OF RISK, AND BUT FOR THIS ALLOCATION AND LIMITATION OF LIABILITY, COMMEND WOULD NOT HAVE ENTERED INTO THIS AGREEMENT.

IN JURISDICTIONS THAT LIMIT THE SCOPE OF OR PRECLUDE LIMITATIONS OR EXCLUSION OF REMEDIES OR DAMAGES, OR OF LIABILITY, SUCH AS LIABILITY FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OR DO NOT ALLOW IMPLIED WARRANTIES TO BE EXCLUDED, THE LIMITATION OR EXCLUSION OF WARRANTIES, REMEDIES, DAMAGES OR LIABILITY SET FORTH ABOVE ARE INTENDED TO APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE BUYER MAY ALSO HAVE OTHER RIGHTS THAT VARY BY STATE, COUNTRY OR OTHER JURISDICTION.

8. INDEMNITY

The Buyer agrees to defend, indemnify and hold COMMEND harmless from all claims, demands, actions, damages, and liabilities (including reasonable attorney’s fees and consequential and incidental damages) arising out of any injury (including death) to any person or damage to any property in connection with the use of the Products in any way connected with any act or omission of the Buyer, its agents, employees, or subcontractors.

9. FORCE MAJEURE

COMMEND shall not be liable to the Buyer or any other person for any failure or delay in the performance of any obligation under this Agreement due to events beyond its reasonable control, including, but not limited to, fire, storm, flood, earthquake, explosion, accident, acts of the public enemy, wars, riots and public disorder, sabotage, strikes, lockouts, labor disputes, labor shortages, work slowdown, stoppages or delays, shortages or failures or delays of energy, materials, supplies or equipment, transportation embargoes or delays, acts of God, breakdown in machinery or equipment, and, except as otherwise set forth in this Agreement, acts or regulations or priorities of the federal, state or local governments.

When the event operating to excuse performance by COMMEND shall cease, this Agreement shall continue in full force until all deliveries have been completed.

10. CONFIDENTIALITY

The Buyer agrees that all drawings, prints and other technical material which COMMEND may provide to the Buyer, whether prepared by COMMEND or by third parties under Agreement to COMMEND, contain data which embody trade secrets and confidential know-how of commercial value to COMMEND or third parties under Agreement to COMMEND. The Buyer agrees (a) to keep such information confidential; (b) that it will not disclose such information to any other person, corporate division or entity; (c) will not use such information except in connection with the Products supplied hereunder; and (d) will not sell, lease, loan or permit any other person, corporate division or entity to use such information for any purpose, without COMMEND’s prior written consent. Nothing herein shall restrict the use of information generally available to the public.

11. EXPORT CONTROLS

This Agreement is made subject to any restrictions concerning the export of products or technical information from the United States or other countries that may be imposed on the parties from time to time. Each party agrees that it will not export, directly or indirectly, any technical information acquired from the other party under this Agreement or any Products using such technical information to a location or in a manner that at the time of export requires an export license or other governmental approval, without first obtaining the written consent to do so from the appropriate agency or other governmental entity in accordance with applicable law.

12. ASSIGNMENT AND SECURITY INTEREST

As security for the timely payment and performance of all Buyer’s obligations to COMMEND, the Buyer hereby agrees that it will transfer and assign all rights, title and interest it has against the insurance of any carrier selected by the Buyer for the delivery of the Products, in the event the Products are damaged in whole or in part during transit. As further security for the timely payment and performance of all Buyer’s indebtedness to COMMEND, the Buyer hereby grants to COMMEND a first -priority security interest in the Products following delivery thereof to the Buyer (“Collateral”). Such Interest shall remain in force until payment in full of the entire purchase price for the Products and any other amounts due to COMMEND by the Buyer.

If so requested by COMMEND, the Buyer shall deliver to COMMEND, in form and substance satisfactory to COMMEND, and duly executed as required by COMMEND, financing statements and other security interest perfection documentation in form and substance satisfactory to COMMEND, duly filed under the UCC in all jurisdictions as may be necessary, or in COMMEND’s opinion, desirable, to perfect COMMEND’s security interest and lien in the Collateral, in order to establish, perfect, preserve and protect COMMEND’s security interest as a legal, valid and enforceable security interest and lien, and all property or documents of title, in cases in which possession is required for the perfection of COMMEND’s security interest.

13. GOVERNING LAW AND DISPUTE RESOLUTION

This Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey, without giving effect to principles of conflict of laws thereof or the UN Convention on Agreements for the International Sale of Products of 1980.

Any controversy or claim arising out of or relating to this Agreement, or the negotiation or breach thereof, shall be exclusively settled by arbitration in accordance with the International Arbitration Rules of the American Arbitration Association (“AAA”). The award shall be final and binding. Judgment upon the award rendered by the arbitrator or the arbitrators may be entered in any court having jurisdiction thereof. The arbitration shall be held in New York, New York, shall be conducted in the English language, and shall be conducted (i) if the amount in dispute is less than $250,000, before a single arbitrator mutually agreeable to COMMEND and the Buyer, or if no agreement can be reached, then selected by the AAA, or (ii) of the amount in dispute is $250,000 or more, before three (3) arbitrators. The arbitrator(s) shall make detailed findings of fact and law in writing in support of his, her or their decision, and shall award reimbursement of attorney’s fees and other costs of arbitration to the prevailing party, in such manner as the arbitrator shall deem appropriate. In addition, the losing party shall reimburse the prevailing party for reasonable attorneys’ fees and disbursements, the costs of the arbitration (including but not limited to the fees and expenses of the arbitrator and expert witnesses) and the costs incurred by the prevailing party in successfully seeking any preliminary equitable relief or judicially enforcing any arbitration award.

14. MISCELLANEOUS

If any provision contained in this Agreement is held to be invalid, illegal or unenforceable, such invalid, illegal or unenforceable provision shall be severed from the remainder of this Agreement, and the remainder of this Agreement shall be enforced. In addition, the invalid, illegal or unenforceable provision shall be deemed to be automatically modified, and, as so modified, to be included in this Agreement, such modification being made to the minimum extent necessary to render the provision valid, legal and enforceable. Notwithstanding the foregoing, however, if the severed or modified provision concerns all or a portion of the essential consideration to be delivered under this Agreement by one party to the other, the remaining provisions of this Agreement shall also be modified to the extent necessary to equitably adjust the parties’ respective rights and obligations hereunder.

In the event of a violation or threatened violation of COMMEND’s proprietary rights, COMMEND shall have the right, in addition to such other remedies as may be available pursuant to law or this Agreement, to temporary or permanent injunctive relief enjoining such act or threatened act. The parties acknowledge and agree that legal remedies for such violations or threatened violations are inadequate and that COMMEND would suffer irreparable harm.

Each party will comply with all applicable laws, regulations, and ordinances, and the Buyer will comply with the export and import laws and regulations in effect as of the date of shipment of the Products of any country involved in the transactions contemplated by the Agreement.

The parties hereto are independent contractors and nothing in this Agreement will be construed as creating a joint venture, employment or agency relationship between the parties. The Buyer shall not be entitled to assign the rights and obligations of the Buyer set forth in this Agreement without the prior written consent of COMMEND.

The failure by either party to enforce at any time or for any period any one or more of the Terms and Conditions herein shall not be a waiver of them or of the right at any time subsequently to enforce all Terms and Conditions of this Agreement.

This Agreement, including any Schedules attached hereto, contains the entire agreement of the parties with respect to the subject matter of this Agreement, and supersedes all prior agreements between them, whether oral or written, of any nature whatsoever with respect to the subject matter hereof. This Agreement is binding upon the parties hereto, their successors and permitted assigns. It can only be amended in writing which (i) specifically refers to the provision of this Agreement to be amended and (ii) is signed by both parties.