Terms and conditions
1. Sale of Goods.
Seller shall sell to Buyer and Buyer shall purchase from Seller the goods (the “Goods”) in the quantities and at the Prices (as defined in Section 7) set forth on the face of this purchase order acknowledgment and upon the terms and conditions set forth in these Terms and Conditions for Sale of Goods (the “Terms”).
Seller, may in its sole discretion, accept or reject any purchase order within two (2) business days of receipt of Buyer’s purchase order. Buyer agrees that only accepted and acknowledged purchase orders by Seller are binding by the parties and Buyer acknowledges its acceptance and agreement to these Terms governing the sale of the Goods (“PO”). At Seller’s sole discretion and approval which may be withheld, Buyer may cancel the accepted PO at any time prior to the of shipment Buyer will be responsible for any and all costs which cannot be mitigated using commercial reasonable efforts.
The Goods will be delivered in accordance with the times stated on the face hereof. Seller shall not be liable for any delays, loss or damage in transit Seller shall tender delivery of the Goods at Buyers shipping dock at Buyers facility (the “Delivery Point”) using Seller’s standard methods for packaging such Goods. Unless agreed otherwise, all Prices are DDP Destination, Incoterms 2010. Seller may, in its sole discretion, without liability or penalty, with notification to Buyer make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfilment of the quantity purchased under these Terms.
Seller will use commercially reasonable efforts to ship by the estimated shipping date but it shall not be responsible for any delay or any damage arising from a delay if Seller can demonstrate that the late delivery has not been caused by negligent behavior of Seller.
5. Title and Risk of Loss.
Title and risk of loss passes to Buyer when the Goods are placed at the disposal of the Buyer at the Delivery Point.
Buyer’s signed proof of delivery provided by the freight carrier will constitute Buyer’s acceptance of the Goods.
7. Inspection and Rejection of Nonconforming Goods.
(a) Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing within five (5) days of delivery of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as required by Seller. “Nonconforming Goods” means only the following: (i) Goods shipped is different than identified on PO; or (ii) Good’s label or packaging incorrectly identifies its contents.
(b) If Buyer timely notifies Seller of any Nonconforming Goods within 5 days of delivery, Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods. Buyer shall obtain a return material authorization from Seller and shall ship, at Sellers expense and risk of loss, the Nonconforming Goods to Seller’s facility as directed by Seller. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Buyer’s shipment of Nonconforming Goods, ship to Buyer, at Seller’s expense and risk of loss, the replaced Goods to the Delivery Point.
(c) Buyer acknowledges and agrees that the remedies set forth in Section 7(b) are Buyer’s exclusive remedies for the delivery of Nonconforming Goods.
8. Returned Goods.
The Goods maybe returned by Buyer only with prior written authorization of Seller (at the sole discretion of Seller). Unless otherwise indicated or as mutually agreed in writing, a return authorization must be requested within thirty (30) calendar days from original date of shipment of the Goods, and is valid for thirty (30) days from date of issue. All returned Goods must be in re-sellable condition and in the original sealed package in order to qualify for a credit. Any applicable credit shall be issued based on the price in effect at the time of return. Unless agreed to in writing, all Goods accepted for return will be shipped at Buyers expense freight prepaid with tracking number to Seller, and the shipment must include all parts, manuals, and any other items packaged with the original Goods packaging. Seller will not take ownership of any returned Goods until they are received, inspected and found to be acceptable for return by Seller. A 20% restocking fee, unless the parties agree otherwise, will be charged to Buyer unless mutually agreed upon in writing with Seller.
Buyer shall purchase the Goods from Seller at the price[s] (the “Price[s]”) set forth on the face of the PO acknowledgment. All Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel or real or personal property or other assets. Products will be billed at the Prices (in United States dollars) in effect at the time of shipment. Prices for undelivered Product may change at any time, including, without limitation, in the event of any increase in Seller’s cost, change in market conditions or any other causes beyond Seller’s reasonable control. Seller makes every effort to provide current and accurate information relating to the Goods and Prices but does not guarantee the accuracy of any such information. Further, Seller relies on the original manufacturer or reseller authorized by the manufacturer to provide any product warnings related to the use of the Goods and/or chemicals that may be in the Goods, including, but not limited to safe harbor warnings under California’s Safe Drinking Water and Toxic Enforcement Act (commonly known as Proposition 65). Information relating to the Goods is subject to change without notice. Prices are subject to change at any time prior to Seller's completion of this PO.
10. Payment Terms.
Unless otherwise agreed to in writing, Buyer shall pay all invoiced amounts due to Seller within thirty (30) days from the date of Seller’s invoice. Buyer shall make all payments hereunder by wire transfer and in US dollars. Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees.
11. No Set-off.
Buyer shall not, and acknowledges that it will have no right, under these Terms, any other agreement, document or law, to withhold, offset, recoup or debit any amounts owed (or to become due and owing ) to Seller or any of its affiliates, whether under these Terms or otherwise, against any other amount owed (or to become due and owing) to it by Seller or its affiliates, whether relating to Seller’s or its affiliates’ breach or non-performance of this PO or any other agreement between Buyer or any of its affiliates, and Seller or any of its affiliates, or otherwise.
(a) SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (iii) WARRANTY OF TITLE; OR (iv) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
(b) Products manufactured by a third party (“Third Party Product”) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Goods. The warranty for Third Party Product will be that warranty offered by the manufacturer of the Third Party Product. For the avoidance of doubt, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (iii) WARRANTY OF TITLE; OR (iv) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
13. Limitation of Liability.
(a) IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, AND/OR IN CONNECTION WITH ANY BREACH OF THESE TERMS, REGARDLESS OF (i) WHETHER SUCH DAMAGES WERE FORESEEABLE, (ii) WHETHER OR NOT SELLER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (iii) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND (iv) THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS PO, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS SOLD HEREUNDER, OR $50,000.00 USD, WHICHEVER IS LESS.
14. Compliance with Law.
Buyer is in compliance with and shall comply with all applicable laws, regulations and ordinances. Buyer has and shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this PO.
Buyer shall indemnify, defend and hold harmless Seller and its officers, directors, employees, agents, affiliates, successors and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, fees and the costs of enforcing any right to indemnification under these Terms and the cost of pursuing any insurance providers, incurred by Indemnified Party, arising out of or resulting from (i) any claim of a third party arising out of or occurring in connection with the Goods purchased from Seller, or (ii) Buyer’s negligence, willful misconduct or breach of these Terms, or (iii) use of Goods not in accordance with its specifications. Buyer shall not enter into any settlement without Seller’s or Indemnified Party’s prior written consent.
In addition to any remedies that may be provided in these Terms, Seller may terminate this PO with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under these Terms; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
17. Confidential Information.
All non-public, confidential or proprietary information of Seller, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with these Terms is confidential, solely for the use of performing this PO and may not be disclosed or copied unless authorized by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is: (i) in the public domain; (ii) known to the Buyer at the time of disclosure; or (iii) rightfully obtained by the Buyer on a non-confidential basis from a third party.
18. Entire Agreement.
This Acknowledgement, including and together with any related exhibits, schedules, attachments and appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter. The sale of the Goods is expressly conditioned upon Buyer’s assent to these Terms.
Neither Party shall incur any liability whatsoever for any damage, loss or expenses of any kind suffered or incurred by the other due to any expiration or permitted termination of this PO. The following Sections shall survive expiration or termination of this PO: 12 (Warranty), 13 (Limitation of Liability), 15 (Indemnification) and 17 (Confidentiality).
If any term or provision of these Terms is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction.
No claim or right arising out of the breach of these Terms by Buyer can be discharged by a waiver of the claim or right by Seller unless the waiver is supported by consideration and is in writing signed by Seller.
Buyer shall not assign its rights or obligations under these Terms without the advance written consent of Seller. Seller may assign its rights under these Terms to a subsidiary or affiliate upon written notice to Buyer.
23. Choice of Law and Forum.
This PO shall be governed by and interpreted in accordance with the laws of the State of California. Except with respect to enforcing claims for injunctive or equitable relief, any dispute, claim or controversy arising from this PO or its interpretation, application, breach, termination, or validity, will be submitted for resolution by binding arbitration in accordance with the Comprehensive Arbitration Rules & Procedures of JAMS. The arbitration will be held in Santa Clara County, California, and it shall be conducted in the English language. Judgment on any award in arbitration may be entered in any court of competent jurisdiction. For the enforcement of claims for injunctive or equitable relief, the parties hereby consent to the personal and exclusive jurisdiction and venue of the California state courts and the Federal courts located in Santa Clara County, California. IN THE EVENT OF ANY DISPUTE BETWEEN THE PARTIES, WHETHER IT RESULTS IN PROCEEDINGS IN ANY COURT IN ANY JURISDICTION OR IN ARBITRATION, EACH OF THE PARTIES HEREBY KNOWINGLY AND VOLUNTARILY, AND HAVING HAD AN OPPORTUNITY TO CONSULT WITH COUNSEL, IRREVOCABLY WAIVE ALL RIGHTS TO TRIAL BY JURY, AND AGREE THAT ANY AND ALL MATTERS, ACTIONS, PROCEEDINGS, OR COUNTERCLAIMS SHALL BE DECIDED BY A JUDGE OR ARBITRATOR WITHOUT A JURY TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW. To the extent applicable, in the event of any lawsuit between the parties arising out of or related to this PO, the parties agree to prepare and to timely file in the applicable court a mutual consent to waive any statutory or other requirements for a trial by jury.
24. Force Majeure.
Any delay or failure of Seller to perform its obligations under these Terms will be excused to the extent that the delay or failure was caused directly by an event beyond such Party’s control, without such Party’s fault or negligence and that by its nature could not have been foreseen by such Party or, if it could have been foreseen, was unavoidable (which events may include natural disasters, embargoes, explosions, riots, wars, acts of terrorism, strikes, labor stoppages or slowdowns or other industrial disturbances, and shortage of adequate power or transportation facilities).
25. Relationship of the Parties.
In fulfilling its obligations under this PO, each Party shall be acting as an independent contractor. This PO does not make either Party the employee, agent, or legal representative of the other. Nothing herein shall be deemed to establish a partnership, joint venture, association or employment relationship between the Parties.