Terms and Conditions

ALL SALES MADE BY YORK TELECOM CORPORATION (‘YTC’) TO THE CUSTOMER (‘CUSTOMER’) ARE BASED ON THE FOLLOWING TERMS AND CONDITIONS. THESE TERMS AND CONDITIONS SUPERCEDE ANY CONDITIONS PREVIOUSLY DEFINED IN THE CUSTOMER’S PURCHASE ORDER OR ANY OTHER DOCUMENT RECEIVED FROM THE CUSTOMER.

1. INSTALLATION AND SERVICE. Customer shall make available a safe and suitable place for installation in accordance with the YTC Site Preparation Checklist. YTC shall be under no obligation to install equipment which has not been tested by YTC, or for which the installation site and/or prerequisite non-supplied YTC equipment are not properly prepared. YTC will not be responsible for any delays or return visits required because of lack of free and/or safe access, or delays resulting from non-YTC supplied equipment or services. Unless defined under “Scope of Work”, YTC is not responsible for site wiring and installation or testing of any non-YTC supplied equipment. Customer shall not impose any releases or waivers on YTC employees or representatives in connection with YTC installation and service visits to Customer’s premises. Any such waivers or release shall be void. YTC will provide all tools, equipment, documentation, schematics, maintenance materials, software and associated media, collectively “Service Tools,” to be used by YTC personnel in the performance of Installation Services. Service Tools may be furnished with products or stored at Customer’s facility. YTC grants no title or license to Service Tools, and Customer agree to properly secure Service Tools and not to use them in any manner or make them available to third parties without YTC’s prior written consent. All such Service Tools shall remain the exclusive property of YTC, and shall be sole use of YTC.
2. SERVICE ORDER CHANGES. After submitting a Purchase Order, if Customer later decides not to purchase the previously-agreed upon YTC services, YTC will work with Customer to review the project scope, but is not specifically obligated to reduce or cancel the services in question. At the discretion of YTC, a credit toward additional equipment or service may be extended in lieu of a refund. If a credit is granted, it must be used within one (1) year of the date of the signed Acceptance form. Customer must submit a signed Form C: Change of Work Authorization to the Project Manager (PM) prior to YTC agreeing to any changes from the original Scope of Work (SOW).
3. EQUIPMENT DELIVERY - TRANSFER OF OWNERSHIP. YTC requires specific information from Customer regarding shipments and drop-shipments (e.g., dock-to-dock or dock-to-room, etc.). Customer is solely responsible for the following:

1. Drop-shipments to Customer directly from manufacturers and any problems that may arise regarding the condition of equipment received.

With respect to equipment shipped from YTC or directly from the manufacturer or vendor, Customer is responsible to do the following:

• Check the exterior packaging condition of ALL receivables – if there is obvious serious damage to the packaging than the customer is responsible for refusing delivery of the damaged item and should immediately contact the assigned PM of this detail.
• Notify the PM regarding equipment arrival and the condition of each shipped box or other packaging (to the extent that this can be verified through visual inspection).
• Notify the PM within two business days if damaged goods are refused.
• Notify the PM within two business days if damaged goods are accepted; damages must be itemized on the delivery receipt; failure to do so makes Customer liable for the cost of the damaged equipment.
• Notify the PM within two business days of any discrepancies between what equipment was expected and the actual deliverables.

4. RESTOCKING FEE. Any item that Customer agreed to purchase from YTC that is later deemed unnecessary or unwanted by Customer will incur a restocking fee of 25% of the item’s list price. In addition, YTC will pass along any unusually high shipping and/or insurance costs to Customer. YTC makes every effort to return products if necessary, however, if the manufacturer will not accept a return for any reason, Customer becomes the product owner and is responsible for the full cost of the item and any associated shipping and/or insurance costs. Customer must submit a signed Form C: Change of Work Authorization to the PM prior to YTC agreeing to send equipment back to the manufacturer. Items can only be accepted for return in their original packaging and within 30 days of delivery either directly to the Customer or to YTC on behalf of Customer.
5. EXPEDITE FEE. After confirmation that all Customer responsibilities will or have been met (Completed Form B: Site Preparation Checklist received and accepted by PM), YTC requires 10 business days in order to schedule and dispatch a field engineer (FE) to begin the appropriate services. At Customer’s written request to expedite the work, the installation may be started sooner. The appropriate additional fees will be assessed, as follows:
   1. $500 to begin the installation in 3-6 business days
   2. $1,000 to begin the installation in 1-2 business days
6. CANCELLATION / RESCHEDULING FEE. Once YTC and Customer reach agreement on the work schedule, YTC expects that Customer will meet their responsibilities before the agreed-upon start date. If Customer wishes to cancel or reschedule the work, they must provide written notice to YTC at least 8 business days in advance of the start date. If YTC does not receive this timely notice, rescheduling and cancellation fees will be applied, as follows:

• $250 fee per field engineer for requests to cancel or reschedule that are received by YTC within 3-7 business days prior to the start date.
• $500 fee per field engineer for requests to cancel or reschedule that are received by YTC within 1-2 business days prior to the start date.

These charges cover the cost of changing airline tickets and travel plans, and the additional administrative efforts required to implement the changes.

7. EXTENDED STAY / OUT OF NORMAL HOURS/MISSED OPPORTUNITY FEES. The YTC installation work order agreement with Customer is based upon the following assumptions: 1) the entire room and its amenities will be completely available from 8:30 AM to 5:30 PM daily.  Any work performed outside of those hours will incur an applied labor rate differential, and 2) the installation will occur over the specified period of consecutive business days. If Customer fails to meet one or both of these conditions, and this prevents YTC field engineers from completing their work on-schedule—regardless of the reason, including but not limited to: customer’s network not in place, electricity installation issues, customer requires room for another function or fails to provide security clearance to access the room, Customer is responsible to pay YTC Extended Stay/Out of Hours/Missed Opportunity fees as applicable, which will be calculated as follows:

   1. $1,500 per field engineer/per additional day required to complete the work due to customer circumstances over which YTC has no control. For work that needs to be performed outside of normal business hours a labor differential of 1.5 will be applied to our standard labor rates.

Furthermore, if Customer interrupts the installation by making the site inaccessible to the YTC field engineers for one or more days, an additional Missed Opportunity fee will also be applied, as follows:

2. $1,500 per day per field engineer to cover the cost of missed work opportunities elsewhere and for additional costs incurred for car rental, meals, changes in travel costs, etc.
8. CONTROL SYSTEM PROGRAMMING. For system integration installation efforts there are timelines and associated customer responsibilities involving reviewing, requesting modification, and accepting touch panel designs in required time intervals. It is understood and accepted that failure by the customer to respond in the required timeframe can result in delay of the overall project as well as additional expenses. If customer furnished equipment or diagrams are not accurate and time is lost and expenses are incurred to determine and correct problem, Customer is responsible for such costs. Customer will need to sign Form C in order to accept changes and responsibility for extra charges.
   
   Any maintenance offerings by YTC are based upon customer providing current source code that can be read and modified by YTC control system programming engineers. If control system code can not be opened and modified by programming engineers, an estimate for writing new code will be presented to Customer for them to purchase. Customer must also provide correct engineering wiring diagrams at the time the room is accepted for maintenance coverage so that complete programming information can be identified.
9. SECURITY INTEREST. Until the purchase price and all other charges payable to YTC for the products purchased hereunder have been received in full, YTC shall retain, and Customer hereby grants to YTC, a security interest in such products and proceeds. Customer agrees to promptly execute any documents reasonably requested by YTC to document, perfect and/or protect such security.
10. SECURITY CLEARANCE AVAILABILITY. YTC will make every effort to provide required field engineers with the proper security clearance levels but situations that prevent YTC from doing so will mandate the customer to provide appropriate escort services for the required timeframe on site or the FE dispatch may require a delay in start date to a later date that is acceptable to both parties.
11. FACILITIES WORK AT CUSTOMER SITE. YTC takes no responsibility for performing facilities work (fastening brackets and such directly into customers building structure) at Customer location. Any and all liability relating to the facilities and building structure remain with the Customer or whomever they engage to perform and maintain the facilities. Similarly, any and all liability relating to the Customer’s internal network remains with the Customer. Parties hired or otherwise supplied by Customer to perform work relating to the facilities or Customer’s internal network need to be available during the time YTC has their field engineer on-site performing installation and system acceptance. Any costs incurred with Customer’s people not performing work correctly or being available to work at that time will be passed along to the Customer by YTC PM (Form C) prior to completion of the project.
12. REQUIRED SAFETY TRAINING. The YTC quote does not include any and all Customer safety training programs that require field engineers to attend. These safety training programs need to be established, in advance, using Form C. Charges for traveling to and attending such training will be quoted to the Customer for YTC to be reimbursed for such additional expenses. Customer must request such activities at least 10 business days in advance and sign Form C to accept the additional charges.
13. MISCELLANEOUS CABLES AND CONNECTORS. To the extent that during the detailed site survey FE’s or other YTC employee discovers that there are necessary miscellaneous cables and connectors missing, the extra costs for purchasing and supplying such cables and connectors will be submitted (Form C) by the PM to the Customer. Such items would not be obvious to YTC Engineering without an in-depth review of the customer facility, which is not usually available at time the quote for the work is made. Additional expenses will be passed on to Customer if the work that is performed by their contractors is not done to specification. This would result in lost time and additional costs due to delay in having to coordinate with the contractor to be at the work site.
14. OTHER DELAYS. If excessive delays caused by Customer result in product cost increases, discontinued products, and similar unanticipated events that YTC cannot control, or if customer delays result in the need for additional unanticipated project management and/or engineering time and higher incurred costs, Customer is liable for the additional charges, including labor. When these costs are incurred, such fees/charges will be assessed at YTC’s standard labor and overtime rates, as applicable. In situations where products have been discontinued or are not available by OEM, all associated costs for changes will be borne by the Customer. Completion and acceptance of Form C by Customer would need to occur and be received by PM prior to changes being authorized.
15. REPRESENTING CUSTOMER FOR OUT-OF-SCOPE WORK. YTC takes pride in its stellar customer relations and reputation for high quality service. YTC will always do its best to work with Customer to resolve any difficulties that may arise. However, despite the best intentions, if a dispute arises regarding who is responsible for unplanned work for which the YTC field engineer has a high degree of certainty that Customer is responsible, YTC agrees to continue the work, addressing or working around the difficulty that arose, if Customer agrees in writing to pay the following Out-of-Scope fee:
    1. $200 per additional hour of work (not to exceed $1,600 per day)

If YTC later determines that YTC is responsible for the unplanned work, the fee will be waived.

16. CUSTOMERS PERFORMING THEIR OWN INSTALLATION(S). If Customer has purchased the equipment and a maintenance-only contract from YTC, and states that they will perform their own installation, then all maintenance for equipment being installed will commence on the date that all of the product is completely delivered to Customer. Customer must:
    1. Ensure that they received all shipments in good condition.
    2. Notify the PM within two business days of any damaged goods or discrepancies with the deliverables; failure to do so makes Customer liable for the cost of the damaged equipment.
    3. Resolve any problems for which Customer is responsible.
    4. Complete the installation.
    5. Notify the PM or the Customer Support Center (CSC) that Customer is ready for the CSC certification test. A $200 fee is assessed for the testing if the test does not take place within 65 days.

Failure to call for a test within 60-65 days risks eventual discovery of equipment problems for which YTC shall not be liable. If failure to call for a test exceeds 90 days and it turns out that equipment is not functional at that time—or at any time during which the equipment can no longer be returned—Customer is fully responsible and YTC cannot be held liable for any damages, delays, equipment failures or other related problems. YTC can provide a Time & Material quote (minimum fee $400) if Customer wants YTC to resolve the problems remotely.

17. PAYMENT. YTC standard payment term is Net 30. Amounts outstanding for more than thirty (30) days after YTC’s receipt of Customer Acceptance will be subject to a monthly charge at the rate of one and one-half (1.5%) percent per month, or the maximum permitted by law, whichever is less, and shall serve as liquidated damages in the event of late payment by Customer. If YTC has any concerns as to the payment history or ability of Customer to pay, it may ship any or all products only upon receipt of prior payment, letter of credit, C.O.D., or other payment terms specified by YTC.
18. LIMITED WARRANTY. All products are sold subject to the provisions of the YTC Warranty, a copy of which is included with the products provided hereunder and which is incorporated herein in its entirety by this reference. YTC’S LIMITED WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, AND YTC MAKES NO OTHER WARRANTIES, EXPRESSED OR IMPLIED, EITHER BY FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, AND YTC EXPRESSLY EXCLUDES AND DISCLAIMS WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Customer hereby understands that it is solely responsible for determining the suitability of Products for the purposes for which products are purchased.
19. LIMITATION OF LIABILITY. Customer agrees that YTC’s liability to Customer in any way connected with sales of products or services to Customer, regardless of the form of action, shall in no event exceed the price paid by Customer for such products or services. Under no circumstance will YTC be liable for any damages resulting from YTC’s failure to meet any delivery schedule, even if YTC has been advised of the possibility of such damages. IN NO EVENT WILL YTC BE LIABLE FOR COSTS OF PROCUREMENT OR SUBSTITUTE PRODUCTS OR SERVICES, LOST PROFITS, OR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, ARISING IN ANY WAY OUT OF THESE ITEMS OR THE SALE OF PRODUCTS OR SERVICES TO BUYER. THIS LIMITATION SHALL APPLY EVEN IF YTC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. Customer also agrees that this Limitation of Liability reflects an allocation of risk between Customer and YTC, and the price of any Products purchase from YTC reflects such allocation of risk.
20. SOFTWARE. Customer acknowledges that all software sold separately or with hardware and obtained by Customer from YTC is proprietary to YTC and its licensors and is subject to copyrights owned by YTC and its licensors. Any reference to “purchases” of software and products containing software products signify only the purchase of a license to use the software in question pursuant to the terms of YTC License and Limited Warranty Agreement, or the licensing agreement of the respective software product provider, a copy of which is included with the products provided hereunder and which is incorporated herein in its entirety by this reference. Customer agrees to be bound by all of the terms of such YTC License and Limited Warranty Agreement, or the licensing agreement of the respective software product provider.
21. PATENT INFRINGEMENT.

• Indemnity. YTC will defend, at its own expense, any claim, suit or proceeding brought against Customer to the extent it is based upon a claim that any product sold by YTC to Customer infringes upon any patent, copyright or trade secret of any third party. Customer agrees that it shall promptly notify YTC in writing of any such claim or action and give YTC full information and assistance in connection therewith. YTC shall have the sole right to control the defense of any such claim or action and the sole right to settle or compromise any such claim or action. If Customer complies with the provisions hereof, YTC will pay all damages, costs and expenses finally awarded to third parties against Customer in such action. If a product sold to Customer, or in YTC’s opinion might be, held to infringe as set forth above, YTC may, at its option, replace or modify such product so as to avoid infringement, or procure the right for Customer to continue the use and resale of such Product. If neither of such alternatives is, in YTC’s opinion, commercially reasonable, the infringing product shall be returned to YTC and YTC’s sole liability, in addition to its obligation to reimburse awarded damages, costs and expense set forth above, shall be to refund the amounts paid for such products by Customer.
• Limitations. YTC will have no liability for any claim of infringement arising as a result of Customer’s use of a product in combination with any items not supplied by YTC, or any modification of a product by Customer or third parties.
• Entire Liability. THE FOREGOING STATES THE ENTIRE LIABILITY OF YTC TO CUSTOMER OR ANY SUBSEQUENT PURCHASER OF PRODUCTS CONCERNING INFRINGEMENT OR INTELLECTUAL PROPERTY RIGHT, INCLUDING BUT NOT LIMITED TO, PATENT, COPYRIGHT, TRADEMARK AND TRADE SECRET RIGHTS.

22. NON-SOLICITATION. Customer shall not during the term of this Agreement or any renewal hereof and for a period of two (2) years thereafter, directly or indirectly, either a principal , agent, employee, partner or in any representative capacity whatsoever, solicit or induce any officer, YTC technician or other employee of YTC to leave his/her employment nor shall Customer in any such capacity hire or cause to be hired any person who within two (2) years prior thereto shall have been employed as an officer, YTC technician to other employee of YTC, for employment or consulting position in a line of business similar in any respect to the services provided by YTC hereunder, nor shall Customer directly or indirectly aid or assist any other person, firm or corporation to do any of the aforesaid acts.
23. CONFIDENTIALITY. YTC shall keep confidential and secret any and all Confidential Information. “Confidential Information” shall include, but not be limited to, information relating to the Customer’s past, present and future marketing and research and development activities that may be disclosed to YTC by Customer and/or Customer’s parent, subsidiary or affiliate companies. YTC expressly agrees that any information it discovers or develops under this Agreement shall not be used by YTC or disclosed by YTC to any third party, nor shall YTC show this Agreement or disclose the existence, nature or subject matter this Agreement to any third party without the prior written consent of Customer. YTC’s obligations not to disclose Confidential Information to third parties and not to otherwise use Confidential Information shall survive the termination of this Agreement. YTC shall not duplicate any material containing Confidential Information, except as reasonably necessary for the performance of its services under this Agreement. YTC shall return all copies of materials containing Confidential Information upon YTC’s completion of the services under this Agreement or upon any earlier termination of this Agreement for any reason whatsoever.
    
    Notwithstanding anything herein to the contrary, Customer recognizes that, in the course of performing services hereunder, YTC may prepare summaries of, or analyses containing, Confidential Information. YTC will not be required to return these summaries or analyses to Customer; but YTC will, upon termination of this Agreement continue to treat the Confidential Information in accordance with this Agreement.
    
    The provisions of this Agreement shall not apply to information that: (i) is lawfully in the public domain at the time it was transmitted; (ii) has been independently developed by YTC without violation of this Agreement; (iii) is independently known to YTC at the time of receipt through no unlawful act of YTC; (iv) is disclosed by YTC with the prior written approval of Customer; (v) becomes known to YTC from a source other than Customer, which source may legally is entitled to have and to disclose such information without restriction or (vi) is required to be disclosed by law.
24. MISCELLANEOUS.
    1. Customer agrees that if the Customer resells any product purchased hereunder, it shall either resell such product unopened with the YTC Limited Warranty and the YTC License Agreement included herein or shall cause each successive purchaser, prior to use of any such product, to enter into a warranty and license agreement in YTC’s standard form or in such other form as shall be agreed to by YTC. Customer shall notify YTC that Customer has resold such product.
    2. YTC shall have the right to make substitutions and modifications to the products sold by it without notice to Customer, provided that such substitutions and modifications do not impact form, fit, and function, of the overall design (i.e. commercial electronics).
    3. YTC shall not be liable for any failure to perform any of its obligations hereunder which results from an act of God, the elements, fire, flood, component shortages, a major event, riot, insurrection, industrial dispute, earthquake, accident, war, embargoes, legal restrictions, any other force majuere event or any other cause beyond YTC’s control.
    4. The waiver by YTC of any default by Customer with respect to these terms and conditions will not waive subsequent defaults by Customer of the same or a different kind.
    5. The agreement between Customer and YTC with respect to the matters described herein and all matters related to the sale of products and/or services by YTC to Customer shall be governed and construed with the laws of the State of New Jersey, without respect to its provisions concerning the application of the laws of other jurisdictions. Any suit brought with respect thereto shall be brought in the federal or state courts in the districts which include Eatontown, New Jersey, and Customer hereby agrees and submits to the personal jurisdiction and venue thereof.
    6. The term and conditions set forth herein, including the YTC Limited Warranty, YTC Licensing Agreement, and respective product manufacturers Licensing Agreements incorporated herein by reference, shall constitute the entire agreement between YTC and Customer with respect to the matters described herein and all related matters with respect to the sale and license of products by YTC to Customer, and shall not be qualified or interpreted by any trade usage or prior course dealing unless expressly authorized in writing by YTC.