Dialogic Express Exchange Service Terms and Conditions

Dialogic Express Exchange Service

Terms and Conditions

The purchase of Dialogic Corporation’s (“Dialogic”) express exchange service (“EES”) for Dialogic TR-1034 products (the “Products”) is subject to:

 (a copy of which will be provided by Dialogic upon request); and

(ii) the additional terms and conditions set forth herein (the “EES Terms”).

By accepting the Products, purchaser (“Customer”) agrees to be bound by the Standard Terms and the EES Terms. Dialogic’s agreement to the sale or licensing of any Products, is expressly conditioned upon Customer’s assent to the EES Terms. Capitalized terms used herein without definition shall have the meanings ascribed to them in the Standard Terms.

• EES shall be available only for those specific Products identified in a fully-executed EES enrollment form (an “Enrolled Card”) provided to Customer by Dialogic, for which Dialogic has received full payment from Customer of both: (i) the sale price of each Enrolled Card; and (ii) the amount due for such corresponding EES. Dialogic reserves the right to refuse EES for any Product for any reason, in its sole and absolute discretion.
• In the event that an Enrolled Card is identified and confirmed as defective by Dialogic, in its sole and absolute discretion (a “Defective Card”), during the term for which Customer has purchased EES with respect to such Enrolled Card, Dialogic will replace such Defective Card in accordance with the terms of these EES Terms.
• Customer must report the problem on a day other than a Saturday, Sunday or local Dialogic company holiday during Dialogic business hours prior to 3:00 p.m. Eastern Standard Time for Customers in North America or 4:00 p.m. central European time for Customers in the European Union.
• Defective Cards which are defective as a result of modifications, misuse, neglect, accident, improper packaging or abuse; improper wiring, repairing, splicing, alteration, installation, or storage; or maintenance performed in a manner not in accordance with Dialogic’s or its authorized representative’s specifications or operating instructions, shall not be eligible for replacement under EES.
• Dialogic will use commercially reasonable efforts to ship a replacement Product (“Replacement Card”) for delivery the next day for customers in North America or the European Union. To accomplish this, Dialogic will deliver a Replacement Card to a recognized carrier service (a “Carrier”) on the same day as the Defective Card is identified and specify delivery on the next business day. Delivery outside North America and European Union will be made on a commercially reasonable efforts basis.
• In the event that Dialogic is unable to ship a Replacement Card to Customer due to the fact that a Dialogic third-party provider is closed for holiday or otherwise when a report is made, Dialogic will deliver a Replacement Card to a Carrier as soon as possible after the third-party provider reopens.
• Dialogic shall not be responsible for any delay occurring after delivery to a Carrier, including without limitation any delay attributable to the Carrier, international customs or force majeure.
• Replacement Cards will provide equivalent or greater functionality of the Defective Card and will be in new or refurbished to like-new condition.
• The remaining term of the EES contract and the Dialogic standard warranty, if any, will be transferred from the Defective Card to the serial number of the Replacement Card.
• Dialogic will pay outbound freight charges to ship the Replacement Card to Customer. Dialogic will ship the Replacement Card at its expense, and Customer shall be responsible for international taxes and duties required to receive the Replacement Card.
• Customer shall return the Defective Card to repair location listed below, unless otherwise designated by Dialogic, at Customer’s own expense, including, without limitation, payment of all inbound freight charges and any applicable customs fees, duty, taxes, brokerage fees and document fees. Dialogic shall not be required to honor the terms of the EES Terms unless Customer first obtains a Dialogic-provided Return Material Authorization (“RMA”) number and indicates such RMA number on its return shipment.
• Designated repair locations are:
  • For Customers located in the European Union:
    
    DHL Express Logistics Centre (ELC) Industriepark Diegem Hoek Woluwelaan
    145 1831 Diegem BELGIUM
    Telephone +32 2 307 9000
  • For Customers located outside the European Union:
    
    Dialogic, Inc.
    152 Second Avenue
    Needham, MA 02494 USA
    Telephone: +1 781 449 4100   
• If the Defective Card is not received at Dialogic’s designated repair location within ten (10) business days of receipt by Customer of a Replacement Card, Dialogic may generate and deliver to Customer an invoice for the list price of such Replacement Card and Customer agrees to pay such invoice within thirty (30) days of the date of such invoice.
• Without limiting any other remedies available to Dialogic, Customer’s failure to return or pay for any such Replacement Card shall result in cancellation of EES on all Enrolled Cards then under contract.
• In the event that, after a Replacement Card is shipped to Customer, Dialogic determines in its sole and absolute discretion that the Defective Card is not eligible for EES for any reason, Dialogic may generate and deliver to Customer an invoice for the list price of such Replacement Card and Customer agrees to pay such invoice within thirty (30) days of the date of the invoice. Customer’s failure to timely pay this invoice shall result in cancellation of EES on all Enrolled Cards then under contract.
• Customer’s accounts payable balance due to Dialogic must be current for EES contract to be effective. Dialogic may refuse to perform its obligations under the EES Terms or may cancel the EES Terms in the event that Customer fails to timely pay any balance due to Dialogic. DIALOGIC SHALL NOT BE RESPONSIBLE OR LIABLE TO CUSTOMER FOR ANY DAMAGES, HOWEVER CHARACTERIZED, WHICH EQUATE TO LOST PROFITS, LOST SAVINGS, LOSS OF USE, LOSS OF BUSINESS OPPORTUNITIES, OR ARE PUNITIVE, INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL IN NATURE, OR WHICH OTHERWISE ARISE OUT OF THE USE OF, OR INABILITY TO USE, ANY EXPRESS EXCHANGE SERVICE(S), EVEN IF DIALOGIC WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. In the event Dialogic fails to deliver the Replacement Card to the Carrier as set forth in these EES Terms, Customer may terminate the remaining EES and seek a refund of a prorated portion of the amount paid for EES for the Enrolled Card that is the subject of the specific claim, based upon the percentage of time remaining on the contract. The remedies set forth in this paragraph shall be Customer’s sole and complete remedy in the event of Dialogic’s breach of its obligations under these EES Terms.
• EES is non-cancelable and payments received are non-refundable, except as set forth herein. EES commences on the date Dialogic invoices Customer for EES.
• Anything to the contrary notwithstanding, only Products sold through Dialogic authorized partners are eligible for EES.
• EES may only be purchased on properly working Products. Dialogic may deny a purchase order or cancel the availability of EES on any or all existing Enrolled Cards should Dialogic determine in its sole and absolute discretion that misuse of EES is occurring or has occurred.