TERMS AND CONDITIONS

LAN CABLES DIRECT, LLC

TERMS AND CONDITIONS

These TERMS AND CONDITIONS (the “Terms and Conditions”) is entered into by and between LAN Cables Direct, LLC (“LCD”) and the Customer identified (“Customer”) in the Sales Contract.

The entire agreement between the parties shall consist of these Terms and Conditions, the Sales Contract, Service Agreement (if any), and any exhibits attached thereto and any additional or future statements of work which may be executed by the parties.

1. Definitions.

1.1. “Goods” shall mean those products to be provided by LCD to Customer pursuant to the Sales Contract between the parties.

1.2. “FOB” (i.e. “free on board”) or “FOB Destination,” unless expressly stated otherwise, shall mean free on board to the location designated by Customer for delivery of the Goods.

2. Sale of Goods.

2.1. Sales Contract.

All orders must be in writing and are accepted subject to these Terms and Conditions of Sale. Any alterations to the Sales Contract (hereafter, “Contract,” unless otherwise specified) put forth by Customer must be expressly agreed-to, in writing, by LCD, to be given effect. If the description of the Goods in LCD’s quotation differs from those set out in the Acknowledgement of Order Form, the latter shall apply.

2.2. Effective Date.

The Contract shall take effect upon the date (“Effective Date”) of LCD’s acceptance of Customer’s order on LCD’s Acknowledgment of Order Form, or upon the date of fulfillment of all condition’s precedent stipulated in the Contract, whichever is later.

2.3. Modification of Goods.

LCD reserves the right to effect minor modifications or improvements to the Goods without notice prior to delivery, provided such modifications or improvements do not adversely affect the performance or price of the Goods.

2.4. All Sales Final.

Due to real-time custom construction of the Goods and rapid delivery expectations, all orders for Goods are non-cancellable and non-returnable.

2.5. Changes.

Changes to any Contract shall become effective only when the parties execute a written change order. Such executed written change order shall be deemed to become incorporated into the original Contract between the parties.

3. Pricing.

3.1. Validity; Duration.

Unless previously withdrawn, LCD’s quotation is open for acceptance within the period stated therein or, when no period is stated, within thirty (30) days after the quotation date.

3.2. Taxes.

Prices are exclusive of state and local taxes, and any similar other taxes, duties, levies or other like charges arising outside the United States in connection with the performance of the Contract.

3.3. Shipping and Handling; Transfer of Risk.

Prices are for Goods delivered FOB Destination, inclusive of freight, insurance, and handling.

4. Payment.

Payment shall be made by Customer within thirty (30) days after receipt of the invoice, provided, however, that if Customer disputes any part of an invoice, Customer shall notify LCD in writing within thirty (30) days of the date of the invoice and shall pay the undisputed amount. Customer’s failure to dispute an invoice or any part of an invoice in writing within thirty (30) days of receipt of the invoice will be conclusive proof that the invoice is accepted. Any late payment shall be subject to any costs of collection (including court costs and reasonable attorneys’ fees) and shall bear interest at the rate of 1.5% per month until paid.

5. Delivery, Risk, and Title.

5.1. Period.

Unless otherwise stated in LCD’s Acknowledgment of Order Form, all periods stated for delivery or completion run from the Effective Date and are to be treated as estimates only, and not involving any contractual obligations.

5.2. Terms.

Unless otherwise expressly stated in the Contract, the Goods will be delivered FOB Destination to the destination named in the Contract. Risk of loss or damage to the Goods shall pass to Customer upon delivery and Customer shall be responsible for insurance of the Goods after risk has so passed. Delivery terms used in the Contract shall be defined in accordance with the latest version of Incoterms.

5.3. Title.

Title to the Goods shall pass to Customer upon delivery in accordance with section 5.2.

5.4. Fulfillment; Adjustment.

Claims for shortfalls in quantity or for incorrect delivery shall be void if made more than fourteen (14) days after delivery in accordance with section 5.2. If LCD is delayed or prevented from performing any of its obligations under the Contract due to the acts or omissions of Customer or its agents (including but not limited to failure to provide specifications and/or fully-dimensioned working drawings and/or such other information as LCD reasonably requires to proceed expeditiously with its obligations under the Contract), the delivery/completion period and the Contract price shall both be adjusted accordingly.

5.5. Storage.

If delivery is delayed due to any act or omission of Customer, or if having been notified that the Goods are ready for dispatch, Customer fails to take delivery or provide adequate shipping instructions, LCD shall be entitled to place the Goods into a suitable store at Customer’s expense. Upon placing the Goods into the store, delivery shall be deemed to be complete, risk in the Goods shall pass to Customer, and Customer shall pay LCD accordingly.

6. Force Majeure.

Force Majeure of any kind, including but not limited to unforeseeable production, traffic or shipping disturbances, war, acts of terrorism, fire, floods, unforeseeable shortages of labor, utilities or raw materials and supplies, strikes, lockouts, acts of government, and any other hindrances beyond the control of the party obliged to perform which diminish, delay, or prevent production, shipment, acceptance, or use of the Goods, or make it an unreasonable proposition, shall relieve the party from its obligation to supply or take delivery, as the case may be, as long as and to the extent that the hindrance prevails. If, as a result of the hindrance, delivery or acceptance is delayed by more than eight (8) weeks from the scheduled delivery date, either party shall have the right to cancel the Contract by written notice. Should LCD’s suppliers fail to supply it in whole or in part, LCD shall not be under obligation to purchase from other sources. In such cases, the LCD shall have the right to distribute the available quantities among its customers while at the same time taking into account its captive requirements.

7. Warranty; Post-Delivery Defects.

7.1. General Warranties.

LCD warrants (i) subject to the other provisions of the Sales Contract and Terms and Conditions, good title to and unencumbered use of the Goods; and (ii) Goods manufactured by LCD and/or LCD’s affiliates shall conform with LCD’s performance specifications therefore and be free of defects in materials and workmanship.

7.2. Limited One (1)-Year Warranty.

LCD will make good by the repair (or supply) of replacement part(s), any defects which, under proper use, care, and maintenance, appear in Goods of LCD’s affiliates’ manufacture and which are reported to LCD within one (1) year after delivery of the Goods (i.e., the “Warranty Period”) and which arise solely from faulty materials or workmanship, provided always that defective items are returned to LCD at Customer’s cost, carriage, and insurance prepaid within the Warranty Period.

7.3. Conditions of Warranty.

Warranty will be valid if the Customer tests all Goods purchased using testing procedures for fiber optic cables described in this FOA link, or test using specific methods outlined in TIA OSFTP-14, for Multimode and/or TIA OSFTP-7, for Singlemode Fiber. Tester shall be calibrated per the manufacturer’s recommendation for compliance.

http://www.thefoa.org/tech/ref/testing/test/OFSTP-14.html

Customer shall save all test data on all goods purchased for the term of the Warranty. Testing must occur within sixty (60) days after receipt of Goods sold. All records shall be saved for the duration of the term of the one (1)-year Warranty Period in order to be valid. This will ensure cables were tested within sixty (60) days of purchase with no reported loss or performance issues. Customer will be responsible for paying for return shipping of the defective Goods, but LCD will pay to ship the repaired/replacement Goods back to Customer, and such shipment will occur within thirty (30) days from the date Customer returns the defective Goods to LCD.

7.4. Limitation of Warranties.

Notwithstanding the other provisions of Section 7, LCD shall not be liable for any defects caused by normal wear and tear; materials or workmanship made, furnished or specified by Customer; non-compliance with LCD’s storage, installation, operation, maintenance, or environmental practices and/or requirements; or if Customer makes any modifications or repairs to the Goods not previously authorized by LCD in writing. LCD’s costs incurred in investigating and rectifying such defects shall be paid by Customer upon demand. Customer shall at all times remain solely responsible for the adequacy and accuracy of all information supplied by it.

7.5. Entirety of Warranty.

Subject to Section 10, the foregoing constitutes LCD’s sole warranty and Customer’s exclusive remedy for breach thereof. No representations, warranties, or conditions of any kind, express or implied, shall apply as to the satisfactory quality, merchantability, fitness for any particular purpose, or any other matter with respect to any of the Goods.

8. Warranty by Customer Regarding Intellectual Property Rights.

CUSTOMER WARRANTS THAT ANY DESIGN OR INSTRUCTIONS FURNISHED OR GIVEN BY IT SHALL NOT CAUSE LCD TO INFRINGE ANY INTELLECTUAL PROPERTY RIGHTS IN THE PERFORMANCE OF LCD’S OBLIGATIONS UNDER THE CONTRACT, AND CUSTOMER SHALL INDEMNIFY LCD AGAINST ALL REASONABLE COSTS AND DAMAGES WHICH LCD MAY INCUR AS A RESULT OF ANY BREACH OF SUCH WARRANTY.

9. Limitation of Liability; Disclaimers.

IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOST PROFITS, ANY FORM OF SPECIAL, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES FROM ANY CAUSES OF ACTION ARISING WITH RESPECT TO THESE TERMS AND CONDITIONS, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT, STRICT LIABILITY, OR OTHERWISE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN NO EVENT SHALL LCD BE LIABLE TO CUSTOMER IN AN AMOUNT THAT EXCEEDS THE FEES PAID FOR THE GOODS GIVING RISE TO THE CLAIM UNDER THE APPLICABLE CONTRACT.

10. Statutory and Other Regulations.

If LCD’s obligations under the Contract are increased or reduced by reason of the making or amendment, after the date of LCD’s quotation, of any law, order, regulation, or bylaw having the force of law that shall affect the performance of LCD’s obligations under the Contract, the contract price and delivery period shall be adjusted accordingly and/or performance of the Contract suspended or terminated, as appropriate.

11. Compliance with Laws.

Customer agrees that all applicable import and export control and sanctions laws, regulations, orders, and requirements, as they may be amended from time to time, including without limitation those of the United States, the European Union, and the jurisdictions in which LCD and Customer are established or from which items may be supplied (collectively, “Relevant Jurisdictions”), and the requirements of any licenses, authorizations, general licenses, or license exceptions relating thereto, will apply to its receipt and use of goods. In no event shall Customer use, transfer, release, export, or re-export any such goods in violation of such applicable laws, regulations, orders, or requirements, or the requirements of any licenses, authorizations, or license exceptions relating thereto. Customer agrees furthermore that it shall not engage in any activity that would expose LCD to a risk of penalty under laws and regulations of any Relevant Jurisdiction prohibiting improper payments, including but not limited to bribes to officials of any government or of any agency, instrumentality, or political subdivision thereof, or to political parties or political party officials or candidates for public office, or to any employee of any customer or supplier. Customer agrees to comply with all appropriate legal, ethical, and compliance requirements.

12. Term and Termination

12.1. Term.

The term of the Contract shall commence on the Effective Date, as defined in Section 2.2, and shall remain in effect until complete performance of each Contract issued hereunder, unless terminated earlier as provided herein.

12.2. Termination for Default.

12.2.1. Events of Default.

The following events shall constitute “Events of Default,” and the occurrence of any one (1) or more of such events shall constitute a material breach of these Terms and Conditions and/or the applicable Contract that shall afford a party, as applicable, the rights and remedies set forth in this Section.

(a) In the case of LCD, LCD’s failure to perform the applicable Contract, provided that such failure is not due to: (i) the occurrence of a Force Majeure Event; (ii) a delay by Customer; or (iii) Customer’s failure, for any reason other than a LCD-caused delay, to perform or provide, as applicable, any interdependent material, provided that such failure previously was identified by LCD in writing;

(b) In the case of LCD, LCD’s material breach of any representation set forth in these Terms and Conditions or in any Contract, provided that: (i) in the case of the representations and warranties, LCD has failed to provide to Customer an acceptable written plan to cure such breach within a reasonable time frame, following receipt of written notice of such breach; or (ii) in the case of any other representation set forth in these Terms and Conditions, if any, such breach is not cured within thirty (30) calendar days, or if the breach reasonably cannot be cured within thirty (30) calendar days, LCD has failed to provide to Customer an acceptable written plan to cure such breach within such thirty (30) calendar day period, in each case following receipt of written notice of such breach;

(c) In the case of either party, such party’s failure to perform any other material obligation under these Terms and Conditions or any Contract that is not cured within thirty (30) calendar days following receipt of written notice of such failure;

(d) In the case of LCD or Customer, the institution of bankruptcy, receivership, insolvency, reorganization or other similar proceedings by or against LCD or Customer under any section or chapter of the United States Bankruptcy Code, as amended, or under any similar laws or statutes of the United States (or any state thereof), if such proceedings have not been dismissed or discharged within sixty (60) calendar days after they are instituted; the insolvency or making of an assignment for the benefit of creditors or the admittance by LCD or Customer of any involuntary debts as they mature; the institution of any reorganization arrangement or other readjustment of debt plan of LCD or Customer not involving the United States Bankruptcy Code; or

(e) In the case of LCD or Customer, LCD or Customer makes an assignment of all or substantially all of its assets for the benefit of creditors, or LCD or Customer ‘s management or board of directors takes any corporate action by in furtherance of the above action.

12.2.2. Rights and Remedies of LCD Upon Default of Customer.

Upon the occurrence of an Event of Default by or with respect to Customer, LCD shall be entitled to:

(a) Subject to Customer’s rights as set forth below, fully or partially terminate these Terms and Conditions and/or the affected Contract; and/or

(b) Any other additional remedies that may be set forth in a Contract.

12.2.3. Rights and Remedies of Customer Upon Default of LCD.

Upon the occurrence of an Event of Default by or with respect to LCD, Customer shall be entitled to:

(a) fully or partially terminate these Terms and Conditions and/or the affected Contract; and/or

(b) obtain a refund of any pre-paid but unearned fees; and/or

(c) any other additional remedies that may be set forth in a Contract.

12.3. Effect of Termination.

In the event of termination of these Terms and Conditions, any amounts owed to LCD under these Terms and Conditions before such termination will be immediately due and payable. Sections 8.2, 9, 13, and 14.4 shall survive termination of these Terms and Conditions.

13. Covenant of Non-Disparagement; Injunctive Relief

LAN and Customer agree that each will not make, at any time or place, any disparaging remarks, verbally or in writing, concerning any of the other party’s actions or perceived omissions regarding any matter connected with these Terms and Conditions or otherwise take any action that would disparage or cast doubt upon the business acumen or judgment of the other party. Each party understands and acknowledges that the other party’s business and reputation are of special, unique, and extraordinary character, which gives them a particular value, the loss of which cannot reasonably be compensated in damages in an action at law. Accordingly, each party further agrees that in addition to any other rights or remedies that any other party may possess at law, any aggrieved party will be entitled to injunctive and other equitable relief in order to prevent or remedy a breach of the provisions of this Section by the other party.

14. Other Important Terms

14.1. Waiver.

In the case of either party, no waiver with respect to any breach or default or of any right or remedy or course of dealing, shall be deemed to constitute a continuing waiver of any other breach or default or of any other right or remedy, unless such waiver be expressed in writing and signed by the party to be bound.

14.2. Severability.

If any Section, Sub-Section, or other provision of these Terms and Conditions or the Sales Contract is held to be invalid under any statute or rule of law, such provision, to that extent only, shall be modified or omitted, as necessary, so as to be enforceable, without affecting the validity of the remainder of the Contract.

14.3. Binding Nature; Assignability.

These Terms and Conditions shall be binding and shall inure to the benefit of the parties hereto and their respective successors and assigns. These Terms and Conditions may not be assigned by Customer without LCD’s prior written consent, such consent not to be unreasonably withheld. LCD may assign, delegate, and/or subcontract any or all of its rights or obligations hereunder.

14.4. Governing Law; Venue.

Customer agrees these Terms and Conditions and any other contract executed between the parties shall in all respects be construed in accordance with the laws of the State of Tennessee, USA as such laws apply to contracts between Tennessee residents entered into and performed entirely in Tennessee, without regard to conflicts of laws provisions thereof, and without regard to Customer’s place of residency. Unless waived by LCD in writing for the particular instance, the exclusive venue for actions related to the subject matter hereof shall be in the Tennessee state and federal courts having within their jurisdiction the location of LCD’s principal place of business, and both parties consent to the jurisdiction of such courts. Neither these Terms and Conditions nor any other Contract between the parties will be governed by the U.N. Convention on Contracts for the International Sale of Goods. Customer hereby agrees that if LCD brings suit against Customer for delinquent payment and obtains a judgment against Customer for any amount, Customer shall pay all court costs, pre- and post-judgment interest, and reasonable attorneys’ fees.

14.5. Section Headings for Identification Only.

The headings to the Sections and Sub-Sections of these Terms and Conditions are for identification and guidance only and shall not affect the interpretation thereof.

14.6. Necessity for Written Notice.

All notices and claims in connection with the Contract must be in writing.

14.7. Entire Agreement.

These Terms and Conditions, along with the Contract and any exhibits attached thereto, constitute the entire agreement between Customer and LCD with respect to the subject matter thereof, and those documents supersede any previous oral or written communications or other documents concerning the subject matter of the parties’ agreement.