Legal Notice
Terms and Conditions
(Last Revised September 11, 2023)
1. GENERAL:
These terms and conditions (“T&Cs”) are for the purchase and sale of the goods and/or services described on the accompanying documentation and constitutes OPTIMUM’S offer to you as our customer (“Customer”). Your acceptance is limited to these terms and conditions. Your purchase of our goods and services represents acceptance of these terms and conditions, which, except as expressly stated, constitute the entire understanding between us and supersede any previous communications, representations or agreements by either of us, whether oral or written. To the extent that any prior offer sets forth any term at variance with or in addition to these terms, such offer is hereby rejected by OPTIMUM and these terms and conditions are proposed as a counteroffer to you. These terms and conditions may be changed, revised or supplemented from time to time by OPTIMUM in its sole discretion. Continued purchase of our goods and services shall represent acceptance of the updated terms and conditions. If you do not wish to be bound by the terms and conditions of sale expressed here, please contact us to discuss changes prior to our providing any goods or performing any services for you.
2. TERMS OF PAYMENT:The offer contemplated by these T&Cs and the accompanying documentation is valid for sixty (60) days after the date hereof, unless otherwise specified in writing. Unless otherwise specified in writing, all sales invoices shall be paid within thirty (30) days from the date of the invoice. OPTIMUM may invoice for work in progress bimonthly (twice per month) for completed work or hours logged to date, be paid within thirty (30) days from invoice date. OPTIMUM will not be obligated to continue performance under any contract we have with you if any invoice is thirty (30) days or more past due. In an action brought to collect an amount due and owing on account related to an OPTIMUM invoice for goods provided or services rendered, the prevailing party shall be entitled to recover its reasonable attorneys’ fees, costs, expenses, and interest at the maximum rate allowed by law.
3. SCOPE CHANGES:The purchase price charged by OPTIMUM to the Customer for the goods or services ordered by the Customer, may be increased by OPTIMUM as a result of the Customer’s changes to the Customer’s initial quote input requirements, specifications, or assumptions. OPTIMUM will promptly notify the Customer of any such change and the associated price and schedule change. Upon Customer’s approval of such change of price and/or schedule, Customer shall provide a revised purchase order for OPTIMUM’s acceptance.
4. DELIVERY:Shipping dates are merely estimates, but OPTIMUM will use commercially reasonable efforts to ship according to the estimated schedule. Delivery times do not include time for Customer to provide technical or requirements data or information necessary for OPTIMUM’s performance, nor time for Customer’s review and approval of interim milestone deliverables. Delivery times may vary depending on component availability. Customer agrees that OPTIMUM shall not be responsible or liable for any damages arising out of or related to any failure to deliver goods within the specific time prescribed therefor.
OPTIMUM’s delivery of services is generally in the form of electronic data that is transferred to Customer via Customer preferred or approved method of transfer protocol. Upon Customer’s receipt of such electronic data, OPTIMUM will no longer be responsible for storing or archiving Customer data. Customer represents and warrants to OPTIMUM that the delivered data will be stored and protected to Customer’s own satisfaction and standards for storage and protection, and Customer will indemnify and hold OPTIMUM harmless if OPTIMUM is unable to supply a replacement copy in the event that delivered electronic data is lost or destroyed.
5. DISCLAIMER:OPTIMUM, in its sole discretion, may furnish as an accommodation to Customer certain technical advice or assistance, including suggested engineering or design changes. OPTIMUM provides such advice or assistance without warranty and on an “as-is” basis, and OPTIMUM assumes no obligation or liability for such advice or assistance, which shall be at Customer’s sole risk.
6. INDEMNIFICATION:Customer agrees to indemnify, defend and hold harmless OPTIMUM and its affiliates, agents, officers, directors, employees and subcontractors against any and all loss, liability, expenses and costs (including attorneys’ fees, judgments, fines and amounts paid in settlement) actually and reasonably incurred by OPTIMUM in connection with any threatened, pending, completed or future action suit or proceeding to which OPTIMUM is, or is threatened to be, made a party arising from or related to services that have been provided hereunder. The terms of this section shall survive the termination or expiration of this agreement.
7. LIMITATION OF LIABILITY:IN ANY EVENT, OPTIMUM’S LIABILITY TO YOU IS LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR OUR GOODS AND/OR SERVICES RECEIVED WITHIN THE CURRENT CALENDAR YEAR. WE DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. IN NO EVENT SHALL WE BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER BASED ON CONTRACT, TORT, WARRANTY OR OTHER LEGAL OR EQUITABLE GROUNDS, INCLUDING, BUT NOT LIMITED TO, CONSEQUENTIAL DAMAGES, PUNITIVE DAMAGES, SPECIAL DAMAGES, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, OR OTHER MONETARY OR FINANCIAL LOSS, WHICH ARISE OUT OF THE USE OR INABILITY TO USE THE SUPPLIED DATA, ANY MANUALS OR OTHER DOCUMENTS SUPPLIED, OR ANY OTHER GOODS OR SERVICES SUPPLIED, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8. INTELLECTUAL PROPERTY RIGHTS:Unless otherwise expressly agreed between the parties, all ownership, rights, title and interest to or in all rights, title or interest for or associated with the goods or services (including but not limited to intellectual property therefor; (collectively, the “IP Rights”) are the sole and exclusive property of OPTIMUM. Upon the Customer’s payment in full to OPTIMUM of the total purchase price and related project fees and costs incurred by OPTIMUM, OPTIMUM will assign the IP Rights for the purchased goods and services exclusively and royalty-free to the Customer; provided that OPTIMUM shall retain its rights to the underlying engineering knowledge, design practices, technology, processes, etc. that were utilized by OPTIMUM in creating the goods and providing the services per Customer’s specifications. Without limiting the foregoing, OPTIMUM shall have the right to retain, reuse and utilize non-proprietary library parts, generic firmware and software, designs, and other similar background and ancillary items for its own purposes or in connection with services performed for other customers. The goods offered for sale by OPTIMUM may be subject to patent, trademark, copyright, design and other rights of third parties. Except as otherwise agreed to in writing by OPTIMUM, OPTIMUM shall in no event be responsible or liable for any claim of infringement of any such rights.
Customer will indemnify, defend and hold OPTIMUM and its affiliates, agents, officers, directors, employees and subcontractors harmless from and against all claims, damages, losses and reasonable expenses (including but not limited to reasonable attorneys’ fees), to the extent arising out of or resulting in whole or in party from (i) any claim that the design of the products, specifications or data provided by Customer infringe a third party patent, copyright, trademark, trade secret or other intellectual property right, and (ii) any claims arising out of the design of the product provided by Customer for death, personal injury, property damage, product liability or violation of environmental, health or safety standards. The terms of this section shall survive the termination or expiration of this agreement.
9. WARRANTY (Subject to Section 7):OPTIMUM shall perform the services in a workmanlike and professional manner. If the Customer notifies OPTIMUM in writing, within ninety (90) days from the date of OPTIMUM provides the goods or services to the Customer, of any claimed defect in the goods or services, and OPTIMUM determines in its sole discretion confirms that such claimed defect exists after OPTIMUM’s appropriate inspection, Customer’s sole and exclusive remedy shall be limited to OPTIMUM’s correction of the claimed defect at the design and documentation level, excluding repair or replacement of materials or purchased parts.
10. MISCELLANEOUS:Stated prices do not include any permit fees, customs duties, sales, use, value added, excise, federal, state, local, or other similar taxes. Customer shall be responsible for paying all such duties or taxes, or, in lieu thereof, Customer shall provide OPTIMUM with an appropriate exemption certificate.
These T&Cs shall be construed, performed and enforced in accordance with, and governed by, the internal laws of the State of California, without giving effect to the principles of conflicts of law thereof.
Any and all claims, controversies or disputes arising out of or relating to these T&Cs or the alleged breach hereof (collectively “Disputes”), will be settled by final and binding arbitration in Alameda County, California, or such other location as may be mutually agreed by the parties in accordance with the Comprehensive Arbitration Rules and Procedures of JAMS then in effect. To the extent permitted by law, the hearing and all filings and other proceedings shall be treated in a private and confidential manner by the arbitrator and all parties and representatives, and shall not be disclosed except as necessary for any related judicial proceedings. The arbitration will be conducted before an arbitrator to be mutually agreed upon by the parties from JAMS’ panel of arbitrators. The parties shall be equally responsible for half of the fees of the arbitration.