Terms & Conditions

United States

This document contains the terms and conditions that apply to Customer's purchases of Products from Datawave, LLC. Acceptance of Customer's order is based on these terms and conditions of sale applying. By accepting delivery of products from Datawave, Customer agrees to be bound and to accept these terms and conditions. These terms and conditions shall apply unless Customer and Datawave have signed a separate purchase agreement with different terms and conditions which expressly control.

1. Terms of Sale: payment terms are net 30 days from invoice date with approved credit. If credit has not been established with Datawave, terms shall be designated as payment in advance. Datawave reserves the right at any time and for any reason to require payment in advance, or otherwise to modify, suspend, or terminate any credit terms previously extended to Customer. Datawave shall be entitled to refuse or delay shipments for failure by Customer to pay within terms any payments due Datawave, whether on this or any other contract between Datawave and Customer.

All shipments are F.O.B. Origin. The full purchase price shall be invoiced upon delivery to a common carrier. A 1.5% per month service charge, or the maximum permitted by law, whichever is less, may be added to delinquent accounts. In the event that it becomes necessary for Datawave to incur collection costs to collect any amount due and payable, Customer agrees to pay such additional collection costs, charges, and expenses, including attorney's fees if the account is placed in the hands of an attorney or an agency for collection.

Prices are subject to change without notice. Payments should be made according to the instructions on the face of the invoice, based on one of the forms of payment described in section 3 of this document.

2. Order Placement: Datawave will accept orders in person over the phone, via fax or via mail. To place an order via telephone, please contact your Datawave sales representative at +1(801) 331-8781 between the hours of 8:00 a.m. – 5:00 p.m. MST (GMT-7). To inquire about creating a sales order, please email sales@datawavewireless.com

3. Payment for Hardware: acceptable forms of payment include credit card payment through our online store or via a sales associate (VISA, American Express). All payments are in United States of America (USD) currency only.

4. Shipping Times, Charges and Taxes on Hardware: orders received before 2 p.m. MST (GMT -7) will be shipped the same business day via UPS or FedEx if all items are in stock. Orders received after 2 p.m. will be processed for shipment the following business day. All orders are delivered Monday through Friday, unless special arrangements are made with a Datawave sales representative.

Separate charges for shipping (UPS, FedEx, DHL or USPS rates apply) will be shown on the invoice(s). Datawave’s preferred carrier is UPS and will use their standard shipping rates.

Unless Customer provides Datawave with a valid and correct tax exemption certificate applicable to the product ship-to location prior to Datawave's acceptance of the order, Customer is responsible for sales and all other taxes associated with the order. If applicable, a separate charge for taxes will be shown on the invoice.

5. International Customers:Datawave is not responsible for any brokerage, customs fees, or country taxes. The actual value of all orders is indicated on the invoice, and restatements using lower values are not permitted.

6. Title and Risk of Loss: title to products and risk of loss passes from Datawave to Customer upon shipment from Datawave's facilities and delivery of product to a common carrier. Title to software will remain with the applicable licensor(s).

8. Limited Warranty: (a) Datawave warrants that Datawave-branded products will be free from defects in materials and workmanship for a period of one (1) year from the date of shipment with respect to hardware and will materially conform to their published specifications for a period of one (1) year with respect to software. Datawave does not warrant that the software or any portion thereof is error free. Datawave will have no warranty obligation with respect to Products subjected to abuse, misuse, negligence or accident. If any software or firmware incorporated in any Product fails to conform to the warranty set forth in this Section, Datawave shall provide a bug fix or software patch correcting such non-conformance within a reasonable period after Datawave receives from Customer (i) notice of such non-conformance, and (ii) sufficient information regarding such non-conformance so as to permit Datawave to create such bug fix or software patch. If any hardware component of any Product fails to conform to the warranty in this Section, Datawave shall, at its option, refund the purchase price less any discounts, or repair or replace non-conforming Products with conforming Products or Products having substantially identical form, fit, and function and deliver the repaired or replacement Product to a carrier for land shipment to customer within a reasonable period after Datawave receives from Customer (i) notice of such non-conformance, and (ii) the non-conforming Product provided; however, if, in its opinion, Datawave cannot repair or replace on commercially reasonable terms it may choose to refund the purchase price. Repair parts and replacement products may be reconditioned or new. All replacement products and parts become the property of Datawave. Repaired or replacement products shall be subject to the warranty, if any remains, originally applicable to the product repaired or replaced. Customer must obtain from Datawave a Return Material Authorization Number (RMA) prior to returning any Products to Datawave. Products returned under this Warranty must be unmodified.

Datawave reserves the right to repair or replace products at its own and complete discretion. Customer must obtain from Datawave a Return Material Authorization Number (RMA) prior to returning any products to Datawave. Products returned under this Warranty must be unmodified and in original packaging. Datawave reserves the right to refuse warranty repairs or replacements for any products that are damaged or not in original form.

(b) As a condition to Datawave's obligations under the immediately preceding paragraphs, Customer shall return Products to be examined and replaced to Datawave's facilities, in shipping cartons which clearly display a valid RMA number provided by Datawave. Customer acknowledges that replacement products may be repaired, refurbished or tested and found to be complying. Customer shall bear the risk of loss for such return shipment and shall bear all shipping costs. Datawave shall deliver replacements for Products determined by Datawave to be properly returned, shall bear the risk of loss and such costs of shipment of repaired products or replacements, and shall credit Customer's reasonable costs of shipping such returned Products against future purchases.

(c) Datawave's sole obligation under the warranty described or set forth here shall be to repair or replace non-conforming products as set forth in the immediately preceding paragraph, or to refund the documented purchase price for non-conforming Products to Customer. Datawave's warranty obligations shall run solely to Customer, and Datawave shall have no obligation to customers of Customer or other users of the Products.

Limitation of Warranty and Remedies.
THE WARRANTY SET FORTH HEREIN IS THE ONLY WARRANTY APPLICABLE TO PRODUCTS PURCHASED BY CUSTOMER. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY DISCLAIMED. YOU ACKNOLWEDGE AND AGREE THAT THE PRODUCTS AND SERVICES FURNISHED BY DATAWAVE ARE NOT GUARANTEED TO BE UNINTERRUPTED OR ERROR FREE. ADDITIONALLY, YOU AGREE THAT WE ARE NOT LIABLE FOR PROBLEMS CAUSED BY YOU OR A THIRD PARTY; BY WIRELESS CARRIERS, DATA CENTERS, BUILDINGS, ACCIDENTS, HILLS, NETWORK CONGESTION, TUNNELS, TOWERS, WEATHER OR OTHER THINGS WE DON'T CONTROL; OR BY ANY ACT OF GOD. FURTHERMORE, DATAWAVE SPECIFICALLY DISCLAIMS ANY AND ALL LIABILITY AND WARRANTIES, IMPLIED OR EXPRESSED, FOR USES REQUIRING FAIL-SAFE PERFORMANCE IN WHICH FAILURE OF A PRODUCT COULD LEAD TO DEATH, SERIOUS PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE SUCH AS, BUT NOT LIMITED TO, LIFE SUPPORT OR MEDICAL DEVICES OR NUCLEAR APPLICATIONS. PRODUCTS ARE NOT DESIGNED FOR AND SHOULD NOT BE USED IN ANY OF THESE APPLICATIONS. IF YOU NEVERTHELESS CHOOSE TO USE THE PRODUCTS, SOFTWARE, AND/OR SERVICES IN SUCH ACTIVITIES, YOU MUST NOT RELY ON THEM AS YOUR SOLE OR PRIMARY SOURCE OF MONITORING.

DATAWAVE'S TOTAL AGGREGATE LIABIITY WHETHER IN CONTRACT, IN TORT, UNDER ANY WARRANTY, IN NEGLIGENCE OR OTHERWISE SHALL NOT EXCEED THE PURCHASE PRICE PAID BY CUSTOMER FOR THE PRODUCT. UNDER NO CIRCUMSTANCES SHALL DATAWAVE BE LIABLE FOR SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES. THE PRICE STATED FOR THE PRODUCTS IS A CONSIDERATION IN LIMITING DATAWAVE'S LIABILITY. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THIS AGREEMENT MAY BE BROUGHT BY CUSTOMER MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED.

9. Indemnification: Datawave shall defend or settle any claim, suit, or action against Customer based on an allegation that any Product purchased by Customer from Datawave infringes any third party's U.S. patent or copyright; provided, that Customer has made no modification or alterations to the product and that Customer gives Datawave prompt written notice of any claim or suit, sole authority to defend or settle as it sees fit, and full cooperation. Datawave may, at its sole option and expense (i) procure for Customer the right to continue using the product (ii) modify the product so that it is non-infringing (iii) procure a replacement product that has substantially the same functionality, or if none of the above options is reasonably available (iv) refund to customer the purchase price originally paid less a use credit for the period of use.

Datawave has no liability for any claim, suit or action based in whole or in part upon or arising out of compliance with Customer's designs, specifications or instructions, modification of the Hardware or Software, or the combination of the Hardware or Software with products or items not furnished by Datawave. THIS SECTION STATES DATAWAVE'S ENTIRE LIABILITY AND CUSTOMER'S EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM, SUIT, OR ACTION ALLEGING INFRINGEMENT OF ANY THIRD PARTY PATENT OR COPYRIGHT.

10. Order changes and cancellation policy:

  • Orders for standard products
    • A "Standard Product" is any product that is generally available for purchase from Datawave and that has not been customized in some way. Accepted purchase orders for Standard Products are non-cancellable and the items are non-returnable (NC/NR); however, upon request and with written acknowledgement, the following adjustments may be made:
      • For orders scheduled to ship 45 to 59 days from the current date, the quantity of each line in the order can be decreased by an amount up to 25% of the original quantity.
      • For orders scheduled to ship 60 to 89 days from the current date, the quantity of each line in the order can be decreased by an amount up to 50% of the original quantity.
      • Orders scheduled to ship 90 days or more from the current date can be cancelled, in whole or in part, without penalty.
      • The quantity of any line item may, subject to Datawave's acceptance and subject to product availability, be increased.
  • Orders for Customized Products and Special Orders
    • A "Customized Product" is a Product that has been altered, at the request of the Customer, from its original form, fit or function. A "Special Order" is an order that exceeds the normal Datawave run rate for a particular product by 20%. Purchase orders accepted for Customized Products or Special Orders are non-cancellable and the items are non-returnable (NC/NR); however, upon request and with written acknowledgement, the following adjustment may be made:
      • For orders scheduled to ship within 59 days of the current date, the shipment date may be pushed out by a maximum of 30 calendar days from the original shipment date. The shipment date on an accepted Purchase Order may be pushed out only once.
  • General Provisions
    • Standard lead times apply to all orders.
    • Datawave may adjust pricing in cases where orders no longer meet the original annual volume commitments.
    • If the terms stated in this section conflict with terms in Datawave's written acceptance of a purchase order, the terms of the acceptance will control.

11. Thirty-Day Satisfaction Guarantee: Customers may return Datawave Products for a refund (less 15% restocking fee, sales tax, shipping/handling and any expedite fees) if Seller is contacted within thirty days of the Customer's receipt of the product. Customer may return Products for credit, exchange, or a refund. Returns after 30 days will be evaluated on a case-by-case basis. Customer must obtain from Seller a Return Material Authorization Number (RMA) prior to returning any products to Seller. Products must be returned unmodified and in original packaging. Seller reserves the right to refuse return rights for any products that are damaged or not in original form. Volume orders are subject to a restocking fee.

12. Software: all software and Firmware is owned by Datawave or a third party licensor who shall retain exclusive right, title and ownership of the software. Customer is granted a limited, personal, non-exclusive license, without the right to sublicense, to use the software only with the specific Datawave manufactured hardware that such software is intended to operate with or, if not for use with specific Datawave manufactured hardware, then for the use intended by the Product specification.

13. Governing Law. THIS AGREEMENT AND ANY SALES THEREUNDER SHALL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH. The United Nations Convention on Contracts for the International Sale of goods shall not apply. Customer agrees to comply with all applicable laws and regulations of the various states and of the United States. Datawave has separate terms and conditions governing resales and transactions outside the United States. Customer agrees to comply with all United States laws concerning export or re-export of products and related technology and documentation.

14. Export Restrictions. Customer agrees to comply with all applicable United States export control laws and regulations concerning export and re-export of Products, technology and documentation, including without limitation, the laws and regulations administered by the United States Department of Commerce and the United States Department of State.

15. Disputes. The parties agree that the courts of the State of Utah shall have exclusive jurisdiction over any claim, or dispute or controversy (whether in contract, tort or otherwise) against Datawave, its agents, employees, successors, assigns or affiliates arising out of or relating to this document, Datawave's Products advertising, or any related purchase. Customer agrees to appear in any such action and hereby consents to the jurisdiction of such court.

16. Force Majeure. Datawave shall not be liable for any damages or penalty for delay in delivery or for any other failure to perform in accordance with the terms and conditions hereof if such delay or failure to perform is due in whole or in part to factors beyond Datawave's reasonable control, including, but not limited to, delay in transportation or delay in delivery by Datawave's vendors.

17. Severability. Any waiver of or modification to the terms of this Agreement will not be effective unless executed in writing and signed by Datawave. If any provision of these terms and conditions are held to be unenforceable, in whole or in part, such holding shall not affect the validity of the other provisions of this document (in the event of any inconsistency between these terms and conditions and any other related agreements between Customer and Datawave, the terms of this document shall prevail unless any other agreement(s) are signed by both parties and state its/their terms and conditions control).

18. Entire Agreement. The terms and conditions set forth herein constitute the entire agreement between Datawave and Customer. Datawave's offer to sell is expressly limited to the terms stated herein. Datawave shall not be bound by any terms of Customer's order which add to, modify, or are in any way different from the terms set forth in this document.

Inquiries or questions relative to invoices for Datawave products should be directed to the sales department at e-mail: info@Datawave.com