1. ACKNOWLEDGEMENT: Except where a Purchase Order (“Order”) is issued pursuant to the terms and conditions of a master document, such Order becomes a binding contract subject to these terms and conditions when accepted by Seller by acknowledgment of the Order or by Seller’s performance (notwithstanding the terms of any order acceptance, quote, invoice or other document at variance with the terms of an Order).
  2. CERTAIN DEFINITIONS: “Seller” is the entity set forth on the front of an Order, or in lieu thereof, the entity to whom an Order is addressed. “Buyer” means Consolidated Communications Enterprise Services, Inc. or a specific subsidiary(ies) thereof, if such entity is indicated on the front of an Order (individually or collectively, “Consolidated Communications”), as applicable. “Product(s)” means the items (including software) ordered by an Order that are provided by Seller to Buyer. The term also encompasses associated articles, materials, drawings, data, information and property. “Services” means, individually or collectively, any of the services set forth in an Order. Seller and Buyer are hereafter referred to as the “Parties.” “Affiliate” means a commonly controlled parent, affiliate or subsidiary of a party.
  3. PRICE AND TAXES: Any price specified in the Order is fixed and not subject to increase, unless otherwise expressly stated and agreed to by Buyer. Seller’s prices are exclusive of any federal, state or local sales, use or excise taxes levied upon, or measured by the sale, the sales price, or use of Products supplied under an Order (“Taxes”). Buyer shall be liable for and shall reimburse Seller for Taxes applicable to Products or Services provided pursuant to an Order. Taxes payable by Buyer shall be separately stated in Seller's invoices and shall not be included in Seller's prices. Buyer shall not be liable for any Taxes for which a valid exemption certificate acceptable to the applicable state or local taxing authorities is furnished by Buyer to Seller. Buyer's Order may provide Seller additional tax instruction as allowed by law including, but not limited to, Buyer's accrual and payment of taxes and/or special jurisdictional exemptions. Buyer shall be entitled at all times to set off any amount owed by Buyer or its affiliates to Seller.
  4. BILLING AND PAYMENT TERMS: Seller shall invoice Buyer for each Product shipment made or Service rendered at the address listed on the Order (unless another address is specified in writing by Buyer). Invoices shall include, but not be limited to: (i) Order number; (ii) Order line number; (iii) Product or Service identification number; (iv) ship to address; (v) quantity of Product shipped and billed; (vi) description of Services rendered (vii) net invoice amount; (viii) net unit cost; (ix) itemized Taxes, and (x) any special instructions requested by Buyer. For Products, payment of all undisputed charges shall be due thirty (30) days from the date of receipt of the Products, or receipt of Seller's invoice, whichever occurs later. For Services, payment of all undisputed charges shall be due thirty (30) days from completion and acceptance of such Services by Buyer, unless otherwise stated on the front of the Order. All payments shall be made in U.S. Dollars and made via check, ACH transfer, or other mutually agreed method.
  5. CHANGES: Buyer may, by written change order, make any changes that are consistent with the general scope of an Order. If any such change affects the amount due or the time of performance under an Order, Seller shall notify Buyer in writing of such change within ten (10) days of receipt of the change order. Otherwise, Seller will be deemed to have accepted the change order. If Seller timely notifies Buyer of a change in the amount due or the time of performance, neither party shall be bound by the change unless and until the change in amount due and time of performance has been agreed to in writing by the Parties. If the Parties do not agree in writing to the change in amount due or time of performance, Buyer may terminate all or any part of the Order; otherwise, the original terms of the Order shall apply.
  6. DELIVERY OF PRODUCTS: Delivery of Products will be made in the quantities and at the times specified in an Order. If Seller fails to timely deliver the Products, Buyer may, without limitation of its other rights under an Order, direct expedited routing of the Products, and any resulted excess costs incurred must be paid by Seller. Buyer is not liable for Seller’s commitments or production arrangements that exceed the amount of or in advance of the time necessary to meet an Order’s delivery schedule. Products that are delivered in advance of schedule may, at Buyer’s option, either (i) be returned at Seller’s expense for scheduled delivery or (ii) have payment withheld by Buyer until the date that Products are actually scheduled for delivery. Unless instructed otherwise by Buyer, shipment of Products shall be made FOB Destination, prepaid and added to the invoice or as otherwise specified on the Order. If Seller is instructed by Buyer to ship Products prepaid with shipping costs and added to the invoice, subject to the following requirements, Seller shall select the carrier based on the best rate as negotiated by Seller, and Buyer shall only pay Seller’s net transportation costs that include, but are not limited to, all applicable discounts, allowances and refunds. If Products are shipped in any manner other than FOB Destination, Seller shall bear risk of loss until acceptance by Buyer in accordance with the terms of an Order. Seller shall place the Products, or cause the Products to be placed, with carriers of good national reputation fully insured for the replacement cost of the Products. Delivery or payment in accordance with the Order does not constitute acceptance by Buyer under an Order. Risk of loss of Products rests with Seller before delivery and acceptance by Buyer and with Buyer after delivery and acceptance by Buyer. Order numbers must appear on all correspondence, shipping labels and shipping documents, including packing slips, bills of lading, air bills and invoices.
  7. INSPECTION / ACCEPTANCE: All Products and Services ordered pursuant to an Order shall be subject to inspection by Buyer after delivery or performance to determine conformity with Buyer’s Order and Seller's advertised or published specifications. Buyer shall have a period of thirty (30) days following arrival of Products at the delivery destination specified by Buyer or completion of Services within which to inspect the Products or Services for conformity with the Order and Seller's advertised and published specifications and to provide Seller with written notice of any discrepancy or rejection unless a longer period has been agreed to by the parties. If the Products delivered or Services performed do not so conform, Buyer shall have the right to reject such Products or Services. Products that have been delivered and rejected, in whole or in part, shall be returned to Seller at Seller's risk and expense. Buyer shall notify Seller and arrange for the return of Products as required. Inspection or failure to inspect on any occasion shall not affect Buyer's rights under the "WARRANTY" provisions below or any other rights or remedies available to Buyer, whether at law or in equity. Buyer may withdraw acceptance in an appropriate case, e.g., a non-conformity is identified after acceptance or Seller does not cure a known non-conformity to Buyer’s satisfaction.
  8. RELATIONSHIP OF PARTIES; COMPLIANCE WITH LAW: Neither party undertakes by an Order or otherwise to perform or discharge any liability or obligation of the other party, whether regulatory or contractual, or to assume any responsibility whatsoever for the conduct of the business or operations of the other party. Nothing contained in an Order is intended to give rise to a partnership or joint venture between the Parties or to impose upon the Parties any of the duties or responsibilities of partners or joint venturers. In providing any Products and Services under an Order, Seller is acting solely as an independent contractor and not as an agent of Buyer. Persons furnished by the Seller shall be solely the employees or agents of Seller, shall be under the sole and exclusive direction and control of the Seller, and shall not be considered employees of the Buyer for any purpose. Seller shall be responsible for compliance with all laws, rules and regulations involving its employees or agents, including but not limited to employment, hours of labor, health and safety, working conditions and payment of wages. Seller shall also comply with all laws that apply to the safeguarding, protection, and disposal of personally identifiable information and Customer Proprietary Network Information as defined in Title 47, U.S.C. Seller is also responsible for payment of taxes, including federal, state, and municipal taxes chargeable or assessed with respect to its employees or agents, such as social security, unemployment, worker's compensation, disability insurance and federal and state income tax withholding.
  9. WARRANTIES: Seller warrants that Seller possesses and complies with all applicable permits and licenses, and complies with all requirements of applicable laws, orders, regulations and standards (“Provisions”) including, without limitation, Provisions applicable to Seller relating to equal employment opportunity, non-discrimination (based upon race, color, creed, religion, sex, age, disabilities, sexual preference, or national origin), wages and hours, occupational health and safety and immigration. [For certain covered federal contracts, see Section 21, below.] Seller warrants each Product for a period of one-hundred and eighty (180) days from the date the Product is accepted (“Product warranty period”), and warrants Services for a period of ninety (90) days from the date of acceptance of Services (“Services warranty period”) unless otherwise stated on the front of the Order. During the Product warranty period and the Service warranty period, Seller warrants as follows: (a) upon delivery of each Product to Buyer, and acceptance and payment by Buyer of the purchase price, all right, title (or right to use license in the case of software) and interest in the Product will pass to Buyer free of all liens, imperfections in title, claims, charges, damages, restrictions, or other encumbrances and Seller has all necessary rights and licenses to supply such Products or Services to Buyer;
    (b) all Products furnished shall be new (unless otherwise stated on the front of the Order), merchantable, free from defects in material and workmanship, fit for the ordinary purpose for which the Products are used, and shall conform to Seller's advertised and published specifications in effect at the time the warranty began;
    (c) the Products and Services will comply in all material aspects with all applicable Provisions which directly impose obligations upon any manufacturer, seller or installer of such Products and Services, including, but not limited to, environmental, health, fair labor, and safety laws, treaties, regulations, directives, and standards recognized in the industry, including those prepared by the International Standards Organization and any related to anti-bribery or kick-backs;
    (d) to the best of Seller’s knowledge, the Products and Service do not and will not, and Buyer’s use of the Products and/or Service, as represented by Buyer to Seller as of the time of the Order for such Product and/or Service, does not and will not infringe upon any patent, trademark, copyright, trade secret or other proprietary right of any third party; and, as of the date of Seller’s acceptance of the Order (the “ Order Date”), other than as disclosed in writing by Seller prior to the Order Date, (i) there is no actual suit pending against Seller by any such third party based upon an alleged violation of such right, and (ii) to the best of Seller's knowledge, there is no threatened litigation against Seller in which a reasonable probability exists that there is a violation of such right; and
    (e) Seller will perform the Services required by an Order in accordance with industry practices and standards generally applicable to such Services; provided, however, that where an Order specifies a particular standard or criteria for performance, this warranty is not intended to and does not diminish that standard or criteria for performance. Should the Products and/or Services not conform to the foregoing warranties, Seller shall, at its sole cost, repair or replace the defective or nonconforming Products, and promptly re-perform the defective or nonconforming Services. Seller shall reimburse Buyer for all direct expenses incurred by Buyer because the Product and/or Services are defective or nonconforming.
  10. INFRINGEMENT: Seller agrees to indemnify, defend and hold harmless Buyer and its Affiliates, shareholders, directors, officers, employees, contractors, agents and other representatives from all demands, claims, actions, causes of action, proceedings, assessments, losses, damages, liabilities, settlements, judgments, fines, penalties, interest, cost and expenses (including fees and disbursements of counsel) arising from or relating to any actual or alleged infringement or misappropriation of any patent, trademark, copyright, trade secret or any actual or alleged violation of any other intellectual property rights arising from or in connection with the Products provided or the Services performed under an Order regardless of whether such Products or Services form the entire basis or only a portion of the basis for such claims of infringement, misappropriation or violation. Notwithstanding anything to the contrary contained in an Order (including, but not limited to the indemnification provisions herein), the provisions of this Section shall govern the rights of Buyer and its Affiliates, shareholders, directors, officers, employees, contractors, agents and other representatives to indemnification for claims of infringement, misappropriation or violation of intellectual property rights.
  11. INDEMNIFICATION; INSURANCE: Seller shall indemnify, defend, and hold harmless Buyer and its Affiliates, officers, agents, and employees, from all claims, suits, actions, demands, damages, liabilities, expenses (including fees and disbursements of counsel), judgements, settlements and penalties of every kind arising from non-conforming or defective Products or any acts or omissions of Seller, its employees, subcontractors and agents in performing under an Order, including those based on personal injury, death, or property damage, and those based on strict liability in tort or products liability of any other kind. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE FOREGOING INDEMNITY SHALL APPLY TO ALL CLAIMS THAT ARISE FROM ANY NEGLIGENCE, MISCONDUCT OR OTHER FAULT OF SELLER. The obligations of this provision are in addition to Seller’s obligation to provide insurance and shall not be limited by any limitation on the amount or type of damages, compensation or benefits payable by Seller under applicable worker's compensation acts, disability benefits acts or any other employee benefit act.
    Buyer shall promptly notify Seller in writing of any suits, claims or demands covered by this indemnity. Promptly after receipt of such notice, Seller shall assume the defense of such claim with counsel reasonably satisfactory to Buyer. If Seller fails, within a reasonable time after receipt of such notice, to assume the defense with counsel reasonably satisfactory to Buyer, or if, in the reasonable judgement of Buyer, a direct or indirect conflict of interest exists between the Parties with respect to the claim, or if in the sole judgement of Buyer the assumption and conduct of the defense by Seller would materially and adversely affect Buyer in any manner or prejudice its ability to conduct a successful defense, then Buyer shall have the right to undertake the defense, compromise and settlement of such claim for the account and at the expense of Seller. Notwithstanding the above, if Buyer in its sole discretion so elects, Buyer may also participate in the defense of such actions by employing counsel at its expense, without waiving its rights to indemnification and defense by Seller. Seller shall not settle or compromise any claim or consent to the entry of any judgment or payment of any fine or penalty without the prior written consent of Buyer and without an unconditional release of all liability by each claimant or plaintiff to Buyer.
    Seller agrees to, and cause its subcontractors to, maintain during the term of an Order all insurance or bonds required by law or an Order, including, but not limited to (i) workers’ compensation and related insurance as prescribed by the law of the state in which Seller's services are performed and/or Products are delivered; (ii) employer's liability insurance with limits of at least two million dollars ($2,000,000) for each occurrence, and (iii) commercial general liability insurance including products liability, and, if the use of motor vehicles is required, commercial motor vehicle liability insurance, each with limits of at least two million dollars ($2,000,000) for combined single limit for bodily injury, including death, and/or property damage. Seller shall cause Buyer to be included as an additional insured under said policies and Buyer's coverage under such policies shall be primary. Seller waives its rights of subrogation against Buyer. Prior to the commencement of any work or upon request by Buyer, Seller shall furnish certificates or evidence of the foregoing insurance indicating the amount and nature of such coverage, the expiration date of each policy, and stating that no material change or cancellation of any such policy shall be effective unless prior written notice is given to Buyer.
  12. TERMINATION: Either party may terminate an Order, in whole or in part, due to a material breach or default of any of the terms, conditions or covenants of an Order by the other party, provided that such termination may be made only following the expiration of a ten (10) day period during which the other party has failed to cure such breach after having been given written notice of such breach.

    Either party may terminate an Order, effective immediately, without liability for its termination, upon written notice to the other party, if any of the following events occur: (i) the other party files a voluntary petition in bankruptcy; (ii) the other party is adjudged bankrupt; (iii) a court assumes jurisdiction of the assets of the other party under a federal reorganization act; (iv) a trustee or receiver is appointed by a court for all or a substantial portion of the assets of the other party; (v) the other party becomes insolvent or suspends its business; or (vi) the other party makes an assignment of its assets for the benefit of creditors, except as required in the ordinary course of business.

    In addition to the foregoing, Buyer may terminate an Order in whole or in part, without cause, effective immediately, upon written notice to Seller. Termination shall not affect any other purchase order placed, any fully paid up license granted to Buyer, Buyer’s rights as to the portions of the Order not terminated, or the portion of the Order already performed prior to such termination date. Upon termination of an Order without cause, Buyer shall not be liable to Seller, either for compensation or for damages of any kind or character whatsoever, whether on account of the loss by Seller of present or prospective profits on sales or anticipated sales, or expenditures, investments or commitments made in connection with the establishment, development or maintenance of Seller's business, or on account of any other cause whatsoever. Subject to the terms of an Order, the termination shall not prejudice the rights or liabilities of the Parties with respect to any Products or Services then delivered to Buyer in conformance with the terms of an Order or any indebtedness then owing by either party to the other party, or for any part of the Order that is not terminated.
  13. CONFIDENTIALITY: (a) Seller shall keep confidential any technical, process or economic information derived from or contained in any drawings, specifications, software or other data ("Confidential Information") furnished by Buyer and shall not divulge, export or use, directly or indirectly, any such Confidential Information without obtaining Buyer’s express prior written consent; (b) unless otherwise expressly agreed in writing to the contrary, all Confidential Information supplied to Buyer by Seller shall be disclosed to Buyer on a non-proprietary basis and may be used and/or disclosed by Buyer without restrictions, unless (i) otherwise required by the U.S. Government Regulations referred to below, or (ii) the Buyer has executed a separate agreement restricting the use and disclosure of such Confidential Information; (c) unless otherwise expressly agreed in writing to the contrary and subject to Section 13 (d) below, all Confidential Information which is (i) supplied to Seller by Buyer, or (ii) obtained or developed by Seller in the performance of an Order or (iii) paid for by Buyer shall be proprietary to Buyer, shall be used only for purposes of providing materials or services to Buyer pursuant to the Order, and shall not be disclosed to any third party without Buyer's express prior written consent. All such Confidential Information shall be promptly returned or provided to Buyer on request; and (d) unless otherwise expressly agreed in writing to the contrary, any invention or intellectual property first made or conceived by Seller in performance of an Order that was derived from or based on the use of information supplied by Buyer shall be considered to be the property of Buyer, and Seller shall execute such documents necessary to protect Buyer's title thereto. The Parties further agree to submit to one another, for written approval, all advertising, sales promotion, press releases and other publicity matters relating to the Product furnished or the Services performed pursuant to an Order, when its respective name or mark is mentioned or language from which the connection of said name or mark may be inferred or implied. The Parties further agree not to publish or use any such publicity matters without such prior written approval. Any approval or consent under this Section shall not be unreasonably withheld or delayed.
  14. DISPUTE RESOLUTION: In the event any claim or dispute of any kind or nature whatsoever arises out of the Order (a "Dispute"), either party may request that the parties meet within ten (10) business days of such request and seek to resolve the Dispute by negotiations of the appropriate officers of each party, with the request for resolution being passed to each officer at the next higher level in authority, in turn. If the Dispute is not settled through such negotiation within ten (10) business days of the first such meeting, either of the parties may request that the parties then attempt in good faith, to settle the Dispute through non-binding mediation under the Commercial Mediation Rules of the American Arbitration Association ("AAA”). If the parties cannot settle the Dispute through such mediation, then either party shall be free to pursue all rights and remedies available at law and/or in equity. If the parties mutually agree to resolve a Dispute arising out of or relating to an Order through arbitration, then the dispute shall be resolved by arbitration by a single arbitrator engaged in the practice of law, in accordance with the applicable rules of the AAA, and any judgment upon the award rendered by the arbitrator may be entered into any court having jurisdiction thereof, except that the right of either party to indemnification or contribution may, at the sole option of the party entitled to indemnification or contribution, be enforced in a court having jurisdiction thereof through any allowable procedure. The arbitrator shall not have authority to award punitive damages but may award attorneys’ fees and other costs of arbitration to the prevailing party. Otherwise, each party shall bear its own costs and attorneys' fees, and shall share equally in the fees and expenses of the arbitrator.
  15. ASSIGNMENT: Seller may not assign any rights or delegate any of its obligations that are due or that become due under an Order without the prior written consent of Buyer. Any assignment or delegation by Seller without such consent shall be void and Seller shall promptly notify the Buyer in writing in advance of any organizational changes planned by Seller, including name or ownership changes, mergers or acquisitions.
  16. ENTIRE AGREEMENT: An Order, together with its Exhibits attached hereto (if applicable) constitutes the entire agreement between the Parties and cancels all prior and/or contemporaneous agreements, unless otherwise specifically referenced on the front of an Order, in which case the referenced agreement will control, whether written or oral, with respect to the subject matter of an Order. No other terms and conditions or changes and modifications shall bind Buyer unless agreed to in writing by a duly authorized representative of Buyer. THE ORDER SHALL PREVAIL OVER, AND SHALL GOVERN THE TERMS OF THE PURCHASE OF PRODUCTS AND SERVICES NOTWITHSTANDING, THE TERMS OF ANY ORDER ACKNOWLEDGEMENT, QUOTE, INVOICE OR OTHER DOCUMENT OF THE PARTIES VARYING OR CONFLICTING WITH THE TERMS OF AN ORDER, EXCEPT TO THE EXTENT THAT THE SAME IS EXECUTED BY DULY AUTHORIZED REPRESENTATIVES OF THE PARTIES AND EXPRESSLY STATES THAT SUCH DOCUMENT MODIFIES OR AMENDS AN ORDER.
  17. FORCE MAJEURE: Neither party shall be responsible for any delay or failure in performance of any part of an Order to the extent that such delay or failure is caused by fire, flood, explosion, war, embargo, government requirement, civil or military authority, acts of God, or any other circumstances beyond its reasonable control and not involving any fault or negligence of the party affected (“Condition”). If any such Condition occurs, the party delayed or unable to perform shall promptly give written notice to the other party and work diligently to resolve such delay or failure, and if such Condition remains at the end of thirty (30) days, the party affected by the other party's delay or inability to perform may elect to (i) terminate such Order or part thereof, or (ii) suspend the Order for the duration of the Condition, and if Buyer is the suspending party, buy elsewhere comparable material to be sold under the Order, and apply to any commitment the purchase price of such purchase, and resume performance of the Order once the Condition ceases, with an option in the affected party to extend the period of an Order up to the length of time the Condition endured.
  18. GOVERNING LAW; VENUE: The construction, interpretation and performance of an Order shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to its conflict of law rules. The application of the U.N. Convention on Contracts for the International Sale of Products is specifically excluded from an Order. If any action or proceeding arising in connection with an Order, to the fullest extent allowed by law, the parties agree to bring any legal proceeding related thereto in U.S. District Court for the federal judicial, or absent federal court jurisdiction, in a state court of competent jurisdiction in Coles County, Illinois. The parties consent to the exclusive personal jurisdiction of any venue in the court located in the county or federal juridical district chosen in accordance with the foregoing. If, for any reason, any provision of the Order or these Terms and Conditions shall be finally determined to be invalid, void or unenforceable by a court or regulatory body of competent jurisdiction, the remaining provisions shall remain in full force and effect and shall in no way be affected, impaired or invalidated unless removal of the provision in question results in frustration of the purpose of the Order or these Terms and Conditions.
  19. NON-WAIVER: No course of dealing or failure of either party to strictly enforce any term, right, or condition of an Order will be construed as a waiver of such term, right, or condition. Any waiver by Buyer will only be in writing and will waive no succeeding breach of a term, right or condition or the term, right or condition.
  20. NOTICES: Except as otherwise provided herein, any notice or demand given concerning an Order shall be in writing and shall be given or made by certified or registered mail, express mail or other overnight delivery service, or hand delivery, in each case with proper postage and other charges paid, and addressed to Seller at Seller’s address set forth on the first page of the Order and to Buyer at Buyer’s address for invoicing. The Parties also may agree in writing to accept identified types of notice or demand by facsimile or email sent to a recipient-designated number or address.
  21. CERTAIN COVERED FEDERAL CONTRACTS: Seller shall comply with the following terms and conditions in its performance under an Order, when the Order is related to any federal contract or compliance is otherwise required by federal law and/or regulation. Seller agrees to cause any subcontractor involved in performance also to comply. These provisions apply whether or not included in any individual Order: Compliance with: 41 CFR §60-1.4(a); 41 CFR §60-300.5(a); 41 CFR §60-741.5(a) and 29 CFR Part 471, Appendix A to Subpart A. Seller must abide by non-segregation regulations at 41 CFR §60-1.8 and any applicable affirmative action obligations as required by 41 CFR §60-1.40(a)(2). Seller and any Seller subcontractor shall abide by the requirements of 41 CFR 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, disability or veteran status.
  22. MISCELLANEOUS: If any of the provisions of an Order shall be held invalid or unenforceable, then such invalidity or unenforceability shall not invalidate or render unenforceable the entire Order. The headings of the sections are inserted for convenience only and are not intended to affect the meaning or interpretation of an Order. The respective obligations of the Parties under an Order that by their nature would continue beyond the termination, cancellation or expiration of an Order shall survive any such termination, cancellation or expiration, including, but not limited to, obligations to indemnify, insure and maintain confidentiality, and continued availability of Product support. The rights and remedies of the Buyer provided in this clause shall not be exclusive and are in addition to any other rights and remedies provided by law or under any Order. Subject to the terms herein, the prevailing party in any litigation with respect to an Order or a breach thereof shall be entitled to recover, in addition to any other remedy, reimbursement for reasonable attorneys' fees, court costs, costs of investigation and other related expenses incurred in connection therewith.