Terms & Conditions
Standard Terms and Conditions of Sale
Version No. 2.0 – January 2012
The terms and conditions set forth below constitute the entire agreement between Omniaccess and customer, unless otherwise agreed to in writing by Omniaccess. In the event that customer issues any form of order to Omniaccess authorizing the purchase of product(s) , it is agreed that such order is issued exclusively for the purpose of confirming customer’s purchase of the specified item(s) and the price(s) thereof and that no other terms and conditions specified or preprinted on such order shall add to or modify the terms and conditions of this agreement and/or any related documentation provided with the items purchased, nor shall such order terms and conditions affect either party’s responsibility to the other party as defined herein. A customer purchase order shall constitute acceptance of Omniaccess ’s offer as specified in a valid quote. Omniaccess reserves the right to reject any purchase order.
As used herein “OMNIACCESS” means OMNIACCESS S.L, having its place of business at Edificio Son Rossinyol, Piso 3, Oficina “D”, Carrer del Gremi de Cirurgians i Barbers 48, 07009, Palma de Mallorca, Baleares, Spain, unless otherwise specified.
As used herein “CUSTOMER” means the purchaser of goods and/or services from OMNIACCESS identified in any Quotes or Service Agreements or Hardware Purchase Agreements referencing this Standard Terms and Conditions of Sale document.
As used herein “Quote” means a price submitted formally to the CUSTOMER in writing for the sale of hardware and/or software and any associated installation, configuration or other services as described therein.
As used herein, “Purchase Order” means the written authorization or Hardware Purchase Order to ship products at the Quoted price against the conditions stated in this document.
As used herein “Product” means any hardware, software, installation or maintenance service purchased and delivered to the CUSTOMER hereunder.
As used herein “Service Agreement or Hardware Purchase Agreement” means any separate agreement regarding the purchase or delivery of hardware, software, installation or maintenance service referencing this Standard Terms and Conditions of Sale document.
As used herein “Agreement” means this “Standard Terms and Conditions of Sale” document.
2. PRICES, DISCOUNTS AND QUOTATIONS
All prices are excluding VAT and are subject to change without notice prior to receipt of CUSTOMER’s Purchase Order (hereinafter referred to as “Purchase Order”) and OMNIACCESS’s acceptance of it. All invoice prices are those in effect on date of shipment, unless otherwise agreed to by OMNIACCESS in writing. All pricing information in published or printed material is provided for general information and estimation purposes only. Published prices are neither quotations nor offers to sell. Prices do not include applicable national or local taxes and, unless expressly identified and itemized, do not include freight, handling or insurance. All taxes applicable to Products ordered shall be paid by CUSTOMER, or in lieu thereof, CUSTOMER shall provide OMNIACCESS with a tax exemption certificate acceptable to the taxing authorities.
3. PAYMENT TERMS
If CUSTOMER fails to make any payment when due, OMNIACCESS shall, without prior notice or default letter and without prejudice to any other right or remedy available to it, be entitled to: (1) Charge interest on any unpaid invoice, automatically and without any previous notice, at the rate of Euribor + 3% and/or (2) Apply an immediate administrative surcharge of 3% to the unpaid invoice, automatically and without any previous notice and/or (3) Suspend any further deliveries to CUSTOMER whether under the same contract or under any other contract between CUSTOMER and OMNIACCESS .
4. SHIPPING AND DELIVERY
Shipping and delivery
CUSTOMER shall be responsible for all freight, handling and insurance charges. OMNIACCESS shall select the carrier unless otherwise instructed by CUSTOMER. In no event shall OMNIACCESS have any liability in connection with shipment, nor shall the carrier be considered an agent of OMNIACCESS. OMNIACCESS shall not be liable for damage or penalty for delay in delivery or for failure to give notice of any delay.
Risk and property
Unless mutually agreed otherwise in written by both parties in the Hardware Purchase Order, the products will be delivered to the CUSTOMER will be assumed to be under Ex Works (EXW) Incoterms 2000. Property of the products shall not pass to CUSTOMER until OMNIACCESS has received payment in full of the entire price including interest and any other possible amount due to it. Until property of the products passes to CUSTOMER, CUSTOMER shall keep the products separate from those of CUSTOMER and third parties. Until such time CUSTOMER shall not pledge or sell the products, nor shall it use them as a guarantee or other security.
Unless expressly specified otherwise in the applicable Quote, CUSTOMER shall accept and pay for partial shipments of goods by OMNIACCESS.
Acceptance of deliveries
All shipments by OMNIACCESS will be accompanied by a delivery-note that clearly lists all items that form part of the shipment. The CUSTOMER shall upon receipt of the Products sign the delivery-note, whereby OMNIACCESS shall be entitle to assume that any person who both reasonably appears and claims to have authority to accept delivery who signs a note in respect of the Products on behalf of the CUSTOMER does in fact have the authority. Upon signing the delivery-note, the CUSTOMER declares to have received all listed items in good order, without any signs of missing, incomplete or damaged goods. In case OMNIACCESS ships items to the CUSTOMER using a 3rd-party expedited shipping carrier, the signing of the carrier’s acceptance-papers by the CUSTOMER also constitutes an acceptance of the accompanying OMNIACCESS delivery-note.
5. CANCELLATION OF ORDERS
All Purchase Orders are considered fixed and irrevocable. The CUSTOMER may not cancel or modify a Purchase Order without the written consent of OMNIACCESS. If OMNIACCESS consents to CUSTOMER’s cancellation or modification of a Purchase Order, CUSTOMER agrees to be responsible for and pay OMNIACCESS all costs, expenses and fees incurred by OMNIACCESS.
6. RETURN POLICY
No return shipment for items delivered to CUSTOMER will take place without prior written approval from OMNIACCESS. Such approval, when provided, must be in the form of a written Return Material Authorization (RMA), which must accompany the returned items. An RMA must be requested by CUSTOMER from OMNIACCESS within twenty (20) days from the original ship date. Items returned pursuant to the foregoing procedure may be subject to a restock fee, and CUSTOMER shall assume and satisfy in full. Returned items must be in the original sealed shipping conditions, undamaged, unused and unaltered. Equipment received without an RMA and or in a condition other than described entitles OMNIACCESS the right to reject return of the items and/or may be subject to additional charges which CUSTOMER agrees to pay. Opened software is not returnable. All shipments of returned items must be shipped prepaid by CUSTOMER to the warehouse location specified in the RMA. Upon receipt of the returned items, OMNIACCESS will inspect such items for compliance with the foregoing conditions for proper return. A credit for properly returned items will be entered against the original invoice for the ordered items. All RMA’s issued are valid for thirty (30) days from the date the RMA is issued after which time the RMA will be cancelled.
The ultimate shipment of potential orders solicited by CUSTOMER shall be subject to the right and ability of OMNIACCESS to make such sales and shipments under all policies, decrees, orders, laws, rules and regulations of the country of origin government and agencies and instrumentalities thereof in effect at the time of shipment of the Purchase Order, or which may be in effect thereafter, which govern exports or otherwise pertain to export controls.
Any order which has been accepted by OMNIACCESS but which cannot be fulfilled due to such policies, decrees, orders, laws, rules or regulations shall be considered to have been rejected when submitted to OMNIACCESS for acceptance or rejection. OMNIACCESS will inform CUSTOMER accordingly. CUSTOMER shall not transfer, directly or indirectly, any product or technical data received from OMNIACCESS or the direct product of such data, to any destination subject to export restrictions, unless prior written authorization is obtained from the appropriate government agency.
OMNIACCESS warrants for period of 1 year that the Products are free from defects in material and workmanship. Subject to the conditions and limitations set forth below, OMNIACCESS will, at its option, either repair or replace any part of its Products that prove defective by reason of improper workmanship or materials. Repaired parts or replacement Products will be provided by OMNIACCESS on an exchange basis, and will be either new or refurbished to be functionally equivalent to new. If OMNIACCESS is unable to repair or replace the Product, it will refund the current value of the Product at the time the warranty claim is made.
This limited warranty does not cover any damage to this Product that results from improper installation, accident, abuse, misuse, natural disaster, insufficient or excessive electrical supply, abnormal mechanical or environmental conditions, or any unauthorized disassembly, repair, or modification. This limited warranty also does not apply to any Product on which the original identification information has been altered, obliterated or removed, has not been handled or packaged correctly, has been sold as second-hand or has been resold contrary to export regulations.
CUSTOMER shall be unable to invoke any hidden defects unless he has notified OMNIACCESS by registered letter or email to email@example.com of hidden defects within thirty (30) business days following discovery and no later than twelve (12) months following receipt of the products by CUSTOMER which, unless otherwise determined in writing, is accepted to have taken place on the day of the shipment of the Product towards CUSTOMER. Any claim for non-conformity, apparent defects or hidden defects that is not made within the timeframe set forth herein shall be void. No claim shall be allowed by any other party than the CUSTOMER.
Transport costs for the replacement parts will be borne by the CUSTOMER; any subsequent and consequential costs (local (de) installation costs, customs duties, taxes, travel expenses, port-charges etc.) resulting from this will be for the account of the CUSTOMER.
The CUSTOMER has the obligation to return the faulty & replaced equipment to OMNIACCESS by courier service, whereby the transport costs will be borne by the CUSTOMER and any subsequent import-costs (taxes, duties, customs clearance etc.) will be borne by OMNIACCESS.
If (at the sole discretion of OMNIACCESS) the malfunction of the Product(s) is found to be not covered by the warranty-terms, the CUSTOMER will be responsible for all foresaid costs involved (including the costs of replacement hardware components), and OMNIACCESS will be entitled to charge the CUSTOMER accordingly.
In all cases, OMNIACCESS’s responsibility will be solely limited to replacement of part(s) that are malfunctioning. Under no circumstances will OMNIACCESS be liable for any costs resulting from the CUSTOMER seeking local technical support (and other resulting costs) during the process of identifying and solving the equipment malfunction, nor for any consequential damages that the CUSTOMER may have incurred due to the malfunctioning of any Product supplied by OMNIACCESS.
Failure of the CUSTOMER to have met the payment-obligations of any invoices that OMNIACCESS holds against the CUSTOMER (even if not related to the provisioning of the Products covered by this Agreement) will give OMNIACCESS the right to waive or suspend any warranty claims until the CUSTOMER has settled all open invoices in full (including any eventual interest and/or administrative surcharges).
In specific cases the warranty of products originally supplied by OMNIACCESS may be provided by the Original Equipment Manufacturer of the corresponding product. The CUSTOMER acknowledges that in such cases the responsibility for providing warranty services will be transferred from OMNIACCESS to the Original Equipment Manufacturer.
9. ONSITE SUPPORT AND WARRANTY REMEDYING
In cases where (at the request of the CUSTOMER) the verification, establishing or remedy of a malfunction of the Product(s) would require an onsite visit by an OMNIACCESS support-engineer, the CUSTOMER acknowledges and accepts the fact that the CUSTOMER will be responsible for all incurred travel-costs and lodging expenses (on a true-cost basis), even if the malfunction is covered by the warranty terms laid down in paragraph 8 of this Agreement, whereby the regular OMNIACCESS onsite support arrangements apply:
A. Unless agreed otherwise in advance, all travel arrangements will be made on the basis of coach and/or tourist-class airline seats. Lodging & subsistence arrangements will preferably be made on the basis of generally accepted standard accommodation.
B. Eventual costs for any overweight (or separately shipped) luggage/parts and/or applicable customs duties will be charged separately at cost-price.
C. Costs for any special visa-arrangements, vaccinations and/or any other specifically required preparations (if applicable) will be charged separately at cost-price.
D. Requests for assignments in destinations considered dangerous by the Foreign & Commonwealth Office may be declined or subject to additional costs. In principle assignments to areas that are subject to a negative travel-advisory of the FCO at time of travel will be declined, without such occurrences constituting a breach of OmniAccess’ obligation to provide support to the Client.
E. Any costs and/or cancellation-fees resulting from changes in the dates/times or venue of the assignment (or cancellation of the assignment) will be charged separately at cost-price.
F. Any costs resulting from telephone/fax/data communications directly related to the assignment will be charged separately at cost-price.
OMNIACCESS has the right to ask the CUSTOMER for an upfront deposit equal to the estimated amount of these expenses. If an onsite support visit by (or on behalf of) OMNIACCESS would turn out to be regarding an incident that would prove to be outside the scope of responsibility of OMNIACCESS (as established at the sole discretion of OMNIACCESS), then OMNIACCESS will be entitled to charge the CUSTOMER for any onsite support provided. In such cases the regular daily onsite support service rate of € 1.250,- per day (excluding VAT, billable in full days) applies per man per day or part thereof from the day of departure from his Service station to the day of his return to service station. Travelling days will be invoiced at 50% of the full daily rate.
10. THIRD-PARTY SOFTWARE
Any third-party software provided under these terms is subject to the license terms that are provided with it.
11. NO MODIFICATION OR REVERSE ENGINEERING
CUSTOMER agrees that it will not modify, adapt, alter, translate, or create derivative works from any of the products purchased under the Agreement or derive, attempt to derive or direct others to derive the source code of any software product or the physical structure or technical properties of any other Product purchased under the Agreement by reverse engineering, disassembly, de-compilation or any other means.
12. SPECIFIC CONDITIONS FOR THE OMNIPHONE IP-TELEPHONY SERVICE
OmniPhone is an IP telephony-service provided by OmniAccess. OmniPhone is an open standards based SIP solution that allows the CUSTOMER to make and receive voice telephone calls and video calls using OmniAccess’ underlying IP access networks.
B. Necessary equipment
To use the OmniPhone service the CUSTOMER will require an OMNIACCESS-provided PLEXUS© Integrated Access Router with one or more VoIP interface cards. This hardware equipment does not form part of the OmniPhone subscription and needs to be purchased separately. The OmniPhone service is not designed or enabled to operate with 3-rd party or client-provided terminal devices. It is for the CUSTOMER’s responsibility and account to make sure the necessary Internet bandwidth needed to make the OmniPhone calls is available. Failure to provide sufficient bandwidth may result in a deterioration of the call-quality or in the inability to place or receive calls.
C. Physical Interface format
The PLEXUS© Integrated Access Router provides a standard 2-line loop-start FXS interface that is compliant with TIA/EIA-1S-968, with each port supporting 5 REN loads. DTMF signalling is supported.
The CUSTOMER will not be charged for receiving inbound calls on one of the DID’s assigned to the CUSTOMER’s lines. The calling party will be responsible for the call-charges for accessing the DID’s from the calling party’s location. The CUSTOMER will be charged for the costs for any outbound calls made via any of the CUSTOMER’s lines. OMNIACCESS reserves the right to periodically change the rates without prior notice, and it is the responsibility of the CUSTOMER to inform himself regarding the prevailing call-rates.
OMNIACCESS will issue monthly invoices to the CUSTOMER for the cost of any outbound calls made during the preceding month. The invoices will have a detailed call-record specification. It is the responsibility of the CUSTOMER to ensure proper and entire payment of said invoices respected the due-date listed on the invoice.
F. Disputed invoices
The CUSTOMER has the right to dispute (in good faith) all or part of any OmniPhone invoice that was received from OMNIACCESS and to withhold payment of the disputed invoice, provided that the CUSTOMER provides written notice of the amount and reason for withholding the payments. The CUSTOMER shall send any such notice within 14 calendar days of the date of the invoice. After this period has expired the CUSTOMER will be deemed to have waived his right to dispute the invoice. OMNIACCESS shall reply to the CUSTOMER within 14 calendar days of receiving notice from the CUSTOMER, after which both parties have a negotiation-period of 1 month to attempt to settle their dispute. During this negotiation- period OMNIACCESS shall refrain from suspending any services due to non-payment. If the parties fail to resolve their dispute within the 1 month period then OMNIACCESS has the right to apply any available guarantee deposits or alternatively to disable, restrict or otherwise modify access to the OmniPhone service or any other service that the CUSTOMER has under contract with OMNIACCESS.
OMNIACCESS will apply a credit-limit of € 250,- on the OmniPhone account-balance of the CUSTOMER. Once the open balance reaches this amount, the CUSTOMER will not be able to receive or place any further calls until the balance has been cleared by payment of the balance due or by submitting a written request for increasing the credit-limit to firstname.lastname@example.org. OMNIACCESS reserves the right to refuse any such request or to request an additional guarantee-deposit from the CUSTOMER.
By using the OmniPhone service the CUSTOMER accepts full & sole responsibility for all outbound calls made on any lines that are assigned to the CUSTOMER’s OmniPhone account.
I. DID numbers
As part of the OmniPhone service OMNIACCESS may assign one or more “direct inward dialling” (DID) numbers to one or more of the CUSTOMER’s OmniPhone lines. Additional costs may apply for this service. OMNIACCESS will attempt to maintain the assigned DID-numbers for the duration of the OmniPhone subscription, but OMNIACCESS cannot guarantee the continued availability of the originally assigned DID-numbers over time.
J. Ownership & transfer of DID numbers
In principle the assigned DID-numbers belong to OMNIACCESS. In specific cases the DID-numbers may be the property of designated 3rd-party operators that are contracted by OMNIACCESS. Nevertheless upon termination of the OmniPhone service by the CUSTOMER, OMNIACCESS pledges to cooperate fully & to the best of her abilities with any request by the CUSTOMER to transfer any assigned OmniPhone DID-number to a new operator or extention designated by the CUSTOMER. Any costs for transferring or forwarding the original DID-numbers will be for the account of the CUSTOMER. Due to limitations of the VoIP network topology, OMNIACCESS may not be able to guarantee that any outbound calls made via the OmniPhone system will carry to correct Caller-ID for the receiving party.
Due to technical limitations of the VoIP technology and the mobile users network topology, OMNIACCESS cannot offer the routing and location-facilities usually associated with any of the regular Emergency call services (112, 911 calls etc.). The CUSTOMER acknowledges these limitations and his understanding that the OmniPhone service may NOT be used for any critical maritime or land-based emergency calls.
L. Fax service
On request OMNIACCESS can configure on or more OmniPhone lines to be compatible with analogue fax services. Any offered fax service will be using a transparent “store-and-forward” signalling protocol. The CUSTOMERS acknowledges his understanding of the limitations and the inherent time-delay of the used fax signalling technology. OMNIACCESS cannot offer any guarantees for a timely or complete delivery of any faxes sent via the OmniPhone service.
M. Carrier pre-selection
The CUSTOMER will be given the choice of two different call-termination routes which may be selected by dialling specific international dialling prefixes.
OMNIACCESS will encrypt all IP-legs of any OmniPhone encrypted with FIPS-certified AES-256 bit encryption. OMNIACCESS will not grant authorities or any 3rd-parties access to call-details or (elements of) the VoiceLINK network unless a legal obligations exists to do so.
O. Illegitimate use
The CUSTOMER agrees not to use the OmniPhone for any illegal or disruptive purposes. Failure to comply with these stipulations (at the sole discretion of OMNIACCESS or the competent authorities) will give OMNIACCESS the right to suspend the CUSTOMER’s OmniPhone service with immediate effect and without prior notice. The CUSTOMER will remain solely liable for any legal procedures by authorities or 3rd-parties resulting from the illegitimate use of his OmniPhone lines.
P. Limited liability
All VoiceLINK(s) services are provided on a “best effort” basis. OMNIACCESS accepts no responsibility for any direct or consequential damages by the CUSTOMER due to malfunctions or unavailability of the OmniPhone service.
12. OWNERSHIP OF ANY IP-ADRESSES USED FOR ANY SERVICE PROVDED BY OMNIACCESS
Any IP-addresses that are used by OMNIACCESS for the provisioning of any services offered by any contract subject to this Agreement will belong solely to OMNIACCESS. The CUSTOMER acknowledges that OMNIACCESS will not be able (or required) to transfer or redirect any used IP-addresses to any other Internet Service Provider (ISP) if the CUSTOMER were to terminate any of the services contracted under the terms of this Agreement.
13. CONFIGURATION-FILES AND OTHER SOFTWARE & OTHER COMPONENTS OF PLEXUS NETWORKING PRODUCT
The intellectual property-rights for any configuration-files as well as any other software components (such as –but not limited to–interface protocols, HTTP pages, VoIP configurations etc.) and any other materials such as system-manuals (whether generic or purpose-written for the CUSTOMER) solely remains with OMNIACCESS.
OMNIACCESS is under no obligation to provide access to (parts of) the configuration-files and/or source codes of any products and services provided under the terms of this Agreement. OMNIACCESS is under no obligation to provide firmware and/or configuration upgrades for any provided products.
14. USE OF PRODUCTS WITH STRONG ENCRYPTION FEATURES
Some of the products provided by OMNIACCESS may contain strong encryption features. The use and export of such features is covered by law, and it is the sole responsibility of the CUSTOMER (in his capacity as end-user of said products) to make sure that the applicable legal obligations and limitations are respected at all times.
15. FORCE MAJEURE
OMNIACCESS shall not be liable for any loss or damage resulting from any delay in delivery or failure to give notice of delay when such delay is due to any cause or event beyond OMNIACCESS control, including, without limitations, acts of nature, acts of terrorism, unavailability of supplies or sources of energy, riots, wars, fires, strikes, labor difficulties, delays in transportation, delays in delivery or defaults by OMNIACCESS’ vendor or acts or omissions of CUSTOMER. In the event of delay due to any such cause, time for delivery shall be extended for a period of time equal to the duration of such delay and CUSTOMER shall not be entitled to refuse delivery or otherwise be relieved of any obligations as a result of the delay. If, as a result of any such cause, any scheduled delivery is delayed for period in excess of one-hundred-twenty (120) days, OMNIACCESS or CUSTOMER shall have the right by written notice to the other to cancel the order for the Products subject to the delayed delivery without further liability of any kind.
16. LIMITATION OF LIABILITY
Notwithstanding anything else herein, all liability of OMNIACCESS under this Agreement or otherwise shall be strictly limited to the money paid to OMNIACCESS under this Agreement during the six (6) months period preceding the event or circumstances giving rise to such liability. In case of damages relating to any allegedly defective or infringing product under any equitable theory the liability of OMNIACCESS shall be further limited to the purchase-price paid by the CUSTOMER for such product. In no event shall OMNIACCESS be liable for any incidental or consequential damages, even if OMNIACCESS has been informed of the possibility thereof.
The Agreement is not assignable by CUSTOMER and any attempt to assign any rights, duties or obligations arising hereunder shall be void.
18. GOVERNING LAW
Each transaction between CUSTOMER and OMNIACCESS made under the Agreement is governed by, and shall be construed solely in accordance with, the internal laws of the Kingdom of Spain. Any dispute which may arise out of this AGREEMENT and which cannot be settled in discussion or negotiation between the parties shall be settled by the courts of the Kingdom of Spain, unless the parties agree to arbitration. The venue is the City Court of Palma de Mallorca.
All rights and remedies of OMNIACCESS hereunder shall be cumulative and may be exercised singularly or concurrently. In the event that either party shall on any occasion fail to perform any term herein and the other party shall not enforce that term, failure to such enforce on that occasion shall not prevent enforcement of any term on any other occasion.
20. ENTIRE AGREEMENT AND AMENDMENTS
The terms and conditions herein constitute the entire agreement between the parties and supersede all previous communications, whether oral or written. Any changes to the Agreement may be made only upon mutual agreement of the parties in writing.
Copyright 2012 by OmniAccess SL. All rights reserved. Information in this document is subject to change without notice. OmniAccess S.L. assumes no responsibility for any errors that may appear in this document. OmniAccess®, Plexus®, BroadBEAM VSAT and the OmniAccess logo are trademarks of OmniAccess S.L..