Fiber Optic Cabinets, Cables, Pedestals and Terminals

The following terms and conditions apply to the sale between Clearfield, Inc. (“Seller”) and Buyer. Acceptance of all purchase orders is expressly made upon Buyer’s expressed or implied consent to the terms and conditions set forth herein without modifications or additions. Seller specifically rejects, and Buyer disclaims, all pre-printed provisions in Buyer’s purchase order and any other Buyer forms or documents, including any terms and conditions on Buyer’s internet site. Seller’s failure to object to any term or condition in any communication from Buyer will not be construed as agreement to such term or condition, nor will it be deemed a waiver of these terms and conditions. Seller reserves the right, in its sole discretion, not to accept any purchase order, including any purchase order issued in connection with a quotation provided by Seller. In the event the Buyer and Seller have executed a separate contract relating to the Products purchased, then the terms and conditions set forth in such contract shall supersede any conflicting terms and conditions set forth herein for as long as such contract is in effect and not terminated or expired.

Quotations and prices: Unless otherwise agreed in writing, all prices and charges specified herein are based on U.S. dollars, FCA Origin, and are effective for the longer of: (a) the time period set forth in Seller’s written quotation for the goods; or (b) thirty (30) days from the date of the quotation. Typographical and clerical errors made by Seller, including errors in pricing in Seller’s written quotation, are subject to correction by Seller. Transportation shall be by common carrier, at Buyer’s risk and expense. If the delivery date is postponed by Buyer, Seller shall have the right to adjust the price of the undelivered goods to Seller’s price at the time of shipment.

Credit and Payment Terms: Buyer shall furnish to Clearfield all financial information reasonably requested by Clearfield from time to time for the purpose of establishing or continuing Buyer’s credit limit. Clearfield shall have the right to decline to extend credit to Buyer, with or without any stated reason, and to require that the applicable invoices be paid prior to shipment. Clearfield shall have the right from time to time, without notice, to change or revoke Buyer’s credit limit on the basis of change in Buyer’s financial condition and/or payment record. Payment terms for each shipment of goods shall be as stated on Clearfield’s invoice. Buyer shall promptly notify Clearfield, in no event later than ten (10) business days after invoice, of any alleged billing error. Such notice shall be in writing and shall be reasonably detailed in describing such error. Failure to give written detailed notice within such time shall be deemed an acceptance in full of the invoice. A service charge of the lesser of one and one-half percent (1½%) per month or the maximum amount allowed by law will be charged on all past due balances. Buyer is prohibited from setting off invoice amounts due which may arise from a different transaction with Seller.

Taxes: Prices do not include occupation, sales, use, privilege, excise or similar taxes, duties, tariffs or assessments, and Buyer will pay any such amounts arising from the sale of the Products. In lieu of payment, Buyer may, prior to delivery of the Products, provide Seller with a tax exemption certificate acceptable to the appropriate taxing authority.

Changes, Cancellation and Returns: Orders accepted by Seller may not be changed, cancelled or rescheduled, except with Seller’s written consent and upon Buyer’s payment of all costs or losses incurred by Seller. Goods may not be returned without Seller’s prior written consent.

Shipping and Title/Risk of Loss: Unless otherwise agreed in writing, delivery, and transfer of title/risk of loss shall be made in accordance with the Clearfield Customer Shipping Policy in effect on the date of shipment which is located on the Seller’s website and is incorporated by reference into these terms and conditions. Seller reserves the right to make partial shipments and to submit invoices for partial shipment. In the absence of Buyer’s specific written instructions, the carrier will be selected by Seller. In no event shall Seller be liable for any delay in delivery by the carrier, nor shall the carrier be deemed an agent of Seller. Seller will make commercially reasonable efforts to ship the Products by the estimated shipping date, but will not be liable for any damages, loss or expense arising from a delay in shipment.

Delivery: Delivery dates specified herein or otherwise communicated to Buyer are approximate only and are based on conditions at the time Seller accepts Buyer’s purchase order. Seller may, without any liability to Buyer, extend delivery dates for good cause, including shortages of labor and raw materials. In case of any delay in shipment or freight pickup of completed goods caused by Buyer, Seller reserves the right to place the products in storage and Buyer will pay all applicable handling and storage charges upon receipt of Seller invoice and will also pay for products placed in storage in accordance with the terms of the original sale.

Force Majeure: If Seller suffers a delay in performance due to any cause beyond Seller’s reasonable control, the time for Seller’s performance shall be extended a period of time equal to the period of delay and its consequences. Seller will give Buyer notice as soon as practicable after Seller becomes aware of such delay.

Acceptance of Products: The Products provided by Seller are deemed accepted by Buyer upon delivery.

Warranty: Seller warrants the Products to Buyer in accordance with the terms, conditions and limitations of Seller’s Limited Warranty for such Products as in effect as of the date of shipment. Unless otherwise provided to Buyer in writing, Seller’s Limited Warranty for the Products is located on Seller’s website and is incorporated by reference into these terms and conditions. Clearfield shall repair or replace the defective Product at its sole option and discretion. Seller shall not reimburse or make any allowance to Buyer for any labor charges incurred by Buyer for replacement or repair of any goods unless such charges are authorized in advance in writing by Seller.

Indemnity: Seller will indemnify, defend and hold harmless Buyer from and against all claims brought against Buyer, and for any direct damages that arise from claims of infringement against intellectual rights of a third party. Seller will not be responsible for any infringement to the extent such infringement is (a) the results of goods used in combination with any other products not provided by Seller, (b) any alteration or modification of the products not authorized by Seller, or (c) Buyers failure to comply with Sellers product instructions, Buyer will indemnify, defend and hold harmless Seller from and against any claims brought against Buyer and Seller by any third party based on claims resulting from exceptions (a) through (c).

Limitation of Liability: Neither Seller, nor its suppliers, shall be liable, whether in contract, warranty, failure of a remedy to achieve its intended or essential purposes, tort (including negligence), strict liability, indemnity or any other legal theory, for loss of use, revenue or profit, labor costs, or for the costs of capital or of substitute use or performance, or for indirect, special, liquidated, incidental, or consequential damages, or for any other loss or cost of a similar type, or for claims by Buyer for damages of Buyer’s customers. Seller’s maximum liability for any claim shall be the price of the good on which the claim is based. Buyer and Seller agree that the exclusions and limitations set forth in this section are separate and independent from any other remedies which Buyer may have.

Remedies for default: In the event Buyer fails to make timely payment of any amount invoiced, Clearfield has the right, in addition to any and all other rights and remedies available to Clearfield at law or in equity, immediately to revoke any or all credit extended, declare any and all outstanding amounts owed to Clearfield as immediately due and payable, and/or to delay future deliveries. All costs of collection, including reasonable attorneys’ fees, shall be paid by Buyer.

Any obligation of Clearfield under this agreement to deliver goods on credit terms shall terminate without notice if:

  1. Buyer files an voluntary petition under a bankruptcy statue or makes an assignment for the benefit of creditors
  2. an involuntary petition under a bankruptcy statue is filed against Buyer, or
  3. receiver or trustee is appointed to take possession of the assets of Buyer.

Specification: Seller may change its Product specifications and manufacturing practices at any time without notice to Buyer; provided that such changes do not materially impair the performance of the Products. Seller will exclusively own all materials and information provided by Seller to Buyer, including, without limitation, specifications, drawings, engineering data and technical designs.

All Sales Final: Unless otherwise expressly agreed in writing by Seller, all sales are final. No returns will be accepted by Seller without a written authorization to return or exchange materials signed by Seller.

No License:  Neither these terms and conditions nor the purchase of any Products hereunder shall be construed to confer upon Buyer or its customers any license under any patent or other proprietary rights of Seller, except the right to use such goods for the purposes for which they are sold. Buyer does not acquire any right, title or interest in any tooling, set-up, fitting-up, drawings, design information, or invention or other intellectual property resulting therefrom, which remain the sole property of Seller.

Assignment: Buyer may not assign all or any portion of its rights or obligations hereunder, by operation of law or otherwise, without the prior written consent of Seller. Seller may assign any of its rights or obligations without Buyer’s consent.

Governing Law: These terms and conditions are subject to the laws of the State of Minnesota, including the Uniform Commercial Code adopted by the State of Minnesota.

Disputes: Disputes arising out of any order placed under these terms not otherwise settled by mutual agreement between the parties shall be settled exclusively by binding arbitration in Minneapolis, Minnesota, U.S.A. pursuant to the Commercial Arbitration Rules of the American Arbitration Association then in effect. Buyer agrees that the party against whom the award is rendered shall pay the entire cost and expense of the arbitration, including the other party’s attorney’s fees, costs, and expenses.