TERMS AND CONDITIONS OF PURCHASE

1.1    Acceptance of Terms. These Terms and Conditions of Purchase (these “Terms”) are incorporated into and a part of the Distributor Agreement, (“Agreement”) entered into  between you (referred to as “you”, “your”, and  “Buyer”), and Hyla Mobile, Inc., and BroadTech, LLC, and their subsidiaries (referred to as “Supplier,” “we” or “our”) and apply to your purchase of Products (defined below) from Supplier, in consideration of the mutual promises made and such other good and valuable consideration. These Terms shall govern your purchase of Products. If you purchase any Products, you  agree to these Terms.

1.2    Modifications to Terms. Supplier reserves the right, with or without notice, to change these Terms in its sole and absolute discretion. The most current version of these Terms will be available as a  link on the footer of each accessible electronic auction platform website . Any modification to these Terms by Supplier will supersede all previous versions. Buyers will have the responsibility to ensure that they review the most current version of these Terms.

2.1    “Device Grades” means Supplier’s designation and classification of Products based on testing, functionality, and cosmetics.

2.2    “Products” means Supplier’s batteries, doors, handsets, tablets, other wireless devices, accessories,  scrapped repair parts (deemed unusable by Supplier), or other materials as mutually agreed to by the Parties.

2.3    “Listing” means the content on Supplier’s Liquidation Auction and/or purchase order bid sheet that lists available Products including, but not limited to, the description and quantity of the Products. Supplier reserves the right to modify or correct any Listing at any time and such modification shall be binding on your purchase of any Products after such modification has been made.

2.4    “Promotional Content” means and includes all Listings and any other information, descriptions, or content provided by Supplier or its agents in any medium related to the Products.

3.1    Submission of Bids. All bids for Products are required to be entered via the Liquidation Auction and/or Supplier’s bid sheet. Supplier receives bids from many customers and may determine, acting in its subjective discretion, whether we accept any specific bids. Buyer recognizes and accepts that Supplier may modify the availability of Products based on the amount of inventory for available for Purchase based on Device Grades.   Your submission of a bid is a binding contract offer to buy the Products set forth in the bid, and such contract will continue to apply even if modified by Supplier due to availability of Devices.  If your bid is deemed the winning bid. You cannot cancel or retract your bid except as provided in Section 4.2 below. If your bid is deemed the winning bid, you will be notified by email (the “Email Notification”) at the email address you provided when you registered for your account. It is your responsibility to keep your email address current and to timely check your email to determine if you are the winning bidder for any bid process. Supplier is not responsible for the failure of an Email Notification to reach a winning bidder for any reason including, but not limited to, technical problems or other system error.

3.2    Winning Bids. If your bid is deemed the winning bid for certain Products, you agree to promptly purchase such Products pursuant to the terms and instructions set forth in these Terms and the Email Notification. If you fail to purchase such Products and/or pick up your purchase from our warehouse within three (3) business days from the date of the Email Notification, you shall forfeit any right to purchase such Products. In addition, Supplier may deactivate your account and password access to the Liquidation Auction and, at our sole discretion, we may (i) contact the next highest bidder and offer to sell such Products to such bidder at such bidder’s bid price, or (ii) post such Products back on the bid sheet.

3.3    Committed Volume. Supplier does not make any  commitment of volume of any kind to Buyer.

4.1    Purchase Price. In consideration for your payment of the purchase price set forth in the winning bid for Products (the “Purchase Price”), Supplier hereby agrees to sell to you such Products at the price offered on the purchase order or bid sheet, pursuant to your compliance with these Terms and the Email Notification. You agree to pay the Purchase Price and all applicable taxes for the Products. You will provide payment via wire transfer to our bank pursuant to information provided in the Email Notification. You shall be solely responsible for all taxes, shipping, insurance, international duties and tariffs, handling costs, and any other expenses incurred in connection with your purchase of Products.

4.2    Canceled Bids. You acknowledge that there may be certain bids that we cannot or will not accept, or companies from whom we are not able to accept bids, and we reserve the option to reject and cancel any such bids or orders. We reserve the right, at our subjective discretion, to refuse or cancel any bid or purchase for any reason. Supplier is not liable for errors in descriptions of Products, or the cancellation of a purchase or the removal of Products because of such errors. In the event that an error is discovered related to your bid, you will be notified as soon as possible via email communication. Should you enter a bid incorrectly, you should immediately (within 24 hours) notify Supplier’s Customer Service Manager of the erroneous bid, and the decision to cancel the erroneous transaction will be at the sole discretion of Supplier.

4.3    Other Conditions. Supplier reserves the right to delay shipment of Products until all documentation required by Supplier (or its designees) has been received and approved.

5.1    Acceptance You agree that you have no rights to return or refuse the Products except as described in Section 4.2 and Section 6 below of these Terms. Except as may otherwise be provided in Section 6, upon receipt and possession of the Products, you hereby waive and release any and all claims, known or unknown, regarding the bid process or Products.

5.2    Inspection and Documentation. Supplier will provide a Product manifest that details the contents of each shipping container. Supplier reserves the right to inspect, count or otherwise inspect any contested discrepancy items at Buyer’s premises or other location where the Products are located.  Buyer must  notify Supplier in writing within ten (10) days from receipt of the Product at the Inventory Location to contest any quantity discrepancies with the manifest.

6.1    Limited Return Rights. As stated in the Agreement, Buyer recognizes that the Products are sold on an As-Is basis. For the avoidance of doubt, Buyer understands that Supplier may modify the Device Grades without notice to Buyer, and Buyer must inquire about the current structure of Supplier’s grading process. Subject to the As-Is condition of the Products, if Buyer receives an incorrect amount of Products for a certain Device Grade, Buyer may request a return from Supplier.  Supplier, in its subjective discretion, may accept returns for the Products. In its subjective discretion, Supplier may issue a credit for Products or  issue a partial credit in lieu of a return.  Buyer must notify Supplier in writing of the issue within ten (10) days of the date the Product is received at the Inventory Location by Buyer. If permitted by Supplier to return the Products,  you must return the Products to us in the original sales condition and packaging.  Upon receipt of the Products, Supplier reserves the right to inspect and determine if the Products should be returned prior to issuing the credit . Note that any credits for returned Products are eligible to be used for future bids on Products from Supplier. Supplier will not issue a credit across Supplier entities, e.g., a purchase from an affiliate of Supplier will not be credited against orders involving another Supplier affiliate.

6.2    Returns Process. To return  Products, Buyer must obtain, complete, and return a Return Material Authorization (“RMA”) to Supplier. To obtain a blank RMA, please send an email to  [email protected]. Buyer should fill out the RMA (missing information may result in claim being denied or delayed) and submit the RMA to  [email protected]. Within seven (7) business days of RMA submission, Buyer will receive an email from Supplier with (a) an RMA number which authorizes Buyer to return the Products to Supplier, or (b) information as to why an RMA number cannot be issued (e.g., missing information, late submission, etc...). Buyer shall not return Products until the RMA number is issued or the return will be invalidated by Supplier. Buyer must include the assigned RMA number on all Products returned to Supplier, and specific shipping information will be communicated to Buyer when the RMA number is assigned. The RMA may be cancelled if the applicable Products are not received by the Supplier within ten (10) business days after RMA is issued. RMA claims will be processed within thirty (30) days of Supplier’s receipt of the returned Products. For all returns, Buyer will pay for all freight to Supplier’s facility and retain risk of loss until the Products are received and processed by Supplier. If applicable, Buyer will provide a commercial invoice, the shipping label, and other documents Supplier may request.

6.3    Special Situations. In limited cases, and in Supplier’s subjective discretion, Supplier may provide a credit without requiring a return of Products, e.g., if Buyer elects to keep Products that were shipped in error, Supplier may choose to adjust the price charged in lieu of requiring a return shipment. Buyer should not use, sell, or return any Products that were shipped in error until instructed to do so by Supplier.

6.4    Restocking Fee. As provided in Section 5.1 of these Terms above, a restocking fee may be assessed in certain situations as determined by Supplier, including in connection with returns of Products that are:(a) not issued a valid RMA number; (b) denied by Supplier for any reason provided in these Terms.

7.1    Supplier Marks.  Marks means trademarks, service marks, trade dress, logos, trade names, domain names, URLs and corporate names, and other source identifiers, together with all translations, adaptations, derivations, and combinations thereof and including all goodwill associated therewith, and all applications, registrations, and renewals in connection therewith (“Marks”). Supplier grants to Distributor during the term of this Agreement, a limited, personal, non-exclusive, non-transferable, non-assignable, non-sublicenseable, revocable, royalty-free license to use and reproduce any Marks belonging to Supplier and provided to Distributor solely in conjunction with Distributor’s rights and obligations under the Distributor Sales Agreement (“Supplier Marks”).  Supplier warrants to Distributor that it has the right and authority to sublicense the Supplier Marks to Distributor under the terms of this Agreement. Distributor acknowledges that the Supplier Marks, along with all associated intellectual property rights and goodwill, are the property of Supplier.  Distributor agrees that any use of the Supplier Marks will inure to the benefit of Supplier.  Except for the limited rights granted to Distributor above, Supplier reserves all right, title and interest in the Supplier Marks.  Distributor agrees that Supplier, whether directly or by implication, estoppel or otherwise, does not grant any other rights to Distributor, and Distributor expressly disclaims all other right, title and interest in the Supplier Marks.  Distributor will not during the Term or thereafter challenge the right, title or interest of Supplier in the Supplier Marks, claim any right, title or interest in any of the Supplier Marks, alone or with other elements, or assert any interest in or attempt to register any of the Supplier Marks or any confusingly similar variation of the Supplier Marks in any form. Distributor will not alter or modify Supplier Marks and will not use the Supplier Marks in any way that damages or may damage the reputation, business or goodwill of Supplier.  Distributor will not directly or indirectly infringe, dilute, misappropriate or misuse the Supplier Marks or damage the goodwill associated with the Supplier Marks.  Upon written request, Distributor will submit specimens showing its proposed uses of the Supplier Marks to Supplier for Supplier’s prior review and written approval.  Upon ten (10) calendar days prior written notice by Supplier, Distributor will provide a sampling of media bearing the Supplier Marks sufficient to permit Supplier to evaluate the manner of Distributor’s use.  Supplier reserves the right to withdraw permission for continued use of the Supplier Marks by Distributor at any time without cause. If Supplier makes use of this right, it will not be held liable for any damages. Upon termination of the Term of this Agreement, Distributor shall immediately cease using the Supplier Marks in all capacities and return any of Supplier’s Confidential Information related to the Supplier Marks.

7.2    Assurant Sourced. Distributor understands that Supplier has built equity, reputation, and goodwill through its use of Device Grades, and if Distributor used alternative device grades while identifying that Supplier is the source of the Devices, it can cause harm to Supplier’s goodwill. Supplier will allow Distributor to title a warehouse on the Distributor Liquidated Auction as “Assurant Sourced”. The use of “Assurant Sourced” will be considered use of Supplier Marks and all of the foregoing restrictions and requirements apply. “Assurant Sourced” is the only Supplier Mark that may be used on the Distributor Liquidated Auction. If Distributor uses the Supplier Marks on the Distributor Liquidated Auction, notwithstanding anything to the contrary, Distributor will only utilize the Device Grades in its description of the Products to Purchasers. Distributor understands that Supplier may not own all devices, and will not make any references to Supplier’s ownership of the Device. Any references to Supplier will conform to all marketing and branding guidelines provided by Supplier and any applicable advertising laws.

7.3    Anonymized Warehouses. For the avoidance of doubt, if Distributor does not reference that any specific Products or any specific warehouse on the Distributor Liquidated Auction are sourced from Supplier or Supplier’s affiliated entities, Distributor will not need to utilize the Device Grades in its description of the Products to Purchasers. 

8.0   R2 Standard. Notwithstanding anything to Section 8 (Environmental Issues) of the Agreement to the contrary, all references to the R2 Standard shall be interpreted to mean the then-current R2 Standard.

9.0   No Contact. In addition to Buyer’s Confidentiality obligations under Section 14 (Confidentiality) of the Agreement, regarding any Products purchased from Seller, Buyer agrees that it will not contact: (i) any clients of Seller,(ii) any other previous owner of the Products, nor (iii) any other third party.