Functions Technology Group, Ltd. Terms and Conditions of Sale. The Terms and Conditions stated herein are made a part of any sale of product by the Seller (as defined below).

Based on receipt of properly authorized Purchase Order (the “Customer PO”), issued by Customer, received and acknowledged by Function5 Technology Group, Ltd. (Seller), and for Ten and No/100 Dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which is acknowledged, Seller agrees to sell, transfer and/or assign the equipment listed on the Customer PO to Customer free and clear of any and all Liens, Encumbrances and Liabilities, under the following Term and Conditions (together with the Customer PO, this “Agreement”).

SPECIFICATIONS

Specifications, dimensions, and other product details are stated in good faith and the Seller will make commercially reasonable efforts to ensure that goods supplied to the Customer comply with such specifications, dimensions and other product details. However, it may not be possible for the Seller to control minor deviations from specifications, and other product details and therefore it reserves the right in such cases to supply goods of a substantially similar or better specification.

PAYMENT TERMS

The Customer shall pay the price of the goods within terms as stated on the Customer PO, as received, and accepted by the Seller. Such terns shall be restated on Seller’s invoice. Time for payment of the invoice shall be of the essence of this Agreement. The Customer shall have no right to set off in respect of any claim it may make against the Seller.  If payment of the purchase price is not made by the due date, Seller may charge, and Customer agrees to pay, interest on the outstanding amount at a rate of 1.5% per month. Any payments made after the due date shall first apply to outstanding interest, then to the purchase price.

CANCELLATION

Customer may not cancel this purchase without the expressed written consent of Seller. In the event Seller allows Customer to cancel this order, a restocking fee equal to 25% of the purchase price may be assessed at Seller’s sole discretion. Payment of this fee must be made as a condition of Seller’s agreement to cancellation of the order.

RETURNS

In the event equipment does not meet agreed specifications, or shall fail within the warranty period, Customer may return the equipment to Seller under terms of Seller’s RMA policy (go to www.f5technology.com and click on RMA Request), the terms of which are incorporated herein by reference, and the receipt of which Customer acknowledges. In the event Customer fails to comply with this policy, Seller may reject the return.

FOB DELIVERY

Unless payment terms are stated as COD, Seller shall sell and deliver to Customer, the equipment specified on the Customer PO, FOB Origin, and Customer shall bear all the risk of damage from fire, the elements or otherwise, from such time the equipment has been delivered to the carrier or upon acceptance of the purchase order by Seller if the equipment is already in the Customer’s possession.  If payment terms are stated as COD, Seller shall sell and deliver to Customer, the equipment specified on the Customer’s PO, FOB Destination, and Seller shall bear all the risk of damage from fire, the elements or otherwise until such time as the equipment has been delivered to the Customer. All shipping, installation and insurance costs shall be borne and promptly paid by Customer or shall be added to the invoice and will be paid by Customer. Seller will cause the equipment to be prepared for shipment at Seller’s expense using standard packing materials.

TITLE

Notwithstanding the passing of risk as stated above, unless and until payment shall have been made to the Seller of all sums due to it for the equipment, Customer agrees and covenants that Seller retains a first priority security interest in all of the equipment.

WARRANTIES

Unless stated otherwise on the Customer PO, and such Customer PO having been accepted in a writing signed by Seller, Seller provides Customer the warranty provided in Seller’s Warranty Policy (available at http://www.f5technology.com and click on Warranty Policy), the terms of which are incorporated herein by reference, and the receipt of which Customer acknowledges. Other than this limited warranty, Seller makes no other warranties, express or implied, other than good title, including merchantability or fitness for a particular purpose. The parties agree that the implied warranties of merchantability and fitness for a particular purpose and all other warranties express or implied including without limitations, warranties as to description accuracy, quality, or productiveness, are excluded from this transaction and shall not apply to the equipment sold, unless the parties shall otherwise agree in writing.

DELIVERY

Seller shall deliver and Customer shall accept delivery of the equipment on a date mutually agreed upon, as provided on the Customer PO. Unless the Seller is notified in writing by the Customer within 72 hours after delivery of the equipment has been made, it shall be conclusively presumed that the equipment was delivered in a good condition and in complete accordance with the Customer’s requirements. The Customer agrees that the equipment may be delivered using standard packaging, and that the original packaging may not be available or suitable for delivery.  The terms of this Agreement shall be included as if contained in the Customer PO.

Function5 Technology Group, Ltd. Purchase Order’s (hereinafter referred to as “PO“) are subject to the following Terms and Conditions. These Terms and Conditions are made a part of all Purchase Orders as if stated thereon.

1. PURCHASE: Vendor (hereinafter referred to as “SELLER“) agrees to sell and Function5 Technology Group (hereinafter referred to as “BUYER“) agrees to purchase from SELLER equipment and/or services (hereinafter referred to as “EQUIPMENT“) as listed on the PO submitted by BUYER in accordance with the terms and conditions herein (the “TERMS AND CONDITIONS” and, together with the PO, this “AGREEMENT”). In the event BUYER incurs any costs due to failure of SELLER to comply with terms of the PO or this AGREEMENT, SELLER shall promptly reimburse BUYER for such costs, including, without limitation, reasonable attorneys’ fees.

2. SHIP TO: Destination address for the EQUIPMENT provided on the PO in the “Ship To” section.

3. SHIP VIA: Shipping method provided on the PO in the “Ship Via” section.

4. PURCHASE PRICE: Purchase price of the EQUIPMENT as stated in the “TOTAL” section on the PO.

5. TERMS: Payment terms for the EQUIPMENT as stated in the “Terms” section on the PO. In the event this agreement is terminated by either party, for any reason whatsoever, or in the event the EQUIPMENT is returned by BUYER to SELLER, either under any warranty or by virtue of the fact that the EQUIPMENT does not meet the standards required under this agreement, SELLER agrees to refund any sums paid by BUYER, including any freight charges, by the same method used by BUYER to make any initial payments, within three business days of such termination or return.

6. DELIVERY: SELLER shall deliver, and BUYER shall accept delivery of the EQUIPMENT at a location and on a date to be mutually agreed upon and such location and date shall be indicated on the PO in the “Ship To” and “Date Required” sections. If EQUIPMENT is not delivered to the BUYER on the date set forth, the BUYER may, at the BUYER’S sole discretion, terminate this agreement, and the SELLER shall promptly refund all payments, including any freight charges incurred by BUYER, made by BUYER as stated in paragraph 5.

7. ACCEPTANCE: Shipment of the equipment, or signature on the PO, constitutes full and complete acceptance of the PO and these terms and conditions by the SELLER. If fulfillment of the PO does not meet the requirements of BUYER, including any shipping or payment terms, this agreement may be terminated at the option of the BUYER. In the event of such termination, BUYER shall have no further obligation to SELLER and SELLER shall promptly refund any money paid by BUYER as stated in Paragraph 5.

8. FOB DELIVERY: SELLER will cause the EQUIPMENT to be prepared for shipment at SELLER’S expense using standard packing materials and shall deliver the EQUIPMENT to BUYER’s loading dock or other location as specified in the PO. Unless otherwise provided in the PO, SELLER shall sell and deliver to BUYER, the EQUIPMENT specified on the PO, FOB Destination, and SELLER shall bear all risk of damage or loss from fire, the elements or otherwise, until such times the EQUIPMENT has been delivered to the BUYER at the Ship TO location as specified in the PO. Unless otherwise provided in the PO, all shipping costs shall be borne and promptly paid by BUYER, Freight Collect, utilizing BUYER’s Freight Account. If Terms as defined in Paragraph 5 are stated on the PO as COD, all shipping, and insurance costs shall be borne and promptly paid by SELLER.

9. TAXES: BUYER warrants that this purchase is for the purpose of resale, exempt from any sales tax, but not limited to such purpose. BUYER will not be responsible for payment of any sales taxes imposed upon SELLER by taxing authorities by reason of the sale and delivery herein provided for. Any personal property taxes assessed on the EQUIPMENT prior to delivery shall be paid by the SELLER.

10. BASIC REQUIREMENTS

a. All EQUIPMENT is purchased with an absolute Right of Merchantability

b. All EQUIPMENT MUST have the original OEM Part Number and/or Serial Number sticker(s) affixed to the EQUIPMENT. All such stickers MUST be legible and/or scannable.

c. As applicable, external Serial Numbers MUST match internal Serial Numbers for all EQUIPMENT as evidenced by specific OEM Boot and/or Test procedures.

d. Unless otherwise specifically stated in the PO, all EQUIPMENT MUST be able to perform ALL design functions.

11. MAINTENANCE AND WARRANTY:

Unless specifically stated in the PO, all EQUIPMENT comes with a minimum of 90 day warranty and/or is eligible for manufacturer maintenance. Should the EQUIPMENT listed herein not be qualified for continued maintenance, SELLER agrees to pay all costs associated with recertification by the manufacturer. SELLER represents and warrants that the SELLER is the lawful owner of the EQUIPMENT free and clear of any liens and encumbrances (other than those which may arise from this Agreement) and will have full right, power, and authority to sell the same to BUYER SELLER agrees to assign to BUYER any residual manufacturer’s warranty relating to the EQUIPMENT. Should the EQUIPMENT be Original Manufacturer Equipment, SELLER represents and warrants that all parts and features specifically identified as included with the EQUIPMENT, or not specifically identified but inherent and a part of the EQUIPMENT, be genuine original manufacturer parts and features.

12. TITLE: Title to the EQUIPMENT will be free and clear of all liens, claims and encumbrances of any kind and shall vest full and marketable title in BUYER upon payment of the full purchase price required to be paid pursuant to Paragraph 4 hereof SELLER agrees to provide BUYER with a Bill of Sale for the EQUIPMENT on receipt of payment in full. The SELLER represents that all products described in this PO have been legally acquired by the SELLER prior to delivery to the BUYER as defined in the agreement. The SELLER indemnifies the BUYER against any actions, civil or criminal, by any party, should the provenance of the goods become questioned. In such a situation, the SELLER will be responsible for any legal fees that are incurred by the BUYER.

13. NOTICES: Any notice provided for herein shall be in writing and sent by registered or certified mail, postage prepaid, addressed to the party for which it is intended at the address set forth on the PO, or to such other address as either party shall from time to time indicate in writing, or by electronic mail or facsimile transmission. Said notice to be deemed to be effective, in the case of certified mail, upon receipt or three days from the date of deposit in the U.S mail, whichever occurs first, and in the case of electronic mail or facsimile transmission, upon receipt or one day after being sent, whichever occurs first.

14. CONDITION OF EQUIPMENT: SELLER agrees to maintain or cause the EQUIPMENT to be maintained hereafter so that no excessive deterioration or use other than normal wear and tear shall occur before delivery of the EQUIPMENT, or if such deterioration or use shall occur, SELLER shall use its best efforts to correct or to cause said excessive deterioration or use to be corrected to assure the acceptable appearance and condition of the EQUIPMENT. BUYER or its agent shall have the right to inspect the EQUIPMENT up to date of delivery for general appearance and operating condition. Unless otherwise stated in the PO, SELLER shall supply the EQUIPMENT with all parts necessary to install and maintain the EQUIPMENT, including maintenance records, schematics, log books and manuals, mounting hardware, and cables for connection. All cables, maintenance records, schematics, log books and manuals shall be securely taped or otherwise affixed to the subject EQUIPMENT or otherwise properly packaged and included with the shipment of the EQUIPMENT. SELLER shall be liable for the replacement costs of any of the foregoing if missing at time of delivery.

15. GENERAL:

a. This AGREEMENT constitutes the entire agreement between SELLER and BUYER with respect to the purchase and sale of the EQUIPMENT, and no amendment, modification, waiver, representation, or statement not contained herein shall be binding upon SELLER or BUYER as a warranty or otherwise, unless in writing and executed by the party to be bound thereby.

b. This AGREEMENT shall be binding upon and insure to the benefit of the parties hereto and their respective successors and assigns.

c. This AGREEMENT shall be governed by and constructed in accordance with the laws of the State of New York including all matters of construction, validity, performance, and enforcement.

d. This AGREEMENT may be executed in multiple counterparts, each of which shall be decreed to be original and of equal force and effect.

e. In the event of litigation to enforce the terms of this AGREEMENT, the substantially losing party agrees to pay the substantially prevailing party’s reasonable costs and expenses, including, without limitation, reasonable attorneys’ fees.