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RETURN AUTHORIZATION REQUIRED FOR ALL RETURNS

Payment. Big D Communication shall issue an invoice upon shipment of Product(s) pursuant to this order. If specific terms are not specified, sales will be invoiced on shipment and invoices are due and payable in U. S. currency thirty (30) days from date of invoice. Failure by Customer to make payments when due may result in delay of other scheduled shipments. Customer shall pay Big D Communication interest on any overdue payments at a rate of 1.5 % per month. Nothing herein shall affect Big D Communication right to withhold its authorization of a Purchase Order or otherwise exercise its rights in the event of the Customer’s failure to make payment when due for Products previously invoiced Big D Communication shall be entitled to recover from Customer the costs and expenses incurred in connection with collecting the same (including without limitation costs of investigation and attorneys fees).

1.2 Taxes. Prices are exclusive of all federal, state, local and foreign taxes, levies, duties and assessments. Customer shall be responsible for the payment of all federal, state, local and foreign taxes, levies, duties and assessments on the Products.

1.3 Shipment. Shipments are F.O.B. Big D site, with title and risk of loss passing to Customer upon delivery to common carrier. Customer shall be responsible for all shipping, insurance and related charges. Big D shall not be liable for any delays in delivery for any reason.

1.4 License. Products purchased hereunder are licensed to Customer pursuant to an End User License Agreement provided with each Product to the End User.

1.5 Product Warranty. The warranty with respect to each Product is described in the warranty agreement provided with each Product to the End User. This is the only warranty offered by Big D, Big D does not extend to Customer any additional warranties, express or implied.

1.6 Limitation of Liabilities. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THE APPLICABLE PRODUCT WARRANTIES, BIG D  DISCLAIMS ALL WARRANTIES EXPRESS OR IMPLIED, WRITTEN OR ORAL, INCLUDING WITHOUT LIMITATION THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER’S SOLE REMEDY AND BIG D TOTAL LIABILITY, BASED UPON WARRANTY, CONTRACT, NEGLIGENCE, PRODUCT LIABILITY, TORT OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT OR ANY OF THE PRODUCTS, SHALL BE THE CORRECTION, REPAIR OR REPLACEMENT OF ANY DEFECTIVE PRODUCT OR, AT BIG D OPTION, THE PAYMENT OF ACTUAL DIRECT DAMAGES NOT TO EXCEED THE PAYMENTS PREVIOUSLY MADE BY CUSTOMER FOR THE INDIVIDUAL PRODUCT WITH RESPECT TO WHICH SUCH DAMAGES AROSE, OR NOT TO EXCEED PAYMENTS MADE BY CUSTOMER TO BIG D DURING THE PREVIOUS TWELVE (12) MONTHS, WHICHEVER IS LESS. IN NO EVENT BIG D BE LIABLE TO CUSTOMER OR ANY OTHER PERSON OR ENTITY FOR CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS OR USE DAMAGES) RELATING TO THE PRODUCTS OR THIS AGREEMENT.

1.7 Export Restrictions. Customer shall not export, directly or indirectly, the Product, or any other product or materials furnished by Big D hereunder, to any country for which the United States requires any export license or other governmental approval without first obtaining such license or approval. It shall be Customer’s responsibility to comply with any and all applicable export laws, rules and regulations and the import laws, rules and regulations. Customer shall defend and indemnify Big D from and against any and all damages, fines, penalties, assessments, liabilities, costs and expenses (including attorneys’ fees and expenses) arising out of any claim the Products or other Big D  products or materials were exported or otherwise shipped or transported by Customer in violation of applicable laws, rules and regulations.

1.8 Force Majeure. In the event that either party is delayed in the performance of any of its obligations under this Agreement by circumstances beyond such party’s reasonable control (including, for example, acts of God, war, action of any government, labor disputes and civil unrest), then the time for performance of it obligations so affected shall be extended by such period as is reasonable under the circumstances and no liability shall attach to such delay, provided that notice in writing shall have been given to the other party within seven days of the intervention of such circumstance.

1.9 Waiver. The failure of either party at any time to require performance by the other of any provision hereof shall in no way affect the right to require performance at any time thereafter, nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of any succeeding breach of such provision or as a waiver of the provision itself.

1.10 Severability. If any provision hereof is deemed illegal or unenforceable by a court of competent jurisdiction, such provision shall be modified as far as possible in accordance with the intention of the parties and if such modification is not possible, such provision shall be deleted. All other terms and provisions hereof shall continue to be in full force and effect.

1.11 Governing Law, Jurisdiction and Venue. This Agreement is made under and shall be construed in accordance with the laws of the state of Texas without regard to its conflict of laws provisions. Any action related to or resulting from this Agreement shall be tried in the courts located in Dallasdallas county Texastexas and each of the parties hereto consents and submits to the exclusive jurisdiction and venue of the courts located in Dallasdallas county Texas.texas. Each party hereto hereby waives any claims regarding personal jurisdiction, venue and inconvenient forum.